THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES m- SCHOOL OF LAW ■r TRIAL EVIDENCE THE RULES OF EVIDENCE AND OF THE CONDUCT OF THE EXAMINATION OF WITNESSES In Trials at Common Law and in Equity as Established in the United States, with the Reasons for Them, A Concise Manual Adapted for Use at the Trial Table, By WILLIAM REYNOLDS, OF THE BALTIMORE BAR. "As the rules which guide all legal questions are comparatively few, and the instances which depend on tliem are numberless, and only by chance will any future instance be like any one which has gone before, he [the successful lawyer] learned the rules and how to apply them and let the instances take care of themselves." — Joel P. Bishof, CHICAGO: CALLAGHAN & COMPANY 1911 COPYRIGHT. 1911 By WILLIAM REYNOLDS T 1911 PREFACE This work is an enlargement of a little book written by me and published twenty- seven years ago entitled The Theory of the Law of Evidence as established in the United States. Its object, as then stated in its preface, was ''to provide for members of the bar and students an additional facility for acquiring such an accurate general knowl- edge of the rules of evidence and of the the- ory upon which they have been adopted as everj'' lam^er must carry in his head in order to be able to try cases with justice to his cli- ents." For this purpose it was undertaken to present, in the form of a brief treatise, the law of evidence as a complete scientific and rational system consisting of a series of rules, each one adopted for special reasons founded upon practical experience, but all directed to the common purpose of providing the best at- tainable method of getting at the truth in re- gard to controverted questions of fact with the highest degree of certainty compatible with the nature of judicial investigation. In doing this I endeavored to ordinarily supple- iii 66V?05 IV PREFACE ment these rules by a statement of the rea^ soning upon which they were founded, as af- fording the best method of explaining the proper application of them in particular cases, since it is much easier to remember one reason which commends itself to the in- telligence than to recall the decisions of the various cases that may seem most nearly analogous to the one on trial. The work has been long used with ac- ceptance by many practicing lawyers as a convenient vade mecum for the trial table, in which they can readily find a clear state- ment, supported by recognized authority, of the law applicable to almost any one of those questions of evidence which are at all likely to come up unexpectedly in the course of a trial. While a competent lawyer may in most cases be fully satisfied in his own mind as to what the answer to all such questions should be, he may at the same time often find him- self unprepared to state clearly off-hand the why and wherefore of his opinion, or to fur- nish, without a greater delay than could be al- lowed him in the course of a trial, an ade- quate authority to sustain it. It is largely for the purpose of affording assistance to escape the embarrassment to which a lawyer would be otherwise subjected if the judge PREFACE V should in such a case call for his authorities, that my book has been revised and added to, and is now offered to my brothers of the bar in its present form. It will, I think, upon examination, be apparent that there are not many of the questions of evidence likely to be raised unexpectedly in the course of a trial, for which there will not be found in this vol- ume, if not a direct categorical answer, at least a well established rule bringing them within its terms, and clearly showing how they ought to be decided upon principle. One question liable to be raised in every case at the conclusion of the plaintiff's testi- mony is, whether he has sustained the bur- den imposed upon him by law to produce evi- dence competent to prove every fact neces- sary to make out a prima facie case in his favor — for if he has failed to do this, he may be nonsuited on motion of the defendant. It is therefore important for the plaintiff's counsel to know for a certainty at that time whether he has inadvertently omitted the proof of any fact required to be established by him, and equally important for the de- fendant's counsel to know whether every such fact has been established by competent evidence. In Chapter I of Part III on the Burden VI PREFACE of Proof will be found a brief but comprehen- sive statement of all facts necessary to be proved, and of the character of the evidence by which they are usually established in al- most every form of action likely to be brought in ordinary practice. Such informa- tion which belongs rather to the domain of substantive law than that of the law of pro- cedure, is given sparingly if at all in most of the standard works on Evidence proper, and can generally only be found scattered about under various heads in the books on nisi prius practice or trial evidence. The convenience of having such a comprehensive statement at hand for ready reference at the trial table is obvious. The increased use during the last quarter of a century of typewritten carbon duplicates, telegrams, telephone messages, photographs, sciographs or X ray pictures, and phono- graphic records, as instruments of evidence, has made it necessary for the trial practi- tioner to be familiar with the rules applicable to the admission of testimony of this char- acter, and with the cases showing how the courts have applied these rules as occasions have arisen therefor. I have also endeavored to point out the principles on which all these cases have been decided with sufficient ful- PREFACE Vll ness for practical use in discussing intelli- gibly before the court how they should be ap- plied in the particular case on trial. In fine the purpose of the work may be briefly summarized as an endeavor to place at the ready command of every practitioner whatever information about the law of evi- dence he is most likely to have need of for immediate use at the trial table. William Reynolds. June 1, 1911. CONTENTS. INTRODUCTORY. Sec. Page. 1. Definitions 3 2. General division of the subject 4 PART I.— RELEVANCY. Chapter I. — Rules of Admission. Sec. Page. 3. What are facts in issue 7 4. Direct and indirect evidence S 5. Facts not directly in issue, but relevant thereto ... 9 6. Rules to determine the relevancy of certain classes of facts not directly in issue 9 7. Res gestae, or facts forming part of the same transaction; statements accompanying an act; conspiracy 11 8. Facts showing probable cause for existence or non- existence of fact in issue 15 9. Ordinary course of business 16 10. Natural effects likely to have been produced by ex- istence or non-existence of facts in issue; com- plaints; facts showing animiis; similar occur- rences showing intention 16 11. Facts explanatory of relevant facts 19 Chapter II. — ^Rui.es op Exclusion. 12. Res inter alios ; facts not directly in issue, nor relevant thereto as above stated, are inadmissible 21 iz X CONTENTS Sec. Page. 13. Not all facts connected with another by way of cause and effect necessarily relevant thereto ... 22 14. Character, hearsay and opinion generally irrelevant 23 15. Character irrelevant excepting in favor of a per- son indicted criminally, or when directly in issue 24 16. Hearsay excluded except in certain cases 26 17. Eeasons for the rule excluding hearsay 27 18. Two classes of exceptions to the rule 28 19. First class of exceptions — Admissions 30 20. How admissions may be made 32 21. The whole of a statement made at the time must be considered 33 22. Party bound by the admissions of — (a) his privies; (&) those whose interests he repre- sents; (c) those jointly interested with him; (d) those whom he has authorized to make ad- missions, or to whom he has referred a party for information 34 23. Offer of compromise not an admission 39 24. Admissions made under duress, excluded 40 . 25. Confessions not made voluntarily, excluded — What deemed involuntary 41 26. But a fact first discovered by means of an in- voluntary confession may be proved by other evidence 42 27. Sworn confessions made by an accused person while under examination before a magistrate, excluded as involuntary 43 28. How far modified by statutes permitting accused to testify, quoere 44 29. Confessions made under promise of secrecy or obtained by deception, not involuntary 45 30. Recitals of public facts in statutes or proclama- tions, and entries of facts made in oflicial registers, admissible in evidence 47 31. Grounds of admissibility 48 CONTENTS Zl See, Page. 32. Matters of general public history in accredited works by deceased or foreign authors — Almanacs — Maps 49 33. Entries in books of corporation admissible in certain cases 51 34. Records of judicial proceedings conclusive proof of the substantive facts recited 52 35. But not of the correctness of the decision ren- dered, except in certain eases 53 36. Eules regulating the admissibility and conclusive- ness of the judicial portions of records: (a) Admissible and conclusive as between the parties and their privies; 57 (h) Inadmissible in all other cases, except — 58 1st. That judgments declaratory uf the status of a person or thing are admissible, and generally conclusive proof of such status; and 58 2d. That adjudications upon questions in- volving custom and pedigree are admissible in certain cases as between others than parties or privies 58 37. "Why judgments declaratory of the status of a person or thing are always admissible to prove it 59 38. Who are parties to a judgment 60 39. Admissibility of record dependent upon whether court had jurisdiction, which may always be inquired into 61 40. Same doctrine applicable to foreign as well as domestic judgments 62 41. General reputation sometimes admissible in evidence 63 42. Second class of exceptions to rule excluding hearsay — Statements made under certain cir- Xll CONTENTS Sec. Page. cumstances by persons since deceased, insane or permanently beyond the reach of process. . 66 43. Evidence given in former proceeding or at earlier stage of same action 67 44. Dying declarations 69 45. Declarations made in the ordinary course of business 69 46. Declarations made against the interest of the declarant 72 47. Declarations of testator as to contents of his will 76 48. Declarations as to any public or general right or custom 77 49. Declarations as to matters of pedigree 79 50. Opinion excluded except in a few cases 83 51. Opinions formed from personal observation ad- missible when the best evidence that the nature of the case admits of 84 52. Opinions of experts on matters requiring study or experience, admissible 87 53. Opinion as to handwriting 90 PAKT II.— ON PROOF. Chapter I.— All Facts Must Be Proven Unless Judi- cially Noticed ob Admitted. Sec Page. 54. Facts must be proven by the best kind of ev- idence attainable 93 55. Courts disregard all facts not proven in the cause on trial, except in two cases 94 56. Facts judicially noticed 95 67. Facts expressly admitted by the parties, either by their pleadings or at the hearing ... . . 105 CONTENTS Xlll $•«, Page. Chapter II. — Oral Evidence. 58. All ultimate facts to be proven must be estab- lished by direct oral testimony, except in four enumerated cases 108 59. How oral evidence may be taken 110 60. Oral evidence must be direct but may be supple- mented by demonstration proof Ill 61. Photographs 113 62. Communication by telephone 116 63. Phonographic records 119 Chapter III. — When Oral Evidence Excluded. 64. Conclusive presumptions of law may not be con- tradicted by oral evidence — Conclusive pre- sumptions — Estoppels 121 65. Oral testimony excluded as to matters of which the law requires a full official record to be kept. 128 66. The contents of a written instrument can only be proved by production of the document itself, except in certain cases 130 67. Attested documents must be proved by at least one of the subscribing witnesses, if any such is alive or can be found 134 68. Exceptions to rule requiring attesting witnesses to be examined 136 69. The contents of public documents may be proved by copies — Certified copies 139 70. Rule requiring primary evidence of the contents of documents modified by statutes making certified copies admissible in evidence 143 71. Secondary evidence of documents received in cer- tain cases where party has shown his inability to produce the original in court — Notice to adverse party to produce documents 144 72. Degrees of secondary evidence recognized in America, but not in England 148 XtY CONTENTS See. Page. 73. Secondary evidence may be given of the general result of a collection of documents too nu- merous to be conveniently examined in court. . 149 74. Oral testimony may not be given to vary the terms of a written contract 150 75. This rule only extends to writings intended by the parties as a binding statement of their transactions 153 76. And to controversies between the parties to the instrument and those claiming under them. ... 158 77. How far the meaning of a writing may be ex- plained by oral testimony 160 PABT III.— ON THE PRODUCTION AND EFFECT OF EVIDENCE. Chapter I. — Burden of Proof. See. Page. 78. Burden of proof lies on the party substantially asserting the affirmative of the issue 165 79. Except where a disputable presumption of law exists in his favor 167 80. Or the subject matter of his allegation lies peculiarly within the knowledge of the other party 175 81. Burden of proof in particular classes of cases.. 178 82. Jurisdictional facts 179 83. Eight of plaintiffs to sue and liability of de- fendants to be sued in special characters, such as partners, executors, administrators, trustees, receivers, assignees, heirs, devisees, legatees or distributers, or as associations, or corporations, or as husband or wife 183 (a) Partners 183 (b) Executors and Administrators 185 CONTENTS XT Sea. Tage. (c) Trustees 187 (d) Eeceivers 189 (e) Assignees 192 (f) Heirs, Devisees, Legatees and Distrib- uters, 194. Wills 197 (g) Associations 199 (h) Corporations 201 (i) Husband and Wife 205 84. Burden of proof in actions ex contractu 209 85. Burden of proof in actions ex delicto 211 86. Special rules as to burden in particular form of action ex delicto 212 on case for negligence 213 against public officers for breach of duty.... 214 for deceit and fraud 214 for wrongful conversion of personal property. . 215 for trespass to personal property 216 for trespass to real property 216 for nuisances 217 for replevin 217 for assault and battery 218 for malicious prosecution 220 for false arrest and imprisonment 222 for slander or libel 224 for alienating affections of spouse 227 for enticing away a servant 228 for seduction 228 for criminal conversation 229 for ejectment 230 87. Burden of proof when limitation pleaded 230 88. When burden of proof on defendant 231 89. Quantity of evidence required to sustain burden, . 234 Chapter II. — Eight to Begin. 90. Party who begins must produce his entire case. . 239 91. Plaintiff has right to begin when the burden of XVi CONTENTS Sec. Page. any of the issues is on him, or he seeks sub- stantial unliquidated damages 241 Chapter III. — Competency of Witness. 92. All witnesses presumed competent unless ob- jected to — When objection must be made 244 93. What rendered a witness incompetent at common law — Want of mental capacity — Want of relig- ious belief — Interest — Being husband or wife of party 245 93a. Witnesses forbidden to testify as to certain mat- ters and privileged as to others 253 94. Confidential communications between husband and wife 254 95. Judges may not be examined as to certain mat- ters 254 96. Grand and petit jurors may not be examined as to their consultations 256 97. Communications made to public officers or grand jurors, with a view to criminal prosecutions, may not be disclosed 258 98. State secrets may not be disclosed 258 99. Parties to negotiable instruments incompetent to impeach them 259 100. Communication to legal adviser may not be dis- closed by him 260 101. Privilege of client as to disclosing communication made to legal adviser 262 102. Privilege as to facts tending to criminate witness 263 103. Privilege of government and state oflScials as to public matters 266 104. Cases where corroborative evidence required.... 266 105. Prosecutions for treason 267 106. Prosecutions for perjury 267 107. To contradict answer in equity called for upon oath 268 CONTENTS XVll Sec. Page. 108. Generally required to establish general usage or proof of adultery 268 109. Testimony of an accomplice should generally be corroborated to warrant conviction 268 Chapter IV. — Examination of Witnesses. 110. All witnesses must be examined upon oath or afl5rmation 270 111. How oral evidence may be taken 271 112. When and how objections to evidence may be made 273 113. Examination in chief — Leading questions 275 114. Eefreshing memory 279 115. Cross-examination — Questions affecting credibil- ity — Leading questions 281 116. How far answers on cross-examination may be contradicted 286 117. When proper foundation laid on cross-examina- tion, previous inconsistent statements may be proved 288 118. Previous inconsistent statements in writing may not be proved unless writing first shown to wit- ness or its absence explained 289 119. Re-examination — Restricted to explanation of statements on cross-examination — Leading ques- tions 290 120. Impeaching credit of witness, in what cases al- lowable 292 121. Proof of particular facts tending to show bias, or previous conviction of an infamous crime . . 295 122. Proof of general reputation for want of veracity. 297 Chapter V. — Production of Documents. 123. How party to suit may compel his adversary to produce documents 300 XVlll CONTENTS Sec. Page. 124. When an inspection of documents in the hands of opposite party will be allowed at common law 302 125. Statutory enactments upon this subject 303 126. When production or inspection of documents may be compelled in equity 304 127. Production of documents in hands of one not a party may be compelled by subpoena duces tecum 307 128. How documentary evidence is introduced 309 129. Effect of alteration or spoliation of documents. . 312 Chapter VI. — Production of Persons and Things. 130. Production of persons or things for inspection by court or jury 318 131. Power to compel parties to submit to personal examination 319 132. Power to seize and impound things to be used as evidence 320 PART IV.— ON THE CONDUCT OF THE EXAMINA- TION OF WITNESSES. Chapter I.^Examination in Chief. Sec. Page. 133. Examination of witnesses, an art 323 134. Object of examination in chief, and how accom- plished 325 135. The ordinary witness 325 136. Questions should be simple, short and delib- erately put 326 137. The swift witness 327 138. The hostile witness 328 CONTENTS ax Seo. Page. 1S9. Duties of opposing counsel during examination in in chief 329 140. Leading questions — Frivolous objections 330 Chapter II. — Cross-Examination, 141. Sergeant Ballatine's theory of cross-examination. 332 142. Never ask a question without a definite object . . 333 143. General character of cross-examination, how de- termined 334 144. Things to be avoided in cross-examination 336 145. Duties of opposing counsel during cross-examina- tion 338 Chapter III. — ^Ee-examination. 146. Purpose and scope of re-examination 340 147. Duties of opposing counsel during re-examination 341 THE RULES OF EVIDENCE AND OF THE CONDUCT OF THE EXAMINA- TION OF WITNESSES IN TRIALS AT COMMON LAW AND IN EQUITY AS ESTABLISHED IN THE UNITED STATES, AND THE REASONS FOR THEM. TRIAL EVIDENCE, INTRODUCTORY. § 1. Definitions.— As a judicial decision is nothing more than the application of the es- tablished principles of law to a given state of facts, it follows that whenever any tribunal pronounces a judgTQent it must necessarily assume the existence of certain facts. Unless the facts so assumed by the tribunal have taken place in its presence, it is obvious that it can acquire knowledge of their existence or non-existence only by means of information imparted to it upon the subject; and as it would be clearly impracticable to impose upon courts the labor of collecting such in- fonnation in regard to every case brought before them, experience has shown that the most convenient as well as efficacious method of administering justice is that courts, in de- termining questions of fact, should always, 4 INTRODUCTORY except in some matters hereafter to be no- ticed, be governed in making their decisions solely by such information as may have been produced before them by the parties to the proceeding in accordance with certain pre- scribed rules of law. If they were allowed to decide on impression or information acquired elsewhere, not only would it be impossible for a superior tribunal, the parties, or the public, to know on what ground the decision was rendered, but it might be founded on common rumor or something else equally untrust- worthy, which the party to whose prejudice it operated would have had no opportunity of confuting.^ The information thus im- parted to the court upon which to found its decision is called Evidence ; and the rules reg- ulating its admissibility, the method of its production, and its effects, constitute the Law of Evidence. §2. General division of the subject.— These rules of Evidence have been divided into three clases,^ namely those relating to iBest Ev., §§ 38, 88. 2 This classification, which has been adopted by Sir Jas. F. Stephen in his India Evidence Act and his Digest of the Law of Evidence, commends itself as more logical than that made by any other writer on the subject. INTRODUCTORY 5 I. Relevancy — by which is determined what facts may be received in evidence in any given case. II. Proof — by which are defined the means whereby the existence or non-existence of relevant facts may be made apparent to the court. III. Production and effect of evidence. These will now be considered in their order. PART I. RELEVANCY. CHAPTER I. RULES OF ADMISSION". §3. What are facts in issue.— Whatever facts are necessarily involved in any question submitted to a court for its determination are said to be '*in issue," and evidence as to their existence or non-existence is always relevant. Thus in the trial of an indictment for murder, the facts that the deceased came to his death by other than natural means, that those means were put into operation by the accused, and that he was actuated by malice in so doing, are all facts in issue because they are all necessarily involved in the charge of mur- der. So, also, in a suit for damages for a tort, the commission of the wrong by the de- fendant, as well as the extent of the injury inflicted, and the loss occasioned to the plain- tiff thereby, are facts in issue. Whenever any material fact is alleged in the pleadings 7 8 RELEVANCY [PART I of a cause by either party and is denied by the other, that fact is '*in issue;" but in or- der that a fact may be in issue it is not nec- essary that it be specifically alleged or denied in the pleadings; it is sufficient that it con- stitutes one of the component parts of a fact so alleged or denied. §4. Direct and indirect evidence.— Facts in issue may be proved either by direct evi- dence, or by indirect, otherwise called cir- cumstantial evidence. By direct evidence of a fact is meant the statements of persons who have perceived its existence by means of their senses, or the production of the thing itself before the court, where the fact to be proved is its present existence or condition. By indirect evidence is meant the proof of some other fact or facts from which, taken either singly or collectively, the existence of the particular fact in question may be in- ferred as a necessary or probable conse- quence. Facts not directly in issue, but which may be proved for the purpose of establish- ing the existence or non-existence of any fact in issue, are called * 'facts relevant to the is- sue.'* These facts relevant to the issue may be proved either by direct or indirect evi- dence in the same manner as a fact in issue, and so also may any facts which are relevant CHAP. l] RULES OF ADMISSION 9 to prove them, unless in the opinion of the judge the facts offered for this purpose are too remote from the issues on trial to be material.^ § 5. Facts not directly in issue, but relevant thereto.— Whenever any fact or series of facts would, if true, conclusively establish the ex- istence or non-existence of any fact in issue, or of any fact relevant thereto, such fact or series of facts is always relevant, and proof thereof may be given in evidence; but when the effect of proving a fact offered in evi- dence would only be to render more or less probable the existence or non-existence of a fact in issue or relevant thereto, then the question of its admissibility becomes one of much more difficulty, and must be deter- mined by the sound discretion of the judge under all the circumstances of the case, ac- cording to the degree of light which it would throw upon the matter in issue, subject, how- ever, to certain established rules by which some classes of facts are required to be always admitted as relevant while some other classes are excluded as irrelevant. §6. Rules to determine the relevancy of 3 Ste. Dig., art. 2 ; Tay. Ev., § 316 ; Alexander v. United States, 138 F. S., 353, 356. 10 RELEVANCY [PART I certain classes of facts not directly in issue.— These rules are to a certain extent arbitrary, and are mostly founded upon the result of practical experience rather than based upon any strict logical theory. This is necessary from the fact that absolute certainty as to any fact is unattainable by means of human evidence, except perhaps in some cases where the matter is apparent to our own senses. In every other case the most that can be at- tained is moral certainty, which has been de- fined as such a high degree of probability as would justify a prudent man under the cir- cumstances of the case in acting upon it as if it were an absolute certainty. It therefore follows that moral certainty is a question of prudence rather than of calculation, and con- sequently the only practical rules that can be formulated as to the relevancy of those facts from the existence of which a fact in issue may be probably inferred, are mere enumera- tions, on the one hand, of certain classes of facts which have been ascertained by experi- ence to be capable of supporting an inference as to other facts sufficiently probable to be the foundation of a legal judgment, and on the other hand, of certain other classes of facts from which no inference could be drawn, carrying with it such a high degree of prob- CHAP. l] RES GESTAE 11 ability as would justify any court in making it the basis of its decision. § 7. Res Gestae, or facts forming part of the same transaction; statements accompany- ing an act; conspiracy.— We will first proceed to consider those rules which define the classes of facts that are considered relevant. As it is the general practice of mankind to judge of the probability of an alleged event by considering the circumstances under which it is said to have taken place, and as these attending circumtsances often afford the best interpretation of the meaning, pur- pose and character of an action, it has been laid down as a well settled rule, that all facts so intimately connected with the facts in is- sue as to form part of the same transaction or subject matter must be deemed relevant to it.^ Such facts are sometimes called res ^ Ste. Dig., art. 3. No authoritative rule of law of general application has yet been stated to deter- mine whether any particular facts are or are not parts of the same transaction with the facts in issue. See Vicksburg & Meridian R. R. Co. v. O'Brien, 119 U. S., 99, 105 ; People v. Vernon, 35 Cal., 49 ; 95 Am. D., 1, note; Augusta Factory v. Barnes, 72 Ga., 217; 53 Am. R., 836 ; Little Rock, etc., Ry. Co. v. Leverett, 48 Ark., 333; 3 S. W. 50; 3 Am. St. R., 230, and note; Ward v. White, 86 Va., 212; 9 S. E. 1021; 19 12 RELEVANCY [PART I gestae, and whenever the fact in issue is the doing of any act, they include all accompa- nying statements made by the actors in so far as calculated to explain their own ac- tions, ''for these, when the nature and qual- ity of the act are in question, are either to be regarded as part of the act itself, or as the best and most proximate evidence of the na- ture and quality of the act. " ^ It must be kept in mind, however, that this rule only extends to statements made simultaneously with the doing of the act which they are thus deemed relevant to explain. So, also, whenever the bodily or mental feelings of an individual are relevant to the issue, the usual expressions Am. St. E., 883; Pinney v. Jones, 64 Conn., 525, 537 ; 30 A. 762 ; 42 Am. St. R, 210 ; Barker v. St. Louis, etc., R. R., 126 Mo., 143; 28 S. W. 866; 26 L. R. A. 843 ; 47 Am. St. R., 646. See, also, Prof. J. B. Thayer's article in Am. Law Record, vol. XIV, p. 819, and XV, p. 1, on Reg. v. Beddingfield (1879) ; also, Kirby v. Com., 77 Va., 681; 46 Am. R. 747. Contra, People v. Ah Lee, 60 Cal., 85. Sudden ex- clamations and outbursts by the by-standers belo part of res gestae. O'Rourke v. Citizens' Street Ry., 103 Tenn., 124; 52 S. W. 872; 46 L. R. A. 614; 76 Am. St. R., 639. » 1 Star. Ev., *87 ; 1 Gr. Ev., § 108 ; Ste. Dig., art. 8; 1 Elliott Ev., § 154. CHAP. l] RES GESTAE 18 of such feelings made at the time are admis- sible in evidence. Thus, the declarations of a party himself are received to prove his con- dition, ills, pains and symptoms, whether arising from sickness or from an injury by accident or violence, but they must be con- fined strictly to such complaints, expressions and exclamations as furnish evidence of a present existing pain or malady, and are made contemporaneously or nearly so with the main event alleged as its cause. Any- thing in the nature of narration must be excluded.^ Under this rule admitting the t^s gestae in evidence, whenever two or more persons are ^ See Insurance Co. v. Mosley, 8 Wall., 397, where this whole subject is fully discussed. By the ruling in this case, which has been much criticized, the dec- larations of a party, since deceased, that he had been injured by a fall down stairs, were admitted in evi- dence, although not made until after his return to his room subsequent to the alleged accident; the rule of law laid down in the opinion corresponds, however, with that in the text, the words "contemporaneously or nearly so" being somewhat liberally construed. See, also, Ohio & Miss. R. R. Co. v. Stein, 133 Ind. 243; 32 K E., 831 ; 19 L. R. A., 733 and note; Chris- topherson v. Chicago, etc. R. R. Co., 135 Iowa, 409, 415; 109 N. W., 1077: 124 Am. St. R., 284, 290. 14 RELEVANCY [PART I charged with conspiring together to commit an}' offense or actionable wrong, after evi- dence sufficient in the opinion of the court to establish prima fade the fact of conspiracy between the parties has first been given, then everything said, done or written in execution or furtherance of the common purpose by any one of those thus shown to have partici- pated in such conspiracy, is relevant in all proceedings against any or all of the other conspirators as well as against himself, be- cause it is considered under these circum- stances to form a part of the same transac- tion in which they were all engaged and which is the subject-matter of inquiry in all such proceedings. It must be borne in mind, however, that this only applies to words spoken while actually engaged in the execu- tion or furtherance of the objects of the con- spiracy. Anything in the way of a narrative of what had been done or spoken while so en- gaged does not come within the category of res gestae, and is therefore only relevant as against the narrator and such others of the conspirators as were present and within hear- ing when he related it.'^ ■^ Ste. Dig., art. 4; 1 Gr. Ev., §111; Tay. Ev., § 590, etc. ; Am. Fur Co. v. United States, 2 Pet., CHAP. l] PROBABLE CAUSE 16 § 8. Facts showing probable cause for ex- istence or non-existence of fact in issue; Op- portunity.— As experience has shown that all effects are the result of some cause, and that like causes generally produce similar effects, all facts which, if true, would afford a prob- able cause for the existence or non-existence of a fact in issue, or which would show that the person alleged to have done any act, the doing of which is a fact in issue, had or had not any motive for or intention of doing such act, or did or did not make any preparation for so doing, are generally considered rele- vant.^ So, also, of any facts which would show that an opportunity existed for the do- ing of any act constituting a fact in issue or relevant thereto.^ 358, 365 ; Lincoln v. Claflin, 7 Wall., 133, 139 ; Nudd V. Burrows, 91 U. S., 426, 438; Logan v. United States, 144 U. S., 263, 309 ; Brown v. United States, 150 U. S., 93, 98; Sparf & Hansen v. United States, 150 U. S., 51, 56; Spies v. People, 122 111., 1; 12 N. E. 865; 17 N". E., 898; 3 Am. St. E., 320. 8 Ste. Dig., art. 7 ; also, App., note 1 ; R. v. Clewes, 4 C. & P., 221 ; Carlton v. People, 150 111., 181, 187; 37 N. E. 244; 41 Am. St. P., 346, 350; State v. La- page, 57 X. H., 245 ; 24 Am. P., 69 ; Grand Trunk P. P. Co. V. Pichardson, 91 U. S., 454, 470. » Ste. Dig, art. 9; P. v. Donellan, Wills, Circ. Ev., 16 RELEVANCY [PART I §9. Ordinary course of business.— Upon this ground the existence of any regular course of business according to which a par- ticular act would naturally have been done is relevant to show that such act was done; thus, in order to show that a letter was posted, it is relevant to prove that it was put into a certain place, and that it was the or- dinary course of business for all letters put there to be carried to the post.^*^ § 10. Natural effects likely to have been produced by existence or non-existence of facts in issue; complaints; facts showing animus; similar occurrences showing intention.— So. also, proof of any facts which would be the 192 ; Clark v. Fitch, 2 Wend., 460 ; 20 Am. Dec, 639 Dowell V. Guthrie, 99 Mo., 653, 665; 12 S. W. 900 17 Am. St. E., 598; McCoy v. Trucks, 121 Ind., 292 23 N, E., 93. See sec. 130 post as to experiments. 10 Ste. Dig., art. 13; 1 Gr. Ev., §§ 38, 40; Linden- berger v. Beall, 6 Wlieat., 104; Skillbeck v. Gorbett, 7 A. & E., N. S. (7 Q. B.), 846; Hall v. Brown, 58 N. H., 96 ; Hedden v. Roberts, 104 Mass., 38 ; 45 Am. R. 276; Rosenthal v. Walker, 111 U. S., 185, 193; Henderson v. Carbondale Coal Co., 140 U. S., 25, 56; Schultz V. Jordan, 141 U. S., 213. As to telegrams, Epping V. Scott, 112 Cal., 369; 42 P., 301; 44 P., 723 ; 53 Am. St. R., 226 ; Perry v. German Am. Bank, 53 Neb., 89; 73 N. W., 538; 68 Am. St. R., 593. CHAP. l] NATURAL EFFECTS 17 natural and probable effect or result of the existence or non-existence of any fact in is- sue is admissible in evidence as relevant thereto.*^ Thus, where the question is whether a certain act was done by A., any subsequent conduct of A., apparently influ- enced by the doing of that act, or anything done by him or by his authority in conse- quence of it, is relevant.^' And in criminal cases possession of the fruits of crime,^^' and where an injury is alleged to have been done to a person, his subsequent conduct, and in particular the fact that he made complaint soon after the offense to persons to whom he would naturally complain, are relevant; but the terms of the complaint itself are generally considered to be irrelevant.^^ So, also, where ^^ See India Ev. Act, §7; Aveson v. Lord Kin- naird, 6 Ea., 188 ; Greenfield v. People, 85 N. Y., 75 ; 39 Am. R., 636 ; Brewing Co. v. Bauer, 50 Ohio St., 560; 35 N. E., 55; 40 Am. St. R., 686; Hodge v. State, 98 Ala., 10; 13 So., 385; 39 Am. St. R., 1. 12 Ste. Dig., art. 7 ; Com. v. Webster, 5 Cush., 295 ; 52 Am. Dec, 711; Furnas v. Durgin, 119 Mass., 500, 508. i2» Wilson V. U. States, 162 U. S., 613; State v. Brady, 121 Iowa, 561 ; 12 L. N. S., 199. 13 Ste. Dig., art. 8; Bacio v. People, 41 N. Y. (2 Hand), 265; Oleson v. State, 11 Neb., 276; 38 Am. 18 RELEVANCY [PAET I the fact in issue is the existence in any per- son, of any state of mind such as intention, knowledge, good faith, negligence, rashness, or ill will or good will towards any particular person, any facts which appear to be the nat- ural and probable manifestations of such a state of mind are relevant as proof of its ex- istence at the time when they happened.^ ^^ Thus, where the question is whether an act done by A. was committed with a fraudulent intent, his fraudulent conduct to third parties in similar transactions about the same time is a relevant fact to show his animus ;'^^ and so, also, where there is a question as to whether an act was accidental or intentional. The fact that such an act formed part of a series of similar occurrences, in each of which the per- Rep., 366; People v. 'Sullivan, 104 N. Y., 481 ; 58 Am. E., 530; 10 N. E., 880; 1 Elliott Ev., § 163. 13- India Ev. Act, § 14; Ste. Dig., art. 11; 1 Gr. Ev., § 53; Tay. Ev., §§ 338-345; Mut. Life Ins. Co. v. Hillmon, 145 U. S., 285, 295 ; Com. v. Trefethen, 157 Mass., 180; 31 N. E., 961. 14 McAleer v. Horsey, 35 Md., 439, 461 ; Bottomly V. United States, 1 Story, 135; 3. Fed. Cas., 968; Castle v. Bullard, 23 How., 172; Lincoln v. Claflin, 7 Wall., 457, 464 ; X. Y. Mut. Life Ins. Co. v. Arm- strong, 117 U. S., 591. CHAP. l] EXPLANATORY FACTS 19 son doing the act was concerned, is a relevant fact to show intention on his part.^' § 11. Facts explanatory of relevant facts. — Another ground of the relevancy of facts not directly in issue is their being necessary to be known in order to explain or introduce facts in issue or relevant facts, or to support or rebut an inference suggested by a fact in issue or relevant fact, or to establish the identity of any thing or person whose identity is relevant, or to fix the time or place at which, any fact in issue or relevant fact happened, or to show the relation of parties by whom any such fact was transacted; and accord- ingly such facts are admissible in evidence in so far as they are necessary for these pur- poses.^ ^ This class of evidence is admitted for the same general reasons which apply to 15 Ste. Dig., art. 12; Dunn's Case, 1 Moo. C. C, 146; R. V. Cooper, L. E. 1 Q. B. D. (C. C. R.), 19: Bottomly v. United States, 1 Story, 135 ; 3 Fed. Cas,, 963, 971; Wood v. United States, 16 Peters, 342, 360; N. Y. Mut. Life Ins. Co. v. Armstrong, 117 U. S., 591; Com. v. Eastman, 1 Cush., 189; 48 Am. D., 596. 16 India Ev. Act, § 9 ; Ste. Dig., art. 9 ; R. v. Lord Geo. Gordon, 21 St. Tr., 520; Bank v. Kennedy, 17 Wall., 19, 24; People v. Yernon, 35 Cal., 49; 95 Am. D., 1, note; 1 Elliott Ev., § 155. 20 RELEVANCY [PART I the res gestae, but it includes a great variety of facts which, on account of difference in time and place, and for other reasons, could not be classed as parts of the same transac- tion as the facts in issue to which they relate, although equally necessary to explain and render them intelligible, and which it would often occasion a great failure of justice to exclude from consideration in the determina- tion of such facts in issue.^^ ^"^ When the question in issue is whether a certain effect was produced by a specific cause, the rule is now established that evidence is admissible of the result of tests or experiments based upon conditions essen- tially similar to those existing in the case on trial. Burg V. Chicago, etc. Ey. Co., 90 Iowa, 106, 117; 57 N. W. 680 ; 48 Am. St. R., 419, 427. But it must first be shown that the conditions of the experiment were practically identical with those of the case in controversy. See Chicago, etc. R. R. Co. v. Champion, 9 Ind. App., 510, 514; 36 N. E., 231; 37 N. E., 21; 53 Am. St. Rep., 357, 361, and extended note on p. 375. Permitting experiments or tests to be made before the jury whether in or out of the court-room rests largely in the discretion of the trial courts. United States v. Ball, 163 U. S., 662, 673; Com. v. Brelsford, 161 Mass., 61 ; 36 N. E., 677 ; Hatfield v. St. Paul, etc. Ry. Co., 33 Minn., 130; 22 N. W., 176; 53 Am. R., 14. See, also, sec. 130 post. CHAPTER 11. RULES OF EXCLUSION. § 12. Res Inter Alios; facts not directly in issue, nor relevant thereto as above stated, are inadmissible.— All facts not in issue them- selves, and not connected with some fact in issue, or relevant thereto in some one of the above four ways, namely, either as forming part of the same transaction or subject mat- ter; or as constituting a probable cause for it ; or as the natural effect of it ; or as neces- sary to explain or introduce it, are inadmis- sible in evidence for the purpose of forming the ground of an inference that such fact in issue or relevant fact probably did or did not exist,^ and are frequently designated, some- what loosely, by the term, res inter alios, a phrase originally derived from the maxim res inter alios acta alteri nocere non debet, but which is often used by the bench and bar 1 Ste. Dig., art. 10 and note VI ; Holcome v. Hew- son, 2 Camp., 391; State v. Lapage, 57 N. H., 245; 24 Am. E., 69; Gehagan v. Boston, etc., E. E., 1 Allen, 187 ; 79 Am. D., 7324. 21 22 RELEVANCY [PART I in the sense of irrelevant.^ This principle, that courts are not at liberty to infer from one fact the probable existence or non-ex- istence of another fact merely because the two are similar, unless they can be first shown to be part of the same transaction, or to be connected together in some way by the chain of cause and effect, is one of the most distin- guishing characteristics of the English law of evidence. It stands in marked contrast with the practice which prevails among some of the continental nations of Europe, where in criminal cases it is customary for the pros- ecution to collect and set out before the tribunal before which the case is tried, a detailed history of the entire previous life of the accused, in order that it may judge there- from of the probability of his having been guilty of the offense with which he is charged. § 13. Not all facts connected with another by way of cause and effect necessarily relevant thereto.— Although the relevancy of any given fact to prove the existence or non-existence of any other fact must be determined mainly by the rules of logic it must not be supposed that every fact which may be logically connected with another, either in the way of 2 Tay. Ev., § 317. CHAP. Il] CHARACTER 23 cause or effect, is therefore necessarily ad- missible in evidence as relevant to prove or disprove it. To render it admissible for that purpose it must appear as a probable cause or effect, and the degree of probability which will entitle it to the consideration of a ju- dicial tribunal is a question to be decided by the discretion of the judge in view of all the circumstances of the particular case on trial.3 § 14. Character, hearsay and opinion gen- erally irrelevant.— There are also three kinds of facts, namely, character, hearsay, and opinions, which the law expressly declares to be irrelevant, except in certain specified cases, as the grounds for inferring the ex- istence or non-existence of other facts; although in the common occurrences of life we often consider a man's character as furnishing sufficient cause for an in- ference that he did or did not do a cer- tain thing which is imputed to him, and we frequently think that the facts of a truth- ful person having said a thing, and of a cau- tious person having believed it, are effects which could scarcely have been produced by 3 Sec. 5, ante ; Alexander v. United States, 138 U. S., 353, 356; 1 Wiorm. Ev., §§10, 38a. 24 RELEVANCY [PAET I any other cause than the actual happening of the thing so said or believed to have hap- pened. § 15. Character irrelevant excepting in favor of a person indicted criminally, or where directly in issue.— The rule of law as to the relevancy of character is that the fact of a person having a good or bad character (in the sense of reputation) is not admissible in evi- dence as the ground for an inference that he did or did not do a certain thing, excepting that in criminal cases the accused may show that he has a good character as a fact from which the jury may infer that he is not guilty of the crime or misdemeanor for which he is indicted. Of course when this fact of char- acter is put in evidence by the accused it may be contradicted like any other fact, and the prosecution may show that he had not a good character by proof that he had a bad one.'* The reason for this rule and its exception may probably be explained, partly, by the 4 Ste. Dig., art. 55; 1 Tay. Ev., §§ 347-361; Atty. Genl. V. Bowman, 2 Bos. & PuL, 532; State v. La- page, 57 N. H., 245; 24 Am. R., 69; Fowler v. ^tna Life Ins. Co., 6 Cowen, 673, 675; 16 Am. D., 460; Simpson v. Westenberger, 28 Kan., 756; 42 Am. R., 195; Porter v. Seller, 23 Pa. St., 424; 62 Am. D., 341; 1 Elliott Ev., § 167-171. CHAP. Il] CHARACTER 26 fact that while in our daily experience it is no unusual thing to find men occasionally act- ing in a manner very inconsistent with their general character, it is extremely rare to find that a person who has always maintained a good reputation in the community will be willing to forfeit at once all claims to future respectability by the commission of an of- fense that would subject him, if discovered, to the danger and disgrace of a criminal pros- ecution ; and partly by that solicitude of the common law to give the accused, in criminal cases, the benefit of every reasonable doubt, which most likely had its origin in that period of English history when almost every felony was punished with death, and the counsel for the accused was not permitted to argue in his defense before the jury. Whenever the question as to whether a person has a good or bad character is itself a fact in is- sue,^ as in the case of an action for defamation where the defendant justifies, or where it be- comes relevant in order to determine the amount of damages which the plaintiff 5 1 Gr. Ev., § 54; Tay. Ev., § 355; Ruan v. Perry, 3 Caines, 120; 'Bryan v. 'Bryan, 13 Mo, 16; 53 Am. D., 128 ; Cleghom v. N. Y. & H. R. R. R., 56 N". Y., 44; 15 Am. R., 375; 1 Elliott Ev., § 169. 26 RELEVANCY [PART I should recover,*' such person's character may always be proved in evidence like any other fact in issue or relevant fact. § 16. Hearsay excluded except in certain cases.— One of the most important of the rules of evidence in regard to relevancy is that which is frequently summarized by the maxim ** Hearsay is no evidence," but which may be more accurately given thus : The fact that a statement has been made by a person not called as a witness, or is contained in any book, document or record whatever, proof of which is not admissible on other grounds, is not relevant as a fact from which the truth of the fact stated may be inferred, except in certain cases hereinafter men- tioned.'^ This rule is not applicable, as al- ready intimated, to the case of words or ex- clamations accompanying an act which are received in evidence as part of the res gestae, or to such as are offered merely as indicative of the actual state of mind or feeling of the 6 Stone V. Varney, 7 Mete, 86 ; 39 Am. D., 763 ; Gore V. Curtis, 81 Me., 403; 17 A. 314; 10 Am. St. R., 265; Miller v. Curtis, 158 Mass., 157; 33 N. E., 1039 ; 35 Am. St. R., 469 ; Pease v. Shippen, 86 Pa. St., 305; 31 Am. R., 116. ■^ Ste. Dig., art. 14; Mima Queen v. Hepburn, 7 Cr., 290, 295; Hopt v. Utah, 110 U. S., 574, 581. CHAP. Il] HEARSAY 27 person using them at the time when they were uttered, but refers solely to narratives of past occurrences. § 17. Reasons for the rule excluding hear- say.— The reasons for the rule excluding hear- say, or, as Mr. Best more accurately terms it, ''derivative evidence,"* are not difficult to discover, for apart from the circumstance that the probabilities of falsehood and mis- representation, either wilful or uninten- tional, being introduced into a statement are greatly multiplied every time it is repeated, there remains the further fact that the origi- nal statement, even if correctly reported, has scarely ever been made under the safe- guards of the personal responsibility of the author as to its truth, or the tests of a cross- examination as to its accuracy. It is indeed true, that, in the ordinary affairs of life, men often act upon information received at second hand, but this is seldom done in matters of much importance, unless either they or their informants possess sufficient personal knowl- edge of the party from whom the statement originated to form an intelligent estimate of his general disposition to speak the truth, the temptation he may be under to deceive, and 8 Best on Ev., §§ 29, 30, 51, 493-5. 28 RELEVANCY [PART I his probable means of accurate information in regard to the subject-matter of his state- ment. Such personal knowledge the courts can rarely possess, and therefore three tests have been provided, to which, in general, all statements must be subjected before be- ing admitted as evidence in judicial pro- ceedings. These are: 1. That the state- ment must be made under the moral obliga- tion of a solemn oath or affirmation, with the liability to a criminal prosecution for perjury in case of falsehood. 2. That the party against whom the testimony is given shall have the opportunity of cross-examining the witness, in order to elicit his sources of in- formation as well as any material facts within his knowledge which he may not be disposed to disclose voluntarily, and also to test the general accuracy of his statements, and to show if he has any bias in regard to the mat- ter in dispute. 3. That the witness should give his testimony in open court, in order that the jury may observe his demeanor while giv- ing it. § 18. Two classes of exceptions to the rule. — The exceptions to the rule excluding hear- say or derivative evidence may be divided into two classes. The first class (A) includes statements made under circumstances which CHAP. Il] ADMISSIONS 29 render the three tests above mentioned super- fluous, namely: 1. Admissions. 2. Statements in public documents. 3. Statements in judicial records. 4. Statements showing the existence of a general reputation in cases where the ex- istence of such reputation is a relevant fact. The second class (B) includes statements to which some one or more of the three tests cannot be applied by reason of the death or inability to testify of the person who made them, but which were made under certain conditions affording sufficient proof of their truth to justify their reception as evidence without being subjected to such tests. Such statements are generally called declarations, and the person who made them a declarant. They are as follows 1. Evidence given in a proceeding between the same parties or their privies. 2. Dying declarations as to cause of death. 3. Declarations made in the course of busi- ness or professional duty. 4. Declarations against the interest of the declarant. 5. Declarations of testator as to contents of his will. 6. Declarations as to public or general rights. 30 RELEVANCY [PART I 7. Declarations as to matters of pedigree. In the United States, insanity, and, in some cases, even permanent absence from the state, have been held to have the same effect as death in rendering the declarations of such insane or absent person admissible; but the decisions of the courts of diif erent states con- flict as to the admissibility of declarations made by persons absent from the state. These several exceptions to the rule exclud- ing hearsay will now be considered seriatim in the order above given. §19. (A.) First class of exceptions; ad- missions.— An admission ^ is a statement, oral, written, or by tacit acquiescence,^" suggesting any inference as to any fact in issue or rele- vant thereto, made by or on behalf of any party to any proceeding, and is (subject to the rules hereinafter stated) relevant as against the person by or on whose behalf it was made, but not in his favor unless admissible in evi- dence for some other reason, but in divorce suits and other proceedings for judgments in 9 Ste. Dig., art. 15; 1 Elliott Ev., §§ 220-242. 10 Gr. Ev., § 197; Tay. Ev., § 809; 2 Whar. Ev., § 1136; Wiggins v. Burnham, 10 Wall., 129; Turner V. Yates, 16 How., 14, 27; Allison v. Barrow, 3 Cold., 414; 91 Am. D., 291. CHAP. Il] ADMISSIONS 31 rem such admissions are not conclusive, as other parties have interests in the case which cannot be concluded by the party making them. (See sections 36, 37, 57 post). That such admissions, when offered in evidence against the party by whom they have been made, should be received as against such party without being first subjected to the three tests above mentioned, is almost self- evident.^^ For these tests, being designed merely as safeguards to protect the parties to the suit from the introduction of false testimony, cannot fairly be invoked by the party who made the admission for the pur- pose of proving his own falsehood, and the other party by offering the admission ex- pressly waives all claim on his part to have the three tests, or any of them, applied to it. The fact that such admissions are against the interest of the party who made them, always raises a very strong presumption that they are true, and notwithstanding that it some- times happens that a party makes a false statement, which he believes at the time to be for his own advantage, although it afterwards 11 In proceedings for divorce sucn admissions are not conclusive, as the public has an interest in the case to prevent collusion. 82 RELEVANCY [PART 1 turns out to the contrary, yet even under such circumstances it is no more than right that the fact of his having made such a state- ment should be given in evidence, if for no other purpose, at least to throw upon him the burden of explaining it, and thereby showing his disposition to depart from the truth when he considers that his interests will be sub- served by such a course. § 20. How admissions may be made. — Such admissions, as already stated, may be made not only by the oral or written statements of the party himself but by his tacit acquiescence in the statements of others made in his pres- ence and hearing ; and it is upon this ground that whatever is said by anyone whomsoever in regard to the matter in controversy, in the presence and hearing of a party to the suit, is in general admissible in evidence to show his acquiescence therein, if offered by his ad- versary. In order, however, for his silence in such cases to warrant the inference of ac- quiescence on his part, it must not only ap- pear that the language used was fully under- stood by him, but also that the circumstances were such as afforded him an opportunity to speak, and such as would properly and natur- ally call for some reply from a person sim- CHAP. Il] ADMISSIONS 88 ilarly situated.^ ^ Conversations by tele- phone, when the parties can recognize each other's voices, are admissible m evidence to the same extent as other conversations.^^ § 21. The whole of a statement made at the time must be cansidered.— ^^/hen the state- ment of a party is offered in evidence as an admission, fairness requires that everything he said at the time relating to the same sub- ject-matter should be received and consid- 12 Gr. Ev., § 197 ; Tay. Ev., § 809 ; 2 Whar. Ev., § 1138; Corser v. Paul, 41 N. H., 24; 77 Am. D., 753; Brainard v. Buch, 25 Vt, 573; 60 Am. D., 291. 13 Murphy v. Jack, 142 N. Y., 215 ; 40 Am. St. R., 590. Conversations held through telephone at a per- son's office admitted although voice not recognized. Mo. Pacific Ry. v. Heidenheimer, 82 Tex., 195; 17 S. W., 608; 27 Am. St. R., 861 ; Knickerbocker Co. v. Gardiner Co., 107 Md., 556, 571 ; 69 A. 405. Also conversation over telephone through operators in the presence of persons whose words they repeated. Sullivan v. Kuykendall, 82 Ky., 483; 56 Am. R., 901; Oscamp v. Gadsden, 35 Neb., 7; 52 N. W., 718 ; 37 Am. St. R., 428 ; but see Willner v. Silver- man, 109 Md., 341, 360 ; 71 A. 962. Also Bennett V. Magner, 105 Minn., 118; 117 N. W., 245; 127 Am. St. R., 531, with full note pp. 538-557. Ac- knowledgment of deed through telephone by mar- ried woman held good. Banning v. Banning, 80 Cal., 271; 22 P., 210; 13 Am. St. R., 156. 34 RELEVANCY [PART 1 ered together with it, in order to understand his true meaning, yet it does not follow that the whole statement is equally worthy of credit; and it is therefore for the jury to consider, after hearing it all, how much they are, under the circumstances, warranted in accepting as true.^^ §22. Party bound by the admissions of — (a) his privies; (b) those whose interests he represents; (c) those jointly interested with him; (d) those whom he has authorized to make admissions, or to whom he has referred a party for information.— The same reason- ing which renders a party's own admissions receivable in evidence against him applies equally to those made on his behalf by others, for whose acts, done at the time such admis- sions were made and relating to the same sub- ject-matter, he would be held responsible. Such persons are: (a) Those under whom the party claims, as privies in blood, privies in law, or privies in estate, as the case may be.^^ Thus, the ad- 14 1 Gr. Ev., § 201 ; Tay. Ev., § 725 ; Queen Caro- line's Case, 2 Brod. & B., 297 ; Prince v. Samo, 7 Ad. & E., 627; Insurance Co. v. Newton, 22 Wall., 32; Eouse V. ^Vliited, 25 N. Y., 170 ; 82 Am. D., 337. 15 1 Gr. Ev., §§ 189, 190; Tay. Ev., §§ 787, 788— privies in law; Eckert v. Triplett, 48 Ind., 174; 17 CHAP. Il] ADMISSIONS 35 missions of an ancestor in regard to tlie title of lands owned by him, are received in evi- dence against his heir in an action concerning the same property; those of a vendor, made while the owner of the thing sold, are ad- missible against his vendee ; those of a land- lord, against his tenant, and those of a testa- tor or intestate, against his executors or ad- ministrators. (b) Those whose interest the party repre- sents, as a principal for whose benefit the action has been brought by an agent, the cestui que trust of a trustee, or one to whose use a suit has been entered, or who is in fact the real plaintiff or defendant, although his name does not appear on the record. In this class of cases the admissions are only receiv- able in evidence when their effect would be confined to the interest of the party who actually made them and those who claim through him.^^ Thus in a case where an ac- tion was brought by trustees representing the Am. E., 735 — privies in blood; Spalding v. Hallen- beck, 35 JST. Y., 304 — privies in estate ; Pool v. Morris, 29 Ga., 374; 74 Am. D., 68; 1 Ell. Ev., §§ 243-270. 18 1 Gr. Ev., § 180; Tay. Ev., §§ 756, 757; Bridges V. Eggleston, 14 Mass., 245, 250-57; 7 Am. D., 209; Babb v. Clem&on, 10 S. & R., 419; 13 Am. D., 684. 36 EELEVANCY [PART I interests of several cestuis que trust, the statements of the person beneficially inter- ested as tenant for life were not received as evidence for the defendant so as to prejudice the rights of the remainderman in fee.^^ And so, also, an admission made by a party to the suit who sues in a representative character merely, must, in order to be received in evi- dence, be made while he is clothed with that character.^® (c) Those who are jointly interested with a party to the suit, as his partners or joint contractors with him. But it by no means follows that, because two persons have a com- mon interest in the same subject-matter, they can therefore make admissions respecting it against each other. To enable them to do this, not only must their interest be joint, but the admissions must be made during the con- tinuance of the joint interest.^ ^ Thus, accord- 17 Tay. Ev., § 757; Doe v. Wainwright, 8 A. &*E., 691, 699, 700. 18 Tay. Ev., § 755; Ste. Dig., art. 16; Mason v. Poulson, Adm'r, 40 Md., 355, 365; 1 Ell. Ev., § 361. i» Ste. Dig., art. 17; 1 Gr. Ev., §§ 174, 176; Tay. Ev., § 750; Mandeville v. Welch, 5 Wheat., 277, 283; Padgett V. Lawrence, 10 Paige, 170, 180; 4 Am. D., 232 ; 1 Elliott Ev., § 246. CHAP, ll] ADMISSIONS 87 ing to the weight of American authority ,^'^ admissions made by a partner after the dis- solution of the partnership, relating to mat- ters done during its existence, are inadmis- sible against the other partner ; and so, also, in cases in which actions founded on a con- tract have been barred by the statute of lim- itations, no joint contractor or his personal representative loses the benefit of such stat- ute by reason only of any acknowledgment or promise, or payment of any principal, in- terest or other money, by any other or others of them, made after the period of limitation has expired.^^ (d) Those whom the party has either ex- pressly or by his conduct authorized to make admissions on his behalf. This class includes counsel and attorneys of record while en- gaged in the actual management of the cause, either in court ^^ or in correspondence relat- ing thereto, and agents of every kind; but unless the latter have been expressly author- ^oWhar. Ev., § 1196, and note; Baker v. Stack- poole, 9 Cow., 420, 423 ; 18 Am. D., 508. 21 Ellicott V. Nichols, 7 Gill, 85, 96 ; Bell v. Morri- son, 1 Pet., 351, 367. 22 Oscanyan v. Arms Co., 103 U. S., 261 ; Pratt v. Conway, 148 Mo., 291, 299 ; 40 S. W., 1028 ; 71 Am. St. R., 602, 607. 38 RELEVANCY [PART I ized to make them, their admissions are only receivable in evidence when shown to have been made in reference to business about which they were employed at the time, and which was within the scope of their author- ity.^^ This class also includes persons to whom a party to the proceedings has ex- pressly referred another for information con- cerning a matter in dispute, whose state- ments are received as admissions of the party who so referred to them, since by such refer- ence the party has, in effect, adopted their statements as his own.^^ But the admissions of a principal are not receivable in evidence against his surety, as to matters for which the latter has given security, unless made during the transaction of the business for which the surety is bound, so as to become part of the res gestae?^ Thus, if one becomes 23 Ste. Dig., art. 17; Cliquot's Champagne, 3 Wall., 114, 140; United States v. Brig Burdett, 9 Pet., 682, 687; Vicksburg & Meridian E. R. Co. v. O'Brien, 119 U. S., 99, 104; Stiles v. W. R. R. Co., 8 Mete, 44; 41 Am. D., 486. See, also, 91 Am. D., note p. 493. 24 1 Gr. Ev., § 182; Tay. Ev., § 760; Allen v. Kil- linger, 8 Wall., 480 ; Turner v. Yates, 16 How., 14, 28 ; Chapman v. Twitchell, 37 Me., 59 ; 58 Am. D., 773. 25 1 Gr. Ev., § 187 ; Tay. Ev., § 785 ; Ste. Dig., art. 17; Chelmsford Co. v. Demarest, 7 Gray, 1; Stetson CHAP, II] ADMISSIONS 39 surety on a bond conditioned for the faithful performance of another as clerk or collector, and the latter, after being dismissed, makes statements as to sums of money which he has received and not accounted for, these state- ments are not relevant as admissions against the surety, although with regard to entries made by such clerk in the course of his duty, and before his dismissal, it is otherwise.^^ §23. Offer of compromise not an admis- sion.— No offer made by either party by way of compromise, or to buy peace, can be given in evidence in any civil action as an admission by him, if it was made either upon the express condition that evidence of it should not be given, or under circumstances from which the judge infers that such was the understand- ing between the parties.-" This rule is V. City Bank, 2 Ohio St., 167, 175; Blair v. Perpet. Ins. Co., 10 Mo., 559 ; 47 Am. D., 129. -^ Ibid. But a judgment recovered in an action against the principal is admissible, and in some cases conclusive evidence of the amount for which his surety is liable in an action against the latter. Drummond V. Prestman, 12 Wheat., 519; Stovall v. Banks, 10 Wall., 583 ; 2 AVhar. Ev., § 770. 27 Ste. Dig., art. 20 ; 1 Phil. Ev., 4th Am. ed., p. 147, note; 1 Gr. Ev., § 192; Home Ins. Co. v. Bait. 40 RELEVANCY [PART I grounded upon public policy and convenience, for without it parties would never be safe m taking any steps towards an amicable adjust- ment of their differences; but it is confined solely to offers of compromise as such, and, therefore, when, during a treaty of compro- mise, either party admits any independent fact merely because he recognizes it to be true, such admission may be afterwards received in evidence against him.^^ §24. Admissions made under duress ex- cluded.— Admissions made under duress or circumstances of constraint are not admis- sible in evidence, but there is a distinction taken between civil and criminal cases as to what constitutes duress. In the former no amount of legal compulsion is held to be such duress as will exclude admissions made by a party to the proceeding;-^ but no confes- Warehouse Co., 93 U. S., 527, 548 ; Paddock v. For- rester, 3 M. & G., 903 ; 1 ElHott Ev., § 240. 28 1 Gr. Ev., § 192 ; Hartford Bridge Co. v. Granger, 4 Conn., 142, 148 ; Gerrish v. Sweetser, 4 Pick., 374, 377 ; Eastman v. Amoskeag Mfg. Co., 44 N. H., 143 ; 82 Am. D., 281; Brice v. Bauer, 108 N. Y., 428; 15 N. E. 695; 2 Am. St. R., 454. 2» 1 Gr. Ev., § 193; Collet v. Keith, 4 Esp., 212; Newhall v. Jenkins, 2 Gray, 562 ; Wilson Sewing M. Co. V. Curry, 126 Ind., 161 ; 25 N. E. 896. CITAP. Il] CONFESSIONS 41 sions, as admissions are called in criminal cases, are admitted against the accused un- less made voluntarily as hereinafter ex- plained. § 25. Confessions not made voluntarily, ex- cluded—What deemed involuntary.— No con- fession is considered voluntary if made under inducements of hope or fear 'held out to the accused by a person in authority, and having reference to the charge against the former, whether addressed directly to him or brought indirectly to his knowledge, provided that in the opinion of the judge such inducement gave the accused reasonable ground for sup- posing that by making a confession he would gain some advantage or avoid some evil in reference to the proceedings against him. But a confession is not considered involun- tary because it appears to have been caused by the exhortations of a person in authority to make it as a matter of religious duty, or by an inducement collateral to the proceed- ing, or by inducements held out by a person not in authority. By a person in authority is meant any one having authority over the prosecution, or over the accused in connection with the prosecution, as the prosecutor, of- ficers of justice having him in custody, mag- istrates, and others in similar positions ; but 42 RELEVANCY [PART I the master or employer of the accused is not such a person in authority unless the offense charged was committed against him. The mere fact, however, that a confession was made after such inducements had been held out does not make it involuntary, if, in the opinion of the judge, the impression pro- duced by such inducements had been com- pletely removed before the confession was made, for in such cases these inducements could not properly be said to have caused the confession. ^"^ § 26. But a fact first discovered by means of an involuntary confession may be proved by other evidence.— When the knowledge of a fact is obtained by means of an involuntary confession of the accused, although the con- fession itself is inadmissible, it does not pre- vent the prosecutor from giving in evidence the fact itself, and that it was discovered through information derived from the ac- cused. Thus where stolen property, or the- instrument of a crime, or the body of a per- son murdered, has been discovered by means 30 Ste. Dig., art. 22; 1 Gr. Ev., §§ 217-339; Tay. Ev., §§ 872-887; Com. v. Knapp, 10 Pick., 477, 489; 20 Am. D., 534, 298; Hopt v. Utah, 110 U. S., 574, 583; 1 Elliott Ev., §§ 278-286. CHAP. Il] CONFESSIONS 43 of information unduly obtained from the ac- cused, it is competent to prove that he stated the thing would be found by searching a cer- tain place, and that it was so found; but it would not be competent to inquire whether he confessed that he had put it there.^^ §27. Sworn confessions made by an ac- cused person while under examination before a magistrate, excluded as involuntary.— Sworn confessions made by a party when under ex- amination before a magistrate, respecting a criminal offense with which he is charged at the time of the examination, are not under the common law received in evidence, upon the ground, according to Prof. Greenleaf, that **if to the perplexities and embarrassments of the prisoner 's situation are added the dan- ger of perjury and the dread of additional penalties, the confession can scarcely be re- garded as voluntary. "^^ It is somewhat diffi- cult to perceive the force of this argument, 31 Ste. Dig., art. 22; 1 Gr. Ev., §§ 231, 232; Tay. Ev., §§ 902, 903; R. v. Gould, 9 Car. & P., 364; Duffy V. People, 26 jST. Y., 588 ; Daniels v. State, 78 Ga., 98 ; 6 Am. St. R., 238 ; Adams v. New York, 192 U. S., 585; 1 Elliott Ev., § 288. 32 1 Gr. Ev., § 225 ; State v. Clifford, 86 Iowa, 550 ; 53 N. W. 299; 41 Am. St. R., 518; People v. Mondon, 103 N. Y., 211 ; 8 N. E., 496 ; 57 Am. R., 709. 44 RELEVANCY f PART I or to discover why a confession otherwise ad- missible in evidence must be conclusively pre- sumed to have been involuntary, and there- fore excluded, simply because it has been sworn to by the party making it ; but such is the rule as now established by numerous de- cisions, both English and American. The rule is restricted, however, to the sworn statements made by a party who is himself held under the charge of a criminal offense at the time he makes them. Statements upon oath amounting to a confession, if made by the prisoner when examined as a witness in another proceeding, are admissible in evi- dence against him, unless he can prove that when questions tending to criminate him were put he had claimed the protection of the court and had still been illegally compelled to an- swer.^^ § 28. How far modified by statutes permit- ting accused to testify, quaere.— This rule, ex- cluding statements made by the accused un- 33 Ste. Dig., art. 23 ; 1 Gr. Ev., § 225 ; Tay. Ev., §§ 895-900; 1 Wigmore Ev., §§ 842, 852; note 1; E. V. Chidley & Cummins, 8 C. C. R., 365 ; Hendrickson V. People, 10 N. Y. (6 Seld.), 131; 61 Am. D., 721; People V. Mondon, 103 N. Y., 211; 8 N. E. 496; 67 Am. R., 709. CHAP. Il] CONFESSIONS 45 der oath in a criminal proceeding against liimself, has been somewhat modified by the legislation now adopted in many of the United States, whereby persons accused of criminal offenses have been made competent witnesses in their own behalf. Whenever a prisoner voluntarily testifies as a witness on his own behalf under any of these statutes, either before a magistrate upon a prelimi- nary examination, or in court, any statements made by him under oath may afterwards be offered in evidence against him in any sub- sequent trial, whether under the same or a different indictment.^* §29. Confessions made under promise of secrecy or obtained by deception, not involun- tary.— As the only test of the admissibility of a confession is whether or not it was made voluntarily, it follows that it may not be ex- cluded because made under a promise of se- crecy,^^ or in consequence of a deception prac- 34Whar. Crim. Ev., §§463, 464, 669; People v. Kelly, 47 Cal., 125; State v. Glass, 50 Wis. 218; 6 N. W. 500 ; 36 Am. R., 845. But this rule is strictly limited to cases where the testimony admitted was given voluntarily in the first instance. See People v. Sharp, 107 K Y., 427; 14 K E. 319; 1 Am. St. R., 851. 35 Ste. Dig., art. 24 ; Tay. Ev., § 881 ; R. v. Shaw, 46 RELEVANCY [PART I ticed on the accused, ^^ or while he was drunk,^'^ or because it was made in answer to questions which he need not have answered, whatever may have been the form of them.^® Although it is customary to warn a prisoner when he is about to make a confession, that he is not bound to do so, the omission of such warning does not thereby make his confes- sion inadmissible.^^ 6 Car. & P., 372 ; Com. v. Knapp, 9 Pick., 496 ; 20 Am. D., 491; State v. Mitchell, 1 Phill. (N. C.) L., 447; State V. Darnall, 1 Houst. Cr. C, 321. 3« Price V. State, 18 Ohio St., 418 ; Com. v. Hanlon, 3 Brewster, 461, 498 ; People v. Barker, 6 Mich., 277 ; 1 Am. St. P., 501 ; Heldt v. State, 20 Neb., 492 ; 30 N. W. 626 ; 57 Am. P., 835 ; State v. Phelps, 74 Mo., 128. 3^ Com. V. Howe, 9 Gray, 110; Eskridge v. State, 25 Ala., 30; Jefferds v. People, 5 Parker, C. P., 522, 561; State v. Grear, 28 Minn., 426; 10 N. W. 472; 41 Am. P., 296. 38 P. V. Wild, 1 Moo. C. C, 452 ; Carroll v. State, 23 Ala., 28; 58 Am. D., 282. 39 P. V. Thornton, 1 Moo. C. C, 27 ; P. v. Long, 6 Car. & P., 179; Com. v. Smith, 119 Mass., 305; Com. V. Mosler, 4 Pa. St., 264 ; People v. Pogers, 18 N. Y., 9, 14; 72 Am. D., 484; Hodge v. State, 97 Ala., 37; 18 So. 164; 38 Am. St. P., 146. CHAP. Il] OFFICIAL RECORDS 47 § 30. Recitals of public facts in statutes or proclamations, and entries of facts made in official registers, admissible in evidence.— The second exception to the rule excluding hear- say, embraced within the class of cases (A) which is allowed upon the ground that in it the application of the three tests to the per- son making the original statement are super- fluous, includes statements as to any act of state or other matter of a public nature con- tained in the recital of any public statute, or in any public proclamation, or any message of the executive to the legislature, or in any legislative resolutions, and statements as to the acts of any foreign governments and functionaries contained in state papers pub- lished by authority of congress, and in dip- lomatic correspondence communicated by the president to congress. All these are admis- sible evidence of the facts so stated, when such facts are in issue or relevant thereto.^" So, also, the entries made in official registers, or books kept by persons in public office, are competent evidence to prove any relevant facts, which, having occurred in the presence 40 1 Gr. Ev., § 491; Watkins v. Holman, 16 Peters, 25, 55, 56 ; Radcliff v. United States, 7 Johnson, 38, 51; Tay. Ev., §§ 1660, 1661; 1 Ell. Ev., §§ 411, 412. 48 RELEVANCY [PART I or within the personal knowledge of the reg- istering officer, it was his duty to have re- corded therein, and which he did so record within a short time after their occurrence. ^^ To entitle a book to the character of an official register it need not be required by an express statute to be kept, nor need the nature of the office render it indispensable. It is sufficient that it be directed by the proper authority to be kept, and that it be kept according to such directions for the purpose of being re- ferred to by the public.^^ § 31 . Grounds of admissibility. — The ground upon which such extraordinary confidence is placed in documents of the above character, that the statements contained in them are ac- cepted as evidence without being subjected to the three tests generally applied to other statements, is principally that of the publicity of their subject-matter, and of the further fact that they have been made in the course of duty by the authorized and accredited *i 1 Gr. Ev., §§483-5, 493-5; Tay. Ev., §§ 1591- 1595; Ste. Dig., art. 34; Evanston v. Gium, 99 U. S., 660, 666; Blackburn v. Crawford, 3 Wall., 175, 189, 191 ; 1 Elliott Ev., § 413. 42 1 Gr. Ev., § 496 ; Evanston v. Gunn, supra. CHAP. Il] GENERAL HISTORY 49 agents of the public appointed for that pur- pose.^^ § 32. Matters of general public history in accredited works by deceased or foreign au- thors— Almanacs— Maps.— Upon the same principle, statements as to matters of general public history, made in accredited historical works by authors deceased or out of reach of process of the court, have been permitted to be read in evidence to prove the facts so stated when relevant to the issue ;^^ and in the case of Reginav. Orton, maps of Australia were given in evidence to show the situation of various places at which the defendant said he had lived. So, also, in a later case in Maryland,^^ it was held that an almanac was properly admitted in evidence to prove the hour at which the moon rose on a certain night. It may well be doubted, however, whether the true ground upon which the his- torical works and almanac above mentioned were permitted to be read in court was not 43 1 Gr. Ev., § 483; Evanston v. Gunn, 99 U. S., 660, 666. 44 Ste. Dig., art. 35 ; 1 Gr. Ev., § 497 ; Morris v. Harmer, 7 Peters, 554; Whiton v. Albany City Ine. Co., 109 Mass., 24; 1 Elliott Ev., § 417. 45 Munshower v. State, 55 Md., 11. 4 50 RELEVANCY [PAET I that the facts sought to be established by them were facts of which it was the duty of the court to take judicial notice without formal proof, when called upon to do so, upon being satisfied as to their truth, and that the books were therefore introduced not technically as evidence, but for the purpose of satisfying the judge that the facts sought to be estab- lished were proper matters to be taken notice of judicially. The maps used in the case of Regina v. Orton may either have been ad- mitted upon the same ground, or may have been introduced for the purpose of illustrat- ing and showing the relation of facts which the court took judicial notice of, or which were admitted, or had been proved by wit- nesses. Relevant facts contained in books of exact science or mathematics as the North- ampton tables of Mortality may be read in evidence,^ ^ but not statements in books of in- ductive science, as medical works, which are not held competent evidence for any purpose except perhaps to contradict expert wit- nesses who have quoted them as sustaining their own opinions.^^ 46 Vicksburg R. R. Co. v. Putnam, 118 U. S., 545, 554; Damm v. Damm, 109 Mich., 619, 632; 67 N. W. 984; 63 Am. St. E., 601. 47 Tucker v. Donald, 60 Miss., 460, 470 ; 45 Am. R., CHAP. Il] BOOKS OF CORPORATIONS 51 §33. Entries in books of corporation ad- missible in certain cases.— When the entries made in the books of a corporation relate to acts of a public character, and have been made by the proper officer, they are receiv- able in evidence, either for or against the cor- poration, for the purpose of proving its or- ganization and existence and the regularity and legality of its corporate proceedings, such books being regarded in the light of quasi official registers for the purpose of re- cording such proceedings ; but when sucb en- tries relate to the private transactions of the company, they will be inadmis sable, except, perhaps, in actions between its own mem- bers,^^ and in actions against the corporation by a creditor in which they are considered as prima facie admissions of fact made on be- 416 ; Ashworth v. Kittredge, 12 Cush., 193 ; 59 Am. Dec, 178, note; Boyle v. State, 57 Wis., 472; 46 Am. E., 41 ; City of Bloomington v. Shrock, 110 111., 219; 51 Am. R, 678 ; Union Pacific E. E. Co. v. Yates, 49 U. S. App., 241 ; 79 Fed. E., 584 ; 40 L. E. A., 553, note; Eogers on Expert Testimony, §§ 164-184. 48 Tay. Ev., § 1781 ; Cook on Stock & Corp., § 714 ; Owings V. Speed, 5 Wheat., 420 ; Argus Co. v. Albany, 55 N. Y., 495 ; 14 Am. E. 296 ; Duke v. Cahawba Nav. Co., 10 Ala., 82 ; 44 Am. D., 472. How proved, see First Nat. Bank v. Tesdale, 84 N. Y., 665 52 RELEVANCY [PAET I half of the corporation by its agents in the course of their employment, with the same ef- fect as like admissions made by the agents of individuals under similar circumstances.^^* § 34. Records of judicial proceedings con- clusive proof of the substantive facts recited. — The third exception to the rule excluding hearsay relates to the records of judicial pro- ceedings, which, because the law always pre- sumes that every court keeps a faithful rec- ord of its own proceedings, are not only com- petent but conclusive evidence to prove that the proceedings therein recorded actually took place as therein recited, and that judg- ment was actually rendered as therein set forth.^^ "Without such conclusive presump- tion of the correctness of judicial records, no judgment could ever be practically enforced, for it would always be in the power of any party interested to dispute its existence at any time, and this would involve a new inves- ^^^ City Electric Ry. Co. v. First Nat. Bank, 62 Ark., 32; 34 S. W. 89; 54 Am. St. R., 282, 287; Zang V. Wyant, 25 Colo., 351, 362; 56 P., 565; 71 Am. St. R., 145, 154; 2 Whar. Ev., § 1131; 2 Wigmore Ev., § 1557 (2). 49 Ste. Dig., art. 40; 1 Gr. Ev., § 538; Tay. Ev., § 1667; 2 Elliott Ev., § 1525. CHAP. Il] JUDICIAL RECORDS 53 tigation and a new trial which would be no more conclusive than the first. Of course it would be absurd to apply any tests to that which the law conclusively assumes to be correct. As the record is conclusive evi- dence of the rendition of the judgment, it fol- lows as a natural consequence that it is also conclusive evidence of the existence of that result or state of things which the judgment necessarily effects.^*^ Thus the record of a suit wherein the plaintiff recovered judgment for $10,000 damages is conclusive proof that upon the rendition thereof the defendant was debtor to the plaintiff in that amount; the record of a proceeding resulting in a decree of divorce a vinculo matrimonii is conclusive proof that the complainant and defendant are no longer husband and wife, and the record of a proceeding in bankruptcy is conclusive proof that the person therein stated to have been adjudicated a bankrupt is a bankrupt. § 35. But not of the correctness of the de- cision rendered, except in certain oases.— But although the record is always conclusive proof of the rendition of the judgment therein «o Ibid; King v. Chase, 15 N. H., 9; 14 Am. D., 675; Key v. Dent, 14 Md., 86, 98; Barr v. Gratz, 4 Wheat., 213, 220; Ennis v. Smith, 14 How., 400, 430. 64 RELEVANCY [PAET I recited, and of the result accomplished by it, it by no means follows that it is in all cases equally conclusive or even competent evi- dence to establish the correctness of the ver- dict of the jury, or the finding of matters of fact by the court upon which such judgment was predicated ; for as it often happens that a tribunal, either from not having sufficient evidence before it, or from other causes, may have arrived at a wrong decision as to the truth of the matters of fact submitted to it, such verdict can never amount to more than mere presumptive evidence of the truth of such matters. Thus in the examples given in the preceding section, the record men- tioned would not furnish conclusive proof that the defendant had actually committed the tort for which judgment was rendered against him in the first case, or that the de- fendant in the second had been guilty of the misconduct which was the ground on which the divorce was granted, or that the party adjudicated a bankrupt in the third case had actually done anything to bring him within the provisions of the law ; for in each in- stance it is possible that the jury or judge may have been induced by false or imperfect testimony to have rendered a decision at va- riance with the true facts of the case. Thus CHAP. Il] JUDICIAL RECORDS B5 it will be seen that every record of a court of justice consists of two distinct parts, which have been respectively denominated by Mr. Best "^^ the substantive and judicial portions. In the former the court records or attests its own proceedings and acts, and to this un- erring verity is attributed by the law; while the latter or judicial portion, by which the court expresses its judgment or opinion on the matter before it, is only conclusive, or in- deed competent, as evidence, under certain circumstances which we shall now consider. §36. Rules regulating the admissibility and conclusiveness of the judicial portions of records: (a) Admissible and conclusive as between the parties and their privies; (b) Inadmissible in aU other cases, except 1st, That judgments declaratory of the status of a person or thing are admissible and generally conclusive proof of such status; and 2nd, That adjudications upon questions in- volving custom and pedigree are admissible in certain oases as between others than par- ties or privies.— The question as to how far this judicial fsi Best on Ev., § 590. 56 RELEVANCY [PAHT I portion of a record is properly admissible as evidence of the matters of fact which it de- termines, is made dependent upon several considerations. While, upon the one hand, public policy requires that some limit should be opposed to the continuance of litigation upon the same subject-matter, after it has once been decided by a competent tribunal, it is, on the other hand, an elementary rule and principle of justice, that no man should be bound by an act or admission of another to which he is a stranger. Consequently no one ought to be concluded or affected, as to a matter of private right, by a judgment or verdict to which neither he nor any one through whom he claims was a party, to which no defense could have been made, and from which no ap- peal could have been taken on his behalf; which may have resulted from the negligence of another, or may even have been obtained by means of fraud and collusion. Neither would it be fair that a party should be con- cluded by an adverse verdict under circum- stances in which he could not have availed himself of it as a protection, if it had been rendered in his favor. So, also, it would be unjust that the rights of a plaintiff or defend- ant should be determined by the result of a CHAP. Il] JUDICIAL RECORDS 57 former proceeding even between the same parties, in cases where, from the nature of the former proceeding, he was not entitled to support his case by the same evidence which he might have availed himself of in the sec- ond suit, for he would thus be virtually de- prived in the second suit of evidence to the benefit of which he is by law entitled. There- fore the following rules have been adopted in regard to the admissibility and conclusive- ness of the judicial portions of records : (a) Every judgment rendered by a court having competent jurisdiction over the par- ties and the subject-matter is, as between the parties thereto and their privies (i. e., persons claiming through or under parties by title de- rived subsequently to the rendition of the judgment), conclusive proof of all facts actu- ally decided by the court, and appearing from the record itself to be the ground on which the judgment was based, unless evidence was ad- mitted in the action in which judgTQcnt was delivered, which is excluded in the action in which that judgment is intended to be proved, or vice versd.^^ 52 Ste. Dig., art. 41; 1 Gr. Ev., §§ 523, 523, 524; Tay. Ev., §§ 1682-1723; Starkie Ev., pp. *323, etc.; Beloit V. Morgan, 7 Wall., 619, 632; Lawrence v. 68 RELEVANCY [PABT I (b) No record of any judgment is admis- sible in evidence to prove or render probable the existence of any matter of fact therein stated to have been decided, or which might be inferred from the rendition of such judg- ment, otherwise than as stated in the pre- ceding rule, except that : 1. The records of all judgments rendered by courts of competent jurisdiction which are declaratory of the status of a person or thing, are always rele- vant to establish the existence of such status as declared therein; all such records, when admissible, are conclusive, excepting those of inquisitions of lunacy and inquests of office, which for certain purposes and as against certain persons are prima facie evidence only.^2 2. In all cases where general repu- tation is competent evidence, such as those in- volving questions of custom, prescription and Vernon, 3 Sum., 80; 15 Fed. Cas., 84; Case v. Reeve, 14 Johns. 81 ; Embury v. Conner, 3 N. Y., 511 ; 53 Am. R., 533 ; Cromwell v. County of Sac, 94 U. S., 351; 2 Elliott Ev., § 1529. 83 1 Gr. Ev., §§525, 550, 556; Starkie Ev., pp. *371-382; Tay. Ev., §1674; Burlen v. Shannon, 3 Gray, 387, 389; Ennis v. Smith, 14 How., 400, 430; Mut. Life Ins. Co. v. Tisdale, 91 U. S., 238, 241; Packham v. Glendemeyer, 103 Md., 416, 423, 63, A 1048; 2 Elliott Ev., §§1530-1532. CHAP, ir] JUDICIAL RECORDS 59 pedigree, the records of adjudications relat- ing thereto are admissible in evidence, not only as between parties and privies (where they would be conclusive), but also as be- tween all others, as being of the same nature, but much stronger than mere reputation.^^ §37. Why judgments declaratory of the status of a person or thing are always admis- sible to prove it.— The reasons for the excep- tions by which the records of judgments de- claratory of the status of persons or things are admissible, and in most cases conclusive evidence to prove such status as against those not parties thereto, are that as regards those cases declaratory of the status of persons, it is upon grounds of public policy deemed es- sential that the legal social relations of every member of the community should not be left doubtful, but, having been clearly defined by one solemn adjudication, should thereafter be conclusively set at rest; and as regards those cases declaratory of the status of things, and especially in questions as to prop- erty seized and proceeded against, because generally every one who can possibly be af- 54 1 Gr. Ev., § 526 ; Tay. Ev., § 1683 ; Starkie Ev., p. *386 ; Patterson v. Gaines, 6 How., 550, 599 ; May- bee V. Avery, 18 Johns., 353. 60 RELEVANCY [PART 1 fected by the decision has a right to appear and assert his own rights, by becoming an actual party to the proceedings.^^ Such judgments are known as judgments in rem. § 38. Who are parties to a judgment.— The term parties to a judgment, as used in this connection, is in the United States generally understood to include all persons who are directly interested in the subject-matter, and have a right to control the proceedings and to appeal from the decision; as for example, a plaintiff in attachment who has given an indemnity bond to the sheriff for levying up- on certain property, and who would in this sense be considered a party to any action of trespass brought against the latter for mak- ing such levy.^^ But although one or two of the English cases appear to favor this lib- eral construction of the rule, there is no di- rect authority in the courts of that country for extending it beyond those who are named in the record.^'^ The parties to the record 56 1 Gr. Ev., § 525; Tay. Ev., § 1676. t5« 1 Gr. Ev., §§523; Lovejoy v. Murray, 3 Wall., 18 ; Eobbms v. Chicago, etc., 4 Wall., 657, 672 ; Stovall v. Banks, 10 Wall., 583, 588. 67 Tay. Ev., §§ 1687, 1688. CHAP. Il] JUDICIAL RECORDS 61 of a criminal proceeding, being the state and the accused, it follows from the preceding rules that such a record, while admissible in civil causes to prove the fact of the acquittal or conviction of the prisoner, is not relevant to show that he did or did not commit the act for which he was indicted.^^ §39. Admissibility of record dependent upon whether couii; had jurisdiction, which may always be inquired into.— As already stated, the admissibility in evidence of every record is conditional upon the fact of the court which rendered the judgment having had competent jurisdiction over the parties and the subject-matter; and although such judgments are, when admissible, generally speaking, conclusive of the matters decided by them, the question as to whether the courts which rendered them had competent jurisdiction, is one which may always be in- quired into ; and it is also open to the party against whom such a record is offered in evidence, to show that the judgment had been reversed on appeal, or (if he be not a party or privy) he may show that it was obtained by fraud or collusion, provided that neither he, 58 1 Gr. Ev., § 537. 62 RELEVANCY [PART I nor any person to whom he is privy, was a party thereto. ^^ § 40. Same doctrine applicable to foreign as weU as domestic judgments.— The forego- ing remarks apply to the records of all judg- ments rendered by courts of the same state and of the United States, and also to those rendered by the courts of sister states of the Union, under the provision of the constitu- tion of the United States, requiring full faith and credit to be given in each state to the public acts, records and judicial proceedings of every other state, and the laws of congress thereunder.^*^ They may also be said to be equally applicable, practically, to records of foreign courts; for, although the American courts have until recently maintained the general doctrine that foreign judgments, when relevant, are prima facie evidence only, and impeachable, no modern case can be found in which such a judgment has been per- 59 Ste. Dig., art. 46 ; 1 Whar. Ev., § 795, etc. ; Thompson v. Whitman, 18 WalL, 457; Christmas v. Russell, 5 id., 290, 304; Ferguson v. Crawford. 70 N. Y., 253; 26 Am. R., 589. As to fraud, see Atlas Nat. Bank v. More, 152 111., 528, 42; 38 N. E. 684; 43 Am. St. R., 274, 284 ; also 1 Whar. Ev., § 797. 60 Const. U. S., art. 4, § 1 ; Rev. Stat. U. S., § 906, etc.; Christmas v. Russell, supra. CHAP. Il] GENERAL REPUTE 63 mitted to be impeached, except for want of jurisdiction or fraud; and some recent de- cisions have expressly held that they can be impeached upon no other grounds, and are conclusive upon the merits.^^ § 41. General reputa-tion sometimes admis- sible in evidence.— The fourth exception to the rule excluding hearsay evidence com- prises those statements made by third parties out of court, by means of which a witness has become aware of the existence of any general reputation, the existence of which is relevant to the issue. As general reputation is merely the general opinion or conclusion concerning a particular matter which has been arrived at by society at large, or some indefinite part of it, through the combined knowledge and ex- perience of its individual members, it be- comes superfluous to apply the three ordinary tests of truth to the statements offered m evidence merely as the expresions of such general opinion, since, in this case, the re- el Ste. Dig., art. 47 ; Story, Confl. Laws, § 608 ; 2 Whar. Ev., §§ 801-803; Hilton v. Guyot, 159 U. S., 113, 162; Lazier v. Westcott, 26 N. Y., 146, 150; 82 Am. D., 404; Dunlap v. Cody, 31 Iowa, 260; 7 Am. E., 129 ; Dunstan v. Higgins, 138 N. Y., 70 ; 33 N. E., 729 ; 34 Am. St. E., 431 ; 20 L. E. A., 668. 64 BELEVANCY [PAET I liance is not placed upon the credit due to the assertions of any single individual, but rests upon the fact that indefinite numbers concur in expressing the same belief. Hence the true subject of inquiry is, not whether the several statements giving expression to this belief are strictly true and accurate as a mat- ter of fact, but rather, whether or not they were very generally made by persons of that class best situated for obtaining information upon the subject. Besides those cases in which the existence of a general reputation as to certain matters becomes sometimes relevant, as affording a probable cause for or explanation of some act, there are others in- volving a class of facts which, being ordi- narily imperceptible to the senses, and there- fore incapable of proof by the usual meth- ods, must be established, if at all, by general reputation, that being the best means of proof which the nature of the case affords. Such facts are character, pedigree or relationship, solvency or wealth, prescription, custom, boundaries, and the like, the nature or ex- istence of which can frequently be proved only by general repute among the particular class of persons most favorably situated for acquiring information in regard to them. Thus, a man's character is shown by his gen- CHAP. Il] GENERAL REPUTE 65 eral repute among those who are acquainted with him; his relationship to any family by general repute among the members of that family ; and questions of prescription, custom and boundaries, in so far as they are matters of general interest to any considerable por- tion of the community, may be proved by the general reputation prevailing among the class so interested in tliem.^- So, also, where it is a question whether two persons are hus- band and wife, the facts that they cohabited together, and were generally reputed to be such among their acquaintances, ar6 relevant as competent evidence from which a valid marriage between them may be inferred, ex- cepting in criminal prosecutions for bigamy and adultery, and civil suits for damages for the seduction of a spouse.^^ These excep- ts Starkie Ev., pp. *43-47 ; 1 Gr. Ev., § 101 ; Tay. Ev., §§ 577-599; 2 Wigmore Ev., §§ 1610, et seq. 63 1 Gr. Ev., § 107; 2 id., § 462; Tay. Ev., § 578; Ste. Dig., art. 53. In England, and also in some jnrisdictions in this country, an additional exception is made to the competency of such evidence to prove marriage in the case of proceedings for divorce, but there is great diversity in the practice prevailing upon this point in different states. See 2 Bishop Mar. & Div., §§ 266-276; Jewell v. Jewell, 1 How., 209, 232; Blackburn v. Crawford, 3 Wall., 175, 191; Jones v. 66 RELEVANCY [PAET I tions rest on the ground that such proceed- ings, being of a penal nature, require the strictest proof, since the accused has the pre- sumption of innocence in his favor, which is sufficient alone to overcome the presumption of marriage; and a further reason for the exception in civil actions for the seduction of an alleged husband or wife seems to be, to prevent parties from setting up pretended marriages for evil purposes.®* §42. (B.) Second class of exceptions to rule excluding hearsay— Statements made un- der certain circumstances by persons since de- ceased, insane or permanently beyond the reach of process.— We now come to the second class of exceptions to the rule excluding hear- say, being certain declarations or statements to which some one or more of the three tests cannot be applied by reason of the death, in- sanity or permanent absence from the state of the person who made them, but which were made under conditions which the law regards as furnishing a sufficient guarantee of their truth to justify their reception as evidence Jones, 48 Md., 391, 397; 30 Am. E., 466; Badger v. Badger, 88 N. Y., 546; 42 Am. R., 263. «4 Best on Ev., § 349; Tay. Ev., § 172. CHAP. II ] EVIDENCE IN FORMER CASE 67 without being subjected to such tests. These declarations are : § 43. (1) Evidence given in former pro- ceeding, or at earlier stage of same action.— Testimony given at an earlier stage of the same action, or in a previous one, between the same parties or their representatives in interest, and involving substantially the same question, by witnesses since deceased or in- sane, is always admissible in evidence; pro- vided the person against whom it is given, or some one through whom he claims, had the right and opportunity to cross-examine the declarant when he was examined as a wit- ness.^^ Such statements, if correctly re- ported, would be entitled to almost the same consideration as if made in open court, for they would have been subjected to all the tests which could be applied in the latter case, ex- cepting that the demeanor of the witness could not be seen and commented upon; but as this is the least important of the three tests, it is found that much less injustice is 65 Ste. Dig., art. 32. When witness dead. Mattox V. United States, 156 U. S., 237, 240; Mineral Point R. R. Co. V. Keep, 22 111., 9 ; 74 Am. D., 124. When insane. Emig v. Diehl, 76 Pa. St., 373 ; Drayton v. Wells, 1 Nott & McC, 409 ; 9 Am. D., 718. 68 RELEVANCY [ PART I done by waiving it, in cases where it is im- practicable to apply it, than would result from such a rigid enforcement of the rule re- quiring it as would oftentimes exclude im- portant testimony which could not be sup- plied from any other source.^'' Courts are therefore disposed to put a liberal construc- tion upon this exception and to admit testi- mony of this kind whenever it appears that the party offering it has used all reasonable efforts to secure the personal attendance of the witness, and has been unable to do so :®^ as for example, it has been extended to in- clude cases where the witness was so ill that he would probably never be able to travel f^ where he was kept out of the way by the ad- verse party ,^^ and some cases where he could not be found.'^*^ Such testimony may be 66 Best on Ev., § 496 ; 1 Elliott Ev., § 496, § 320. 67 Ste. Dig., art. 32; Tay. Ev., §§464-477; 1 Gr. Ev., §§ 163-166. 68 Miller v. Russell, 7 Martin, 266 (N. S.) ; Emig V. Diehl, 76 Pa. St., 373. 69Winianis v. State, 19 Ga., 402; Reynolds v. United States, 98 U. S., 145, 158. ^'^R. V. Scaife, 17 Q. B., 238; Wilbur v. Selden, 6 Cow., 162; State v. Staples, 47 N. H., 113. Also, in civil cases, where out of the jurisdiction. Noble v. McClintock, 6 W. & S., 58, 61 ; Mims v, Sturtevant, CHAP. Il] DYING DECLARATIONS 69 proved by any witness who was present and heard it given even though an official stenog- rapher had taken it down at the time.'^^ § 44. (2) Dying declarations.— Declara- tions made by a person under a full appre- hension of impending death, and after having given up all hope of recovery, are admitted in evidence in trials for the homicide of the declarant, to prove the cause of his death, or any of the circum- stances of the transaction which resulted in it. This exception is made because it is considered that, under such solemn cir- cumstances, the declarant could have no ade- quate temptation to falsehood ; and inasmuch as ordinarily third persons are not present as eye-witnesses to a murder, it would often happen that unless such dying declarations were received, the murderer might escape justice.'^'^ § 45. (3) Declarations made in the ordi- nary course of business.— Declarations by 36 Ala., 63. But authorities are conflicting on this point. See note 65 Am. D., p. 676. ^iStudebaker v. Taylor, 170 Ind., 498, 509; 83 N. E., 747; 127 Am. St. R., 397, 406. 72Ste. Dig., 26; 1 Gr. Ev., §§ 156-162; Tay. Ev., §§ 714-722; Best Ev., § 505; 1 Elhott Ev., § 334. 70 RELEVANCY [PABT I persons having no interest in stating an un- truth, made in the ordinary course of their business or in the discharge of professional duty, and from their own personal knowledge, at or near the time when the matter stated oc- curred, are admitted to prove any facts nec- essary to the performance of a duty by the declarant. This exception is made upon the ground that, in the absence of all suspicion of sinister motives, a strong presumption arises that statements made in the ordinary routine of business are correct; and more especially is this the case when, as is most usual, such declarations have been made in the form of written entries in some book or record kept by the declarant for his own private use, or that of an employer, and which it would there- fore be plainly for his own advantage for him to keep accurately. Unless statements of this kind were received in evidence, it would be next to impossible to prove ordinary store accounts for goods sold and delivered, in cases where the persons who had delivered and charged them had since diedj^ This rule 73 Ste. Dig., art. 27; Tay. Ev., §§ 696-713; 1 Gr Ev., §§115-119; Price v. Torrington, 1 Sm. Lead. Cas. (7th Am. ed.), *394; Nicholls v. Webb, 8 Wheat., 326, 334; Barber v. Bennett, 58 Vt., 476; 56 Am. K., CHAP, II] ENTRIES IN SHOP BOOKS 71 lias been extended in some of the United States to apply to entries made by the party himself in his own shop books. The extent to which such entries are admitted in evidence is regulated by local practice, which varies greatly in the different states, many of which still adhere to the common-law rule as above given, restricting the admissibility of decla- rations made in the course of business to those of declarants who had no interest to falsify^* 565. But see Tome Inst. v. Davis, 87 Md., 591 ; 41 A., 496; 14 L. N. S., 292. ^ * A full statement of the law upon this subject will be found in the note of the American editors to the case of Price v. Earl of Torrington, 1 Sm. Lead. Cas. (7th Am. ed.), p. *407. Previous to the adoption of the statutes rendering parties competent witnesses in their own behalf, it was held in the states of Massa- chusetts, New Hampshire, Maine, Pennsylvania, South Caroline, Connecticut and Delaware, that entries made by a party in his own books were admissible in evidence as relevant facts, in proof of work done and goods delivered by said party, when it appeared to the judge from inspection of said books that they were a register of the daily business of the party, honestly and fairly kept, without erasures in a ma- terial part, save such as were satisfactorily explained, and where the party him?elf made oath in open court 72 EELEVANCY [PART I § 46. (4) Declarations made against the interest of the declarant.— Declarations made by a person who had peculiar means of know- ing the matter stated, and who had no inter- est to misrepresent it, are admitted in evi- dence when shown to have been opposed to that they were the books in which the accounts of his ordinary business transactions were usually kept ; that the articles therein charged were actually delivered, and the labor and services therein charged were actu- ally performed ; that the entries were made at or about the time of the transactions, and were the original entries thereof, and that the sums charged and claimed had not been paid. The same rule prevailed also in the states of New York, Illinois, New Jersey, Georgia and Ohio, except that in these latter the suppletory oath of the party himself was neither required nor admitted. In the states of Maryland, North Caro- lina, Tennessee, Alabama and Vermont, the entries of a party in his own books are not admissible in evi- dence, except where supported by his own oath, and then only for small amounts regulated by statute. In Indiana, Mississippi, Virginia and Kentucky, the common-law rule prevails. Of course the statutes making parties competent witnesses enable them to use their books to refresh their memory in testifying. In all cases where the entries made in his own books by a person, who has since died or become insane, would have been evidence in his own behalf, if sup- CHAP. Il] DECLARATIONS AGAINST INTEREST 73 the pecuniary or proprietary interest of the declarant."^** The ground of this exception is the extreme improbability of falsehood in declarations made under such circumstances ; for as men usually have such regard for their own interests as not to make any statements prejudicial to them about matters within their own knowledge, unless they are true, the plemented by his oath, as above stated, they may also be offered in evidence in actions brought by his execu- tor, administrator or guardian, for work done or goods delivered by said deceased or insane person, upon such executor, administrator or guardian mak- ing oath that such books came to his hands as the genuine and only books of account of said deceased or insane person, and. tliat to the best of his knowledge and belief the entries are original and contempora- neous with the fact, and the debt unpaid, and also fur- nishing proof that such entries are in the handwriting of said deceased or insane person. A full collection of decisions relative to the admissibility in evidence of books, reports and memoranda made or authorized by the party seeking to introduce them, will be found in the note on page 891 of Vol. 127, Am. State Ee- ports under the case of Eureka Mining Co. v. Bullion Mining Co., 32 Utah, 736 there reported. T^^ste. Dig., art. 28; 1 Gr. Ev., §§ 147-155; Tay. Ev., §§668-698; Higham v. Ridgway, 2 Sm. Lead. Cas., 7 Am. Ed., p. *330; 1 ElHott Ev., §§ 434-453. 74 RELEVANCY [PAET I fact that such statements are not admitted in evidence until after the death of the declar- ant is considered a sufficient guarantee that they were not made for any fraudulent pur- pose. There is this difference between the declarations admitted under this exception, and those admitted upon the ground of having been made in the ordinary course of busi- ness : that while the latter, as we have seen, are admissible only to prove facts which were necessary to the performance of some duty by the declarant, declarations against the in- terest of the declarant are received in evi- dence of all matters that form part of such declarations, although some of them were not, in themselves, against his interest. Thus, where A., B. and C. had made a joint and sev- eral promissory note for £300, and a partial payment had been made by A., which was in- dorsed by the payee upon the note in these terms: ''Received of A. the sum of £280, on account of the within note, the £300 having been originally advanced to C.,"the court held, in an action brought by A. to recover contribution from B. as a co-surety, that, the payee being dead, his indorse- ment was admissible to prove the whole statement contained in it, and was there- fore evidence not only of the payment CHAP. Il] DECLARATIONS AGAINST INTEREST 75 of A., but also of the fact that C. was the principal debtor.'^'^ But statements as to entirely independent matters are not evidence simply because made at the same time and place with a declaration against interest, un- less connected with it by being referred to in it, or by being necessary to explain it ; thus, in an account rendered by a steward, since de- ceased, containing on one side entries charg- ing himself with the receipt of moneys, and on the other side items discharging him, by showing how the moneys received had been disbursed, the discharging entries will not be admissible in evidence, unless they are nec- essary to explain the charging entries, or are expressly referred to by themJ^ The term ''declaration," as applied to this exception, embraces all statements, verbal or written, whether made at the time of the fact declared, or on a subsequent day, provided that they were against the pecuniary or proprietary in- terest of the declarant at the time when made ; '^'^ hence the indorsement of a partial payment upon an instrument barred by the statute of limitations does not come within '« Davies v. Humphreys, 6 M. & W., 153, 166. 76 Doe V. Beviss, 7 C. B., 456. T' Tay. Ev., § 673. 76 RELEVANCY [PART I the rule, unless shown to have been made be- fore the statutory period had elapsed, since the receipt of money by the payee after that time would then operate in favor of his pro- prietary interest by removing the bar of the statute which had already attached J* This exception is most frequently exemplified by entries in books of account, which either charge the party making them with the re- ceipt of money on account of a third person, or acknowledge the payment of money due to himself; and the weight of authority now seems to support the proposition that entries of the latter class are admissible, even in cases where they are the only evidence of the charge of which they show the subsequent liquidation.'^^ § 47. (5) Declarations of testator as to contents of his will. — Declarations made by a testator as to the contents of his will have been held in the event of the loss of such will, admissible in evidence to prove its contents. ■^8 Id., §§693-696; 1 Gr. Ev., §§131, 122; Alle- gheny Co. V. Nelson, 25 Pa. St., 332, 334; Roseboom V. Billington, 17 Johns., 182; Burgoon v. Bixler, 55 Md., 384, 392; 39 Am. R., 418. 79 1 Gr. Ev., § 151; Tay. Ev., §§ 675, 676; Taylor V. Withara, L. R., 3 Ch. Div., 605. CHAP. II 1 testator's DECLARATIONS 77 This exception, like the preceding one, seems to have been allowed upon the ground of the extreme improbability of falsehood; since the testator, having an absolute right to change his will as often as he pleased during his life-time, could hardly be supposed to have any object in stating its contents to be other than they actually were.®^ § 48. (6) Declarations as to any public or general right or custom.— Declarations as to the existence of any public or general right or custom, or matter of public or general in- terest, made by persons who are shown to the satisfaction of the judge, or appear from the circumstances of their statements, to have had competent means of knowledge, are ad- missible to prove the existence of such right, custom or matter, provided they were made before any controversy arose touching the 80 Ste. Dig., art. 29 ; 1 Whar. Ev., § 139 ; Sugden v. St. Leonards, L. R., 1 P. D. (C. A.), 154; Schouler on Wills, § 403 ; Matter of Page, 118 III, 576 ; 8 N. E., 852; 59 Am. E., 395, and note; Foster's Appeal, 87 Pa. St., 67; 30 Am. R., 340; Pickens v. Davis, 134 Mass., 252 ; 45 Am. E., 322 ; contra, Throckmorton v. Holt, 180 U. S., 552, 576, and see 3 Wigmore Ev., § 1736 ; but see 1 Elliott Ev., § 533. 78 RELEVANCY [I'ART I matter to which they relate.^ ^ This exception is allowed upon the ground of necessity, for without it there would ordinarily be no meth- od whatever of proving the existence of any such public or general right or custom (such as a highway or right of ferry, for example), at a period anterior to the memory of living witnesses. The restriction that the declara- tions must have been made before any con- troversy arose upon the subject, is imposed for the reason that such declarations are only admitted at all upon the ground that they are the natural effusions of a party who is pre- sumed to know the truth, and to speak it, up- on an occasion when his mind stands in an even position, without any temptation to ex- ceed or fall short of the truth. But no man is presumed to be thus indifferent in regard to matters in actual controversy; for when the contest has begun, people generally take part on one side or the other, and, even when disposed to speak the truth, they are very apt to see facts through a distorting medium.^^ If the right, custom or matter to be proved 81 Ste. Dig., art. 30; 1 Gr. Ev., §§ 127-140; Tay. Ev., §§ 607, 634; 1 Elliott Ev., § 385. 82 1 Gr. Ev., § 131; 1 Whar. Ev., § 185; Ellicott v. Pearl, 10 Pet., 412 ; 1 Elliott Ev., § 386. CHAP. Il] PEDIGREE 79 be public, i. e., one which concerns every mem- ber of the state, every person is presumed to have had some knowledge as to whether it existed during his own life-time; but if it be only general, i. e., one in which only a por- tion or class of the community are interested, such knowledge will not be presumed unless the declarant is shown to have belonged to the portion or class of the community so inter- ested.^^ §49. (7) Declarations as to matters of pedigree.— Declarations relating to matters of pedigree, which term embraces not only general questions of descent and relationship, but also such particular facts of family his- tory as births, marriages and deaths, the cir- cumstances immediately connected with their occurrence, the times, either definite or rela- tive, at which they happened, legitimacy and the contrary, are admitted in evidence to prove such matters, when such declarations were made before the question in relation to which they are proved had arisen, and by a declarant shown either to have been himself legitimately related by blood, or to have been *8 Declarations as to ancient boundary lines, held to come within this class in Maryland ; Cadwallader V. Price, 111 Md., 310, 315; 75 A., 273, 80 RELEVANCY [PART I married to some one so related to the person referred to by them. This exception, like the preceding one, has been recognized upon the ground of necessity, since tradition is often the sole method by which proof of matters of pedigree can be obtained, while the limita- tions to which it is subjected give an excellent illustration of the third great distinguishing principle of the Englsh law of evidence (the other two being the exclusion of res inter alios and of hearsay), that all facts must be proved, if at all, by the best kind of evidence of which they are susceptible. As the mem- bers of a family are always those most likely to be best acquainted with the nature of the ties of relationship by which they are united to each other, and to have the fullest infor- mation in regard to such matters of family history, the declarations admitted for the purpose of establishing such facts are re- stricted to the statements of blood relations, or persons who have become members of the family by marriage with one so related to it.^"^ Upon the same principle, such declara- tions, to be competent evidence, must have 84Ste. Dig., art. 31; 1 Gr. Ev., §§ 103-106; Abb. Tr. Ev., Ch. v., 34-42; Tay. Ev., §§ 635, 657; Stein V. Bowman, 13 Pet, 220 ; Ellicott v. Pearl, 10 Pet., CHAP. Il] PEDIGREE 81 been made either from the personal knowl- edge of the declarant, or from information derived through other persons whose decla- rations would, on acount of the relationship in which they stood towards the family, be equally admissible with his own.^^ In this case also, as with declarations offered under the last preceding exception, relating to mat- ters of public or general interest, and for the same reason, the declarations offered in evi- dence must be shown to have been made be- fore any controversy had actually arisen over the matter to which they relate.^^ All decla- rations made after the controversy began are rigidly excluded, even though the declarant did not know of such controversy at the time he made them; but the fact that they may have been made for the purpose of preventing 412, 434; Jones v. Jones, 36 Md., 447; 11 Am. R., 505 ; Jewell v. Jewell, 1 How., 219, 231. 85 Davies v. Lowoides, 6 M. & G., 527; Elliott v. Piersoll, 1 Pet., 328, 337; Secrist v. Green, 3 Wall., 744; Gaines v. New Orleans, 6 Wall, 642, 699; Crau- furd V. Blackburn. 17 Md., 49, 54 ; 77 Am. D., 323. ^^ Berkley Peerage Case, 4 Camp., 401-407 ; Stein V. Bowman, 13 Pet., 209, 220 ; Ellicott v. Pearl, 10 Pet., 412, 434; Craufurd v. Blackburn, 17 Md., 49, 54; 77 Am. D., 323. 82 RELEVANCY [PART I such controversy from arising does not ren- der them inadmissible. Such declarations may be either verbal or written, and when made in the form of entries in a Bible or Tes- tament, shown to have been the family Bible or Testament, they are admitted without proof that they were made by a relative ; for as this book is the ordinary register of fam- ilies, and usually accessible to all its members, the presumption is that the whole family have more or less adopted the entries contained in it. So, also, an inscription on a tombstone is admitted without proof that it was made by the direction of a relative, it being pre- sumed that the family would not permit an erroneous inscription to remain. But no other entries or inscriptions are admitted in evidence without some proof of their having been made by or under direction of some de- ceased member of the family, or else of their having been so preserved and treated in the family as to give it the character of a declara- tion by the family or some of its members.^''^ 87 Abb. Tr. Ev., Ch. V, 36 ; Tay Ev., § 652 ; Chap- man V. Chapman, 2 Conn., 347 ; 7 Am, D., 297 ; Lewis V. Marshall, 5 Pet., 470, 476 ; N". Brookfield v. War- ren, 16 Gray, 174; as to proof of age. Grand Lodge v. Bartes, 69 Xeb., 601 ; 98 X. W., 715 ; 111 Am. St. R., 577, note. CHAP. Il] OPINIONS 83 § 50. Opinion excluded except in a few cases.— Similar to the rule excluding hearsay is that which declares that the fact of any per- son being of opinion that any fact in issue, or relevant thereto, does or does not exist, is ir- relevant to prove its existence or the con- trary, excepting in a few cases which will be considered presently. The theory of this rule is, that so far as such an opinion may be founded on no evidence at all, or on illegal evidence, no weight could be given to it what- ever, without practically nullifying the rules of law excluding irrelevant matters and deriv- ative evidence, and that so far as it may be founded on legal evidence, it is inferior in character to the original evidence upon which it is founded, which should itself be laid before the jury (or court, as the case may be), whom the law presumes to be, under ordinary circumstances at least, equally cap- able with the witnesses of drawing from it any inferences that justice may require.^^ The exceptions to this rule will be found to consist of those few cases where the law does not presume the jury or court to be equally capable with the witness of drawing correct 88 Best Ev., § 511 ; 1 Elhott Ev., 672. 84 RELEVANCY [PAET 1 inferences from the facts upon which his opinion is founded.^^ § 51. Opinions formed from personal ob- servation admissible when the best evidence that the nature of the case admits of.— The first exception embraces all those cases in which the opinion of the witness has been formed by personal observation of facts or phenomena so numerous or so evanescent that they cannot be stated or described in such language as will enable persons not eye- witnesses to form an accurate judgment in re- gard to them, and as to which, therefore, no better evidence than such an opinion can be obtained.^^ Hence witnesses have been al- lowed to testify as to their opinion, upon questions of personal identity ; as to whether two persons were attached to each other; as to whether a person was intoxicated; as to whether a person was of a certain age ; as to 89 Best Ev., § 513; 1 Elliott Ev., 675. 90 Best Ev., § 517 ; 1 Whar. Ev., §§ 509-513 ; 1 El- liott Ev., § 675 ; Hardy v. Merrill, 56 N. H., 227, 241; 22 Am. R., 441; Sydleman v. Beekwith, 43 Conn., 9, 11; De Witt v. Barley, 17 N. Y., 340; Com. V. Sturtevant, 117 Mass., 122, 133 ; 19 Am. R., 401 ; Hopt V. Utah, 120 U. S., 430, 437 ; Ryder v. State, 100 Ga., 528 ; 28 S. E., 246; 38 L. R. A., 721, note. CHAP. Il] ATTESTING WITNESSES 85 whether a person was sane or insane, and many other questions of a similar character. In all such cases, however, the witness, before being allowed to express his opinion, is re- quired to state the circumstances under which he observed the facts upon which his opinion has been founded, and also to state, so far as possible, what facts he thus observed ; and it is then for the judge to decide from that statement, whether, under all the circum- stances of the case, an opinion formed upon such observation is competent evidence un- der this exception; but the subscribing wit- nesses to a will may state the opinions which they formed at the time of its execution, as to the testator's mental capacity, without first stating the facts upon which that opinion was formed.^^ This distinction, allowing the subscribing witnesses to a will a peculiar privilege, in giving their mere naked opinion in relation to the sanity of the testator at the time of its execution, and denying that privi- lege to others, is considered by Judge Red- field to be practically and in principle wholly 91 Abb. Tr. Ev., Ch. V, 64; 1 Red! Wills, pp. *139, 144; Conn. Mut. Life Ins. Co. v. Lathrop, 111 U. S., 612, 620; Robinson v. Adams, 62 Me., 219; 16 Am. E., 473, 486. 86 RELEVANCY [PART I groundless, and an absurd one in itself .^^ He considers it to be based upon the fact that, as the statutes prescribing the method of exe- cuting wills generally require that they should be attested by credible or competent witnesses, it is not competent for the courts to say, after the statute has defined the requisites of a witness, that he is not to be regarded as competent to testify to every point directly involved in the issue, whether the paper presented for probate be the will of the alleged testator or not.^^ Indeed, it ought always to be assumed that the subscribing witnesses to a will did regard the testator as of sound mind at the time of executing the will, or they would not have countenanced the act by becoming witnesses, and therefore they can only say that he appeared sane, as they noticed nothing to the contrary ; so that the idea of requiring them to state facts in confirmation of such a mere negative opinion would be preposterous.®^ Practically, how- ever, this distinction amounts to very little, for all the facts and circumstances seen or known by the subscribing witness at the time 62 1 Eedf. on Wills, p. *139 S3 Id., p. *145, note 25. »4 Id., p, *H4, note 22. CHAP. II ] OPINIOX OF EXPERTS 87 of the execution, may always be brought out either on direct or cross-examination, and up- on them will depend in a great measure what- ever weight is given to his opinion. § 52. Opinions of experts on matters re- quiring special study or experience admis- sible.— Whenever there is a question as to any point of science or art, or other matter re- quiring a course of special study or experi- ence in order to the attainment of that degree of knowledge, without which persons are un- likely to prove capable of forming a correct judgment upon it, the opinions upon that point, of witnesses specially skilled or learned in any such matter, are admitted in evidence for the purpose of aiding the jury (or court) to arrive at a correct conclusion from the facts established by the testimony .^^ Such witnesses are usually called experts, and whenever it is proposed to examine any wit- ness as an expert, the judge must first decide, 95 Ste. Dig., art. 49 ; Best Ev., § 513 ; 1 Gr. Ev., §§440, 440a; Tay. Ev., §§ 1416-1425; 1 Sm. Lead. Cas., Carter v. Boehm, 7th Am. ed., pp. *618, *628, *644; Milwaukee, etc., Ey. Co. v. Kellogg, 94 U. S., 469, 472 ; Hammond v. Woodman, 41 Me., 177 ; 66 Am., D., 219, and note; Stumore v. Shaw, 68 Md., 11 ; 11 A., 360; 6 Am. St. R, 412; 2 Elliott Ev., § 1025- 1047. 88 RELEVANCY [PART 1 as a preliminary question, whether or not his skill or learning in the matter upon which his opinion is to be asked is sufficient to en- title him to be regarded as an expert.^® Wit- nesses thus examined as experts are not per- mitted to usurp the functions of the jury by giving their opinions as to the general merits of the cause, but are only allowed to state the conclusions which their skill has enabled them to draw from the facts within their own per- sonal knowledge, after having first stated what those facts are; or else to give their opinion upon a hypothetical statement of facts, based on evidence already given by other witnesses.^'^ Thus, when the question is whether the death of a certain person was caused by poison, a physician examined as an expert may be asked as to what, in his opin- ion, would be indicated by the presence of 96 Ste. Dig., art. 49 ; Abb. Tr. Ev., Ch. XIX, 22 ; Tay. Ev., §48; Bristow v. Sequeville, 6 Ex., 275; Rowley v. L. & N. W. Ry., L. R., 8 Ex., 221 ; Tucker V. Mass. Cent. Ry., 118 Mass., 547; Del. & Ches. St. Towboat Co. v. Starrs, 69 Pa. St., 41 ; Com. v. Sturte- vant, 117 Mass., 122; 19 Am. R., 401. »7 1 Gr. Ev., § 440; Tay. Ev., § 1421 ; Abb. Tr. Ev., Ch. V, 64; Bradner Ev., p. 371; State v. Maier, 36 W. Va., 757; 15 S. E., 991; People v. McElvaine, 121 N. Y., 250; 18 Am. St. R., 820; Meeker v. Meeker, CHAP, ll] OPINION OF EXPERTS 89 symptoms such as other witnesses have tes- tified were exhibited by the deceased; or, if he saw the deceased himself, he may, after de- tailing the symptoms be observed, state his opinion as to the cause which produced them. So where the question is as to the unwritten law of any foreign country, experts who in their profession are acquainted with such law, may state their opinion as to what the law of that country would be upon a hypo- thetical state of facts, all of which are sus- tained by evidence already offered in the case ; but the written law must be proved by the production of an authenticated copy of the statute itself, if such copy can be ob- tained.^^ When skilled witnesses are called upon as experts to pronounce their opinions on some scientific question, they may refresh their memory by referring to professional treatises.^^ 74 Iowa, 353; 37 N. W., 773; 7 Am. St. E., 489; Dexter v. Hall, 15 Wall., 9, 26 ; Quinn v. Higgins, 63 Wis., 664; 24 N. W., 482; 53 Am. R., 305. »8 1 Gr. Ev., § 488 ; Ennis v. Smith, 14 How., 400, 426; Tay. Ev., §1425; Baltimore & Ohio E. E. v. Glenn, 28 Md., 287, 322; 92 Am. D., 688, 694. 9« Tay. Ev., § 1423; 1 Whar. Ev., §§ 438, 666; Ste. Dig., art. 136 ; Eippon v. Bittel, 30 Wis., 614 : Harvey 90 RELEVANCY [PAET I §53. Opinion as to handwriting.— The several rules regulating the admissibility of the opinions of witnesses for the identifica- tion of handwriting, being to some extent ar- bitrary, and by no means uniform, will now be stated separately for convenience, al- though in strictness they might, perhaps, all be properly referred to one or other of the two preceding exceptions. Thus, under the first exception, any witness acquainted with the handwriting of a person may testify as to whether or not, in his opinion, a writing pro- duced in evidence was written by such per- son. The acquaintance with a person 's hand- writing which the witness must possess in or- der to be competent to express such an opin- ion, is that he must have actually seen such person write (though only once,) or else have received writings purporting to be written by such person in answer to others written by himself, or under his authority, and ad- dressed to such person ; or else have writings purporting to have been written by that per- son habitually submitted to him in the ordi- nary course of business.^ '^'^ Where a paper V. state, 40 Ind., 518 ; Pierson v. Hoag, 47 Barb., 223, 246; Hoffman v. Clack, 77 N. C, 555. 100 Ste. Dig., art. 51; 1 Gr. Ev., § 577; Tay. Ev.. CHAP. Il] HANDWRITING 91 admitted or clearly proved to be genuine is al- ready in evidence for some other purpose in a cause, and another paper pertinent to the issue, and alleged to be in the same hand- writing, is offered in evidence, it is well set- tled that the jury (or court) may compare the latter with the former ;^"^ but upon the question as to whether papers not otherwise in the case may be received and proved for the purpose of comparison, and whether, where such comparison is allowable by the jury, the testimony of experts in regard to it is admissible, there is much conflict in the de- cisions of the courts of the different states of the Union; but the weight of American authority appears to be against the admis- sion of papers offered merely for the purpose of comparison, and in favor of receiving the opinion of experts upon the point as to wheth- er any two or more papers, properly in e^d- dence, were written by the same person.^^^ §§ 1863-1867; Doe v. Sackermore, 5 A. & E., 705; Rogers v. Eitter, 12 Wall., 317, 320; Hammond Case, 2 Gr., 33 ; 11 Am. D., 38. But see Reese v. Reese, 90 Pa. St., 89 ; 35 Am. R., 634. "1 1 Gr. Ev., § 578; 2 ElUott Ev., § 1105. 102 See 1 Gr. Ev., § 581 ; 1 Whar. Ev., § 712 ; and Tome V. Parkersburg Br. R. R. Co., 39 Md., 36, where the whole subject is discussed; also Rogers on Expert 92 EELEVANCY [PART I But where a writing to be proved is of such antiquity that living witnesses cannot be had, and yet is not old enough to prove itself, ex- perts may always compare it with other docu- ments admitted to be genuine, or proved to have been respected, treated and acted upon as such by all parties, and may give their opinion concerning the genuineness of the writing in question, such opinions being the best evidence attainable under the circum- stances.^''^ Testimony, 1897, pp. 285-347, and Lawson on Expert and Opinion Evidence (1883), pp. 375-488, which gives the statute law and decisions in the several states upon the subject very fully. In England, by statute (17 and 18 Vic, c. 125, § 27, and 28 Vic, c 18, § 8), it is permitted to prove a disputed handwriting by comparison made by witnesses with any other writing introduced into the case for that purpose, which is first proved to the satisfaction of the judge to be gen- uine ; and substantially the same rule has been adopted by statute in the states of Georgia, Iowa, Maryland, Xew Jersey and Texas. Miles v. Loomis, 75 N. Y., 288; 31 Am. E., 474; White Sewing Machine Co. v. Gordon, 124 Ind., 495; 24 N". E., 1053; 19 Am. St. R., 109 ; Gaunt v. Harkness, 53 Kan., 405 ; 86 P., 739 ; 42 Am. St. R., 297. ^03 1 Gr. Ev., §578; Best on Ev., §§240-242; Strother v. Lucas, 6 Pet., 763, 767; Clark v. Wyatt, 15 Ind., 271; 77 Am. D., 90. PART n. ON PROOF. CHAPTER I. ALL FACTS MUST BE PEOVED UNLESS JUDICLULrLY NOTICED OR ADMITTED. §54. Facts must be proven by the best kind of evidence attainable.— Having con- sidered the rules by which the relevancy of facts is determined, we now come to those prescribing the kinds of proof by which the existence of such relevant facts may be estab- lished. These latter may all be said to be nothing more than applications of that dis- tinguishing principle of the English law of evidence, already mentioned, which requires that every fact necessary to be proved shall be proved by the best kind of evidence attain- able. This rule relates to the quality of evi- dence, and not to its quantity, and it operates to exclude only that evidence which itself in- dicates the existence of more original sources 98 94 ON PROOF f PART II of information ; ^ the true meaning of the rule being, as stated by Lord Chief Baron Gilbert, ''that no such evidence shall be brought which, ex naturd rei, supposes still a greater evidence behind in the party's own posses- sion and power. "^ Thus, the offer to prove the contents of a writing by means of a copy, or by mere oral evidence, assumes the exist- ence of a more original source of informa- tion, to wit, the writing itself, and therefore the inferior evidence is excluded, unless it be first shown that the writing itself is not in ex- istence or is unattainable ; but where there is no substitution of derivative for original evi- dence, but merely a selection of weaker in- stead of stronger proofs of the same degree, or an omission to supply all the proofs cap- able of being produced, the rule is not in- fringed.2 § 55. Courts disregard all facts not proven in the cause on trial, except in two cases.— As already stated, it is the general rule that courts, in deciding issues of fact, are to be governed solely by such evidence as may have 1 1 Gr. Ev., § 82 ; 1 Starkie Ev., p. 641 ; Best on Ev., §§ 87-90; 1 Elliott Ev., § 205. 2 Gilb. Ev., 16, 4th ed. 8 1 Gr. Ev., § 82 ; Tay. Ev., §§ 391, 393, CHAP. l] JUDICIAL NOTICE 95 been produced before tliem by the respective parties to the proceeding, and should entirely disregard all facts not regularly proven in the cause ; but to this rule there are two excep- tions, the first being as to certain facts of which the courts take judicial notice, or recognize as within their own knowledge, without requiring any extrinsic proof there- of ; and the second being as to such facts as are admitted by both sides. § 56. Facts judicially noticed.— The courts take judicial notice of certain facts upon one or other of the two following grounds : either because the law makes it the special duty of the court to know them ; or else for the reason that they are recognized to be of such uni- versal notoriety within the limits of its juris- diction as to leave no room for any dispute about them. To require technical proof of such facts would be wasting time to no pur- pose and subjecting suitors to useless trouble and expense.^ I. The first class embraces : (a) All public laws by which the particular 4 See 1 Gr. Ev., §§ 4-6a; 1 Whar. Ev., §§ 276-340; Bliss on Code PL, § 177. See full note on p. 20 of Vol. 124 of Am. St. Eep., under case of Green v. Lineville Drug Co., 150 Ala., 112 96 ON PROOF [part II court is bound to be controlled in rendering its decisions ; for the court must be presumed to know these laws, as otherwise it could not apply them to the case before it. They include the constitution, public statutes and treaties of the United States and of the particular state in which the court is sitting,^ the law of nations,^ the law merchant,'^ the common law,^ and all old English and other statutes which are in force in said states in so far as they constitute a part of the law of the land within the jurisdiction of the court.® Inas- much as the courts of the United States were created by congress not for the purpose of administering the local laws of a single state alone, but to administer the laws of all the states in the Union, they take judicial notice of all such laws in cases to which they respect- ively apply.^^ The courts, however, do not » 1 Gr. Ev., § 4. « The Scotia, 14 Wall., 170, 188. T Brown v. Piper, 91 U. S., 37, 42 ; Barnet v. Bran- dao, 6 M. & G., 630, 665. 8 Owen V. Boyle, 15 Me., 147; S. C, 32 Am. Dec, 143 ; 1 Kent Com., 472. » 1 Kent Com., 473 ; Chouteau v. Pierre, 9 Mo., 3. 10 Owings V. Hull, 9 Pet., 607, 625 ; R. R. Co. v. Bk. Ashland, 12 Wall., 226. CHAP. l] JUDICIAL NOTICE 97 take judicial notice of the laws of a foreign country, nor do the courts of one of the United States take judicial notice of the laws of another state, for they are un- der no legal obligation to administer these laws; and whenever they do adopt them as rules of decision in particular cases arising under them, they only do so from a spirit of comity.^^ Neither do the courts notice judi- cially private acts of legislation such as legis- lative grants and charters,^ ^ for these are re- garded as nothing more than contracts be- tween the state in its sovereign capacity and individuals or corporations,^ ^ and therefore must be proved like any other contracts. (b) Matters of public interest which, being recognized, established or determined by the law of the land, must be considered to be with- in the knowledge of all persons, and especial- ly those holding official positions under the government, and thereby constituting a part 11 Canal Co. v. B. & 0. E. R. Co., 4 G. & J., 1, 63 ; 1 Gr. Ev., §§ 486, 489. 12 First Nat. Bk. Clarion v. Ginber, 87 Pa. St., 468; S. C, 30 Am. Rep., 378. 13 Trustees Dartmouth Coll. v. Woodward, 4 Wheat., 518, 643, 656. 98 ox PEOOF [part II of it.^^ These have been held in the United States to include : (1) The existence and titles of all the sov- ereign powers in the civilized world which are recognized by the government of the United States, their respective flags and seals of state,^^ and also the public acts and procla- mations and public authorized agents of such powers done, made and appointed to carry in- to effect their treaties with the United States.i^ (2) Foreign admiralty and maritime courts,^'^ notaries^^ and their respective seals, for these are recognized by the law merchant. (3) The sittings of congress and also of the legislature of the state or territory where the court is held, their established and usual course of procedure, the privileges of the members, and in some cases, the transactions on the journals.^® (4) The accession of the chief executive of 14 Bliss, Code PL, § 192. iBU. S. V. Palmer, 7 AVheat., 610, 634; Church v. Hubbard, 2 Cr., 187, 238; 1 Gr. Ev., § 4. i« U. S. V. Eeynes, 9 How., 127, 147. '^'' Croudson v. Leonard, 4 Cr., 434. 18 Nicholls V. Webb, 8 Wlieat., 326, 333. i» 1 Gr. Ev., § 6 ; Bliss Code, PL, § 194. CHAP. l] JUDICIAL NOTICE 99 the nation and of the state or territory in which the court is held; his power and priv- ilegesi, and the genuineness of his signature f^ the heads of departments and principal offi- cers of state ;2^'' the public seals ;^^ the elec- tion or resignation of a senator of the United States; the appointment of a cabinet or for- eign minister; 22 the existence of all courts of the United States and all courts of general jurisdiction in the state or territory where the court is held, and the extent of their juris- diction; 23 also the existence, jurisdiction and practice of inferior courts of said state or territory in so far as established by its law f^ the judges and seals of all such courts and their terms so far as the same are regulated 20 Hizer v. State, 12 Ind., 30 ; Lindsay v. Atty- Genl., 33 Miss., 508 ; Jones v. Gale's Ex'r, 4 Martin, 635. 2oa York, etc., R. R. Co. v. Williams, 17 How., 30, 41 ; Bennett v. Tennessee, Mart. & Yerg., 133. 2iDelafield v. Hand, 3 Johns., 310, 314; Den v. Vreelandt, 2 Halst., 553, 555. 22Walden v. Canfield, 2 Rob. La. R., 446, 469; Brown v. Piper, 91 U. S., 37, 42. 23Dozier v. Joyce, 8 Port. (Ala.), 303. 24 Bliss on Code, PI., § 196. 100 ON PROOF [part II by public law,^^ but not their rules of court ;^® the United States niarshals, sheriffs, United States and state district attorneys and clerks of court holding office in said state or terri- tory, and the genuineness of their respective signatures, but not of those of their depu- ties.2' (5) Public proclamations of war and peace ^^ and of days of special public fasts and thanksgiving ; and stated days of general political elections ;2^^ the legal coinage, weights and measures of the country ; ^^ the territorial extent of the jurisdiction and sov- ereignty exercised de facto by the United States and the state in which the court sits,^*^ 25 Gilland v. Sellers, 2 Ohio St., 223, 226 ; Lind- say V. Wilhams, 17 Ala., 229, 231; Newell v. Newton, 10 Pick., 470, 472; Tucker v. State, 11 Md., 322, 329. 26 Cherry v. Baker, 17 Md., 75. 27Ingraham v. State, 27 Ala., 17, 20; Major v. State, 2 Sneed (Tenn.), 11; Ward v. Henry, 19 Wis., 76; S. C, 88 Am. Dec, 672. 28 Armstrong v. U. S., 13 Wall., 154, 156 ; Dun- ning V. New Albany & Salem R. Co., 2 Ind., 437. 28'^ State V. Minniek, 15 Iowa, 123. 29 Hockin v. Cooke, 4 T. R., 314; United States v. Burns, 5 McLean, 23, 30 ; Daily v. State, 10 Ind., 536. 30 Gilbert v. Moline, 19 Iowa, 319. CHAP. l] JUDICIAL NOTICE 101 and the local political divisions of said state into counties, cities, townships, school dis- tricts, and the like,^^ and their relative posi- tions, but not their precise boundaries further than described in public statutes; the public surveys and legal subdivisions under the public law; ^2 aj^i the courts of the United States take special notice of the ports and waters of the United States where the tide ebbs and flows, and of the boundaries of the several states and judicial districts. ^'^ (c) Matters peculiarly within the knowl- edge of the particular court, as its records, its officers and their deputies,^^ its attor- neys,*^ and the signatures of such officers, deputies and attorneys in all their official or professional acts ; ^^ and county courts gener- ally take judicial notice of the justices of the peace holding office in the counties over which 31 Winnepiseogee Lake Co. v. Young, 40 N. H., 420, 429; Goodwin v. Appleton, 22 Me., 453, 459; State V. Powers, 25 Conn., 48. 32 Vanderwerker v. People, 5 Wend., 530 ; Ham v. Ham, 39 Me., 263, 266. 33 Brown v. Piper, 91 U. S., 37, 42. 34 Nowell V. McHenry, 1 Mich., 227. 35 1 Chitty's PI., 220". 38 State V. Postlewait, 14 Iowa, 446 ; Masterson v, Le Claire, 4 Minn., 163. 102 ox PROOF [PABT II sucli courts respectively have jurisdiction and of the genuineness of their official sig- natures.^'^ (d) Matters which the courts are directed by statute to notice judicially. (e) Matters which take place in the actual presence of the court. 11. The second class of facts judicially no- ticed embraces all matters so notorious that they may be fairly considered as within the common knowledge or experience of all per- sons of ordinary intelligence and education within the jurisdiction of the court, and there- fore not open to controversy. This class has been held to include. (1) The general geographical features of the country, state and judicial district where the court is held, as to the existence and loca- tion of its principal mountains, rivers and cities, ^^ and also the geographical position and distances of foreign countries and cities in so far as the same are matters of universal notoriety.^® 37 Chambers v. People, 6 111. (4 Scam.), 351. 38 Mossman v. Forrest, 27 Ind., 233, 236; Winne- piseogee Lake Co. v. Young, 40 N. H., 420, 429. 3» Whitney v. Gauche, 11 La. Ann., 432; Kichard- son V. Williams, 2 Porter (Ala.), 239, 243. CHAP. l] JUDICIAL XOTICE 103 (2) Any matters of public history affect- ing the whole people, and also public matters affecting the national government or that of the state, district or county where the court is held.'^'^ (3) All things which must have happened according to the course of nature, as the or- dinary limitation of human life as to age, the course of time and of the heavenly bodies, the mutations of the seasons and their general re- lation to the maturity of crops.^^ (4) The ordinary public feasts and festi- vals ;^2 the coincidence of days of the week with days of the month.'* ^ (5) The meaning of words in the vernacu- lar language, but not of catch-words, techni- cal, local or slang expressions.^^ 40 Bank of Augusta v. Earle, 13 Peters, 490 ; Ohio Life Ins. & Tr. Co. v. Debolt, 16 How., 416, 435; 1 Whar. Ev., § 338 ; Bliss, Code PI., § 190. -»! Patterson v. McCausland, 3 Bland. Chy., 69; Floyd V. Johnson, 3 Litt. (Ky.), 109, 113; 13 Am. Dec, 255; Bryan v. Beckley, 6 id., 91, 95; Bowen v. Bead, 103 Mass., 46, 48. 42 Sasscer v. Farmers' Bank, 4 Md., 409, 430, 43 Allman v. Owen, 31 Ala., 167, 171. 44 Commonwealth v. Kneeland, 20 Pick., 206, 216; Balto. V. State, 15 Md., 276, 484. 104 ON PROOF [part II (6) Such ordinary abbreviations as by common use may be regarded as universally understood, as abbreviations of Christian names, and the like,'*^ but not those which are in any degree doubtful or difficult of inter- pretation."*^ (7) The character of the general circulat- ing medium and the public language in ref- erence to it,^^ but not the current value of the notes of a bank at any particular time.^^ (8) Other matters of general notoriety as the manner in which railroad business is con- ducted.^» If the judge 's memory be at fault, or if he is uncertain in reference to any fact which he is called upon to notice judicially, he may re- fer to any person or to any document or book of reference that he deems worthy of confi- dence in order to satisfy himself in relation « Stephen v. State, 11 Geo., 325, 240; Mosely v. Masten, 37 Ala., 216; Gordon v. Holliday, 1 Wash. C. C, 285, 289. •«6 Ellis V. Park, 8 Texas, 205. ^■^ Lampton v. Haggard, 3 Mon., 149. *8 Feemster v. Kingo, 5 Mon., 336 ; Modawell v. Holmes, 40 Ala., 391. 49 Cleveland R. R. Co. v. Jenkins, 174 111., 398 ; 51 N. E., 811; 66 Am. St. R., 294; 62 L. R. A., 992. CHAP. l] FACTS ADMITTED 105 thereto; or may refuse to take judicial notice of such fact, unless and until the party calling upon him to do so shall produce such docu- ment or book of reference.^^ This extends to such matters of science as are involved in the cases brought before him.^^ § 57. Facts expressly admitted by the parties, either by their pleadings or at the hearing, in all proceedings inter partes. — There would obviously be no propriety in re- quiring evidence to be given in proof of any fact which tlie parties to the proceeding, or their agents, agree to admit at the hearing, or which they have admitted before the hear- ing and with reference thereto, or by their pleadings; for the object of introducing evi- dence at all is to enable the court to decide the controversy between the parties, and there can be no controversy over facts thus admitted.^- But proof of facts necessary to be proved by the prosecution on an indict- ment for felony may not be dispensed with by any admissions, made by the counsel of the accused, unless made at the trial, and conse- «o Ste. Dig., art. 59; 1 Gr. Ev., § 6; Tay. Ev., § 21. »^ Brown v. Piper, 91 U. S., 37, 42. " Ste. Dig., art. 60. 106 ON PROOF [part II quently in the presence of the accused.^^ This exception is made probably upon the ground that, should the latter suffer convic- tion and ijunishment through an unauthorized admission of his counsel, he could not after- wards obtain adequate redress from him for the injury, as might be done by a person who had lost a civil suit from the same cause. So, also, in prosecutions for murder, courts will not ordinarily permit a conviction upon the mere confession of the prisoner, without some corroborative evidence, either direct or cir- cumstantial, of the actual commission of the crime ; for it might happen that the prisoner, having attempted the life of a person success- fully, as he supposed, might afterwards con- fess having killed him, when in fact the sup- posed murdered man might have actually escaped.^^ It must be understood, moreover, that this rule dispensing with proof of the facts admitted is applicable only to actions instituted inter partes and not to proceedings to obtain a judgment in rem, which has been defined to be *'an adjudication pronounced, 53 Ste. Dig., art. 60; 1 Phil. Ev., 4th Am. ed., p. 524. 54 1 Bishop on Crim. Proc, §§1056-9; United States V. Wilhams, 1 Clif. C. C, 5. CHAP. l] FACTS ADMITTED 107 as its name indeed denotes, upon the status of some subject matter by a tribunal having au- thority for that purpose" and which has the characteristic quality that it furnishes in gen- eral conclusive proof of the facts adjudicated as well against strangers as against parties.'"'^ As the admission of a fact is not proof of it, but merely a waiver of proof, which, as such, can be binding only on the person who makes it and those claiming through or under him, the court, before rendering a judgment in rem to be conclusive against a stranger, must have before it competent legal evidence from which to find the facts required to sujjport such a judgment in the testimony of witness rendered under all the safeguards demanded by law.^' 55 Taylor Ev., § 1674, citing 2 Smith L. C, 785, note on Duchess of Kingston's case, 56 §§ 17, 55 ante, § 58, post. CHAPTER II. ORAL EVIDENCE. § 58. All ultimate facts to be proven must be established by direct oral testimony, except in four enumerated cases.— Ordinarily the most natural and satisfactory method of proving the existence or non-existence of any fact, is by the direct oral testimony of wit- nesses who have perceived its existence or non-existence by the operation of their own senses or consciousness, and therefore this is the means most generally resorted to for that purpose ; and it is permissible to employ it in all cases, excepting (1) where the fact sought to be established or denied is in contradiction of a conclusive presumption of law; or (2) unless it be a transaction of a public nature of which the law requires an official record to be kept; or (3) unless the fact to be proved be the contents of a document; or (4) the terms of some contract or grant which the parties have reduced to writing, and which is sought to be proved by a party thereto, or his representative in interest, for the purpose 108 CHAP. II ORAL EVIDENCE 109 of enforcing, varying or denying some right or liability thereunder. Subject to these ex- ceptions, which will be considered particular- ly hereafter, all the ultimate facts which form the ground of the decision of a court or jury upon an issue of fact (excepting such facts as are admitted or judicially noticed, and those which actually take place at the trial), are required to be established by direct oral evidence. By the term ultimate fact is meant any fact which a witness has actually per- ceived by his senses, and which is not merely inferred from the existence or non-existence of some other fact or facts; but every fact from which another fact is inferred must either be an ultimate fact itself, or else have been established either mediately or imme- diately by inference from other ultimate facts. The rule thus laid down is intended to include the production in court and submis- sion to its inspection of all documents and other things (sometimes called demonstra- tive or real evidence) for the purpose of con- firming, explaining or supplementing the oral statements of the witnesses introducing them, and which are always necessary to prove the facts establishing their connection with or relation to the questions at issue, and without which they could not be received, unless they 110 ON PROOB' [part II are such officially certified documents as the law provides shall prove themselves. For ex- ample, in an action for breach of contract, the contract cannot be received in evidence without oral proof that it was executed by or on behalf of the party sought to be charged under it; at the trial of an indictment for homicide the lethal weapons with which the crime is supposed to have been committed may not be exhibited in evidence without oral proof of facts tending to connect them in some way either with the crime or with the accused ; so also in an action for damages for the infringement of a patent when the pat- ented article and the thing alleged to be an infringement of it are brought into Court, neither can be received in evidence for com- parison with the other until after testi- mony has been given by witnesses to show that the one is the identical thing for which the plaintiff holds his patent, and the other has been either made, used or sold by the de- fendant. So that in all these cases it is the oral testimony of witnesses which furnishes the ultimate facts upon which the admissi- bility and value of the so-called real or dem- onstrative evidence depend. § 59. How oral evidence may be taken.— The term oral evidence as used in this connec- CHAP. Il] ORAL EVIDENCE 111 tion includes all testimony given by signs or writing by witnesses unable to speak. It may be taken in open Court according to the rules hereinafter set forth relating to the exami- nation of witnesses, or may be taken out of Court for future use in Court — (a) Under a commission in the manner prescribed by its terms, or by the rules of Court or the statute regulating the mode of executing the same ; or (b) By deposition before any officer of Court or other person or persons appointed for that purpose, either by agreement of the parties or otherwise under the provisions of any statute or rule of Court governing the tribunal in which said evidence is to be used ; but such depositions are to be taken only in the manner and under the circumstances pre- scribed, and are to be used only for the pur- poses and upon the contingencies expressly provided by the terms of such agreement or statute or rule of Court. § 60. Oral evidence must be direct, but may be supplemented by demonstrative proofs. — 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 112 ON PROOF [part 11 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; if it refers to an opinion or to the grounds on which that opin- ion is held, it must be the evidence of the per- son who holds that opinion on such grounds. As above stated, a witness by his oral testi- mony often identifies documents and other demonstrative evidence and states facts ob- served by him connecting them in some way with the issues on trial and thereby renders them admissible in evidence as explanatory of and supplementary to his verbal state- ments of which they thereby thus become a part. So also a witness in describing the place where something that he saw occurred can often best convey his meaning by the aid of a rough diagram drawn by himself show- ing his recollection of the relative positions of the persons or things as to which he tes- tifies and their comparative distances from each other. Such a diagram would be admis- sible as illustrating and being a part of his verbal testimony, and could be afterwards further supplemented by a more elaborate 1 Ste. Dig., art. 62. CHAP. Il] PHOTOGRAPHS 118 plat made by a competent draftsman who testifies it was drawn to a scale upon meas- urements made by himself, at the place re- ferred to while the conditions there remained the same. §61. Photographs.— So also photographs of places, persons and things described in the oral testimony of witnesses, may be admitted in evidence to show the appearance presented by them at the time such photographs were taken if such appearance be deemed by the Court to be relevant to the issues on trial, upon satisfactory proof of their correctness being furnished.^ (1) The proof required of the accuracy of a photograph varies with the nature of the evidence the photograph is offered to supply. Where it is offered only as a general repre- sentation of physical objects as to which tes- timony is adduced, for the mere convenience of witnesses in explaining their statements, very slight proof of accuracy may be suffi- cient and may be supplied by other witnesses than the person who took and produced it.^ 2 Baustian v. Young, 152 Mo., 317, 372; 53 S. W., 921; 75 Am. St. Rep., 462, with extended note on p. 468 ; State v. Matheson, 130 Iowa, 440 ; 103 N. W., 137; 114 Am. St. Rep., 427 and note p. 437. 3 Supra, citing Cunningham v. Fairhaven, etc., R. 114 ON PROOF [part II And photographs taken by a person who is not skilled in photography have been ad- mitted in evidence where eye witnesses tes- tified they were truthful representations of the scene or objects they purported to repre- sent.^ But when photographs are offered as di- rect evidence of things which have not been directly described by a witness as having come within his observation, or where they are offered as representing handwriting which is to be subjected to minute and detailed examination, or any object where slight differences in height, breadth or length is of vital importance, much more convincing proof is required, for it is well known that a photo- graph may, through the want of skill of the photographer or through his intentional and K. Co., 77 Conn., 244; 60 A., 107 ; Nies v. Broadhead, 75 Hun., 255; Dorsey v. Habersack, 84 Md., 117; 35 A., 96; Turner v. Boston, 158 Mass., 261; 33 N. E., 520; Archer v. N. Y., etc., E. E., 106 N. Y., 590; 13 N. E., 318 ; Consolidated Gas Co. v. Smith, 109 Md., 186, 199; 72 A., 651. 4N. Y., etc., E. E. Co. v. Moore, 105 Fed. 725; Blair v. Pelham, 118 Mass., 420; Carlson v. Benton, 66 Neb.. 486 ; 92 N. W. 600. CHAP. Il] PHOTOGRAPHS 115 skillful manipulations, be inaccurate and even misleading.^ The admissibility of a photograph in evi- dence, and the sufficiency of the preliminary proofs to identify it or show that it is a fair or accurate representation of the objects which it purports to portray, are questions com- mitted largely to the trial judge whose de- cisions will rarely be reversed by the appel- late court,^ although his discretion is not un- limited and may not be exercised arbitrarily.^ It has also been held in a number of recent cases that X Ray photographs, or sciographs, or radiographs, as they are variously called, ' Cunningham v. Fair Haven, etc., supra; United States V. Ortiz, 176 U. S., 423, 430; Beardslee v. Columbia Township, 188 Pa. St., 496; 41 A., 617; 68 Am. St. Eep., 883; Martin v. Moore, 99 Md., 41, 49; 57 A., 671. eSellick v. Janesville, 104 Wis., 570; 80 N. W., 544; 76 Am. St. Eep., 892; Blair v. Pelham, 118 Mass., 420; Mauch v. Hartford, 112 Wis., 40; 87 N. W. 816; Van Houton v. Morse, 162 Mass., 414; 38 N". E., 705 ; 44 Am. St. Eep., 373 ; 26 L. E. A., 430. 7 DeForge v. N. Y., etc., E. E., 178 Mass., 59; 59 N". E., 669; 86 Am. St. Eep., 464; State v. Cook, 75 Conn., 267 ; 53 A., 589 ; Lake Erie, etc., E. E. Co. v. Wilson, 189 111., 89; 59 N. E., 573; Consolidated Gas Co. V. Smith, supra. 116 ON PROOF [part II showing the interior conditions of a human body or limb which are beyond the observa- tion of the eye, are admissible as independ- ent evidence of such condition after proof that they have been properly taken and pro- duced by a competent person.^ § 62. Communication by telephone. —When it is material to prove what a person said at any time, a witness who heard him say it over the telephone is competent to prove this fact as direct evidence, provided he can also tes- tify that he recognized the voice of the speak- s State V. Matheson, supra; City of Geneva v. Bur- nett, 65 Neb., 464; 91 N. W., 275; 101 Am. St. Rep., 638 ; 58 L. R. A., 257 ; Chicao, etc., Ry. Co. v. Spence, 213 111., 220; 72 N. E., 796; 104 Am. St. Rep., 213. In the case of Carlson v. Benton, 66 Neb., 486; 92 N.. W,, 600, the Court held that to constitute the foundation for such a photograph it is not essential that it appear that it was taken by a competent per- son nor that the condition of the apparatus with which it was taken and the circumstances under which it was taken, were such as to secure accuracy, where it was shown by the evidence of competent witnesses that it truly represented the object it is claimed to represent. But how witnesses could be competent to testify to the accuracy of its representation under the circumstances does not seem quite clear. CHAP. Il] TELEPHONE 117 er.^ It has also been held that a conversa- tion over the telephone with a person called np at his private office is admissible in evi- dence against him even though the person who testified to having heard it did not recog- nize the speaker's voice.^*^ The ground for this is stated to be that when a person places himself in connection with the telephone sys- tem through an instrument in his office, he thereby invites conversation in relation to his business through that channel, and there- fore conversations so held are as admissible in evidence as personal interviews by a cus- tomer with an unknown clerk in charge of an ordinary shop would be in relation to the » People V. Ward, 3 N". Y. Crim. K., 483, 511; Murphy v. Jack, 143 N. Y., 315; 36 F. E., 882; 40 Am. St. R., 500. 10 Wolfe V. Mo. Pacific Ry. Co., 97 Mo., 473; 11 S. W., 49; 10 Am. St. Eep., 331 ; 3 L. R. A., 539 ; Mo. Pacific Ry. Co. v. Heidenheimer, 83 Texas, 195; 17 S. W., 608; 27 Am. St. Rep., 861; Shawyer v. Cham- berlain, 113 Iowa, 742 ; 84 Mo., 661 ; 86 Am. St. Rep., 411; Knickerbocker Co. v. Gardiner Co., 107 Md., 556, 571 ; 69 A., 405 ; General Hospital Soc. v. N. H. Rendering Co., 79 Conn., 581 ; 65 A., 1065 ; Kansas City Star Co. v. Standard Warehouse Co., 123 Mo., Ap., 13 ; 99 S. W., 765 ; Godair v. Ham. Nat. Bk., 325 lU., 573; 80 N. E., 407; 116 Am. St. Rep., 173. 118 ON PROOF [part II business there carried on, and the fact that the voice at the telephone was not identified does not render the conversation inadmis- sible.^^ Some of the Courts have gone fur- ther and admitted conversation by telephone in evidence where the messages were trans- mitted by a third party. Thus where the plaintiff directed the operator on a long distance telephone to call up a certain person at a distant point and to converse with him asking the questions and repeating the re- plies as they were given to him, the Court held the operator to be the agent of both parties and permitted the plaintiff to give the whole conversation in evidence.^ ^ 11 Wolfe V. Mo. Pacific Ry. Co., supra, but the bur- Hen of proof always rests upon the party introducing the evidence to establish by some proof either direct or circumstantial, the identity of the person speak- ing: Young V. Seattle Trans. Co., 33 Wasliington, 225; 74 P., 375; 99 Am. St. Eep., 943; 63 L. R. A., 988. 12 SulHvan v. Kuykendall, 82 Ky., 483 ; 56 Am. Eep.^ 901, followed in Oskamp v. Gadsden, 35 Neb., 7; 52 N. W., 718; 37 Am. St. Rep., 428; 17 L. R. A., 440. In the case of Banning v. Banning, 80 Cal., 271 ; 22 P., 210; 13 Am. St. Rep., 156, where it appeared that an acknowledgment of a deed had been made by a married woman over the telephone to a Notary who CHAP. Il] PHONOGRAPHS 119 §63. Phonographic records.— If a witness may testify as to what he heard a person say over the telephone, there would seem to be no reason why he should be excluded from also testifying what he may have heard such person say through a phonograph, provided he could testify as to his recognition of the person's voice as heard through it and also that the phonographic record was taken at a time when the speaking of the words therein recorded would make them material evidence upon the issues on trial. In such a case the record should itself be produced in Court and heard as the best evidence as to what was actually spoken into the phonograph, after its introduction by extraneous proof of the identification of the voice speaking through it and of the time, place and circumstances under which such record was made. It has accordingly been held that the trial judge committed no error when in a condemnation case he permitted the defendant to operate a phonograph in the presence of the jury to was three or four miles distant, it was held that this did not invalidate the deed, because in the absence of fraud, accident or mistake the Notary's certificate in due form is conclusive of the material facts therein stated. 120 our PROOF [part II reproduce sounds claimed to have been made by the operator of trains in the vicinity of the latter 's hotel, the appellate court saying that with proper proofs such as were given in the case to justify the introduction of the instru- ment as a substantially accurate and trust- worthy reproducer of the sounds actually made and testified to, it thought its use legiti- mate. It further added that the ground for receiving the testimony of the phonograph seemed to be the same as that for the admis- sion of communication by telephones and even stronger, since in its case there is not only proof by the human witness of the mak- ing of the sounds to be reproduced, but a re- production by the mechanical witness of the sounds themselves.^ ^ ^3 Boyne City, etc., R. R. Co. v. Anderson, 146 Mich., 328; 109 K W., 439; 117 Am. St. Rep., 642; 8 L. N. S., 306 case note. CHAPTER III. WHEN ORAL EVIDENCE EXCLUDED. § 64. Conclusive presumptions of law may not be contradicted by oral evidence— Conclu- sive presumptions — Estoppels. — Conclusive presumptions of law have been defined as rules determining the quantity of evidence requisite for the support of any particular averment, which is not permitted to be over- come by any proof that the fact is otherwise. They consist chiefly of those cases in which the long experienced connection between the facts presumed, and those forming the ground of the presumption, has been found so general and uniform as to render it ex- pedient for the common good that this connec- tion should be taken to be inseparable and universal. They have been adopted by com- mon consent, from motives of public policy, for the sake of greater certainty and the pro- motion of peace and quiet in the community, and therefore it is that all corroborating evi- dence is dispensed with, and all opposing evi- 121 122 ON PROOF [part II dence is forbidden.^ Whenever, therefore, any fact in issue is sought to be established by proof of other facts from which it follows as a conclusive presumption of law, the exist- ence of such fact in issue cannot be contro- verted by direct oral evidence, but only by proof contradicting the existence of the al- leged facts from which it would be presumed. These conclusive presumptions are sometimes expressly declared by statute, as in certain statutes of limitation, whereby if a debt has not been expressly recognized within a cer- tain number of years as a subsisting obliga- tion, it is conclusively presumed to have been satisfied.^ In other cases these conclusive presumptions are declared by the courts as part of the common law.^ The principal con- 1 1 Gr. Ev., § 15. 2 Id., § 16. 3 Id., § 17. Several presumptions of law asserted by Best, Greenleaf, Taylor and other writers to be conclusive are now regarded by the courts as open to contradiction by evidence. There is now a decided tendency to reduce the number and to limit the scope of indisputable presumptions, which is probably best explained by Dr. Wharton's remark (Whar. Ev., § 1234) that "practical jurisprudence soon discovers that a presumption that is irrebuttable in an age of ignorance is rebuttable in an age of civilization." CHAP. Ill] CONCLUSIVE PRESUMPTIONS 123 elusive presumptious at common law are as follows : Wliere the possession and enjoyment of property has been uninterrupted, exclusive and adverse to all others for a period of twenty years, the possessor is conclusively presumed to have a good title thereto.^ Conclusive presumptions are also made in favor of the correctness of the records of judicial proceedings, and that a party to a record was interested in the suit; and after verdict it will be presumed that those facts, without proof of which the verdict could not have been found, were proved, although they are not expressly alleged in the record, pro- vided it contains terms sufficiently general to comprehend them in fair and reasonable in- tendment. The presumption will also be made, after twenty years, in favor of every judicial tribunal acting within its jurisdic- tion, that all persons concerned had due notice of its proceedings.'^ The extent to which judgments are held to be conclusive proof of the matters thereby determined has been already discussed in sections 36-40, ante. A bond or other instrument under seal is, 4 1 Gr. Ev., § 18. « Id., § 19. 124 ON PROOF [part II as between the parties thereto and their priv- ies, conclusively presumed to have been made upon good consideration as long as the in- strument remains unimpeached.^ Where authority has been given by law to do a certain act in a prescribed manner, the lapse of a sufficient time (which is in most cases fixed at thirty years) raises a conclu- sive presumption that all legal formalities which are not required to be made matter of record have been duly complied with; for great imcertainty of titles and other public mischiefs would result, if strict proof were required of facts so transitory in their na- ture, and the evidence of which would gen- erally be unattainable after so long a timeJ Conclusive presumptions are made in re- spect to infants; as that one under seven years of age is incapable of committing a felony for want of discretion; that a girl under ten years old is incapable of consent- ing to sexual intercourse, and that a boy un- der fourteen is incapable of committing a rape.^ 6 1 Gr. Ev., § 19. 7 Id., § 20. 8 While the common-law presumption that a boy under fourteen is incapable of committing a rape ie CHAP. Ill] LEGITIMACY 125 Any child whose mother had a husband liv- ing at any time when it could, in the ordinary course of nature, have been begotten, is con- clusively presumed to be the legitimate child of such husband unless the mother is divorced from him a mensd et thoro, or unless im- potence or non-access of the husband be proven and neither the testimony of the hus- band or the wife, nor any declarations made by either of them, is admissible testimony for the purpose of proving non-access.^ still recognized as conclusive in some of the United States, the present tendency of the courts in this country is to regard it as a rebuttable presumption only that may be overcome by proof that he has at- tained the age of puberty and has physical capacity to consummate the crime. See cases cited in note to Smith V. State, 80 Am. Dec, p. 363. » 1 Gr. Ev., § 28 ; Ste. Dig., art. 98 ; Tay. Ev., §§ 106, 950; 1 Whar. Ev., § 608; 2 id., §1298; Scan- Ion V. Walshe, 81 Md., 118, 130; 31 A., 498; 48 Am. St. E., 488. All these text-books, as well as all the cases that I know of, except "Woodward v. Blue, 107 N. C, 407; 12 S. E., 453; 22 Am. St. R., 897; 10 L. R. A., 663, and Bullock v. Knox, 96 Ala., 195, 198 ; 11 So., 339, lay down the law as above stated, yet it is very questionable whether any court of last resort would hold that a mulatto child must be conclusively presumed to be the legitimate offspring of white par- 126 ON PROOF [part II Estoppels may also be included in the list of conclusive presumptions. Whenever 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 to his injury upon such belief otherwise than but for that belief he would have acted, neither the person first mentioned, nor his representative in in- terest, is allowed, in any suit or proceeding between himself and such other person, or his representative in interest, to deny the truth of that thing,^*^* This is nothing more than a practical application of the doctrine of nat- ural justice, which does not permit a man to take advantage of his own wrongful act; entSo The exclusion of the testimony of either hus- band or wife upon the question of non-access is ac- cording to Lord Mansfield, in Goodright v. Moss, 2 Cowp. 594, "founded in decency, morality and public policy." But while these considerations might well forbid them to testify as to the fact of intercourse vel non, it is difficult to see why a husband who has been continuously absent from the state for a year or more prior to the birth of his wife's child should be forbidden to testify as to that fact. 10 Ste. Dig., art. 102; Ketchum v. Duncan, 96 U. S., 659, 666. See, also, title Estoppel in Amer. & English Encyclopedia of Law. CHAP. Ill] ESTOPPELS 127 and it lias been extended to cases where one party, by a culpable want of care, which it was his duty to have exercised towards an- other, has caused the latter to be misled by the fraud of a third party; thus, where a customer keeping an account at a bank, draws a check so carelessly that the amount for which it is given is fraudulently raised by the insertion of additional words and figures be- fore presentation, and the bank pays it in good faith, such customer is not permitted to deny, as against the bank, that such check was originally drawn by him for the full amount paid by it.^^ Among the cases to which this doctrine of estoppel is most fre- quently applied, is that of the acceptor of a bill of exchange, who is not permitted to deny the signature of the drawer or his capacity to draw or indorse the bill, nor, if it be drawn by procuration, the authority of the agent to draw it; ^2 and also that of a person having 1^ Young V. Grote, 4 Bing., 253; Ste. Dig., art. 102, illustration (e) ; Hardy v. Chesapeake Bank, 51 Md., 562; 34 Am. E., 325; Leather Mfrs. Bank v. Morgan, 117 U. S., 96. But see Burrows v. Klunk, 70 Md., 451, 457 ; 17 A., 378 ; 3 L. E. A., 576. 12 Ste. Dig., art. 104; United States Bank v. Bank of Georgia, 10 Wlieat., 333, 353; Nat. Park Bank v. Ninth Nat. Bank r.f N. Y., 46 N. Y., 77 ; 7 Am. E., 128 ON PROOF [part II possession of any property, real or personal, either as tenant, licensee, bailee, or agent of another, who is not permitted, during the continuance of such possession, to deny that his lessor, licensor, bailor or principal had a right to the possession of such property at the time when the same was so leased or en- trusted to him.^^ As a general rule, also, the parties to a deed and their privies are not permitted, as against each other, to dispute any matter recited therein, nor may the grantor deny that he had any title in the thing granted.^* § 65. Oral testimony excluded as to mat- ters of which the law requires a full official record to be kept.— Direct oral evidence may 310; 1 Chalm. Dig., Bills Exch., art. 212. As to how far parties to negotiable paper are incompetent wit- nesses to impeach, etc., see sec. 99, post. ^3 Ste. Dig., arts. 103, 105; Kinsman v. Parkhurst, 18 How., 289, 293; Howe v. Simmons, 1 Cal., 119; 52 Am. D., 290 ; The Idaho, 93 U. S., 575 ; Burton v. Wilkinson, 18 Vt., 186 ; 46 Am. D., 145 ; Pulliam v. Burlingame, 81 Mo., Ill; 51 Am. R., 229. iM Gr. Ev., §§ 23, 24; Tay. Ev., §§ 96, 97; Van Renssaler v. Kearney, 11 How., 297, 325; Reichard V. Va. Lead Mining Co., 107 Mo., 616; 18 S. W., 17; 28 Am. St. R., 441; Cobb v. Oldfield, 151 III, 540; 38 N. E., 142 ; 42 Am. St. R., 263 ; 2 Ell. Ev., § 1538. CHAP. Ill] OFFICIAL RECORDS 129 not ordinarily be given of any transaction of a public nature, of which the law requires a full official record to be kept. Thus, judicial proceedings must be proved from the records of the court, and not by the oral testimony of persons who were present at the trial. ^*^ But any facts connected with the trial, which were not proper to be incorporated in the record and are not inconsistent therewith, may, when relevant, be proved by parol testi- mony;^^ thus, when the record of a former suit between the same parties is offered in evidence to bar the plaintiff 's right of action, and such record does not clearly show that the matter in controversy in the second suit was necessarily and directly decided by the jury in the former action, parol evidence, consist- ent with the record, may be received as to what points were in controversy at the ^5 Johnson v. Masonic Lodge No. 33, 106 Ky., 838 ; 51 S. W., 620; see, also, Toledo, etc., Co. v. Glenn Mfg. Co., 55 0. St., 219 ; 45 N. E., 197 ; Oklahoma, etc., Co. V. F. W. Wolf Co., 118 Fed., 239. 16 1 Whar. Ev., § 63 ; Adams v. Betz, 1 Watts, 425 ; 26 Am. D., 79 ; Lyon v. Boiling, 14 Ala., 753 ; 48 Am. D., 122 ; Embden v. Lishernen, 89 Me., 578 ; 56 Am. St. E., 442. 1^ Whar. Ev., § 64 ; Fahey v. Esterly Machine Co., 3 K Dak., 320 ; 44 Am. St. R., 554, and note. 9 130 ON PROOF [part II former trial, what testimony was given, and what questions were submitted to the jury for their consideration.^^ So, also, acts of the legislative or executive departments of the government, in so far as the law requires that they shall be officially recorded, must be proved (unless judicially noticed) by such official records.^ ^ This rule is founded upon the theory that an official record, made at the time for the benefit of the public, by its agents duly authorized and appointed for that purpose, is, so far as it goes, the best attain- able evidence of such matters, and therefore, to that extent, always exclude oral evidence, as inferior in quality. § 66. The contents of a written instrument can only be proved by production of the docu- ment itself, except in certain cases.— Upon the same principle, when the contents of any written instrument are to be proved, the best kind of evidence is by the production of the document itself, which is called primary evi- dence. This excludes all other or secondary evidence of its contents, excepting admissions 18 Packet Co. v. Sickles, 5 Wall., 580, 592. ^M Gr. Ev., §§ 479, 480; 1 Whar. Ev., § 65; At- wood V. Winterport, 60 Me., 252 ; Elliott v. Piersoll, 1 Pet., 328, 340. CHAP. Ill] CONTENTS OF DOCUMENT 131 made by the opposite party or his representa- tives, unless the document in question be a public one, or is the subject of special stat- utory provision, or its production is out of the party's power, or when the originals con- sist of numerous documents which cannot con- veniently be examined in court, and the fact to be proved is the general result of the whole collection, in which cases secondary evidence of their contents is admitted to the extent hereafter stated.^° But the rule does not ap- ply to cases where the inquiry into the con- tents of a document comes up collaterally at the trial, and where they are not directly in- volved in the controversy.^^ Whenever a document is executed in several parts, each 20 Ste. Dig., arts. 65, 71 ; Georgia, etc., Ry. Co. v. Strickland, 80 Ga., 776; 6 S. E. 27; 12 Am. St. R., 282. As to proof by admissions of opposing party, see 1 Gr. Ev., §69; Best on Ev., §525; Slatterie v. Pooley, 6 M. & W., 664; Smith v. Palmer, 5 Gush., 513, 520; Loomis v. Wadhara, 8 Gray, 557; Hoefling V. Hambleton, 84 Tex., 517; 19 S. W., 689; Morey v. Hoyt, 62 Conn., 542, 557 ; 26 A., 127. Contra, Wel- land Canal Co. v. Hathaway, 8 Wend., 480 ; 24 Am. D., 51. As to other exceptions, see sees. 71, 73, post. 21 Faulcon v. Johnson, 102 N. C, 264; 11 Am. St. R., 737. Comp. sees. 68, 76, post; Jones v. Hoard, 59 Ark., 42; 43 Am. St. R., 17, 19. 132 ON PROOF [part II part is primary evidence; and when it is executed in counterpart, each counterpart be- ing executed by one or more of the parties only, each counterpart is primary evidence as against the parties who executed it.^'-^ When a number of documents are all made by printing, 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 ; but when they are all copies of a common orig- inal, no one of them is primary evidence of the contents of the original.^^ When carbon sheets are inserted between two or more sheets of writing paper so that the writing of a contract upon the outside sheet, including the signature of the party to be charged thereby, produces a facsimile upon the sheets beneath, such signature being thus re- produced by the same stroke of the pen which made the surface or exposed impression, all of the sheets so written on are regarded as duplicate originals and either of them may be 22 Ste. Dig., art. 64 ; Roe d. West v. Davis, 7 East, 363; Cleveland R. E. v. Perkins, 17 Mich., 296, 299. 23 Ste. Dig., art. 64; 1 Whar. Ev.,'§ 92 ; E. v. Wat- son, 2 Star., 129; Noden v. Murray, 2 Camp., 224; Foot V. Bentley, 44 N. Y., 166; 4 Am. R., 652. OHAP. Ill] CARBON DUPLICATES 133 introduced in evidence as such without ac- counting for the nonproduction of the others.^^ But of course this does not apply to carbon copies which do not include the sig- nature made at the same time and by the same process, or which leave anything to be added before the document has been fully executed as a binding obligation, for such imperfect carbon copies would be, like letter press copies, only secondary evidence. The origi- nal paper sent to a telegraph office is primary evidence of the message sent as against the sender, but not of the message received at the place of its delivery. The telegram delivered to the person addressed is primary evidence as against him of the communication he re- ceived, but only secondary evidence of the message that was sent to him.^^ 24 International Harvester Co. v. Elfstrom, 101 Minn., 263; 113 N. W., 252; 118 Am. St. R., 626; 12 L. N". S., 343. 25 Smith V. Easton, 54 Md., 138; 39 Am. R., 355; Oregon Steamship Co. v. Otis, 100 N. Y., 446 ; 3 N. E., 485 ; 53 Am. R., 221 ; Conyers v. Postal Tel. Cable Co., 92 Ga., 619; 19 S. E., 253; 44 Am. St. R., 100. Upon proof of delivery of the message at the office properly addressed for transmission, a disputable presumption of fact arises that the telegram reached its destination. Oregon Steamship Co. v. Otis, siijira. 134 ON PROOF [part II § 67. Attested documents must be proved by at least one of the subscribing witnesses, if any such is alive or can be found.— Whenever any document to be proved has been attested by one or more subscribing witnesses, it may not be used in evidence except as hereinafter mentioned, if there be an attesting witness alive, sane and subject to the process of the court, until at least one attesting witness has been called for the purpose of proving its ex- ecution; and if no such attesting witness is alive or can be found, the signatures of at least one of the attesting witnesses and of the person or persons who executed the instru- ment must be proved.^*^ This rule has been extended to cases where the document has In the following cases the message received has been held primary evidence of the message sent, upon the ground that the sender made the telegi'aph company his agent; Saveland v. Green, 40 Wis., 431; Morgan V. People, 59 111,, 58 ; Wilson v. Minneapolis, etc., Co., 31 Minn., 483; 18 N. W., 291; Magie v. Herman, 50 Minn., 424; 52 N. W., 909; 36 Am. St. E., 660; Ayer v. W. U. Tel. Co., 79 Me., 493 ; 10 A., 495 ; W. U. T. Co. V. Shotter, 71 Ga., 760. But there must be some preliminary proof of the agency of the com- pany. Culver V. Warren, 36 Kan., 391 ; 13 P., 577. 26 Ste. Dig., art. 66; 1 Whar. Ev., § 723; Citizens' Bank v. Steamboat Co., 2 Story, 16; 5 Fed. Cas., 719, 728. CHAP. Ill] ATTESTIXG WITNESSES 135 been burnt or canceled ; "' where the subscrib- ing witness was blind ; ^* where the party who executed the document was prepared to tes- tify to his own execution of it ; ^^ and where the party offering the document was prepared to prove an admission of its execution by the person who executed it.^*^ The reason as- signed for this rule is that some fact may be known to the subscribing witness not within the knowledge or recollection of the person who executed the instrument, and that the lat- ter is entitled to avail himself of all the knowledge of the subscribing witness relative to the transaction;-"'^ but when the adverse party to the cause chooses deliberately to waive this privilege by admitting the execu- tion of the instrument in reference to the cause,^- or where, having produced the in- 27 Gillies V. Smither, 2 Star. E., 528 ; Breton v. Cope, Pea. E., 43. 28 Cronk v. Frith, 9 C. & P., 197. 29 E. V. Harring^vorth, 4 M. & S., 353 ; Story v. Lovett, 1 E. D. Smith, 153; Brigham v. Palmer, 3 Allen, 450. Contra, Forsythe v. Hardin, 62 111., 206. 30 Call V. Dunnmg, 4 Ea., 53 ; Fox v. Eeid, 3 Johns., 477 ; Turner v. Green, 2 Cranch, C. C, 202. 31 1 Gr. Ev., § 569. 32 Ste. Dig., art. Q6 ; 1 Gr. Ev., § 572 ; Freeman v. Steggall, 14 Q. B., 203. 136 ON PROOF [part II strument pursuant to notice, lie admits its validity by claiming an interest under it in the subject-matter of the cause, and still sub- sisting at the time of trial,^^ this reason ceases to exist, and in such cases no further proof of the execution than such admission is re- quired. But if, when the attesting witness is examined, he denies or does not recollect hav- ing seen the document executed, the fact of its execution may then be established by any other evidence, for it would be manifestly unjust that a party should be concluded by the testimony of a witness whom the law com- pels him to call.^'* § 68. Exceptions to rule requiring attesting witnesses to be examined.— The exceptions to the rule requiring attesting witnesses to be called to prove the execution of documents are: (1) Where the instrument is thirty years old, and comes from the proper custody; in which case, as we shall presently see,^^ it may 33Ste. Dig., art. 67; 1 Gr. Ev., §571; Pearce v. Hooper, 3 Tau., 60; McGregor v. Wait, 10 Gray, 72; 69 Am. D., 305. 34 Ste. Dig., art. 68 ; 1 Gr. Ev., § 572 ; 1 Whar. Ev., § 730; Thomas v. Le Baron, 8 Mete, 355; Hall v. Phelps, 3 Johns., 451. 3' Post, § 79. CHAP. Ill] ATTESTING WITNESSES 137 be said to prove itself, it being presumed that the subscribing witnesses are all dead, and that other proof of its execution is beyond the reach of the party. ^® (2) Where the in- strument is shown or appears to be in the possession or power of the adverse party, who, after due notice, has refused to produce it when called for; in which case, the latter, having by such refusal driven his opponent to give secondary evidence of its contents, cannot then change his mind, produce the original, and object to its admissibility with- out the evidence of an attesting witness ; ^^ for the law, by allowing this, would encourage the withholding of material evidence. (3) "Where the instrument is not directly in issue, but comes incidentally in question in the course of the trial ; ^^ thus, where A. sues B. upon an agreement to pay him for certain work the same price which C. had contracted to give him for similar services, the contract 36 1 Gr. Ev., § 670 ; Ste. Dig., art. 88 ; Jackson v. Blanshaw, 3 Johns., 392, 295 ; 3 Am. D., 485 ; Barr V. Gratz, 4 Wheat., 213, 221 ; Winn v. Patterson, 9 Peters, 663, 674; 1 Whar. Ev., §§ 194-199, 703, 732. 37 Ste. Dig., art. 67; Tay. Ev., §§1818, 1847; Poole V. Warren, 8 A. & E., 588; Davis v. Spooner, 3 Pick., 284. 88 1 Gr. Ev., § 573b; Ste. Dig., art. 67. 138 ON PROOF [part II between A. and C. may be proved by any com- petent testimony, without calling the sub- scribing witnesses ; ^^ for the question as to whether or not it was validly executed is not put in issue. (4) Where a different method of proof is allowed by statute. Thus, in all cases where the law provides that a certified copy of any recorded instrument shall be re- ceivable in evidence, the original, when shown to have been duly registered, is admissible to the same extent, without further proof by the subscribing witnesses ; ^^ and so, when the law declares that any instrument, acknowl- edged as therein provided, shall be admissible in evidence uj^on proof of such acknowledg- ment, this dispenses with the necessity for calling the attesting witnesses in all cases where the conditions required by the statute as prerequisites of the acknowledgment ap- pear from the record to have been complied with.^^ The general tendency of legislation in the United States has been to abolish the rule requiring the attesting witnesses to a docu- ment to be called before it can be offered in S9 Curtis V. Belknap, 6 Wash,, 433. 40 Knox V. Silloway, 1 Fairchild (Me.), 201, 216. 41 1 Whar. Ev., § 740; Houghton v. Jones, 1 Wall, 702 ; Younge v. Guilbeau, 3 Wall., 636. CHAP. Ill] PUBLIC DOCUMENTS 139 evidence, excepting that the subscribing wit- nesses to a will must always be produced, if practicable, before it will be admitted to probate, the peculiar nature of such an in- strument rendering the adherence to this method of proof more important than in other cases. § 69. The contents of public documents may be proved by copies— Certified copies.— Public documents are permitted to be proven by copies^^ because of the great inconvenience which would result from the frequent removal of the originals, if their production were re- quired every time it became necessary to prove in court any matters therein contained, and also because the originals are so acces- sible for inspection by all parties interested, as to render it an easy matter to detect any material variations between them and the copies offered in evidence.^^ It is laid down as the law in England that any public docu- ment whatever may be proved by an exam- ined copy, that is, a copy proved by oral evi- dence to have been examined with the origi- nal and to correspond therewith,^"* with two 42 Ste. Dig., art. 71. 43 Stark. Ev., p. *647; 1 Gr. Ev., § 91. 44 Ste. Dig., art. 75. 140 ON PROOF [part II exceptions, viz. : first, where issue has been joined on a plea or replication of nvl tiel rec- ord in some cause in the same court to which the disputed record belongs; and secondly, where a person is indicted for perjury in any affidavit, deposition or answer, or for forgery with respect to any record ; in either of which cases the original document must be produced, unless it be shown to have been lost or destroyed, or that the prisoner has got possession of it.''^ It is, however, extremely questionable as to how far this rule would be recognized without qualification in most of the courts of this country.^'' Ample provi- sion has been made both by federal ^'^ and state legislation for furnishing certified copies of all public documents, duly authen- ticated under the hands or official seals of the officers having the custody of the originals, or in some other manner provided by law. Such certified copies being generally declared by statute to be evidence equally with the originals, are thereby in effect made primary evidence, and therefore, when it is in the power of the party to procure them, they ex- 45 Tay. Ev., § 1535. 4« Cornett v. Williams, 20 Wall., 226, 246. 47 Rev. Stat. U. S., §§ 882-908. CHAP. Ill] EXAMINED COPIES 141 elude all secondary evidence, excepting, per- haps, examined copies.*® The fact that cer- tified copies are easily obtained has caused them to be so generally used as the means of proving the contents of public documents, that the question as to whether an examined copy, not certified, would be admissible in evi- dence in cases where such certified copies were obtainable, seems to have been directly passed upon by but few courts of final resort in the United States ; but an examined copy, not certified, being only secondary evi- dence, would seem upon principle to be ex- cluded in such cases by the rule requiring the best attainable evidence to be produced.^® Public or private acts of congress, or of any state or territorial legislature, may generally, throughout the Union, be read in evidence from any book purporting to have been printed by authority.^^ Judicial proceedings 48 1 Whar. Ev., § 90 ; 2 Elliott Ev., § 1265, etc. 4^ The language of the Supreme Court of the United States in Cornett v. Williams, 20 Wall., 246, strongly favors the view expressed in the text; but see 1 Gr. Ev., § 91, and Abb. Tr. Ev., ch. xxix 1-4, which follow the English rule. The cases on this point will be found in a note to § 1273 of 2 Wig- more on Ev. 60 1 Gr. Ev., § 480. 142 ON PROOF [part II are proved by copies of the record, certified by the officer having the custody of the origi- nals, and authenticated by the seal of the court to which they belong. Such copies are called exemplifications, and in the same state are equivalent to the original record for all purposes, excepting that the original record should be used in the court where the pro- ceedings were liad.^^ Exemplifications of the records of courts of sister states of the Union, if certified under the act of congress,^- or in any other manner allowed by the laws of the state in which they are offered as evidence,^ ^ are entitled to the same faith and credit as they have by law in the courts of the state from which they are taken.^'* In all such cases, the seal of the court being judicially noticed, no extraneous proof of its genuine- ness is ever required.^^ The usual mode of authenticating foreign laws and judgments is either 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 51 1 Gr. Ev., §§ 501, 502; Abb. Tr. Ev., ch. xxix 1-4. 52 Eev. Stat. U. S., § 905. 53 Abb. Tr. Ev., ch. xxix 15-30 ; 1 Gr. Ev., § 505. 54 Id., § 504. 55 Id., § 503. CHAP, III] CERTIFIED COPIES 143 compared it with the original, or by the cer- tificate of an officer properly authorized by law to give a copy, which certificate must it- self be duly authenticated."^ § 70. Rule requiring primary evidence of the contents of documents modified by statutes making certified copies admissible in evidence. — "\\'lienever special provision has been made by statute for proof of the contents of any document in any other manner than by pri- mary evidence, the rule excluding secondary evidence is of course so far modified as to render it admissible under the circumstances and to the extent so authorized by the statute. Thus, the laws of all the states authorize cer- tain deeds and other instruments to be re- corded, and certified copies made from the register to be used in evidence for purposes and under certain circumstances as set forth in such laws. As the terms of these laws vary in the different states, the admissibility in evidence of a certified copy of an instru- ment made from the register can only be de- termined in any particular case by a reference to the statute under which it has been re- corded. 56 1 Gr. Ev., §§ 488, 514; Church v. Hubbard, 2 Cranch, 237. 144 ON PROOF [part II § 71. Secondary evidence of documents re- ceived in certain cases where party has shown his inability to produce the original in court- Notice to adverse party to produce documents. — Secondary evidence of the contents of docu- ments is received also in certain other cases where the party offering it has first shown his inability to produce the original in court, by proof (1) that the original is of such a nature as not to be easily movable ; as in the case of a libel written on a wall, or an inscription upon a tombstone ; ^■^ or (2) that it is in the possession of a person living beyond the ju- risdiction of the court ; ^^ or (3) that it has been destroyed ; ^^ or (4) that it has been lost, and proper search has been made for it ; *"' or (5) that it is in the possession or power of a stranger to the cause, not legally bound to produce it, and who, after having been served with a subpoena duces tecum, or having been sworn as a witness, and having admitted 57 Ste. Dig., art. 71; Tay. Ev., §438; Whar. Ev., § 82 ; North Brookfield v. Warren, 16 Gray, 171, 174. 68 Biirton V. Driggs, 30 Wall., 125, 134. B9 Ste. Dig., art. 71 ; 1 Gr. Ev., § 558 ; Riggs v. Tayloe, 9 Wheat., 483. «o Ste. Dig., art. 71 ; 1 Gr. Ev., § 558 ; Tayloe v. Eiggs, 1 Pet., 591, 596; Patterson v. Winn, 5 Pet., 233, 240, 242. CHAP. Ill] NOTICE TO PRODUCE 145 it to be in court, refuses to produce it ; ®^ or (6) that it is iu the possession or control of the adverse party, who refuses to produce it, after having* been given such notice to do so as the court regards reasonably sufficient to enable it to be procured. ^^ The notice re- quired in the latter case may be given either verbally or in writing, and if in writing, may be served either upon the party himself or his attorney.®^ The object of giving the notice is to enable the party who has the doc- ument to produce it, if he likes, at the trial, and thus to secure the best evidence of its contents; and therefore formal notice is unnecessary whenever such party has the document in court,^"* or when the action is founded upon the assump- tion that it is in his possession or power, and requires its production ; as, for example, in trover for a bill of exchange.''^ Nor is any 61 Ste. Dig., art. 71 ; 1 Gr. Ev., § 558; 1 Whar. Ev., § 150; Brandt v. Klein, 17 Johns., 35. «2 Ste. Dig., art. 71; 1 Gr. Ev., § 560; Turner v. Yates, 16 How., 14, 26; Morrison v. Whiteside, 17 Md., 542; 79 Am. D., 661; Scott v. Christianson, 49 Ore., 223, 227; 89 P., 376; 124 Am. St. E., 1041, 1045. 63 1 Gr. Ev., § 562. 6^ 1 Whar. Ev., § 155; McPherson v. Rathbone, 7 146 ON PROOF [part II notice required to be given when the docu- ment to be proved is itself a notice.^^ This exception appears to have been originally adopted in regard to notices to produce, for the obvious reason that, if a notice to pro- duce such papers were necessary, the series of notices would become infinite; but why it was subsequently extended by the judges to notices of other kinds is not by any means so clear.^^ The effect of a refusal to produce a document after due notice is not only to en- able the other party to prove its contents (if otherwise relevant) by secondary evidence, but it debars the party so refusing from af- terwards putting the original in evidence without the consent of his adversary ; ^^ for were this permitted, he might hold back the Wend., 216, 219; Ehoads v. Selin, 4 Wash. C. C, 715, 718; 20 Fed. Cas., p. 631. 65 Ste. Dig., art. 72 ; 1 Gr. Ev., § 561 ; Tay. Ev., § 452; Lawson v. Bachman, 81 N. Y., 616; Dana v. Conant, 30 Vt., 246, 257. 66 Ste. Dig., art. 72; Eagle Bank v. Chapman, 3 Pick., 180, 182; Morrow v. Com., 48 Pa. St., 305, 308. 67 Tay. Ev., § 450 ; 2 Elliott Ev., § 1440. 68 Ste. Dig., art. 139; Tay. Ev., §1818; Doe v. Hodgson, 12 A. & E., 135; Doon v. Donalier, 113 Mass., 151. CHAP. Ill] PKODUCTION ON NOTICE 147 document until he saw whether the secondary proof would be favorable or unfavorable to him, and thus obtain an unfair advantage over his opponent.®^ On the other hand, when a document has been produced upon notice, this fact prima facie obviates the ne- cessity of any proof of its genuineness by the opposite party ; '^° and when the latter has in- spected it so as to become acquainted with its contents, he is bound, if it be relevant, to give it as evidence, if the party producing it require him to do so ; '^ for it would be un- just to allow a party to pry into the affairs of his adversary without at the same time subjecting him to the risk of making whatever he inspects evidence for both sidesJ^ 69 Whar. Ev., § 157; 2 Elliott Ev., § 1435. ■^oWhar. Ev., §156; Betts v. Badger, 12 John., 223; 7 Am. D., 309; St. John v. Insurance Co., 2 Duer, 419. But see Rhoads v. Selin, 4 Wash. C. C, 715; 20 Fed. Cas., p. 631. 71 Ste. Dig., art. 138; Whiteside v. Momson, 17 Md., 452 ; 79 Am. D., 661 ; Clark v. Fletcher, 1 Allen, 53, 57 ; Jordan v. Wilkins, 2 Wash. C. C, 482, 484, n.; 13 Fed. Cas., p. 1112; Wilbers v. Gillespy, 7 S. & E., 10, 14. But see Austin v. Thompson, 45 N. H., 113, 116. 72Tay. Ev., § 1817; 2 Elliott Ev., § 1445, etc. 148 ON PROOF [PAliT II § 72. Degrees of secondary evidence recog- nized in America, but not in England.— Ac- cording to the English decisions, when sec- ondary proof of the contents of a document becomes admissible in any of the cases men- tioned in the preceding section, it may be made either by a copy proved to be correct, or by the oral testimony of a witness who has himself seen it,'^^ no degrees in secondary evi- dence being recognized; but many of the courts in the United States have not gone this length f'^^ and the American doctrine, as de- duced from the various authorities, seems to be, that if, from the nature of the case, it is manifest that a more satisfactory kind of evidence exists, the party will be required to produce it ; but where the nature of the case does not of itself disclose the existence of such better evidence, the objector must not only prove its existence, but also show that it was known to the other party in season to have been produced at the trialJ^ 7 3 Ste. Dig., art. 71. 74 Cornett v. Wilhams, 20 Wall., 226, 246; Harvey V. Williams, 28 Ala., 250; 65 Am. D., 344; United States V. Britton, 2 Mason, 464, 468; 24 Fed. Cas., p. 1239. 75 1 Gr. Ev., § 84; note; 1 Whar. Ev., § 90; 2 Wigmore Ev., § 1268. CHAP. Ill] SECONDARY EVIDENCE 149 § 73. Secondary evidence may be given of the general result of a collection of documents too numerous to be conveniently examined in court. — The only remaining case in which sec- ondary evidence can be given of the contents of documents, is where the fact to be proved is the general result of voluminous accounts or of a greater number of documents than can be conveniently examined in court ; as that bills of exchange have been, by certain par- ties, invariably drawn in the same way; or that an examination of a merchant's books and securities showed him to be solvent or in- solvent at a particular time. In such cases, when the general result sought to be proved is one capable of being ascertained by calcula- tion, it may be testified to without the pro- duction of the documents, by any person who has examined them, and who is skilled in making such examinations.'^^ This exception, which is allowed simply as a matter of con- venience, and to save the time of the court 7« Ste. Dig., art. 71 ; 1 Gr. Ev., § 93 ; Tay. Ev., § 462; Burton v. Driggs, 20 Wah., 125, 136; Boston & W. R. R. Corp. V. Dana, 1 Gray, 83, 104; Chicago, etc., R. R. Co. V. Wolcott, 141 Ind., 267, 278 ; 39 N. E., 451 ; 50 Am. St. R., 320, 327 ; Blum v. State, 94 Md., 375, 389 ; 50 A. 567 ; 56 L. R. A., 322. 150 ON PROOF [part II from being needlessly taken up by tedious in- vestigations, which can be better and more satisfactorily made by one or two individuals out of court, only applies to cases where the general result to be ascertained is a mere mat- ter of calculation, and does not extend to cases where it is a matter of judgment about which persons equally honest might arrive at dif- ferent conclusions. § 74. Oral testimony may not be given to vary the terms of a written contract.— When- ever the terms of any contract or grant which the parties have put in writing are sought to be proved by a party thereto, or his repre- sentative in interest, for the purpose of en- forcing, varying or denying any civil right or liability thereunder, such terms may not be proved otherwise than by the writing itself, or by secondary proof of its contents in those cases where such secondary evidence would be admissible under the rules already given.'^^ This very important rule of evidence is noth- ing more than another application of the " Ste. Dig., arts. 90, 92 ; Cornwall, etc., E. E.'s Appeal, 125 Pa. St., 232; 17 A., 427; 11 Am. St. R., 889; Barreda v. Silsbee, 21 How., 146, 169; Mc- Master v. Insurance Co., 55 IST. Y., 222; 14 Am. R., 239. CHAP. Ill] CONTRACTS IX WRITING 151 principle requiring all facts to be proved by the best kind of evidence attainable, the law very sensibly assuming that whenever the parties to a contract have deliberately put it in writing, such writing is, as between them, better evidence of what they mutually agreed to, than the mere recollections of any person who was present when such agreement was made, whether a party to it or notJ^ And the same reasoning which excludes oral evi- dence as a substitute for the written state- ment of the terms of an agreement, equally excludes it when sought to be introduced for the purpose of contradicting, altering, adding to or varying the terms so reduced to writing ; for this would be to practically supersede the written by oral evidenced ^ But the rule mak- ing the written contract the exclusive evi- dence of what the parties agreed to when they executed it, does not by any means pre- vent them from showing such agreement to have been procured by fraud or intimidation, or that by reason of illegality, failure or want of consideration, want of due execution, want 78 1 Gr. Ev., § 87 ; 1 Whar. Ev., § 60. 79 1 Gr. Ev., § 875 ; Tay. Ev., § 1133 ; 2 Whar. Ev., § 1014; Forsythe v. Kimball, 91 U. S., 291; Sei*? v. Brewers' Refrig. Co., 141 U. S., 510, 517. 152 ON PROOF [part II of capacity on the part of any of the contract- ing parties, mistake in fact or law, or any other matter, it is invalid; for the purpose and effect of such evidence is not to contra- dict or vary the terms of the writing, but to disprove its legal existence or rebut its ope- rations.^*' And so, also, it may be shown by oral evidence that there was a separate oral agreement between the same parties, consti- tuting a condition precedent to the attaching of any obligation under any written contract, grant or disposition of property which may be in question, and that such condition prece- dent was not performed; for this is in effect not to vary, or give inferior evidence of the terms of the writing, but to defeat it altogeth- er by showing that the parties never intended its terms to be operative at all under the exist- ing state of facts ; *^ thus, where A. contracted 80 Ste. Dig., art. 90; 1 Gr. Ev., §284; 1 Starkie Ev., p. *671; 2 Whar. Ev., §§930-935; Martin v. Clark, 8 R. I., 389 ; 5 Am. R., 586 ; Union Mut. Ins. Co. V. Wilkinson, 13 Wall., 222, 231 ; Fire Ins. Asso. V. Wickham, 141 U. S., 564, 577; 1 Ell. Ev., § 573. 81 Ste. Dig., art. 90 ; 2 Whar. Ev., § 927 ; Tay. Ev., § 1038 ; Pym v. Campbell, 6 E. & B., 370 ; Ware v. Allen, 128 U. S., 590; Rearick v. Swinheart, 111 Pa. St., 233; 51 Am. D., 540; Burke v. Dulany, 153 U. S., 228; 1 Ell. Ev., § 575. CHAP. Ill] CONTRACTS IN WRITING 163 in writing to assign to B. the lease of a farm which the former held as tenant of C, it being verbally agreed between them that this con- tract was conditional upon the assent of the landlord thereto, and B. sued A. for not as- signing the lease in pursuance of such con- tract, A. was allowed to prove the condition as to C. 's consent, and the fact that C. did not consent.^- Neither does this rule exclude oral evidence of the fact that a deed or con- tract has been wrongly dated ; for the date is ordinarily no part of the terms agreed on, but a mere statement of the time when they went into effect, which, although generally presumed to be prima facie correct, may, like other recitals of formal matter which do not involve a contract, be contradicted by ex- trinsic parol evidence.®^ § 75. This rule only extends to writings in- tended by the parties as a binding" statement of their transactions.— This rule only extends to such writings as appear to have been in- tended by the parties as a formal and binding 82 Wallis V. Littell, 11 C. B. (N. S.), 369. 83Ste. Dig., art. 90; 2 Whar. Ev., §§976-979, 1039; Tay. Ev., § 1150; Kaffell v. Eaffell, L. R., 1 P. & D., 139 ; Deakin v. Holhs, Adm'r, 7 G. & J., 311, 316; Stockham v. Stockham, 32 Md., 196. 154 ON PROOF [part II statement of the transaction between them, and which have been so accepted by both sides ; and hence oral evidence of the terms of a verbal contract is not excluded by the fact that a memorandum of it was made in writing at the time, unless such memorandum was intended to have legal effect as a con- tract or other disposition of property;^"* thus, if A. sells a horse to B. with a verbal warranty of his soundness, and gives him a paper in these words, ''Bought of A. a horse for 71. 2s. 6d. A.," this does not prevent B. from afterwards proving the verbal war- ranty ;^^ for a simple receipt is ordinarily not intended as a statement of the terms of a contract, but is merely an acknowledgement of payment or delivery, which, like other ad- missions, though prima facie evidence of the fact, may generally be contradicted by oral testimony; but where the receipt also con- tains a contract to do something in relation to the thing delivered, then it becomes the best evidence of the contract between the parties, and, standing upon the footing of other con- tracts in writing, cannot be contradicted or 84 Ste. Dig., art. 90; Tay. Ev., § 1134; 2 Whar. Ev., §§ 920, 926; 1 Elliott Ev., § 573. 85 Allen V. Prink, 4 M. & W., 140. CHAP, III] CONTRACTS IN WRITING 156 varied by parol.^^ And even in those cases where the parties have made a formal agree- ment in writing- with the intention of being bound by its terms, if, from the circumstances of the case, the court infers that they did not intend the writing to be a complete and final statement of the whole transaction between them, evidence may be given of any separate agreement as to any matter on which such writing is silent and which is not inconsistent with its terms ; ^' for this is neither contra- dicting nor varying the terms of the writing, but only proving a contemporaneous parol agreement collateral to and not inconsistent with it. And upon the same principle, evi- dence may be given of any usage or custom affecting the parties to any written contract, by which incidents not expressly mentioned 8'^ 1 Gr. Ev., §305; Tay. Ev., §1134; Fire Ins. Assoc. V. Witham, 141 U. S., 564, 581; Henry v. Henry, 11 Ind., 236; 71 Am. D., 354; Stapleton v. King, 33 Iowa, 28; 11 Am. R., 109. 8^ Ste. Dig., art. 90 ; Tay. Ev., § 1038 ; Abb. Tr. Ev., ch. xvi 8; Lindley v. Lacey, 17 C. B. (N. S.), 578; Morgan v. Griffith, L. R., 6 Exc, 70; Chapin v. Dobson, 78 N. Y., 74; 34 Am. R., 512; Cobb v. Wallace, 5 Cold., 539; 98 .Am. D., 435; Durkin v. Cobleigh, 156 Mass., 108; 30 N. E., 474; 32 Am. St. R., 436; 17 L. R. A., 270. 156 ON PROOF [part II in it are annexed to all contracts of that de- scription as implied therein; unless the an- nexing of such incident would be repugnant to or. inconsistent with the express terms or legal effect of the writing itself.^^ Thus, to a shipping contract it is admissible to annex as an incident, by proof of usage, the cus- tomary method of engaging and paying crews ;^^ and though a promissory note is silent as to any days of grace, parol evidence of the known and established usage of the country or place where it is payable, is ad- missible to show on what day the grace ex- pired.^^ Such evidence is admitted upon the ''presumption that the parties did not intend to express in writing the whole of the con- tract by which they intended to be bound, but to contract with reference to those known us- ages, ' ' ^^ which differ from the parol con- 88 Ste. Dig., art. 90; 1 Gr. Ev., § 394; Tay. Ev., §§ 1168-1170; Bliven v. N. E. Screw Co., 23 How., 420, 431; Thompson v. Riggs, 5 Wall., 663, 679; Moran v. Prather, 23 Wall., 492, 503 ; Smith v. Clews, 114 N. Y., 190; 21 N. E., 160; 11 Am. St. K, 627; 4 L. R. A., 392. 8» Eldredge v. Smith, 13 Allen, 140. »o Eenner v. Bank, 9 Wheat., 581. »i Hutton V. Warren, 1 M. & W., 466, per Parke, B., p. 475. OHAP. Ill] CONTRACTS IX WRITING 157 temporaneous agreements as to collateral matters which we have just been considering, only in that they attach by implication instead of by express stipulation.^^ But such usage must be consistent with the rules of law, for otherwise the parties will not be presumed to have contracted with reference to it ; and it must also be consistent with the terms of the written contract, for it is always optional to the parties to exclude the usage, if they think fit, and to frame their contract so as to be repugnant to its operation.^^ Nor does the rule under consideration exclude proof of any distinct subsequent oral agreement to rescind or modify any such written contract, grant or disposition of property, provided that such agreement is not invalid under the statute of frauds or otherwise.^^ For this, it will be observed, is not to substitute parol proof for the written evidence of the terms of the origi- nal contract, but to show that the parties have since modified those terms, it being a well 92 2 Whar. Ev., § 969 ; 1 Elliott Ev., § 607. »3 Anson on Contracts, 238; Oelrichs v. Ford, 23 How., 49. 94 Ste. Dig., art. 90 ; Cununings v. Arnold, 3 Mete, 486; 37 Am. D., 155; Bannon v. Aultman, 80 Wis., 307; 21 N. AV., 967; 27 Am. St. R., 37. 158 ON PROOF [part II recognized principle of common law, that any obligation by writing which is not under seal may, in the absence of statutory interference, be either totally or partially disolved or mod- ified before breach by a subsequent oral agreement.*^^ In cases where by reason of the original contract being under seal, or on account of the provisions of the statute of frauds or other express legislation, such sub- sequent oral agreement would be invalid at law, it could not, of course, be proved in evi- dence. § 76. And to controversies between the parties to the instrument and those claiming under them.— It must be observed that this rule only applies to controversies between the parties to the written instrument and those claiming under them ; ^^ for the rule being founded upon the theory that, because the parties have made such writing the authentic 95Tay. Ev., §1142; Whar. Ev., §§1017, 1018; Goss V. Lord Nugent, 3 B. & Ad., 58, 65, 66. 96 Ste. Dig., art. 92; 1 Gr. Ev., § 279; Tay. Ev.. §1149; Whar. Ev., §923; Barreda v. Silsbee, 21 How., 146, 169; McMasters v. Insurance Co., 55 N. Y., 222; 14 Am. E., 239; Coleman v. Pike Co., 83 Ala., 236 ; 3 So., 755 ; 3 Am. St. E., 746 ; Bruce v. Eoper Lumber Co., 87 Va., 381; 13 S. E. 153; 24 Am. St. E., 657; 1 Elliott Ev., § 572. CHAP. Ill] CONTRACTS IN WRITING 159 memorial of their contract, it must therefore be taken as between them to speak the truth, and the whole truth, in relation to its sub- ject-matter, there is no reason why strangers who have not come into the agreement should be bound by it, and consequently, when their rights are concerned, they are at liberty to show that the written instrument does not disclose the very truth of the matter. And if they be thus at liberty when contending with a party to the transaction, he must be equally free when contending with them. Both must be bound by this conventional law, or neither.^^ Thus, the existence and terms of a partnership, though formed by a written con- tract, may be proved by parol evidence, ex- cepting in controversies between the alleged partners and their representatives ; ^^ and so, also, the fact of an agency having been cre- ated by a written authority does not prevent third parties from proving it by parol, except- ing in cases where a writing is essential to its validity. And even in cases where the contro- »7 Eeynolds v. Magness, 2 Ired., 26, 30. 98 Abb. Tr. Ev., ch. ix 2, etc. ; McGregor v. Cleve- land, 5 Wend., 475; Gilbert v. Whedden, 20 Me., 368; Button v. Woodman, 9 Cush., 255; 57 Am. D., 46. 160 ON PROOF [part II versy is between the parties to the written contract or their representatives, the rule is only applicable where some civil right or lia- bility dependent upon its terms is in question ; for the binding effect of a contract only ex- tends to the civil rights and liabilities of the parties thereto, and of those claiming through them.^^ Hence, when A. prosecutes B. criminally for obtaining money from him under false pretenses as a premium for enter- ing into partnership with him, A. is not pre- vented from testifying that he was induced to pay 200^. and enter the partnership by the false representation of B. that he had ob- tained an appointment as emigration agent at a salary of 600?, per annum, notwithstanding the fact that the deed of partnership executed by A. and B., which was offered in evidence, recited the 200Z. as the consideration for the partnership, and made no mention whatever of the emigration agency.^ "'^ § 77. How far the meaning of a writing may be explained by oraJ testimony.— Although, as we have already seen, parol evidence is in- admissible, as between the parties, to con- tradict, add to or vary the terms of any agree- »» Ste. Dig., art. 92 ; 1 Elliott Ev., § 577. lo*^ Reg. V. Adamson, 2 Moody, 286. CHAP. l] INTERPRETATIOX OF WRITINGS 161 ment or grant which they have reduced to writing, jet, within certain limits, parol and other extrinsic evidence is admissible to ex- plain the meaning which the parties intended to express by the terms employed, and to identify the persons and things thereby re- ferred to.^°^ These limits are, first, that where the words used have a plain legal meaning, it is not permissible to introduce evidence that they were intended to be used in a peculiar sense, unless the context or the circumstances under which they were used clearly show that the parties did not mean them to be understood in their ordinary legal acceptation; ^^2 since persons must be pre- sumed to have intended the natural and proper meaning of the words used by them, unless the contrary plainly appear; and sec- ondly, if the words of a document are so am- biguous as to be unmeaning in themselves, no evidence can be given to show what its 101 Tay. Sv., § 1158; 1 Elliott Ev., § 597. 102 Tay. Ev., § 1165; Ste. Dig., art. 91 (2), (5) ; 1 Gr. Ev., §295; 2 Wliar. Ev., §§ 924, 940; Moran V. Prather, 23 Wall., 492, 501; Wilmering v. Mc- Gaughey, 30 Iowa, 205; 6 Am. E., 673, note; Arm- strong V. Lake Champlain, etc., Co., 147 N". Y., 495 ; 42 N. E. 186 ; 47 Am. St. R., 683. 11 162 ON PROOF [part II author intended to say;^'^^ for this would be adding to the terms of the document instead of explaining them. Within these limits, however, oral evidence may be given of the meaning of illegible or not commonly intelli- gible cliaracters, of foreign, obsolete, tech- nical and provincial expressions, of abbrevia- tions and of common words, which from the context appear to have been used in a pecul- iar sense; ^^^ for this neither adds to nor va- ries the terms actually used, but merely en- ables the court to discover the meaning in- tended to be conveyed by them.^"^ And so, also, 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, or which iden- tifies any person or thing mentioned in it; ^"® for to enable the judge to discover the in- 103 Ste. Dig., art. 91 (3); Peisch v. Dickson, 1 Mason, 9 ; 19 Fed. Cas., p. 123 ; Neweome v. Kline, 11 G. & J., 457; 37 Am. D., 74. 104 Ste. Dig., art. 91 (2) ; Tay. Ev., §§ 1159-1164; Stoops V. Smith, 100 Mass., 63, 66; 1 Am. R., 857; Thorington v. Smith, 8 Wall., 1, 12. 105 Tay. Ev., § 1158; 1 Elliott Ev., 605. 106 Ste. Dig., art. 91 (4) ; Eeed v. Insurance Co., 95 U. S., 23, 50 ; Maryland v. B. & 0. R. R. Co., 22 Wall., 105, 113. CHAP. Ill] INTERPBETATION OF WRITINGS 163 tention of the writer as evidenced by the words he has used, lie must, as far as possible, put himself in the writer's place, and then see how the terms of the instrument affect the subject-matter.^ "^^ So that whenever, in a written instrument, the description of the person or thing intended is applicable with legal certainty to each of several objects, not only such extrinsic facts, but even proof of the declarations of the author, become admis- sible to establish which of such subjects he meant to refer to; ^^^ but in cases where, by reason of inaccuracy in the description of a person or thing, it is partly applicable and partly inapplicable to each of several sub- jects, although such extrinsic facts may be proved to show which of them was meant, evidence of the author's declaration of in- tention is not admissible for this purpose.^"'' So, also, the same rule as to extrinsic facts applies in cases where, the description being 107 Tay. Ev., §§ 1082, 1194; 1 Elliott Ev., § 602. 108 Tay. Ev., § 1226; Wigr., Wills, 160; Ste. Dig., art. 91 (8) ; Mech. Bank of Alexandria v. Bank of Columbia, 5 Wheat., 326, 337; Miller v. Stevenson, 100 Mass., 518; 1 Am. E., 139. 109 Tay. Ev., §1226; Ste. Dig., art. 91 (7); 2 Whar. Ev., § 1001 ; Doe v. Hiseocks, 5 M. & W., 33 ; Stringer v. Gardiner, 27 Beav., 35. 164 ON TROOF [part II partly correct and partly incorrect, the cor- rect part is sufficient to identify the subject intended, while the incorrect part is inap- plicable to any subject, in which cases the instrument will be rendered operative by re- jecting the erroneous statement.^ ^'^ And finally, in cases where courts of equity raise a presumption against the apparent intention of a written instrument, such presumption may be repelled by extrinsic evidence, whether of declarations or of collateral facts, showing the intention to be otherwise; ^^^ for this is not to contradict the language used by the parties, but simply to do away with an artificial presumption of law with regard to it. 110 Tay. Ev., § 1236; Wigr., Wills, 67, 70; 2 Whar. Ev., § 945 ; Fitzpatrick v. Fitzpatrick, 36 Iowa, 674 ; 14 Am. E., 538; Whitcomb v. Eoderman, 156 111., 116 ; 40 N. E., 553 ; 47 Am. St. E., 181 ; 28 L. E. A., 149. 111 Tay. Ev., §1228; Ste. Dig., art. 91 (9); 2 Whar. Ev., §§973, 974; Hurst v. Beach, 5 Madd., 351, 360; Hall v. Hill, 1 Dru. & War., 94, 111-133. PART III. ON THE PRODUCTION AND EFFECT OF EVIDENCE. CHAPTER I. BURDEN OF PROOF. § 78. Burden of proof lies on the party sub- stantially asserting the affirmative of the issue. — Having considered the rules by which are determined the relevancy of facts and the kind of proof by which they may be estab- lished, we now come to those regulating the parties by whom such proof must be pro- duced, the methods of its production, and its legal effect when produced. And first, as to the parties, it may be laid down as the general rule, that the burden of proof, lies on the party who substantially asserts the affirma- tive of the issued upon the principle that it is 1 1 Gr. Ev., § 74 ; Tay. Ev., § 364 ; 1 Wliar. Ev., §§ 353, 356; Costigan v. Eice, 2 Denio,- 609, 616; 43 Am. D., 758; 1 Elliott Ev., § 132. 165 166 PRODUCTION OF EVIDENCE [PART III but reasonable and just that the suitor who relies upon the existence of a fact should be called upon to prove his own case.^ In de- termining the question as to which party as- serts the affirmative, regard is had to the sub- stance and effect of the issue, and not merely to its form.^ In other words, the question is which party makes the averment, even though it be a negative one, as a part of his case. An allegation in the negative must not be con- founded with the mere denial or traverse of an affirmative allegation;^ as for instance, where, in an action upon a covenant by the defendant to put certain repairs upon a mes- suage which he held as tenant, the plaintiff alleged that the defendant did not repair, and the defendant traversed by alleging that he did repair, the burden of proof was held to be upon the plaintiff, notwithstanding that his averment was negative in form.^ The best 2Tay. Ev., § 364; 1 ElHott Ev., § 132. 3 1 Gr. Ev., § 74; Tay. Ev., § 364; 1 Elhott Ev., § 141. 4 Best on Ev., § 271 ; 1 Elhott Ev., § 141 ; Bouldin V. Melntire, 119 Ind., 574; 21 N. E., 445; 12 Am. St. R., 453 ; Gt. West. R. R. Co. v. Bacon, 30 111., 347 ; 83 Am. D., 199. 5 Best on Ev., § 272 ; 1 Elliott Ev., § 141 ; Soward V. Leggatt, 7 C. & P., 613. CHAP. l] DISPUTABLE PRESUMPTIONS 167 tests for ascertaining on whom the burden of proof lies are, first, to consider who would suc- ceed if no evidence were given on either side ; and secondly, to examine what would be the effect of striking out of the record the allega- tion to be proved, bearing in mind that the onus must lie on whichever party would fail if either of these steps were pursued.*' § 79. Except where a disputable presump- tion of law exists in his favor.— To this rule, throwing the burden of proof upon the party who substantially asserts the affirmative, there are two exceptions. The first is in cases where a disputable presumption of law exists in favor of the party alleging the af- firmative ; for here, if no evidence were given on either side, the latter must succeed by vir- tue of this presumption, and consequently the burden of proof is shifted from him to his opponent.'^ These presumptions are very numerous, and most of them so closely con- nected with the various branches of sub- stantive law to which they relate as to be al- e Tay. Ev., § 365 ; 1 Whar. Ev., § 357 ; app. Gam- brill V. Schooley, 95 Md., 260, 271; 52 A., 600; 63 L. R. A., 427; 1 Elliott Ev., § 132. ^ Tay. Ev., §§ 367-370. 168 PRODUCTION OF EVIDENCE [PART III most unintelligible except in connection with them. For this reason any attempt to enu- merate them would be entirely out of place in the present work, and therefore only a few of those that are of more general application, as well as of frequent occurrence, will be here noticed. The first of these is the presumption of in- nocence, by which the burden of proof is al- ways (unless there be some express statutory provision to the contrary) thrown upon the party who either directl}' or indirectly avers that any other person has been guilty of any crime or wrongful act, even though such guilt can only be established by proving a nega- tive.^ To convict the accused in a criminal proceeding, his guilt must be proved affirma- tively beyond reasonable doubt i^"^ but when the question whether or not a person has committed a crime arises collaterally in a civil cause, the same strictness of proof is not required, and it is to be determined by the preponderance of evidence, although even in such cases the burden of proving the guilt 8 1 Gr. Ev., § 35; Tay. Ev., § 113. ®^ For definition of reasonable doubt see Holt v. United States, 318 U. S., 245, 353 ; 3 Gr. Ev., § 39. CHAP. l] DISPUTABLE PRESUMPTIONS 169 affirmatively is still imposed upon the party who alleges it.* A wife who acts in company with her hus- band in the commission of a felony other than treason or homicide is presumed to act under his coercion, and consequently without guilty intent.^« Every sane man is presumed to contem- plate the natural and probable consequences of his own intentional acts until the contrary plainly appears; that the intent to murder is to be presumed prima facie from the de- ® To this effect is the weight of American author- ity. 2 Whar. Ev., §§ 1244-1246; Abb. Tr. Ev., ch. xxvi, 31 ; Scott V. Insurance Co., 1 Dill. C. C, 105, 107 ; 21 Fed. Cas., No., 12,500, p. 833 ; Welch v. Jug- genheimer, 56 Iowa, 11; 8 N. W., 673; 41 Am. R., 76 ; Seybolt v. N. Y., L. E. & W. R. R. Co., 95 N. Y., 562; 47 Am. R., 75. For the English rule, which has heen followed in several of the states, that crime must he proved beyond a reasonable doubt even in civil cases, see Thurtell v. Beaumont, 1 Bing., 339 ; also Kane v. Insurance Co., 38 N. J. L., 441-446 ; Barton v. Thompson, 46 Iowa, 30; 26 Am. R., 131; Ste. Dig., art. 94; Tay. Ev., § 112. 10 1 Gr. Ev., § 28; 3 id., § 7; Tay. Ev., § 190; 2 Whar. Ev., § 1256; Com. v. Neal, 10 Mass., 152; 6 Am. D., 105; Nolan v. Trayhem, 49 Md., 460; 33 Am. D., 277 ; 3 Elliott Ev., § 2253. 170 PRODUCTION OF EVIDENCE [PART III liberate use of a deadly weapon; and the deliberate publication of calumny which the publisher had no reason to believe to be true raises the presumption of malice.^ ^ It is another general presumption, that things once proved to have existed in a par- ticular state continue to exist in that state until the contrary be established by evidence either direct or presumptive.^^ And, there- fore, where a person is once shown to have been living, the law, in absence of proof that he has not been heard of within the last seven years, will, in general, presume that he is still alive, unless such a period had elapsed as would make his age considerably exceed the 111 Gr. Ev., §§18, 34; Tay. Ev., §§80-83; 2 Whar. Ev., §§ 1858, 1261; State v. Levelle, 34 S. C, 120; 13 S. E., 319; 27 Am. St. R., 799; Childers v. San Jose, etc., Co., 105 Cal., 284; 38 P., 903; 45 Am. St. R., 40; 3 Elliott Ev., § 2451. 12 Best on Ev., §405; Whar. Ev., § 1284; 1 Gr. Ev., §41; Tay. Ev., §§196, 197; Bradner, Ev., § 438; 1 Elhott on Ev., §§ 109-110; City of Cohoes v. Del. & H. Canal, 134 N. Y., 397 ; 31 N. E., 887 ; Re Huss, 126 N. Y., 537; 27 N. E., 784; Ellis v. State, 138 Wise, 513; 120 N. W., 1110; 131 Am. St. R., 1022; State v. Chittenden, 127 Wise, 468; 107 N. W., 500, 511 ; 3 L. N. S., 1115. CHAP. l] DISPUTABLE PRESUMPTIONS l7l ordinary duration of human life.^^ But when a person is 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, he is presumed to be dead, unless the circumstances of the case are such as to account for his not being heard of with- out assuming his death.^^ Every man is presumed to be sane in the absence of evidence to the contrary.^ '^ And where a party sued upon a written contract pleads infancy, he will be presumed to be of full age, in the absence of proof to support his plea afiQrmatively,^^ Whenever isTay. Ev., §198; 2 Whar. Ev., §1274; Ham- mond's Lessee v. Inloes, 4 Md., 138, 172-75; O'Gara V. Eisenlohr, 38 N. Y., 296 ; Lowe v. Foulke, 103 111., 58 ; Young V. Shulenberg, 165 N. Y., 385, 389 ; 59 N. E., 135; 80 Am. St. R., 730, 733. 14 Ste. Dig., art. 99 ; Tay. Ev., § 200 ; 1 Gr. Ev., § 41 ; 2 Wliar. Ev., § 1276 ; Davie v. Briggs, 97 U. S., 628, 633 ; Sprigg v. Moale, 28 Md., 497 ; 92 Am. D., 698; Dowd v. Watson, 105 N. C, 476; 10 S. E., 1101; 18 Am. St. E., 920. 15 Tay. Ev., § 370; 1 Gr. Ev., § 42; 2 Whar. Ev., § 1252 ; O'Connell v. People, 87 N. Y., 377 ; 41 Am. R., 379; Hiett v. Shull, 36 W. Va., 563; 15 S. E., 146. i« 1 Gr. Ev., § 81 ; Abb. Tr. Ev., ch. lix, 20 ; 1 172 PEODUCTION OF EVIDENC [PART III 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.^^ Until the con- trary appears the law presumes that the same name identifies the same person since names are used for the very purpose of identifying the individual to whom they are attached and therefore the burden of proof is upon the de- fendant to show that he is not the person of the same name against whom a cause of ac- tion has been established by the evidence;^* Star Ev., § 591 ; Borthwiek v. Carnithers, 1 T. R., 648; Hartley v. Wharton, 11 A. & E., 934; R. v. Turner, 5 M. & Sel., 206. 1^ Ste. Dig., art. 101; Tay. Ev., § 124; 1 Gr. Ev., § 20; 2 Whar. Ev., §§ 1302-1309; Applegarth v. Lexington, etc., Mfg. Co., 117 U. S., 255, 264; Adams v. Cowles, 95 Mo., 501; 8 S. W., 711; 6 Am. St. R., 74; Hogue v. Corbit, 156 111., 540; 41 N. E., 219; 47 Am. St. R., 232; Berrenberg v. City of Boston, 137 Mass., 231; 50 Am. R., 296, and note; 1 Elliott Ev., § 99. 18 Lawson Presump. Ev., Ch. 12, Rule 57. Rup- pert v. Penner, 35 Neb., 587; 53 N. W., 598; 17 L. R. A., 824; Ritcher v. Carpenter, 2 Wash., 512; 28 P., 380; 26 Am. St. R., 877; Flournoy v. Warden, 17 Mo., 435. But as to presumption in criminal prosecution see State v John Smith, 129 Iowa, 709; CHAP. l] DISPUTABLE PRESUMPTIONS 173 and the fact that the name is differently spelled makes no difference if the pronuncia- tion of the name is indistinguishable in or- dinary conversation.^^ There are also cer- tain general disputable presumptions as to documents ; as that any document which has been duly proved, and bears a date, was ex- ecuted on that date; and where several doc- uments so proved bear date on the same day, that they were executed in the order neces- sary to eifect the object for which they were executed, unless the circumstances are such that collusion as to the date might be prac- ticed, and would, if practiced, injure any per- son, or defeat the object of any law.^*' Any document purporting to be a deed, which appears to have been duly signed and 106 N. W., 187; 4 L. N. S., 539, with case note showing some conflict of authorities. ^^Barnet v. People, 18 Ills., 52; 65 Am. D., 697, for extended note on doetrine of idem sonans, see 100 Am. St. R., 322 ; note to Thomelly v. Prentice, 121 Iowa, 89; A. J. Veasey v. Brigman, 93 Ala., 548 ; 9 So., 728 ; 13 L. R. A., 541 and note. 20 Ste. Dig., art. 85 ; 2 Wliar. Ev., § 1312 ; Tay. Ev., § 169 ; Knowlton v. Culver, 2 Pinney, 243 ; 52 Am. D., 156; Anderson v. Weston, 6 Bing. N. C, 302 ; Sinclair v. Bagalley, 4 M. & W., 318 ; Butler v. Mountgarret, 7 H. L. Cas., 633, 646 174 PRODUCTION OF EVIDENCE | PART III attested, is presumed to liave been duly- sealed and delivered, although no impression of a seal appears thereon.^^ So, also all documents purporting or proved to be thirty years old, when unblem- ished by alterations and produced from such custody as the judge considers natural or proper under the circumstances, are presumed to be genuine, and to have been executed and attested by the persons by whom they purport to have been executed.^^ Alterations and interlineations appearing on the face of a document will, generally speaking, be presumed to have been made contemporaneously with the execution of the instrument; but any ground of suspicion upon the face of the instrument, or arising from the circumstances of the case, is suffi- cient to rebut this presumption, and throws upon the party offering the document in evi- dence the burden of showing how, when, by 21 Ste. Dig., art. 87; 2 Wliar. Ev., § 1314; Ward v. Lewis, 4 Pick., 518. 22 1 Gr. Ev., §§ 21, 142, 143, 144; Tay. Ev., §§ 658, 667; 1 Whar. Ev., §§ 194, 703, 732; 2 id., § 1359; Jackson v. Blanshaw, 3 Johns., 292 ; 3 Am. D., 480 ; Ban- V. Gratz, 4 AVheat., 213, 221 ; Winn v. Patter- son, 9 Peterp, 663, 674: 2 Elliott Ev., § 1319. CHAP. l] BURDEN OF PROOF 175 whom, and with what intent, such alteration was made.2^ There is also a disputable presumption that any person who is shown to have acted in an official capacity was duly appointed and qual- ified to do so at that time; and this applies also to officers of corporations.^^ § 80. Or the subject-matter of his allega- tion lies peculiarly within the knowledge of the other party.— The second exception to the rule throwing the burden of proof upon the party who substantially asserts the affirma- tive is, that in cases where the subject-mat- ter of the allegation lies peculiarly within the knowledge of one of the parties, that party must prove it, whether it be of an affirmative 23 1 Gr. Ev., §§ 564-568; 1 Whar. Ev., § 639; Abb. Tr. Ev., ch. V, 87, ch. xxvi, 31, ch. xlviii, 7 ; Letcher v. Bates, 6 J. J. Marsh., 524 ; 22 Am. D., 92 ; Col- lins V. Ball, 82 Tex., 259 ; 17 S. W., 614 ; 27 Am. St. R., 879. See Wilson v. Hayes, 40 Minn., 531 42 N. W., 467 ; 4 L. R. A., 196 ; 12 Am. St. R., 754 Nat. Ulster Co. Bank v. Madden, 114 N. Y., 280 21 N. E., 408 ; 11 Am. St. R., 633, and note. 24 Ste. Dig., art. 90; Tay. Ev., § 171; 3 Whar. Ev., § 1315; Bank of U. S. v. Danddridge, 12 Wheat., 64, 70; Com. v. Kane, 108 Mass., 433; 11 Am. R., 373 ; 1 Elliott Ev., § 106. 176 PRODUCTION OF EVIDENCE [PAKT III or negative character.^^ Thus in proceed- ings, whether civil or criminal, instituted against persons for doing acts which they are not permitted to do without a special license or authority, as for selling liquors, exercising a trade or profession, or the like, the onus of proving such license or authority lies upon the defendant.-^ Although this rule is laid down generally in most of the text-books, and has frequently been recognized in opinions delivered from the bench, yet the authorities are by no means agreed as to the extent to which it is to be carried.^'^ Alderson, B., held ^^ that the rule only applies to the weight of the evidence, and that there should al- ways be some evidence to start it, in order to cast the onus on the other side, and such also appears to have been the view taken by Chief Justice Shaw of Massachusetts ; ^'^ but some 25 Tay. Ev., § 376 ; 1 Wliar. Ev., § 367 ; Great W. E. E. Co. V. Bacon, 30 111., 347; 83 Am. D., 199; City of Fort Smith v. Dodson, 51 Ark., 447; 11 S. W., 687 ; 4 L. R. A., 252 ; 14 Am. St. R., 620. 26 Tay. Ev., § 377; 1 Gr. Ev., § 79; 1 Whar. Ev., §368; United States v. Haywood, 2 Gall., 485; 26 Fed. Cas., pp. 240, 245. 27 Best Ev., §§ 274, 275; 4 Elliott Ev., § 3170. 28 Elkin v. Janson, 13 M. & W., 655, 662. 29 Comm. V. Thurlow, 24 Pick., 374. CHAP. Ill] BURDEN OF PROOF 177 of the cases in the books seem to go further. '^^ In many of them, however, the burden of proof is more or less affected by express statutory provisions; and perhaps the most accurate statement of the rule, as far as es- tablished by adjudicated cases at common law, is to be found in Starkie,^^ who says that, upon general principles, a party is relieved ''from proof of the negative of any matter where the existence of the affirmative is es- sential to exempt or discharge the adversary from some duty or liability proved upon him. "32 Under this rule also when an in- 30 United States v. Haywood, supra. 31 1 Starkie, Ev., p. *589. 32 This rule being founded upon considerations of public convenience and common sense, there is no good reason why it should not be made by statute to apply to cases where the plaintiff is obliged, as in foreign attachments, to aver and prove that his ad- versary is a non-resident of the state. This might be done by declaring that in such cases the testimony of the plaintiff that he had made diligent inquiry as to the residence of the defendant from the persons most likely to know about it, and that from the best and most reliable information so obtained he verily believed him to be a non-resident of the state, should be competent evidence from which such non-resi- dence might be inferred, in the absence of any proof 178 PRODUCTION OF EVIDENCE [PART III jury happens to a passenger, while in transit, by a common carrier or when property is lost or damaged during its transportation, the burden of proof is imposed upon the carrier to show that such injury, loss or damage was not caused by any negligence on its part, even in cases where the contract of shipment ex- pressly limits the carrier's liability to losses arising from its negligence. ^^ § 81. Burden of proof in particidar classes of cases.— Having shown the general nature of the burden of proof and upon whom it is imposed, we will next consider the character of evidence by which it must be sustained in the various classes of cases most frequently to the contrary. The absence of such provision often- times renders it impossible for a plaintiff to prove by legal evidence the non-residence of his debtor, because he does not know the precise place where he lives, although there may be abundant hearsay evi- dence which establishes to a moral certainty the fact that he lias left the state. Under such circum- stances, throwing upon the defendant the burden of proving his residence would certainly tend to pro- mote the ends of justice. 83 Phila. W. & B. E. R. v. Anderson, 72 Md., 519 ; 20 A., 2; 8 L. E. A., 678; 20 Am. St. R., 483 and note. Mitchell v. Carolina E. E., 124 N. C, 574; 32 So., 671 ; 44 L. E. A., 515. CHAP, l] JURISDICTIONAL FACTS 179 arising in practice. This includes (1) Juris- dictional facts. (2) The authority of plain- tiffs undertaking to sue, and the liability of defendants who are sued in special char- acters such as partners, executors, admin- istrators, trustees, receivers, assignees, heirs, devisees, legatees or distributors, or as cor- porations or companies. (3) The contract and the breach of it constituting the ground of an action ex contractu. (4) The legal duty and the breach of it upon which an ac- tion ex delicto is founded. (5) The quantity of evidence required in civil and criminal cases. §82. Jurisdictional facts.— The burden is always imposed upon the plaintitf of estab- lishing the existence of the facts necessary to give the tribunal before which the case is tried, jurisdiction to decide it. The impor- tance of establishing these facts is two-fold : first, because a judgment by a court without jurisdiction is a nullity, and it must therefore be presumed that no court will render judg- ment until satisfied it has jurisdiction to do so. And secondly, because a judgment so rendered without jurisdiction cannot be af- terwards enforced. Jurisdiction cannot be conferred upon a Court by consent of the parties although in tlie trial of cases strictly 180 PRODUCTION OF PROOF [PART III inter partes the facts which would confer ju- risdiction may, if alleged by the plaintiff, or- dinarily be established by proof of the ad- missions express or implied of the defendant. The usual test to determine whether a judg- ment rendered was within the jurisdiction of the Court is an inspection of the record, but there is this distinction betwen the records of courts of general jurisdiction — which are those having to take all ordinary judicial ac- tion in any case brought before a court in any common law mode or in any mode prescribed by statutes in lieu and as the equivalent of the common law mode — and those of courts exercising a special limited power, derived solely from and exercisable only according to statutes, to take judicial action through such modes of procedure as the statute authorizes and prescribes. Whenever a court of general jurisdiction has rendered a judgment, it will always be conclusively presumed that all the facts necessary to give it jurisdiction in the premises were established before it, unless such presumption is directly contradicted by the record itself, or by extraneous proof of fraud.^^ But where a court exercises a spe- 34Voorhee3 v. Bank IT. S., 10 Pet., 449, 469; Grignon's heirs v. Aster, 2 How., 319, 341 ; Arroyo CHAP. l] JURISDICTIONAL FACTS 181 cial or limited jurisdiction under a special statute prescribing the occasion and mode of its exercise, no such presumption arises, but on the contrary, the proceedings must be fully set forth in the record and they will be held illegal unless it appears therefrom af- firmatively that all the facts requisite to con- fer upon the court the jurisdiction it exer- cised were duly averred and proved.^^ It must be remembered that all jurisdictional facts necessary to entitle a plaintiff to the benefit of a special or statutory proceeding must be proved by competent legal evidence in court before he can obtain a judgment in such proceeding. Ex parte affidavits required as a preliminary to the issue of process are not legal proof that the facts alleged in such affidavits are true and the proof of the truth of such facts is as much a judicial require- Ditch Co. V. Superior Court, 92 Cal., 47 ; 28 P., 54 ; Am. St. R., 91. 35 Thatcher v. Powell, 6 Wheat., 119, 127; Hall v. Howd, 10 Conn., 514; 27 Am. D., 696; Tracey v. Roberts, 88 Me., 310, 316; 34 A., 68; 51 Am. St. R., 394, 396 ; Warren v. Union Bank Rochester, 157 N. Y., 259, 276; 51 N. E., 1036; 68 Am. St. R., 777; 43 L. R. A., 256 ; Williamette Real Est. Co. v. Hen- drix, 28 Or., 485, 494; 42 P., 514; 52 Am. St. R., 800. 182 PRODUCTION OF EVIDENCE [PART III ment as is the fi]ing of the affidavits, so that the plaintiff cannot succeed if he fails to produce such proof at the trial. While in suits strictly inter partes jurisdictional facts may generally be proved by mere admissions made in the pleadings or otherwise, or even by the failure of the defendant to deny such facts when alleged by the plaintiff, this is not the case in proceedings in rem where the purpose is to condemn property seized, or de- termine the status of a person or thing, for it would be most unjust that the rights of per- sons not duly summoned to appear before the court should be injuriously affected by the mere statements of others not made under oath or subjected to the test of cross examina- tion. Hence in cases of foreign attachment the burden is laid upon the plaintiff to prove by competent evidence at the trial the non res- idence of the defendant alleged in his affi- davit as the ground for the issue of the writ of attachment,^® and so also in proceedings for the condemnation of property seized the prosecutor must furnish prima facie evidence ssBarr v. Perry, 3 Gill, 313, 317; Dumay v. San- chez, 71 Md., 508, 511; 18 A., 890; Genesee Co. Sav. Bk. V. Michigan Bay Co., 52 Mich., 164, 166 ; 17 N. W., 790. CHAP. l] PARTNERS 183 of the liability of such property to seizure by the terms of the statute under which he is pro" ceeding.^^ § 83. Right of plaintiffs to sue and liability of defendants to be sued in special characters, such as partners, executors, administrators, trustees, receivers, assignees, heirs, devisees, legatees or distributees, or as associations, or corporations, or as husband and wife.— When- ever plaintiffs undertake to sue in special characters, or to sue defendants in any other capacity than as individuals, the law casts upon them the burden of proving their right to sue in such character and also of establish- ing the liability of the defendants in the ca- pacity in which they are charged, for with- out such proof the plaintiffs could not show their right to a judgment against the defend- ants. (a) Partners.— Plaintiffs may prove their partnership by their own oral testimony or that of their clerks or employees, or of any other person, who had personal knowledge of the existence of the relationship at any time when its existence was material, and this is equally applicable whether the agreement of 37 Locke V. United States, 7 Cr., 399. Lillien- thal's Tobacco Co. v. IT. States, 97 U. S., 237, 264. 184 PRODUCTION OE EVIDENCE [PABT III partnership was made orally or in writing.^^ They may prove the partnership of the de- fendants by the same kind of testimony and also by the admissions of the parties sought to be charged as partners, or by proof that they held themselves out to the public as part- ners by their acts or conduct.^^ The produc- tion of a written partnership agreement with the proof of its execution while always ad- missible evidence is not required excepting in controversies between the parties themselves or their representatives to determine their respective rights and liabilities under it.^" It is always suijficient to establish the liability of a defendant as an alleged partner to show that by agreement he had a right in the en- tire net profits of the business which entitled him to a definite share of it, in the absence of evidence that he received it not as profits of a principal or of money, but in some other character not involving that of a partner, as 88 Abb. Tr. Ev., Ch. IX, 1. Gilbert v. Whidden, 20 Me., 368. 39 Abb. Tr. Ev., Ch. IX, 9, 12, Waugh v. Carver, 2 H. Blk., 235. Fletcher v. Pullen, 70 Md., 207; 16 A., 887; Burns v. Eowland, 40 Barb., 368; Smith V. Smith, 27 N. H., 244; 1 Lindly Part., 47. 40 2 Gr. Ev., See. 479; 1 Elliott Ev., § 604. CHAP. l] PARTNERS 185 for instance that of an employee.*^ For pur- poses of convenience it has been provided by statute in many of the States that when a partnership between either the plaintiffs or the defendants is alleged in the pleadings such partnership shall be deemed to be admit- ted for all purposes of the case unless ex- pressly denied in the next succeeding plead- ing. Excepting in such cases and even in them when they are disputed, it is incumbent upon the plaintiff to furnish proof as above set forth of all partnerships alleged by him in his pleadings.^2 (b) Executors and administrators.— The plaintiff who sues as executor or administra- tor of another must produce evidence of his authority to act as such under the seal of a court of the state where the suit is brought, competent to grant letters testamentary or of administration.^^ It must be remembered that letters testamentary or of administra- *>■ Abb. Tr. Ev., Ch. IX, 18, Cox v. Hickman, 3 Ho. Lords Cas., 268, 306 ; Eastman v. Clark, 53 N. H., 276; 16 Am. R., 192; Parker v. Canfield, 37 Conn., 250; 9 Am. R., 317. 42 Cooper & Co. v. Coates & Co., 21 Wall., 105, 110. « 2 Gr. Ev., § 338, Abb. Tr. Ev., Ch. IV, 1, 3, 4, Noonan v. Bradley, 9 Wall., 394, 399. 186 PRODUCTION OF EVIDENCE [PART III tion granted to a person in one state do not entitle him to sue as executor or adminis- trator in another state. In order to do this he must take out letters either principal or ancillary in every state in which he brings suit. And one who sues another as execu- tor or administrator must also produce like evidence of the defendant's liability as such.^^ This however does not apply to suits brought by or against executors or adminis- trators in their individual capacities upon causes of action that accrued after the death of their decedents, even though they be there- in described as executors or administrators; for in such cases the plaintiff's right of ac- tion does not arise out of the transactions of the decedent in his lifetime, but from his own dealings with the latter 's estate after his de- cease, and the title of executor or administra- tor added to a party's name need not be re- garded as a declaration of the character in which he sues or is sued, but as a mere de- scription for the purpose of identification which might be stricken out as surplusage — as in cases where the plaintiff's cause of ac- tion arises from a contract made with him *4 2 Gr. Ev., § 343 ; Austin v. Munroe, 47 K. Y., 360 ; Davis v. Vansanda, 45 Conn., 600. CHAP. l] EXECUTORS AND ADMINISTRATORS 187 personally after having taken out letters, or where the judgment if rendered against the defendant would be payable de bonis propriis and not de bonis testatoris. In such cases the plaintitf's right to sue and the defend- ant's liability to suit, not being wholly de- pendent upon the letters testamentary or of administration held by them, the proof of such letters may generally be dispensed with.45 (c) Trustees.— When plaintiffs sue trus- tees the burden is upon them to prove the ex- istence of the trust under which they act and this necessity involves the fact and manner of its creation. If the trust was created by pa- rol it may be proved by parol, and when it had a documentary origin the document or docu- ments that created it must be produced and identified, or proved by secondary evidence in cases where the latter is admissible.'*'' But it has been held that where a trust has been *5 Schouler Exr., §§ 289 to 294; Patchen v. Wil- son, 4 Hill, 57; Biddle, Admr. v. Wilkins, 1 Pet., 686; Barton, Exr. v. Higgins, 41 Md., 545; Lucas V. Byrne, 35 Md., 485, 94 ; Harper v. Butler, 2 Pet., 237. 46 Abb. Tr. Ev., Ch. XI, 1 ; Chew v. Brumagen, 13 Wall., 497, 503. 188 PEODUCTION OF EVIDENCE [PART III created by a document which does not fully set forth its terms, as where property is con- veyed by deed to one as Trustee without specifying the terms of his trust, that the latter may be proved by oral evidence aliunde}'^ In cases where the trustee was ap- pointed by a decree or order of Court a duly authenticated copy of such decree or order should be produced in evidence. The same burden of proving the existence and terms of the trust, as well as its acceptance by the al- leged trustee, is also imposed upon the plain- tiff who sues another as trustee, and may be discharged in like manner. But whenever the cause of action is a contract shown to have been made by the defendant with the plaintiff as trustee in the character in which he sues, or to have been made by a defendant sued as trustee in terms admitting his own liability as such trustee, the burden will be deemed sat- isfied by proof of the making of such contract by the defendant, as he would thereby be es- topped from denying the trusteeship in either case."*^ It has been said that before a suit can *7Eailroad Co. v. Durant, 95 U. S., 576; Kings- bury V. Burnside, 58 111., 319; 11 A. R., 67. 48 St. Dig., art. 102, Pickard v. Sears, 6 A. & E., 469, 474; Morgan v. R. R. Co., 96 U. S., 716. CHAP. l] TRUSTEES 189 be brought against a trustee, as such, he must be shown to have had notice of the duty he is required to perform and an opportunity to perform it, but this rule is held not applicable in a case where the trustee is himself an actor in the transaction and has full knowledge of his duties."*'' (d) Receivers.— Plaintiffs suing as receiv- ers must in all cases where their right of ac- tion became vested in them by their appoint- ment as receivers, produce the decree or or- der of court conferring the appointment and also proof of their having given bond as therein provided, where a bond is required by the terms of such decree or order ; and when the receivers' right to sue is given by a spe- cial order passed subsequently to his appoint- ment, such order should also be proved.^'' Such proof is not required in cases where the right of action is not derived through their appointment, as where they sue on contracts made with them as receivers.^^ Neither is it 49 Brent v. Maryland, 18 Wall., 433, 434. 50 Abb. Tr. Ev., Ch. X, 2; Potter v. Merchants Bk., 28 N. Y., 641; 86 Am. D., 273, 281. 51 Abb. Tr. Ev., Ch. X, 1 ; White v. Joy, 13 X. Y., 83; Iglehart v. Bieran, 36 111., 133; High on Ee- ceivers, § 243. 190 PRODUCTION OF EVIDENCE [PART III required in cases where the action is brought in the name of the person over whose estate he has been appointed for the use of the re- ceiver, for in such case the right of the equi- table plaintiff to recover can only be disputed by attacking the right of the plaintiff's at- torney to bring the suit in tliat form, which will always be presumed until cause to the contrary be sliown.^^ Nor in cases where the receiver sues as assignee of the party whom he represents,^^ the proof of the execution of the assignment being deemed sufficient even though it was made by order of the Court passed in the proceeding in which the receiv- er was appointed, provided such assignment complies with the requirements of the statute enabling an assignee to sue as such in his own name. In actions brought against defendants as receivers it is also incumbent upon the plain- tiffs to prove their appointment and quali- fication, and because of the general rule that a receiver being a public officer cannot unless expressly authorized by statute be sued with- ^2 Lycoming Fire Ins. Co. v. Langley, 62 Md., 196, 202. ^3 High on Receivers, §244; Gray don v. Church, 7 Mich., 36. CHAP. l] RECEIVERS 191 out leave of the Court by which he was ap- pointed,^'* it is always prudent to prove that such leave has been given whenever this is the fact. It has been held by some of the State Courts that leave to sue receivers from the Court that appointed them is not a juris- dictional fact and therefore need not be proved, and that the effect of suing without leave, is not to nullifj^ the action but at most to subject the party bringing the suit to the penalties of a contempt of the Court which appointed the receiver.^^ A different rule however, prevails in the Courts of the United States, which have held that no Court has jurisdiction to entertain suits brought against receivers without leave of the Court by which the latter were appointed unless such suits are shown to be within the terms of some statute like that of March 3rd, 1887, sec. 3 (24 U. S. Stats. 552), authorizing a receiver appointed by Courts of the United States to be sued without leave in respect to any act 54 Porter v. Sabin, 149 U. S., 473, 479. 55 Chataqua Co. Bank v. Eisley, 19 N. Y., 69 ; 75 Am. D., 347; Walling v. Miller, 108 N. Y., 173; 15 :n:. E., 65 ; 2 Am. St. R., 400 ; Mulcahey v. Strauss, 151 III, 70, 80; 37 N. E., 702; Blumenthal v. Brain- ard, 38 Vi, 402 ; 91 Am. D., 349. 192 PRODUCTIOX OF EVIDENCE [PART HI or transaction of his in carrying on the busi- ness connected with the property held by him as such receiver.^*' But whatever jurisdic- tion other Courts may have to entertain suits against receivers without leave, the plaintiffs in such suits would have great difficulty in en- forcing the judgments therein rendered against any property in possession of or con- trolled by receivers without the consent and co-operation of the Court which appointed them.^^ (e) Assignees. — In suits brought by plain- tiffs in their own names as assignees the bur- den is upon them to prove by competent evi- dence the execution, prior to the time of bringing their suit, of the assignment under which they claim and whenever such assign- ment was by writing to produce or satisfac- torily account for the nonproduction of the original document at the trial.^^ This applies to assignments of every kind, whether by «« Barton v. Barbour, 104 U. S., 126; Brown v. Rausch, 1 Wash., 497; 20 Pacif., 785; Malott v. Shimer, 153 Ind., 35; 54 N. E., 101; 74 Am. St. R., 278, and note p. 285. 5^ Wiswall V. Sampson, 14 How., 52, 66. 58 Abb. Tr. Ev., Ch. I, 2-12; Garrigue v. Loescher, 3 Bosw., 578. CHAP. l] ASSIGNEES 193 parol or deed, and whether limited to the particular property involved in the suit or covering the whole property of the assignor as in the case of general assignments for the benefit of creditors in case of insolvency or bankruptcy.^^ As by the common law choses in action were not assignable in such manner as to enable the assignees to sue upon them in their own names, but have been made so assignable by statute in most if not all the states and territories, it is incumbent upon the assignee suing in his own name upon an assigned chose in action to produce an assignment fully com- plying with all the requirements of the statute of the state in which the action is brought. The validity in other states of an assigTiment of property made pursuant to an insolvent law or to a receivership proceeding in the debtor's domicil, where the assignee is in effect an officer of the Court and the prop- erty is administered under its direction, would depend largely upon the policy of the law of the forum in which such assignment is sought to be enforced, as it would not con- vey a clear legal title to the debtor's property 59 Abb. Tr. Ev., Ch. I, 2 ; Bowman v. Killiman, 65 N. Y., 598. IS 194 PRODUCTION OF EVIDENCE [PART III outside of the state of his domicil, and its efficacy would depend wholly on the comity of the Courts in such State. Any rights claimed under such assignments would as a rule be subordinated to the claims of cred- itors who had acquired a lien by attachment or otherwise upon any property of their debt- or in another state before it had already come into the actual possession and custody of the assignee or receiver.^" (f) Heirs, devisees, legatees and dis- tributees.— When plaintiffs sue to enforce rights or recover property claimed by them as heirs, devisees, legatees or distributees of the estate of a decedent, the burden is always upon them to establish by affirmative evi- dence the fact that they stand in that partic- ular relationship to the decedent from which the right of action asserted by them has arisen. Such evidence often includes proof of the death of the decedent, and of his or her marriage and of the birth, marriage death and issue of any descendants or other rela- tions of the decedent who would have prior or 60 Brantley Pers. Prop., § 343 ; Bearing v. Me- Kinnon & Co., 165 N. Y., 78; 58 N. E., 773; 80 Am. St. Eep., 707 : Catlin v. Wilcox Silver Plate Co., 123 Ind., 477; 24 N. E., 250; 18 Am. St. R., 338. CHAP. l] HEIRS, DEVISEES, ETC. 195 equal rights with the plaintiff to the property- sued for or any of it. Such facts as death, birth and marriage may always be established by the oral testimony of any competent wit- ness who was present when they occurred,^^ and also by entries made in public records in performance of a duty,*^^ and by the declara- tions of deceased relatives or connections by marriage of the person concerning whom they testify.^^ The burden of proof of death may be sustained prima facie by presumptive evi- dence, as for instance by proof that the al- leged decedent if now living would be a cen- tury old,^^ or that he has been absent from his last established place of living and has not been heard of by those who would be likely to have heard of him if alive for seven years or over.^^ When proof of continuous absence for seven years, without having been heard from, has raised a presumption of death suffi- 61 Abb. Tr. Ev., Ch. V, 1, 14; Secrist v. Green, 3 Wah., 750. 62 See § 30 ante. 63 See § 49 ante. 64 Hammond's lessee v. Inloes, 4 Md., 138, 172,— 75; Young v. Sclmlenberg, 165 N. Y., 385, 389; 59 N". E., 135 ; 80 Am. St. Rep., 730, 3. 65 Davie v. Brlggs, 97 U. S., 638, 633. Sprigg v. Moale, 38 Md., 497; 93 Am. D., 698. 196 PRODUCTION OF EVIDENCE [PART III cient to overcome the disputable presump- tion of continuing life, comparatively slight evidence is sometimes sufficient to enable a court to find that the death presumed must have occurred long before the end of the seven years during which he was not heard from.^® While the fact of marriage may be pre- sumed from the general reputation of per- sons living together as man and wife, it must be remembered that such a reputation can be founded on a general and not a divided or singulair opinion, for when opinion in such case is divided it amounts to no evidence at all.^'^ The presumption of legal marriages thus raised by proof of general reputation has its limits, and may be overcome by counter evidence and counter presumptions. Strict proof is required when such a presumption would invalidate a subsequent formal mar- riage.^^ ««Abb. Tr. Ev., Ch. Y, 4. Davie v. Briggs, supra. 87 Banmm v. Barnum, 42 Md., 351, 297 ; Williams V. Herrick, 21 R. I., 401 ; 43 A., 1036. See 2 Wig- more on Ev., § 1603 (2). «8 Jackson v. Jackson, 80 Md., 176, 185 ; 30 A., 752 ; Jones v. Jones, 48 Md., 391, 397 ; 30 Am. R., CHAP. l] HEIRS, DEVISEES, ETC. 197 The usual way of proving births, in the ab- sence of witnesses who were present, is by proof of declarations of deceased relations or connections, including entries made by them in family bibles or testaments, or bj^ en- tries made by others in official registers in the course of public duty,^^ or by proof that persons dwelt or consorted together as mem- bers of one family in the apparent relation of parent and child and assisted and depended on each other as such."^*^ There is no legal presumption of failure of issue, and there- fore when the assumption that any person died without issue is essential to the estab- lishment of the plaintiff's case, this throws upon him the burden of proving such failure by affirmative evidence.'^ ^ Wills. — When the plaintiff's claim is de- pendent upon a will, as when he sues as 466; Bowman v. Little, 101 Md., 273; 61 A., 233, 657, 1084; Badger v. Badger, 88 N. Y., 546; 42 Am. E., 263. 69 See §§30 and 49 ante. 70 Abb. Tr. Ev., Ch. V, 29, B. & 0. R R. Co. v. Gettle, 3 W. Va., 376, 85 ; Matheny v. Bohn, 160 111., 263, 43 K E., 380. ■71 Sprigg V. Moale, 28 Md., 497, 505; 92 Am. "R., 698, Abb. Tr. Ev., Ch. V, 13a. 198 PEODUCTION OF EVIDENCE [PART III devisee or legatee or as the heir or personal representative of a devisee or legatee, the burden is always upon him to prove the exe- cution and validity of the will under which he claims.'^^ Where the will has been duly ad- mitted to probate a copy of it and of the de- cree of the probate court duly authenticated is sufficient to establish the will prima facie and shift upon the adversary the burden of disproving the validity of the instrument.^ ^ But where the will has not been probated, as in proceedings to establish it before probate courts, the burden is upon the proponent of the will. In such cases prima facie proof of the execution of the will and of the testamen- tary capacity of the testator may be ordina- rily established by the evidence of the attest- ing witnesses, or by proof of their signatures and that of the testator when the witnesses are dead or when their testimony is unobtain- able.^^ The only effect of such prima facie proof is to shift the burden upon the party contesting the will so long as there is no con- 72 Abb. Tr. Ev., Ch. V, 58 ; Washburn Real Prop- erty, 371. 73 Abb. Tr. Ev., Ch. V, 59, Wliar. Ev., §§ 66, 811. 7 4 Abb. Tr. Ev., Ch. V, 61; Schouler v. Willis, § 348 ; Higgins v. Carlton, 28 Md., 115, 92 Am. D., 666. CHAP. l] WILLS 199 flicting evidence, for the introduction of such evidence would impose upon the party pro- pounding the will, or those claiming under it the burden of establishing its validity by a preponderance of proof.'^^ The probate of a will by a court of competent jurisdiction is held at comm.on law and under the statutes in force in most if not all the states, to be conclusive proof in all collateral proceedings of its validity as to personal estate, and prima facie proof of its validity as to realty.'^^ Some of the Statutes make it also conclu- sive as to realty. (g) Associations.— Associations have been defined as bodies of persons acting together without a charter but upon the methods and forms used by incorporated bodies for the prosecution of some common enterprise.'^'^ In the absence of statutory authority such as- sociations ordinarily cannot sue in their asso- ciate name or in the names of their officers, but all the members must unite as individuals having a joint interest in the affairs of the Association.'^^ So also suits against such 75 Abb. Tr. Ev., Ch. V, 61, 62. "^6 Abb. Tr. Ev., Ch. V, 60, case of Broderick's Will, 21 Wall., 503, 2 Whar. Ev., § 811. 77 4 Cyc, 301. 78 Detroit Schutzenbund v. Detroit Agitation, 200 PRODUCTION OF EVIDENCE [PART III associations must in the absence of statutory authority be brought against the individual members composing iV^ In such suits the burden is upon the plaintiff to prove by com- petent evidence who the persons composing such association are at the time of bringing the suit.^*^ The members are generaly re- garded as partners in their relations and liabilities to third parties,^^ but not as part- ners inter sese.^^ Although the courts of equity and in some instances the courts of law have modified the common law rule by permitting one or more members to bring suits on behalf of all the other members when the latter were too nu- merous to be joined as plaintiffs without great inconvenience, it has been held by some of the Verein, 44 Mich., 313; 38 Am. R., 270; Metal Stamping Co. v. Crandall, 17 Fed. Cas., 171 No. 9,493c; WilHams v. Michigan Bk., 7 Wend., 539, 542 ; Curd v. Wallace, 7 Dana, 190 ; 32 Am. D., 85. 79 Davison v. Holden, 55 Conn., 103; 10 A., 515; 3 Am. St. E., 40; Am. Steel, etc., Co. v. Wire Draw- ers Union, 90 Fed., 598. 80 Kuehl V. Meyer, 50 Mo. App., 648. 81 Babb V. Eeed, 5 Eawie, 151 ; 38 Am. D., 650. 82 Burke v. Eoper, 79 Ala., 138; Ash v. Guie, 97 Pa. St., 493; 39 Am. Eep., 818. CHAP. l] ASSOCIATIONS 201 courts that in such cases all the other mem- bers should be made defendants.^^ It is always incumbent upon the plaintiffs in suits for and against associations to prove the joint interest of all the plaintiffs and the joint liability of all the defendants as to the subject matter of the suit.^^ (h) Corportations.— In all suits by or against corporations the burden is upon the plaintiff to prove the incorporation of every party to the cause, suing or sued as a body corporate.^^ This burden may be ordinarily sustained by producing an authenticated copy of the Charter or the instrument or instru- ments which, with proper legislative sanction, purport to confer corporate powers or recog- nize them as actually existing, with evidence of the acceptance of such charters by the per- sons to whom it was granted, and their or- ganization thereunder and user of the corpo- rate franchises.®^ Acceptance and user may 83 Mears v. Moulton, 30 Md., 142 ; Snow v. Wheeler, 113 Mass., 179 ; Liederkranz Singing Soc. v. Ger- mania Turner Verein, 163 Pa. St., 265 ; 29 A., 919 ; 43 Am. St. R., 798, and note to Phipps v. Jones, 59 Am. D., 711. «* Whitney v. Mayo, 15 111., 251. w Abb. Tr. Ev., Ch. Ill, 1. ®® lb., Ch. Ill, 2, Cook on Corporations, sec. 753. 202 PRODUCTION OF EVIDENCE [PART III be shown by any evidence that the body in its organic capacity, as distinguished from the individual conduct of the corporators, acted under the charter, except in cases where the charter prescribes a different method of proof.^'^ If the legislative sanction relied on is a general law the existence of the corporation under it may be proved, unless the law other- wise provides, by producing the certificate of organization which the law requires to be filed, with proof of its filing, or by a certified copy of the record of the certificate where such copy is made evidence by statute.®* For convenience, statutes have been enacted in some of the States providing that when- ever the incorporation of any of the parties to a suit is alleged in the declaration or com- plaint, such incorporation shall be deemed to be admitted for all the purposes of that suit by the defendant, unless specifically denied by him in the manner and within the time pre- scribed by the Statute. In these cases, and in those in which the question of corporation vel non is required to be raised by plea in 87 lb., Ch. Ill, 11, 13. 88 lb., Ch. Ill, 13; Benbow v. Cook, 115 N. C, 324, 339; 30 S. E., 453; 44 Am. St. R., 454. CHAP. l] CORPORATIONS 203 abatement and such plea is not filed, the plain- tiff is relieved from the burden of proving incorporation of either party. In cases where the incorporation of the defendant is con- tested the plaintiff need only prove it to have a de facto corporate existence, that is to have been organized professedly under some law or charter under which a corporation with the powers assumed might lawfully be cre- ated and to have exercised or held itself out to the public as exercising the powers per- taining to a corporation formed under such charter or law, even where the organization was so defective or irregular as not to be valid as against the State. In such cases the party sued is estopped from denying its cor- porate existence.^^ The same rule of estoppel is applicable to defendants as to denying, ex- cept as hereafter stated, the due incorpora- tion of the plaintiff in suits to enforce con- tracts made with it as a corporation for a good or valuable consideration whether for subscription for stock or any other indebted- 8» Abb. Tr. Ev., Ch. Ill, 15, 19, 22; Finnegan v. Noerenberg, 52 Minn., 239; 53 X. W., 1150; 38 Am. St. R., 552; 18 L. E. A., 778; Marshall v. Keech, 227 111., 35; 81 K E., 29; 118 Am. St. R., 246, 7. 204 PRODUCTIOX OF EVIDENCE [PART III ness.^° Although as has been said a corpora- tion cannot be created by estoppel,^^ the con- duct of the defendants in such cases is deemed to be an admission by them, which they are not allowed to dispute, of the due in- corporation of the alleged corporation, and from this admission the jury are at liberty to infer such incorporation, unless it appears af- firmatively from evidence in the case that is must have been without legal sanction, as where there was no existing law or charter under which such a corporation could have been created at or prior to the time of the ex- ecution of the alleged corporation contract sued on. From introducing evidence of such want of legal sanction the defendants are not estopped.^2 »o Abb. Tr. Ev., Ch. Ill, 19, 20, 21 ; Cook Corp., sec. 185, 186; Tay. Priv. Corp., sec. 146; Owensboro Wagon Co. v. Bliss, 132 Ala., 253; 31 So., 81; 90 Am. St. E., 907; Jones v. Aspen Hardware Co., 21 Colo., 263; 40 P., 457; 52 Am. St. E., 220; 29 L. E. A., 143. 91 Boyce v. Trustees M. E. Ch., 46 Md., 359, 73 ; Heaston v. Cincinnati & Fort Warae E. E. Co., 16 Ind., 275, 79 Am. Dec, 430 ; Abb. Tr. Ev., Ch. Ill, 5. 92 Clark V. American Cannel Coal Co., 165 Ind., 213, 16; 73 >s^. E., 1082; 112 Am. St. E., 217; Abb. Tr. Ev., Ch. Ill, 5, 18. CHAP. l] HUSBAND OR WIFE 205 (i) Husband or wife.— The cases in which parties sue or are sued in the characters of husband or wife, may be divided into three classes. (1) Where husband and wife sue jointly to enforce on behalf of the wife some right or claim which has accrued to her or to them through her, or where they are sued jointly to enforce some liability to the plain- tiffs which accrued through her. (2) Where the husband sues alone on behalf of his wife on account of a wrong done to her or to him- self through her,^3 qj- ^iien he is sued alone upon some liability incurred by her as his wife, for which the law makes him responsible as her husband, as for example, for debts con- tracted by her for necessaries upon his credit,^^ or for torts committed by her in his presence.^^ (3). Divorce proceediugs and other actions between husband and wife for the enforcement of marital rights and liabil- ities. In all three classes the burden always rests upon the plaintiffs to prove the facts of the marriage from which their right of action has arisen. In cases of the first and second ^5 As in suits for crim. con., Stewart H. & "W., § 79. 94 Stewart H. & W., § 95. »5 Stewart H. & W., § 66 ; Nolan v. Traber, 49 Md., 460, 468; 33 Am. St. R., 277. 206 PRODUCTION OF EVIDENCE [PART III classes, except where a celebration at a cer- tain time and place is alleged in the plead- ings,^^ and excepting in actions for criminal conversation,^^ this may generally be done by evidence that the parties alleged to be mar- ried lived together as husband and wife and bore the general reputation of being such in the community in which they lived, or by the admission of the defendants, made either in their pleadings or orally at or before the time of trial, that they were married as alleged. But in cases of the third class and in others where the existence of the marriage alleged would show a defendant to be guilty of a crime something more is required to prove it. Suits for divorce are in the nature of proceed- ings in rem as they are intended to finally de- termine as against all the world the matri- monial status of the parties thereto and there- fore in them the fact of the marriage upon which that relation depends must be shown by direct evidence and neither mere general reputation,®^ nor the admissions,^® as distin- ®6 Stewart M. & D., § 135 ; Eedgrave v. Eedgrave, 38 Md., 144, 147. 97 Id. ; Catherwood v. Caslon, 13 Mees & W., 261, 264. »8 1 Bish., M. D. & S., §§ 932-943, 1057. 99 2 Bish., M. D. & S., § 756. OHAP. l] MAREIAGE 207 guislied from the testimony of the parties concerned are ordinarily deemed sufficient for the purpose. Although in some early American cases of suit for divorce from bed and board, it has been held that further proof of a marriage admitted by the defendant was not required,^ ^"^ yet the mass of authorities, both English and American, require proof of the marriage in all cases, nor do they suffer this fact more than any other to be establish- ed solely by the admission of the defend- ant. ^^^ As the decisions are somewhat con- flicting in drawing the exact line between those cases in which the burden of proving a mar- riage can be discharged by proof of cohabi- tated with general reputation of being mar- ried or by admissions of the marriage by the defendant, and those in which affirmative proof of the celebration is required, it is only prudent to produce the latter in all cases where it is possible to obtain it. §84. Burden of proof in actions ex con- tractu.— In all actions err contractu the burden is upon the plaintiff to prove the contract with the defendants, a breach of it by the ^00 Haraian v. Harman, 16 111., 85 ; Helms v. FraJiciscus, 2 Bl., 544 : 20 Am. Dec, 402. 101 2 Bish., M. D. & Sep., § 736. 208 PRODUCTION OF EVIDENCE [PART III latter and the amount of damage suffered by the plaintiffs thereby. If the contract is in writing the original document or documents must be produced ^ or their contents shown by secondary evidence in cases where such evi- dence is admissible,^ and the execution and delivery of the documents proved.'' If the contract was verbal or arose by implication it may be proved by oral evidence, but in all cases it must be established prima facie as set forth in the pleadings, either by direct evi- dence or by evidence of facts from which the law would imply it, or by proof of the admis- sions of the defendants, as otherwise the court must on motion direct a verdict in favor of the latter.^ If the contract sued on is claimed to have been made by an agent the burden is upon the plaintiff to prove by affir- mative evidence the authority of the agent to make such a contract on behalf of his prin- cipal, or the ratification of it by the latter after it was made.^ Wlien the contract upon ^ § 66, ante. 2 § 71, mte. 8§ 58, ante. ^ § 78, ante; Gambrill v. Schooley, 95 Md., 260, 271; 52 A., 500; 63 L. E. A., 437. 6 Carroll v. Manganese Steel Safe Co., Ill Md., 252, 73 A., 665. CHAP. l] ACTIONS EX CONTRACTU 209 which the action arises is within the Statute of Frauds it is incumbent upon the plaintiff to show that the requirements of the Statute have been complied with.^ There is also imposed upon the plaintiff the further burden of showing such a breach of the contract by the defendant as will furnish the plaintiff with a present cause of action, subsisting at the time of the bringing of his suit, as for instance in the case of an action brought upon a promise to indemnify the plaintiff, where the latter can only recover for the amount of loss or damage which he can prove had been actually suffered by him up to the time of bringing of his suitJ According to the rule laid down in Hadley vs Baxendale, the leading case on the subject of damages arising from a breach of contract, which has been generally adopted in this country, "Where two parties have made a contract which one of them has broken, the damages which the other party ought to re- ceive in respect of such breach of contract « Heaton v. Eldridge, 56 Ohio St., 87, 101 ; 46 N. E., 295; 60 Am. St. E., 737, 748; 36 L. E. A., 817. "^ Henderson, etc., Co. v. J. Shillito & Co., 64 Ohio St., 236; 60 K E., 295; 83 Am. St. E., 750; Wicker V. Hoppock, 6 Wall., 94, 99. 14 210 PRODUCTION OF EVIDENCE [PART III should he such as may fairly and reasonably be considered either arising naturally, i. e. according to the usual course of things, from such breach of the contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable re- sult of the breach of it."^ To enable the jury- to fairly estimate the amount of such dam- ages they must ordinarily have before them some evidence of the circumstances under which the contract was made and of the re- sults which followed the breach of it. The burden of producing such evidence rests upon the plaintiff and therefore the nonproduction of a sufficiency of it to enable the jury to determine with any certainty the amount of the damages suffered by him, will prevent him from recovering more than nominal dam- ages,^ except in cases where the terms of the contract itself show the plaintiff entitled to recover substantial damages for its breach, and also enable the jury to fix the amount of such damages as in cases of contracts to pay 8 9 Exch., 341, 359. » Marzetti v. Williams, B. & Aid., 415; Mecklem V. Blake, 23 Wis., 495; 99 Am. Dec, 68; Johnson v. Stear, 15 C. B. (N. S.), 330. CHAP. l] ACTIONS EX DELICTO 211 sums of money ascertained or ascertainable from the evidence before the court.^^ § 85. Burden of proof in actions ex delicto. In actions for torts the burden is upon the plaintiff to show affirmatively that the de- fendant has either wilfully or carelessly vio- lated some right of property, person or char- acter of the plaintiff which the law recognizes and protects, or has wilfully neglected, or negligently performed or attempted to per- form some duty, imposed by the law upon him towards the plaintiff independently of any contract between them, so as to cause loss or damage to the plaintiff, and also to show the extent of the alleged damages.^ ^ Before the plaintiff can recover in an action ex delic- to there must be evidence before the jury of facts from which they can find the existence of some right in the plaintiff which has been violated, or of some duty to him which has been neglected by the defendant. Proof of the violation of any property right of the plaintiff by the defendant entitles the former to a verdict for at least nominal damages 10 Per Willes, J., in Fletcher v. Tayleure, 17 C. B., 29, and per Bovill, C. J., in British Columbia Saw Mill Co. V. Nettleship, L. R., 3 ; C. P., 506. iiCooley on Torts, 60; Pollock on Torts, 18. 212 PRODUCTION OF EVIDENCE [PART III whether he has suffered any actual damages or not.^2 But in order to recover substantial damages the plaintiff must show that he has suffered actual loss to that extent, or else make it appear to the jury from the evidence that the conduct of the defendant has been characterized by such reckless disregard to the rights of others or such a display of mal- ice as to render him liable for exemplary or punitive damages in addition to ordinary com- pensatory damages.^^ While it is the duty of the Court to prescribe in every case to the jury, the rule by which the damages must be measured, it is incumbent upon the plaintiff to produce before them evidence of such facts as will enable them to apply this rule and if he fails to produce this evidence he will be unable to recover more than nominal dam- ages. ^^ §86. Special rules as to burden in par- tdcular forms of action ex delicto.— In actions 12 Holt, C. J., in Ashby v. White, 2 Lord Ray- mond, 938; Smith Lea. Cas., 251, 278 (7 ed.) ; Webb V. Portland Mfg. Co., 3 Summer, 189, 192; 29 Fed. Cas., No. 17,322. 13 Mayne on Damages (36) ; Pollock on Torts, 161-165. 1* Ibid. CHAP. l] ACTIONS EX DELICTO 213 on the case for negligeucc the burden is al- ways upon the plaintiff to prove that the in- jury or damage sued for was occasioned by the negligence of the defendant but there is some difference in the rulings of the Courts as to whether he is also bound to prove affirm- atively that he was himself free from contrib- utory negligence before he can recover. The Courts of the United States hold that he is not so bound, and if he can prove his case without showing contributory negligence, that this is a defense to be proved by the de- fendant.^ ° The Courts of Massachusetts on the other hand maintain the rule that the bur- den is always upon the plaintiff to establish either that he was himself in the exercise of due care or that the injury was in no degree attributed to any want of proper care on his part, and evidence which only partially dis- closes the facts leaving a ease consistent alike with negligence or with care on the plaintiff 's part is not enough to sustain a verdict.^ ^ A third rule on this subject adopted by the 15 Railroad Co. v. Gladmon, 15 Wall., 401; In- dianapolis, etc., E. E. V. Hoist, 93 U. S., 291 ; Abb. Tr. Ev., Ch. XXXI, 34. ^« Murphy v. Deane, 101 Mass., 455 ; 3 Am. E., 390; Crafts v. Boston, 109 Mass., 137; 11 K. E., 938. 214 PEODUCTION OF EVIDENCE [PAET III Courts of New York is to the effect that it de- pends on the circumstances of each case whether the plaintiff must introduce affirma- tive evidence that he. was not chargeable with negligence before he will be able to recover.^ '^ Although the rule of the United States Courts seems to be the soundest on principle and the most convenient in practice, yet in view of the uncertainty as to whether or not in any special case pending in one of the State Courts the latter would follow one of the other rules, the prudent practitioner when representing a plaintiff in any of them will always when practicable put in some affirma- tive evidence to show that his client was en- tirely free from contributory negligence. In actions against public officers for a breach of official duty the burden is always on the plaintiff to prove every fact necessary to constitute such breach, by evidence suffi- ciently strong to overcome the presumption of innocence which the law recognizes as strong in their favor.^* In actions for deceit cmd fraud the burden IT Abbotts Tr. Ev., Ch. XXXI, 36; Johnson v. Hudson R. R. Co., 20 N. Y. 65 ; 75 Am. Dec. 375. 18 Abb. Tr. Ev., Ch- VIII, 14; Wilkes v. Dinsman, 7 How., 89, 130. CHAP. l] DECEIT AND FEAUD 215 is on the plaintiff to show that the defendant made representations to him which were false in fact,^^ which the defendant had not good reason at the time of making them to believe to be true,^'' that the plaintiff relied and acted upon such representations,-' and that he suf- fered actual loss and damage thereby .^^ In actions for the ivrongful conversion of personal property, the burden is upon the plaintiff to show the existence, identity and value of the thing alleged to have been con- verted, the fact of the conversion and that the plaintiff had either a general or a special property therein with the right to immedate posession thereof at the time of said conver- sion.23 The fact of conversion may be estab- 19 Abb. Tr. Ev., Ch. XXXIV, 4; Bigelow on Fraud, 493 ; Gray v. Lessington, 2 Bosw., 357 ; Eeeve V. Dennett, 145 Mass., 23. 20 Cabot V. Christie, 42 Vt., 121 ; 1 Am. E., 313 ; Graves v. Lebanon Nat. Bank, 10 Bush., Ky., 23 ; 19 Am. E., 50 ; Bigelow on Fraud, 509. 21 Ming V. Woolfolk, 116 U. S., 599, 602; Jenkins V. Long, 19 Ind., 28 ; 81 Am. D., 374. 22 Ming V. Woolfolk, 116 U. S., 599, 602; Munroe V. Gairdner, 3 Brev., 31; 5 Am. D., 531. 23 Union S. Y. & T. Co. v. Mallory, etc., Co., 157 111., 554, 560; 41 N. E., 888; 48 Am. St. E., 341, 343 ; Wilson v. Wilson, 37 Md., 1, 17 ; 11 Am. E.» 518 ; 216 PEODUCTION OF EVIDENOB [PABT III lished by proof of the failure of the defend- ant to surrender the property to the plain- tiff after a formal demand has been made upon him therefor.-^ In actions for trespass to personal proper- ty the burden is upon the plaintiff to show some unlawful interference by the defendant with property then in the actual or construct- ive possession of the plaintiff or to which he then held title ^^ with a right to the posses- sion thereof. In actions for trespass to real property the burden is on the plaintiff to prove the unlaw- ful entry by the defendant upon land which was either in the actual possession of the plaintiff or which he had title to with the right to the immediate possession of it at the time,^^ or to which he had a right in reversion or re- Johnson Brinkman Commission Co. v. Central Bank, 116 Mo., 556, 619; 22 S. W., 813; 38 Am. St. R., 615, 619; Hostler's Aclmr. v. Skully, Taylor (N. C), 152; 1 Am. Dec, 583. 24 Boiling V. Kirby, 90 Ala., 215; 7 So., 914; 24 Am. St. R., 789, 792, with extended note; Union S. Y. & T. Co. V. Mallory, supra. 25 Johnson v. Wilson, 137 Ala., 468, 470 ; 34 So., 392; 97 Am. St. R., 52, 53. 26 Foster v. Fletcher, 7 T. B. Mun., 534; 18 Am. Dec, 208. CHAP. l] NUISANCE 217 mainder in cases where the alleged trespass would work an injury to the inheritance.^'^ In actions on the case for creating or main- taining a nuisance the burden is on the plain- tiff to show his title to the land or the incor- poreal right therein injuriously affected by such nuisance, the existence of the nuisance, the responsibility of the defendant therefor,^^ that, in cases where the nuisance amounts to a public one, it inflicts upon him a special and particular damage differing in kind from that sustained by the community in general,^^ and in all cases the nature and extent of the dam- age incurred by him therefrom. ^"^ In actions of replevin the burden is on the plaintiff to show that he was the owner of, or lawfully entitled to the posession of the prop- ^■^ Cherry v. Lake Drummond, etc., Co., 140 N. C, 432; 53 S. E., 138; 111 Am. St. R., 850. 28 Garland v. Aurin, 103 Tenn., 555, 562; 53 S. W., 940 ; 76 Am. St. R., 699, 702. 29 Acme Fertilizer Co. v. State, 34 Ind. App., 346, 350; 72 N. E., 1057; 107 Am. St. R., 190, 193; Kinney v. Koopman, 116 Ala., 310, 321; 22 So., 593; 67 Am. St. R., 119, 123; 37 L. R. A., 497; Sloss Sheffield Steel Co. v. Johnson, 147 Ala., 384; 41 So., 907; 119 Am. St. R., 89. 30 Balto., etc., R. R. Co. v. Quillan, 34 Ind. App., 330, 337 ; 107 Am. St. R., 183, 188. 218 PRODUCTION OF EVIDENCE [PART III erty replevied at the time of the bringing of the suit,^^ and that said property was then in possession of the defendant.^^ Where the defendant comes lawfully into the possession of the property originally, a previous demand for it must be made in order to show the wrongful detention necessary to sustain the action.^^ In actions for assault and battery the bur- den is upon the plaintiff to prove the fact of the assault and to identify the person by whom it was committed as either the defendant him- self or his servant ; and in the latter case to show that the defendant had given him au- thority or made it his duty to act in respect to the business he was engaged in at the time the wrong was committed, and that the act was done in the course of his said employ- ment for the defendant. ^^ If the wrong com- 31 Shaddon v. Knott, 2 Swan., 358 ; 58 Am Dec, 63, 65; Oleson v. Merrill, 20 Wis., 462; 91 Am. B.. 428. 32 Eeid, Murdock & Co. v. Ferris, 112 Mich., 693, 695; 71 N. W., 484; 67 Am. St. E., 437, 439; Sin- nott V. Feioch, 165 K Y., 444, 448; 59 N. E., 265; 80 Am. St. E., 736, 738, note; 53 L. E. A., 565. 33 Galvin v. Bacon, 11 Me., 28; 25 Am. Dec, 258; Oleson V. Merrill, 20 Wis., 462 ; 91 Am. Dec, 429. 34 Lake Shore Ey. Co. v. Prentice, 147 U. S., 101, CHAP. l] ASSAULT AND BATTERY 219 mitted consisted in doing in an unlawful man- ner what it was within the scope of the ser- vant's employment to do in a lawful manner it is only necessary to prove the latter fact to hold the master responsible for it. Thus where a conductor was authorized to put off liis train passengers who refused to pay their fare, but in expelling the plaintiff under such circumstances used unnecessary vio- lence his employer was held liable for such misconduct of its conductor although it had neither previously authorized nor subse- quently approved it.^^ Although the law will always presume some damage, even if it may be only nominal, to have been suffered from an unjustifiable asault, substantial damages can only be re- covered when determined by a verdict to be justified under the circumstances of the par- ticular case. It is therefore always incum- bent upon a plaintiff who seeks substantial 109; Barber v. City of Cape Girardeau, 197 Mo., 382, 392; 95 S. W., 230; 114 Am. St. R., 763, 769. 35 B. & 0. R. R. V. Blocher, 27 Md., 377, 286; B. & 0. R. R. V. Barger, 80 Md., 23; 30 A., 560; 45 Am. St. R., 314; 26 L. R. A., 220; Lexington Ry. Co. V. Cozine, 111 Ky., 799; 64 S. W., 848; Am. St. R., 930. 220 PRODUCTION OF EVIDENCE [PAET III damages to produce such evidence of the facts attending the assault or the consequences which followed it as will warrant the finding of substantial damages by a jury. In actions for malicious prosecution the burden is upon the plaintiff to show : 1st. That a criminal prosecution or a proceeding to put him into involuntary bankruptcy has been in- stituted against him for an offense of which he was innocent (which is usually done by producing an authenticated copy of the record). 2nd. That such proceding was in- stituted by the procurement of the defendant. 3rd. That it was instituted without probable cause known to the defendant at the time it was instituted. 4th. That the defendant was actuated by malice against the plaintiff in procuring or furthering the said prosecution, and, 5th. In cases where substantial damages are sought, to show the facts and circumstan- ces from which the jury may be enabled to estimate the extent of such damages. ^^ The record of the prosecution terminating in an acquittal or a nolle pros, which is the founda- tion of the plaintiff's cause of action while indispensable is not conclusive nor indeed of 36 Wheeler v. Nesbitt, 24 How., 544, 550 ; Stewart V. Sonneborn, 98 U. S., 187. CHAP. l] MALICIOUS PKOSECUTION 221 itself sufficient proof of the plaintiif' s inno- cence of the charge against him and must be supplemented by further affirmative evidence, for it is one thing to fail to obtain a convic- tion of guilt and quite another thing to prove the innocence of the accused, and it is this al- leged innocence of the plaintiff which lies at the very root of his action. ^'^ It is not enough to show that the plaintiif was in fact innocent of the charge on which he was presented, it must be further shown that the defendant in- stigated the prosecution without having rea- sonable grounds for belief at the time he so instigated it that a probable cause for such prosecution then existed.^^ As this imposes upon the plaintiff the difficult burden of prov- ing a negative it will be satisfied with slight- er evidence than would be required to prove an affirmative,^^ but it cannot be inferred merely from the evidence of express malice on the part of the defendant, for the more reasonable the grounds that the latter might have for believing the plaintiff to have misap- propriated his property the greater would be the temptation to entertain feelings of ex- 37 Stewart & Sonneborn, 98 U. S., 187. 38 Whitfield V. Westbrook, 40 Miss., 34. 39 Haupt V. Pohlman, 16 Abb. Pr., 301. 222 PRODUCTION OF EVIDENCE [PART III press hostility towards him ; neither can want of probable cause be inferred from the unsuc- cessful result of the prosecution for we all know that many prosecutions fail for which there was very strong probable cause."*'^ There must be some additional evidence that probable cause was wanting. Proof of the plaintiff's previous good character has been received for this purpose.^^ In actions for false arrest and imprison- ment the burden is on the plaintiff to show that he has been unlawfully detained or re- strained of his liberty, either with or with- out process of law, by the plaintiff or by some one acting under his direction or command or by his authority and with his subsequent approval.^^ But a defendant cannot be held answerable in this form of action for acts done upon his information or suggestion by 40 Stewart v. Sonneborn, 98 IT. S., 187. 41 Blizzard v. Hayes, 46 Ind., 166 ; 15 Am. Rep., 291. 42 Pollock on Torts, 191 ; Eich v. Mclnernay, 103 Ala., 345; 15 So., 663; 49 Am. St. R., 32; Tryon v. Pingree, 112 Mich., 338, 345; 70 N". W., 905; 67 Am. St. R., 398, 404, and note p. 408 (quoting Comer V. Knowles, 17 Kan., 441) ; 37 L. R. A., 222; Hebrew V. Pulis, 73 ¥. J., L., 621; 64 A., 12; 118 Am. St. R., 716, and note. CHAP. l] FALSE AREEST AND IMPRISONMENT 223 an officer of the law in the exercise of his proper authority or discretion and not done as merely ministerial acts. Thus^a defendant upon whose testimony a magistrate issued a warrant under which the plaintiff was unlaw- fully imprisoned is not liable in an action for false imprisonment because he did not set a ministerial officer in motion, but a judicial officer whose opinion and judgment were in- terposed between the charge and the impris- onment.^^ Such a person however, might be held liable in an action for malicious prosecu- tion if the arrest had been made by his pro- curement.^* In actions for false imprisonment malice need not exist though if present it may be con- sidered in aggravation of damages.'*^ In cases of arrests without warrants which would be held unlawful in the absence of prob- able cause for making them, it is submitted that the burden of proof as to the existence of such cause is cast upon the defendant as part of his case, and the plaintiff is not re- 48 Willes, J., in Austin v, Dowling, L. R., S. C. P., 530, 540; Rich v. Mclnemay, and other cases, supra. 44 Tryon v. Pingree, supra and note. *^ Rich V. Mclnernay, supra. 224 PRODUCTION OF EVIDENCE [PART TH quired to prove affirmatively that there was no such cause, as in actions for malicious prosecution.^^ In actions for slander or libel the burden is on the plaintiff to show: 1st. The utter- ance of the alleged slanderous words, substan- tially as set forth in the pleadings, in the hearing of some person other than the plain- tiff, who is capable of understanding them as spoken,^^ or the publication of the alleged li- bel in the exact words set forth in the declar- ation to some such third person by defend- ant.'*^ 2nd. If the words spoken or the al- leged libel do not appear to be actionable on 46 See note 67 Am. St. E., p. 415, on probable cause and cases there cited. I have not found any case where the burden of proving want of probable cause was imposed on the plaintiff in an action for false arrest and imprisonment. 4^ Odgers, L. & S., pp. Ill, 537, 538, 540; Hirsch V. Eingwalt, 3 Yates (Pa.), 508; 2 Am. Dec, 392; Desmond v. Brown, 39 Iowa, 53; 4 Am. Rep., 194; Odgers, L. & S., 150; Hurtort v. Weines, 27 Iowa, 134; Dallavo v. Snider, 143 Mich., 542; 107 N. W., 271; 114 Am. St. Eep., 684, 686. 48 Odgers, L. & S., 536 ; Bell v. Byron, 13 East, 554; Tabart v. Tipper, 1 Camp., 350; Colvard v. Black, 110 Ga., 642; 36 S. E., 80; Odgers, L. & S., 150; Spaits V. Poundstone, 87 Ind., 322 ; 44 Am. Eep., 773. CHAP. l] SLANDER AND LIBEL ' 225 their face but are made so by innuendo, the facts establishing such innuendo^^ 3rd. If the words or publication are privileged the existence of express malice to make them actionable.^^ 4th. Any facts or circum- stances to be considered by the jury in esti- mating the general damages allowed by them and also any special damages properly set forth and claimed in the pleadings."* The falsity of the alleged defamatory publication is always presumed unless there is a plea of justification in which case the burden of prov- ing the charge to be true is always upon the defendant who justifies.^^ 49 Eussell V. Kelly, 44 Cal., 641 ; 13 Am. Rep., 169, 171; Odgers, L. & S., 113; Capital and Conatie Bank v. Harity, L. R., 5 ; C. P., Div. 514. 50 Nichols V. Eaton, 110 Iowa, 509, 512; 81 N. W., 792; 80 Am. St. E., 319; 322; 47 L. R. A., 483; Bearse v. Bass, 88 Me., 521, 544; 34 A., 411 ; 51 Am. St. R., 446, 452. 5* Odgers, L. & S., *289, Morey v. Morning Journal Assc, 123 N. Y., 207; 23 N". E., 161; 20 Am. St. R., 730; 9 L. R. A., 621; McDufi v. Detroit Evening Journal Co., 84 Mich., 1 ; 47 N. W., 671 ; 22 Am. St. R., 673. 52 Odgers, L. & S., *169; Conroy v. Pittsburgh Times, 139 Pa. St., 339 ; 21 A., 151 ; 23 Am. St. R., 188, 191; 11 L. E. A., 725. 15 226 PRODUCTION OF EVIDENCE [PART III In criminal prosecutions for libel proof of publication to a third party is not required as the law presumes that a false and scurrilous communication made directly to the person libelled would be a public offense as tending to provoke a breach of the peace.^^ The speaking of the slanderous words may be proved by any person who heard them, but the publication of a libellous writing must be proven by the production of the writing it- self excepting in cases where proof by secon- dary evidence is admissible,^^ and the defend- ant cannot be required to give evidence of publication if he claim his privilege that such testimony might subject him to the risk of a criminal prosecution.^^ If the defense be made that the words shown by the plaintiff to have been spoken or the writing shown by him to have been published, constitute a priv- ileged communication, the burden is on the defendant to prove all the facts and circum- 63 state V. Avery, 7 Conn., 266; 18 Am. Dec, 105, 106. 54 Odgers, L. & S., *535, *536; Abb. Tr. Ev., Ch. XLIII, 9 ; Winter v. Donovan, 8 Gill, 370, 375. 55 Odgers, L. & S., *504, *534; Abb. Tr. Ev., Ch. XLIII, 7. CHAP. l] ALIENATING AITECTIONS 227 stances required to bring sucli words or writ- ing within the privilege claimed.^ *^ In suits by a husband for damages for alienating his wife's affections, or by a wife (in jurisdictions where she has a right to bring such suit)^" for damages for alienating her husband's affections, the burden upon the plaintiff to prove the marriage may be dis- charged by evidence of cohabitation and gen- eral repute of being man and wife ^^ and no proof of adulterous relations between the de- fendant and the plaintiff's spouse is needed, for the cause of action extends to all cases of wrongful interference in the family atfairs of others whereby the wife is induced to leave her husband or so conduct herself that the comfort of married life is destroyed or vice versd.'^^ If however the interference is by the wife's parents on an assumption that she is ill treated to an extent justifying her in leaving her husband it raises the presumption that they have acted from commendable mo- 56 Odgera, L. & S., *269. "Wolf V. Frank, 92 Md., 138; 48 A., 132; 52 L. E. A., 102. 58 Abb. Tr. Ev., Ch. XLV, 1. 59 Cooley on Torts, *225 ; Callis v. Merriweather, 98 Md., 361, 363; 57 A., 201; 103 Am. St. E., 404. 228 PRODUCTION OF EVIDENCE [PART III lives, and a clear case of want of justification must be shown by the plaintiff in order to sus- tain his action against them.'^'' In actions hy a master for enticing away his servant, the burden is on him to show that the latter was actually in his service at the time, and that the defendant's inducement was the moving cause of the desertion and he must also give some evidence of the defend- ant's knowledge of the relation.®^ When a parent brings an action for the se- duction of his daughter their relationship may be proved in the manner hereinbefore set forth,^^ and proof of the slightest degree of service rendered by the daughter up to the time of her seduction will be sufficient to main- tain the action if followed by evidence from which any loss of such service may be infer- red, as for instance pregnancy or impairment of health, but in the absence of proof of actual services rendered by the daughter to her father, his action will be defeated by proof 60 Cooley on Torts, *225 ; Abb. Tr. Ev., Ch. XLV, 1; Hutcheson v. Peck, 5 Johns., 196; Huling v. Hul- ing, 32 111. App., 519. 61 Bixby V. Dunlap, 56 N. H., 456; 22 Am. Rep., 475. 62 See § 83 f., ante. CHAP. l] CRIMINAL CONVERSATION 229 that her parents' marriage was void, as in such case the father would have no legal claim for her service.*^^ It is well established that in an action brought by a husband for criminal conversa- tion with his wife, that the burden is upon him of proving his marriage by direct evi- dence of a celebration, as the law does not re- gard cohabitation and reputation alone suffi- cient to sustain a judgment that the wife was guilty of the crime of adultery.*''* He must also show that the marriage con- tinued to subsist giving him the right to the society and assistance of his wife at the time of the alleged intercourse, for a legal and permanent separation at the time would be a bar.'^^ He must also prove the criminal inter- course,^^ and give some evidence as to the previous affection and domestic happiness of himself and wife in order to establish his ^^ Howland v. Howland, 114 Mass., 19 Am. R., 381. «4Hutchiiis V. Kimmell, 31 Mich., 136; 18 Am. Eep., 164. 65 Harvey v. Watson, 7 Mann & Gr., 644. 66 Wood V. Matthews, 47 Iowa, 409 ; Bigaonette v. Paulet, 134 Mass., 123 ; 45 Am. Eep., 307 : Cross v. Grant, 62 N. H., 675; 13 Am. St. E., 607; Tucker v. Coleman, 193 U. S., 473. 230 PRODUCTION OF EVIDENCE [PART III' claim for damages. Such evidence may in- clude expressions of affection and regard used by either in the presence of the other and the wife 's manner of speaking and writ- ing of her husband even when absent from him, and their letters to each other.^^ In actions of ejectment to effect the title to or possesion of real property, as the plain- tiff must recover upon the strength of his own title, the burden is upon him to show affirm- atively that he has a good title or a valid right to the immediate possession of the land in controversy. The fact that the occupant's title is defective or even that he has no title at all will not help the plaintiff.^^ §87. Burden of proof when limitations pleaded.— When the statute of limitations is pleaded by the defendant this imposes upon the plaintiff the burden of making out a case which is not barred by the terms of the stat- ute, either by showing that his cause of action 67 Abb. Tr. Ev., Ch. XLVI, 3 ; Edwards v. Crock, 4 Esp., 39 ; Wilhs v. Bernard, 8 Bing., 376 ; Trelaw- ney v. Coleman, 1 Barn. & Aid., 90. 68McCool V. Smith, 1 Black (U. S.), 459, 470; Henderson v. Wanamaker, 80 Fed. E., 234 ; King v. MulHns, 171 U. S., 404, 436, 437. CHAP. l] LIMITATION 231 arose within the statutory period so pleaded,*^^ or that the bar of the statute has been removed by a new promise or other evi- dence by the defendant, or that some circum- stance existed which either prevented the statutory limitation from beginning to run against the plaintiff, or after it began to run suspended its operation long enough to have prevented it from barring his action before his suit was brought."*^ If the contract was made without the state and this fact is proved the burden is shifted to the defendant to show residence within the state for the Statutory period.^^ § 88. When burden of proof on defendant. As soon as the plaintiff has made out a prima facie case by evidence of facts which, if believed, would, in the absence of further testimony, on the part of the defendant, be sufficient to entitle him to a verdict, the bur- «9 2 Gr. Ev., § 431 ; House v. Arnold, 122 N. C, 220; 29 S. E., 334, but see Goodell v. Gibbons, 91 Va., 608; 22 S. E., 504. ''^ Somerville v. Hamilton, 4 Wheat., 230, 234 ; Gross V. Disney, 95 Tenn., 592 ; 32 S. W., 632 ; Con- don V. Enger, 113 Ala., 233 ; 21 So., R. 227. ^iCoIe V. Jessup, 2 Barb., 309, 314; Mayer v. Friedman, 7 Hun., 218 ; aff ., 69 N. Y., 608. 232 PRODUCTION OF EVIDENCE [I'ART III den is imposed upon the defendant to either contradict some of the material facts thus set up by the plaintiff, or to introduce evidence of new facts that will furnish a good defense by over-coming some disputable presump- tions on which the plaintiff relies, or by rais- ing a stronger presumption in favor of the defendant, or which will defeat the plaintiff's right of action by avoidance in some way. The burden of proving such new facts thus in- troduced by the defendant is imposed upon him in the same way as the burden of estab- lishing a prima facie case was originally upon the plaintiff. Thus if in a suit by the payee against the maker of a promissory note the latter sets up the defense that it was given without consideration, which if believed would overcome the legal disputable pre- sumption that it was given for value, the bur- den is upon the defendant to establish by af- firmative proof the alleged want of consider- ation and his failure to do so will entitle Ms adversary to a verdict.'^^ gQ also where in an action on the case for negligence the de- fendant sets up the defense of contributory negligence on the part of the plaintiff, which 72 Ellicott V. Martin, 6 Md., 509 ; 61 Am. Dec, 327 ; 1 Dan. Neg. Inst., 139. CHAP. l] WHEN BURDEN SHIFTED 233 however does not appear affirmatively from the evidence offered by the plaintiff, then the burden is upon the defendant to show contributory negligence by the plaintiff and if he fails to do so, the defense can not be sus- tained.'^ As already heretofore stated, the burden of proof in any proceeding lies at first on that party who substantially asserts the affirmative of the issue and against whom the judgment of the court would be given if no evidence were produced on either side, re- gard being had to any presumption which may appear from the pleadings,"^ but as the proceeding goes on the burden of proof may be shifted from tlie party on whom it rested at first by his proving facts which raise a pre- sumption in his favor.'^^ Thus where a mar- 73Eailroad Co. v. Gladmon, 15 Wall., 401; Indian- apolis, etc., R. R. Co. V. Horst, 93 U. S., 291, 298. 7-* §§ 78, 79, ante. ^5 Ste. Dig., Ev., art. 96 ; Clement v. Moore, 6 Wall., 299 ; Great West. E. E. v. Bacon, 30 111., 347, 352; Goodwin v. Smith, 72 Ind., 113; 37 Am. E., 144, note; City of Fort Smith v. Dodson, 51 Ark., 417; 11 S. W., 687; 14 Am. St. E., 62; 14 L. E. A., 252; Lake v. Minn., etc., Assn., 61 Minn., 96, 100; 63 N. W., 261 ; 52 Am. St. E., 538, 578; 42 L. E. A., 809; Dorsey v. Brigham, 177 111., 250, 262; 52 N. E., 303; 69 Am. St. E., 228, 236. 234 PRODUCTION or evidence [part III ried woman is accused of theft and pleads not guilty, the burden of proof is on the pros- ecution, but this is shifted to the defendant upon proof that she was in possession of the stolen goods soon after the theft, and she may then by showing that she stole them in the presence of her husband again shift the bur- den on the prosecution to show that she was not coerced by him.'^^ § 89. Quantity of evidence required to sus- tain burden.— In civil cases the party who has the burden of proof on any issue must pro- duce evidence which, if believed by the jury, would in the opinion of the court be legally sufficient to enable them to find the facts nec- essary to entitle the proponent to a verdict on such issue, for unless such legally suffi- cient evidence is forthcoming the jury will not be permitted to render a verdict in his favor. It does not follow, however, that evi- dence legally sufficient to sustain a verdict must be always practically efficient to pro- cure one, for it often happens that the jury do not believe the evidence or some part of it, either because of its inherent improb- ability and a want of confidence in the ve- ■^6 Ste. Dig., Ev., art. 95 (6) ; citing 1 Euss. Cri., 33 and 2 do.. 337. CHAP. l] BURDEN OF PROOF 235 racity of the witnesses or because of conflict- ing evidence either direct or circumstantial in the case before them. The burden of proof therefore requires the production of evidence both legally sufficient in the opinion of the judge and practically efficient in the judgment of the jury to prove all the facts necessary to establish the case of the party on whom it rests. Where the testimony is con- flicting it is said that the jury should decide according to the preponderance of the evi- dence,"^^ but as it is left absolutely to the dis- cretion of the jurors to determine how much or how little weight they may assign to the testimony of each particular witness, the question of preponderance is one practically resting wholly within their discretion which is limited only by the power of the judges to grant a new trial whenever in their discretion the requirements of justice may demand it under all the circumstances of any particular case. In criminal prosecutions the burden is al- ways upon the prosecutor to establish by proof beyond a reasonable doubt all the facts required to warrant the conviction of the accused of the crime or misdemeanor whereof " 3 Gr. Ev., § S9. 236 PRODUCTIOX OF EVIDENCE [PART III he stands indicted, which is to say that the facts thus proved must coincide with the hy- pothesis of the guilt of the accused and also be legally sufficient to establish it, and must likewise be inconsistent with any other hy- pothesis or with the reasonable supposition of his innocenceJ® As already stated in a previous section this rule making it obligatory to discharge the burden of establishing the commission of a criminal act by the production of proof be- yond a reasonable doubt has been extended in England and in some of the States to cases where the question of the commission of such criminal act becomes relevant in the course of a civil proceeding ;'^^ but the weight of Amer- ican authority is to the effect that for all pur- poses of such civil action the question is to be decided upon the preponderance of the evidence before the jury, since the reason for requiring greater strictness of proof in crim- inal cases would not be applicable here.*" '8 Ibid. See definition of reasonable doubt in Commonwealth v. Webster, 5 CnsL., 296, 313, 317, 319; 52 Am. D., 711, and in Holt v. United States, 218 U. S., 245, 253. ■^s § 79 ante, and note 7. 80 Scott V. Insurance Co., 1 Dill. C. C, 105, 207; 21 Fed. Cas., No. 12,533, p. 883; Welch v. Juggen- heimer, 56 Iowa, Hi 41 Am. R., 76. CHAP. l] BURDEN OF PROOF 237 For those cases in which the testimony of a single witness is deemed insufficient to sus- tain the burden of proof unless supported by corroborative evidence, see §§ 104 to 109 in- clusive, post. §89a. When burden shifted by fraud or undue influence. In actions by indorsees of negotiable paper against the makers or acceptors, proof by the latter that such paper was obtained by the fraud of the payee imposes upon the plaintiff the bur- den of proving himself to be a bond fide purchaser for value in due course.^*^^ And whenever there is question as to the validity of any transaction between parties standing in such relation that the one reposes con- fidence in the other, the burden is always imposed upon the party in whom such con- fidence is placed to show affirmatively that such transaction was in good faith and valid, and that the authority or influence derived 80^ Totten V. Bucy, 57 Md., 446 ; King v. Deane, 139 U. S., 166, 173 ; Commercial Bank of Danville V. Burgwyn, 110 N. C, 237 ; 17 L. R. A., 326 ; 14 S. E. 623; 30 Am. St. R., p. 324; extended note to Bedell v. Herring. Uniform Negotiable Instru- ments Act, Sec. 59. 238 BURDEN OF PROOF [ CHAP, i from such confidential relation to the other party was not abused — the nature and amount of the evidence required for this purpose being dependent upon the nature of the confidence reposed and upon the char- acter of the transaction.^*^" s^'' Fisher v. Bishop, 108 N. Y., 25; 2 Am. St. R., 357; 15 N. E., 331; Darlington's Est., 147 Pa. St., 624; 30 Am. St. R., 776; 23 A., 1046. Stev. Dig. Art, 97 A. ; Huguenin v. Basely, 2 W. &. T. Lea Cas. Eq., 1156. CHAPTEE 11. BIGHT TO BEGIN. § 90. Party who begins must produce his entire case.— The right to begin in the pro- duction of evidence is mainly determined by the burden of proof, and is often of much im- portance; for in cases where there is but a single issue of fact to be tried, the party who begins must exhaust his evidence in the first instance, and may not first rely upon a prima facie case, and, after that has been shaken by his adversary's proof, call other evidence to confirm it.^ After the adversary has con- cluded his evidence, the party who began can only adduce further evidence for the purpose of contradicting the affirmative facts intro- duced into the case by the other side, and may not attempt to disprove them by testimony which merely goes to confirm the allegations originally made by his own pleadings, which are inconsistent with his adversary's case. Thus, in an action by the indorsee of a bill 1 Tay. Ev., § 386. 289 240 PEODUCTION OF EVIDENCE [PART III against the acceptor, where issue was joined on a plea denying the indorsement, the plain- tiff was not allowed to rest his case at first on proof of the indorser's handwriting, and, after evidence for the defense had been given that he was himself too poor to have dis- counted the bill, and had disclaimed all knowl- edge of it, to prove that in fact he had dis- counted the instrument.^ So, also, in an ac- tion by the endorser of negotiable paper against the maker when the defendant set up in his pleadings that the instrument was ob- tained by the fraud of the payee and that the plaintiff was not a bond fide holder for value in due course without notice of the fraud, the burden of proof is put upon the plaintiff to show that he is such a bond fide holder and in order to establish this fact by any proof be- sides disputable presumption of law to this effect, he must offer all such evidence in chief, and will not be permitted to introduce it in rebuttal; but if the defendant does not raise this defense by his pleadings and goes 2 Stewart v. Lansing, 104 U. S., 505, 509 ; Vos- burgh V. Diefendorf, 119 N. Y., 357; 23 N. E., 801; 16 Am. St. R., 836; Cover v. Myers, 75 Md., 426; 23 A., 850; 32 Am. St. R., 394; note to Bedell v. Ber- ing, 11 Am. St. R., pp. 324, 325. CHAP. Il] RIGHT TO BEGIN 241 to trial on the general issue plea and instead introduces evidence to show that the note was fraudulently obtained and that the plaintiff had notice of the fraud, the plaintiff may of- fer evidence in rebuttal to contradict any evi- dence thus introduced by the defendant.^ § 91. Plaintiff has right to begin when the burden of any of the issues is on him, or he seeks substantial unliquidated damages.— The general rule on this subject is, that the party on whom the burden of proof lies, as devel- oped on the record, must begin, unless his ad- versary will at the trial admit the whole prima facie case of such party, and could not by his pleading have made this admission at an earlier period.^ But when the record con- tains several issues, and the burden of prov- ing any one of them lies on the plaintiff, he is entitled to begin, provided he will under- take to give evidence upon it ; ^ and there- fore the plaintiff is always entitled to begin, whenever he seeks substantial unliquidated damages, though the general issue be not 3 Jacobs V. Tarleton, 11 Ad. & E. (Q. B., N. S.), 431. ^ Tay. Ev., § 379 ; Doe v. Smart, 11 M. & Eob., 476. « Tay. Ev., § 384; Abb. Tr. Bf., p. 30; 1 Thomp. Trials, § 228 ; Cawlins v. Disbrow, 2 M. & Eob., 328. 1 6 242 PRODUCTION OF EVIDENCE [PART III pleaded, and the affirmative lies upon the de- fendant; for in such cases the burden of proving the amount of the damage actually sustained is always upon the plaintiff.^ In cases where several issues are joined, some of which lie on either party, it is optional with the plaintiff either to go into his whole case, in the first instance ,or merely to adduce evi- dence in support of those issues which he is bound to prove, reserving the right of rebut- ting the defendant 's proofs in the event of the latter establishing a prima facie case with re- spect to the issues which lie upon him. If the latter course he pursued, the defendant may have a special reply on the plaintiff's fresh evidence, while the plaintiff will be en- titled to the general reply on the whole case. But if the plaintiff, at the outset, elects to go into his whole case by calling any evidence to repel the case of the defendant, he will not be permitted to give any evidence in reply ; for, if such a privilege were allowed to the plain- tiff, the defendant, in common justice, might claim the same, and the proceedings might be extended to a very inconvenient length.'^ As « Tay. Ev., § 381 ; Abb. Tr. Bf., p. 33 ; 1 Thomp. Trials, § 230 : Mercer v. Whall, 5 Q. B., 462. 7 Tay. Ev., § 385 ; Browne v. Murray, Ey. & M., 254. CHAP. II ] OBDEit Oi PROOF 243 already stated, in cases where there is but a single issue, the party upon whom the bur- den of proof lies must put forth all his evi- dence iu the first instance.^ All questions of the mere order of proof are left largely to the discretion of the judge, who has a right (in the absence of any positive rule of court to the contrary) to relax the strict rules by re- ceiving any competent evidence from either party, at any stage of the trial before the case is given to the jury, if in his opinion the ends of justice require it. In practice, how- ever, this discretion is seldom exercised ex- cept to let in, out of its regular order, the proof of some merely technical or formal matter, which had evidently been omitted through inadvertence.^ 8 Ante, § 90. 9Phila. & Trenton E. R. v. Stimpson, 14 Pet., 448, 463 ; Bannon v. Warfield, 42 Md., 23, 39 ; 1 Gr. Ev., §§ 76, 469a; Tay. Ev., § 388; Bradford v. Free- man, 5 Ex. E., 734. CHAPTER III. COMPETENCY OF WITNESSES. §92. All witnesses presumed competent unless objected to— When objection must be made. — Having determined by which side and in what order the testimony is to be produced, the next question to be considered is, what persons are competent to testify. The rule upon this subject is that all persons offered as witnesses are presumed to be competent until the contrary is affirmatively shown to the satisfaction of the presiding judge or judges, by whom all questions of competency are to be determined, and who, for the pur- pose, may examine the witness himself, or hear any other legal testimony which may be produced upon the subject.^ Objection to the competency of a witness should be made before his examination in chief, if the dis- qualification be then known to the party ob- jecting, or, if it be not then known, it must ^ Best Ev., § 133; Ste. Dig., art. 106; 1 Whar. Ev., §§ 391, 392. 2 EUiott Ev., § 720. 244 CHAP. Ill] COMPETENCY OF WITNESS 245 be made as soon as the disqualification ap- pears; for a party who, knowing of objec- tions to the competency of a witness, holds them back until after the witness has been ex- amined, will ordinarily be held to have waived such objection.^ § 93. What rendered a witness incompetent at common law— Want of mental capacity- Want of religious belief— Interest— Being husband or wife of party.— At common law a witness was totally disqualified from testify- ing by reason of any of the following dis- abilities, viz. : (a) Want of mental capacity to recollect the matter on which he was to testify, or to understand the questions put to him, or to give rational answers to them, or to know that he ought to speak the truth. Such mental in- capacity may arise from extreme youth, disease of any kind, intoxication, or any other cause whatsoever.^ 2 Tay. Ev., § 1392 ; 1 Whar. Ev., § 393 ; Groshon V. Thomas, 20 Md., 248. 3Ste. Dig., art. 107; 1 Gr. Ev., §§365-7; Tay. Ev., §§ 1375-8; State v. Whittier, 21 Me., 341, 347; 38 Am. D., 272 ; McGuire v. People, 44 Mich., 286 ; 6 K W., 669; 37 Am. E., 265; Freeny v. Freeny, 80 Md., 406; 31 A., 304; Wheeler v. United States, 159 246 PBODUCTION or evidence [part III (b) "Want of belief in the existence of a God who dispenses retribution either in this world or the next ; for without such belief the solemnity of an oath could evoke no religious sense of accountability whatever. Vfant of religious belief is never presumed, but must be proved affirmatively by the party alleging it ; the ordinary method being evidence of the declarations of the witness previously made to others.^ According to the weight of mod- ern authorities, it is not allowable to question a witness as to his religious belief for the pur- pose of showing him to be incompetent ; ^ but it does not seem to have been decided whether he can be interrogated as to his re- ligious belief for the purpose of contradicting the testimony of third persons, alleging him to be incompetent because of such belief. U. S., 523 ; District of Columbia v. Armes, 107 U. S., 519. As to competency of young children as wit- nesses, see State v. Meyer, 135 Iowa, 507; 43 N. W., 322, and extended note to same case in 124 Am. St. R., 291. 4 1 Gr. Ev., §§ 368-70; Tay. Ev., § 1385; Omich- und V. Barker, 1 Sm. Lea. Cas. (7th Am. ed.), *535, *545; Curtis v. Strong, 4 Day, 51; 4 Am. D., 179. s 1 Gr. Ev., § 370 and note ; 1 Whar. Ev., § 396. Contra, Tay. Ev., § 1385 ; Amd v. Ameling, 53 Md., 192. CHAP. Ill] RELIGIOUS BELIEF 247 This rule has been modified by statute or con- stitutional provisions in several of the United States.® ^ 1 Whar. Ev., § 395. Although as the law now stands in those states where it has not been changed by legislation, want of religious belief operates as a positive disqualification to the extent stated in the text, it is not by any means in a satisfactory state upon this point. While, on the one hand, there is no doubt but that the rule requiring all testimony in judicial proceedings to be given under the sanction of an oath gives, in the great majority of cases, a very important security for its truthfulness, for the reason, as has been said, that the generality of man- kind are "neither so virtuous as to be safely trusted in cases of importance upon their bare word, nor yet so abandoned as to violate a more solemn engage- ment," and while it is also undeniable that a man who recognizes himself to be under no moral ac- countability to a superior being is altogether lacking in the strongest motive for veracity, yet it would be going altogether too far to say that the testimony of such a person must necessarily be so entirely untrust- worthy as to justify its being altogether excluded from consideration in judicial proceedings. Such a view is directly at variance with the whole tendency of modern legislation, both in this country and in England, upon the subject of evidence, which is to- wards removing the common law restrictions upon the competency of witnesses, such as having an in- 248 PRODUCTION OF EVIDENCE [PART III (c) Conviction of any crime rendering him infamous, viz. : treason, felony or the crimen falsi,'' which incapacitates the witness from terest in the result of the trial, or having been pre- viously convicted of an infamous crime, but allowing the fact which formerly formed the ground of such disqualification to be given in evidence to affect the witness's credibility. Upon this principle, the true rule would seem to be, that want of religious belief on the part of a witness should not exclude his testi- mony, but ought always to be allowed to be given in evidence to affect its credibility, and for this purpose it should be permitted to cross-examine witnesses upon the point. Propriety obviously requires that an oath should not be administered to a person in- sensible to its obligations, for in such a case the repetition of the words would be a blasphemous mockery; and therefore atheists should be required, as in England under the statute 32 and 33 Vic, c. 68, § 4, to testify upon a solemn promise and declara- tion which would render them liable to indictment for perjury in case of wilfully and corruptly giving false evidence. "^ The crimen falsi, as defined by Prof. Greenleaf (1 Gr, Ev., § 373), is an offense which "not only in- volves the charge of falsehood, but also is one which may injuriously affect the administration of justice by the introduction of falsehood and fraud." It has been held to include forgery, perjury, suborna- tion of perjury, suppression of testimony by brib- CHAP. Ill] CONVICTION OF CRIME 249 testifying in the courts of the state or country in which he was convicted until the disability has been removed by a reversal of the judg- ment or a pardon.^ In most of the states the disqualification of infamy has been removed by constitutional provisions or by statute, but a conviction may be proved for the pur- pose of affecting the credibility of the wit- ness.^ (d) Being a party to the record, or having any direct pecuniary interest in the result of the suit.**^ This disqualification was almost ery, or conspiracy to procure the absence of a wit- ness, or other conspiracy to accuse one of a crime, and barratry. Ihid. 8 1 Gr. Ev., §§372-378; State v. Grant, 79 Mo., 113; 49 Am. R., 218; Gertz v. Fitchburg R. R. Co., 137 Mass., 77; 50 Am. R., 285. ' » 1 Whar. Ev., § 397. 10 1 Gr. Ev., §§ 329, 386 et seq. To this rule ex- eluding the testimony of the parties to the suit there "were always a few exceptions, as in cases where, it having been first established by other testimony that the defendant had been guilty of some fraud or other tortious and unwarrantable act of intermed- dling with the plaintiff's property, the latter was the only person who could prove the amount of dam- ages, he was allowed to testify for that purpose only ; and also in other cases where, upon grounds of public 250 PEODUCTION OF EVIDENCE [PART III entirely abolished in the courts of the United States by section 858 of the Revised Statutes, passed July 2, 1864, amended March 3, 1865, providing that in those courts no witnesses shall he excluded "in any civil action because he is a party to or interested in the issue tried; provided, that in actions by or against executors, administrators or guardians, in policy, his testimony was deemed essential to the purposes of justice, as to prove that he had made diligent search for a lost paper in order to lay a foundation for the admission of secondar}' evidence of its contents. See 1 Gr. Ev., § 348 et seq. So also, in equity the answer of the defendant, so far as it was strictly responsive to the bill, was admitted in evidence in his favor as well as against him. 1 Gr. Ev., § 351. And where a party was required to render an account of matters of long standing, the court would sometimes exercise its discretion in per- mitting him to discharge himself by his own testi- mony of some of the items the vouchers for which had been lost. 2 Dan. Ch. Pr., *1230. See, also, Paige V. Whedden, 59 N. H., 507, 511. These ex- ceptions are of very little practical importance at the present time, as it would be almost impossible to find a case where the party enabled to testify under them has not been rendered competent to testify at least to the same extent, and probably to a much greater extent, by the statutes abolishing the old rule of exclusion. CHAP. Ill] PARTIES TO RECORD 251 which judgments may be rendered for or against them, neither party shall he allowed to testify against the other as to any transac- tion tvith or statement by the testator, intes- tate or ward, unless called to testify thereto by the opposite patry, or required to testify thereto by the court." The result of this statute was to cut up by the roots all disqualification on account of inter- est,^ ^ and in civil cases to put the parties (except those named in the proviso) upon a footing of equality with other witnesses, making all admissible to tes- tify for themselves and compellable to testify for the others.^ ^ Statutes to the same gen- eral effect, although differing somewhat in their terms, have been passed in all the States of the Union and the Territories, and in many of them the accused, in criminal cases, is made a competent witness in his own behalf, but is not compellable to testify.^ ^ But by the act of June 29, 1906, this section 858 was amended as follows: *'Sec. 858. The com- 11 Lucas V. Brooks, 18 Wall., 436, 453. ^2 Texas v. Chiles, 21 Wall., 488. 13 So also in Federal Courts, see 20 U. S. Stats., 30; Eev. Stats. U. S., § 858 A (Act March 16, 1878, ch. 37). 252 PRODUCTION or evidence [part III petency of a witness to testify in any civil action, suit or proceeding in the courts of the United States shall be determined by the laws of the State or Territory in which the Court is held. ' ' Inasmuch, however^ as all the States and Territories had in the meantime abol- ished nearly all the disqualification from tes- tifying in civil cases upon the ground of interest in or being a party to the contro- vers3% this amendment made practically but little difference in the law as then existing, (e) Being the husband or wife of a party to the record, excepting that in criminal pro- ceedings instituted against a person for any bodily injury or violence inflicted upon his wife or her husband, such wife or husband is competent to testify.^ ^ This exclusion of husband and wife from testifying for or against each other has been held to be partly founded upon reasons of social policy, and therefore those statutes which abolish the disqualification arising from interest do not always remove the common-law incompetency of husbands and wives to testify for or against each other.^^ The exception to the 14 Ste. Dig., art. 108; 1 Gr. Ev., § 343; Tay, Ev., § 1371 ; 1 Whar. Ev., § 422 ; 2 Elliott Ev., § 733. 18 Lucas V. Brooks, 18 Wall., 436, 452; Stickney CHAP. Ill] HUSBAND OR WIFE 253 rule above stated is made upon the ground of necessity, for otherwise it would be ordinarily practically impossible to secure convictions in such cases.^^ In many of the states, however, the incompetency of husbands and wives to testify for or against each other has been to a greater or less degree removed by statute ; and although these statutes vary in their pro- visions, the general tendency of such legisla- tion is to put them upon the same footing with other witnesses in civil cases (excepting as to confidential communications to each other), and in criminal cases to make them competent, but not compellable to testify for or against each other. § 93. Witnesses forbidden to testify as to certain matters and privileged as to others.— In addition to the general disqualifications above enumerated, witnesses are for reasons of public policy, forbidden by law to tes- tify 0S to certain matters affecting other persons towards whom they stand in special relations, or affecting the public administra- V. Stickney, 131 U. S., 227, 236; Gee v. Scott, 48 Texas, 510, 526; 26 Am. R., 331; Spitz's Appeal, 56 Conn., 184; 14 A., 76; 8 Am. St. R., 303; 1 Gr. Ev., § 334; 1 Starkie, Ev., *142; 1 Wliar. Ev., § 430. i« 1 Gr. Ev., § 343. 254 PRODUCTION OF EVIDENCE [PART III tion of justice; and they are also privileged to decline answering certain questions, the an- swers to which might be injurious to the pub- lic or to the witness himself. These matters will now be considered separately. § 94. Confidential communications between husband and wife.— No husband is permitted to disclose any confidential communication made to him by his wife, nor is any wife per- mitted to disclose any confidential commu- nication made to her by her husband, during the marriage. This prohibition having been made for the purpose of preserving intact the confidence and security of the marriage state, is not removed by the death of one of the parties or by a dissolution of the mar- riage. It is personal to the parties, and does not extend to communications made in the presence or hearing of third persons capable of understanding them.^^ § 95. Judges may not be examined as to certain matters.— A judge may not be sworn ^^ 1 Gr. Ev., §§ 254, 336-338; 1 Whar. Ev., § 427; Allison V. Barrow, 3 Cold., 414; 91 Am. R., 291; Dickerman v. Graves, 6 Gush., 308; 53 Am. D., 41; Com. V. Sapp, 90 Ky., 580; 14 S. W., 834; 29 Am St. R., 405; Hopkins v. Grimshaw, 165 U. S., 342, 347; 1 Elliott Ev., §§ 628-632. CHAP. Ill] JUDGES 255 as a witness in any case while presiding at tlie trial, for in such a case he could hardly be deemed capable of impartially deciding on the admissibility of his own testimony, or of weighing it against that of other witnesses.^* Where there are several judges sitting to- gether, any one or more of them may be sworn and testify as witnesses ; but as soon as they become witnesses they should leave the bench and take no further judicial part in the trial.^^ Neither may judges or justices of the peace be asked to disclose anything that took place at their consultations, for the law holds these to be inviolable upon grounds of public policy; but they may be examined as to foreign and collateral matters which happened in their presence while the trial was pending or after it was ended,^° and also as to anything which took place before them at a trial, not forming part of the record, and 18 1 Gr. Ev., § 364 ; Tay. Ev., § 1379 ; 1 Whar. Ev., § 600 ; People v. Miller,' 3 Park. C. E., 197, 200; Morss v. Morss, 11 Barb., 510; Rogers v. State, 60 Ark., 76; 29 S. W., 894; 48 Am. St. R., 154; 31 L. R. A., 465. 19 1 Gr. Ev., § 364; Tay. Ev., § 1379; People v. Dohring, 59 N. Y., 374; 17 Am. R., 349. 20 1 Gr. Ev., § 364 ; Tay. Ev., § 859 ; 1 Whar. Ev., § 600 ; 1 Elliott Ev., § 643. 256 PRODUcTiox or evidence [part hi which may be necessary in order to identify the case or prove the testimony of a witness.^^ § 96. Grand and petit jurors may not be examined as to their consultations.— For the same reason that the consultations of judges are held inviolable, petit jurors may not give evidence of what passed between them in the discharge of their duties ; ^- but they are com- petent to testify as to the issues actually passed on by the jury of which they were members, when such question is material on a subsequent trial.^^ There has been some con- flict of opinion as to how far this rule of in- violability extends to the proceedings of grand jurors ; but it appears to be now gen- erally held in this country, that while a grand 21 1 Whar. Ev., § 600; 1 Gr. Ev., § 364; Tay. Ev., §938; Heyward's Case, 1 Sandf., 731, 734; Jack- son V. Humphrey, 1 Johns., 498 ; Welcome v. Batche- lor, 23 Me., 85, 88. 22 1 Whar. Ev., §601; 1 Gr. Ev., §252a; Tay. Ev., § 945; Cluggage v. Swan, 4 Binn., 150, 155; 5 Am. D., 153; Studley v. Hall, 22 Me., 198, 201; Hannum v. Belchertown, 19 Pick., 311, 313. 23 1 WHiar. Ev., § 601 ; Piatt v. Sinclair, 6 Ohio, 227, 234; Follansbee v. Walker, 74 Pa. St., 306, 310; Stapleton v. King, 40 Iowa, 278, 284. But see Packet Co. v. Sickles, 5 Wall., 580, 593; Hewitt v. Chapman, 49 Mich., 4; 12 N. W., 888. CHAP. Ill] GRAND OR PETIT JUROB 257 juror may not give evidence to impeach the finding of his fellows, or even to show what was the vote of the findings, he can be re- quired to give evidence as to what was the issue before the grand jury, or what was the testimony of particular witnesses, whenever such matters are material; and also as to whether twelve of them actually concurred in the finding of a bill.^"* A petit juror may be sworn and examined as a witness in a case which he has been impaneled to try, and under such circumstances he need not leave the box or decline to interfere with the verdict, for he does not decide upon the admissibility of his own testimony, and there are eleven others besides himself to weigh its credibil- ity.2» 24 1 Whar. Ev., § 601 ; 1 Gr. Ev., § 252 ; Tay. Ev., §§942, 943; Ste. Dig., art. 114; Izer v. State, 77 Md., 10; 26 A., 283; Low's Case, 4 Me., 439; 16 Am. D., 271 ; People v. Hurlbut, 4 Denio, 133, 135 ; 47 Am. D., 244; Com. v. Green, 126 Pa. St., 531; 17 A., 878; 12 Am. St. R., 915; United States v. Charles, 2 Cr. C. C, 76; 25 Fed. Cas., p. 409. 25 Tay. Ev., § 1379; Best Ev., § 187; 1 Wliar. Ev., § 602; E. v. Rosser, 7 C. & P., 648; Manly v. Shaw, C. & Marsh. 361 ; State v. Powell, 2 Halstead, 244 ; HowBer v. Com., 51 Pa. St., 332; Ottawa Gaslight Co. V. Graham, 28 111., 73; 81 Am. D., 263. 17 258 PRODUCTION OF EVIDENCE [PART III § 97. Communications made to public offi- cers or grand jurors, Vvdth a view to criminal prosecutions, may not be disclosed.— So, also upon grounds of public policy, all communica- tions made to public officers and to grand ju- rors, with a view to the prosecution or detec- tion of suspected offenders, are privileged, and no witness is permitted to divulge any such communication, or the name of the per- son who made them, without the consent of such person.^^ § 98. State secrets may not be disclosed.— No witness will be permitted to be examined relating to any state secret, or to communica- tions with public officers about matters per- taining to their official duties, in so far as such examination would, in the opinion of the court, make disclosures injurious to the public interests. And in all cases where the law is restrained by public policy from enforcing the production of papers, no secondary evi- 28 1 Gr. Ev., §250; Tay. Ev., §§939-43; Ste. Dig., art. 113; 1 Whar. Ev., §§603, 604; Ohver v. Pate, 41 Ind., 132, 141; Worthington v. Scribner, 109 Mass., 487, 488 ; 12 Am. E., 736 ; United States v, Moses, 4 Wash. C. C, 726 ; 27 Fed. Cas., p. 5 ; In re Quarles, 158 U. S., 532, 536; 1 Elhott Ev., § 630. CHAP. Ill] PARTIES TO NEGOTIABLE PAPER 259 dence of the contents of such papers may be given.^^ § 99. Parties to neg-otiable instruments in- competent to impeach them.— In the courts of the United States, and of several of the states of the Union, it has been held that parties to a negotiable instrument who have given it credit and currency by their signatures are not afterwards competent witnesses, even in suits between other persons, to impeach its validity; but in other states such parties are held competent to testify in suits between other persons, where their evidence cannot be excluded upon the ground of estoppel.^^ 27 Ste. Dig., art. 112 ; 1 Gr. Ev., § 251 ; 1 Whar. Ev., 604. See, also, § 103, post; Totten v. United States, 92 U. S., 105; Marbury v. Madison, 1 Cr., 137; 144; Worthington v. Scribner, 109 Mass., 487. 28 Mr. Justice Miller, in Sweeny v. Easter, 1 Wall., p. 173, says : "Perhaps no subject connected with com- mercial paper has been more the subject of contro- versy, and of opposing and well-balanced judicial de- cisions, tlian the proposition here relied on. It was first laid down in the English case of Walton v. Shelley (1 Term E., 296), and afterwards held the other way in Jordaine v. Lashbrook (7 Id., 601). This court has steadily adhered to the doctrine of Walton v. Shelley, and we are referred by counsel for plaintiff in error to our own decisions on the subject in 6 Peters, 260 PRODUCTION OF EVIDENCE [PART III § 100. Communication to legal adviser may not be disclosed by him.— Upon principles of public policy, no lawyer is permitted, unless with his client's express consent, to testify as to any communication, oral or document- ary, made to him by or on behalf of his client during the course and for the purpose of his employment ;^^ for otherwise no man would dare to consult a professional adviser with a view to his defense or to the enforcement of 51; 8 Peters, 12; 3 Howard, 73; 13 Howard, 229." The courts in the following states, viz., Maine, Massa- chusetts, Pennsylvania, Mississippi, Louisiana, Ohio, Illinois, Iowa, and Tennessee, have also adopted the rule in Walton v. Shelley, which, however, is rejected in the states of Vermont, New Hampshire, Connecti- cut, New York, New Jersey, Maryland, Virginia, North Carolina, South Carolina, Georgia, Alabama, Michigan, Kentucky, and Missouri. The best collec- tion of the cases on the point will be found in 22 Am. Rep., p. 93, in a note to Dewey v. Merriam, 71 111., 198. Most of these are also given in the note to § 385 of 1 Greenleaf on Evidence. See 2 Elliott Ev., § 739. 29 Ste. Dig., art. 115; 1 Gr. Ev., §§ 237-242; Tay. Ev., §§ 911-915; 1 Whar. Ev., §§ 576-581; Chirac v. Eeinecker, 11 Wheat., 280, 294; McLellan v. Long- fellow, 32 Me., 494; 54 Am. D., 599 ; Bacon v. Frisbie, 80 N. Y., 394; 36 Am. Tf.. 627; Snow v. Gould, 74 Me., 54; 43 Am. R., 604; 1 Elliott Ev., § 623. CHAP. Ill] PRIVILEGED COMMUNICATIONS 261 his rights, and no man could safely come into court either to obtain redress or to defend himself.^'' This rule being restricted to in- formation given in the course and for the pur- pose of professional employment, does not apply to any fact which a legal adviser be- came acquainted with otherwise than in his character as such;^! jjqj. ^q g^j^y communica- tion made to him in furtherance of any crim inal purpose,^^ or to any fact observed by him in the course of his employment, showing that any crime or fraud has been committed since the commencement of his employment ; for it is no part of a law^^er's duty to be an acces- sory to his client's crime or a participant in his fraud. ^^ This rule is restricted to com- munications made to counsel, solicitors or 30 1 Gr. Ev., § 238; Tay. Ev., § 914; Greenough v. Gaskell, Myl. & K., 103 ; 1 Elliott Ev., § 624. 31 Ste. Dig., art. 115; 1 Gr. Ev., § 244; Tay. Ev., §930; Chirac v. Reinecker, 11 Wheat., 280, 284; Crosby v. Berger, 11 Paige, 377; 42 Am. D., 117; Coveney v. Tannahill, 1 Hill, 35 ; 37 Am. D., 289. 32 Ste. Dig., art. 115; Tay. Ev., § 931 ; Eeg. v. Cox, L. R., 14 Q. B. D., 164, per Stephen, J. ; Alexander v. United States, 138 U. S., 353, 357; People v. Blakely, 4 Park. C. R., 176, 180; Bank of Utica v. Mersereaii, 4 Barb. Chy., 528, 598; 49 Am. D., 189, 230. 33 Ste. Dig., art. 115; 1 Gr. Ev., § 242; Tay. Ev., 262 PRODUCTION OF EVIDENCE [PART III attorneys who are acting for the time being in the character of legal advisers, and to such other persons as are the necessary organs of communication between them and their clients, such as their clerks and interpret- ers.^'* It does not, at common law, apply to communications made to clerg^mien or med- ical men in their professional capacity;^' but in some of the United States such com- munications are privileged by statute. § 101. Privilege of client as to disclosing communication made to legal adviser.— Be- sides these matters as to which certain wit- nesses are forbidden to testify, there are others which they are privileged to refuse to be interrogated about, if they choose to avail § 930, note ; 1 Whar. Ev., § 590 ; Follette v. Jeffereyes, 1 Sim. (N. S.), 3, 17. 34 Ste. Dig., art. 115; 1 Gr. Ev., § 239; Tay. Ev., § 920 ; 1 Whar. Ev., § 582 ; Jackson v. French, 3 Wend., 337, 339 ; 20 Am. D., 697 ; Sibley v. Waffer, 16 N. Y., 180, 183. As to conveyancers, see De Wolf V. Strader, 26 111., 255 ; 79 Am. D., 371 ; Hatton v. Robinson, 14 Pick., 416; 25 Am. D., 415; Hubbard v. Houghton, 70 N. Y., 54. But see Crane v. Barkdoll, 59 Md., 534, 538 ; 1 Elliott Ev., § 625. 35 Ste. Dig., art. 117; 1 Gr. Ev., § 247; Tay. Ev., § 916; 1 Whar. Ev., §§ 596, 606; Com. v. Drake, 15 Mass., 161 ; Simon v. Gratz, 2 Pa. E., 412. CHAP. Ill] TRIVILEGED COMMUNICATIONS 263 themselves of such privilege, upon the ground that disclosures in regard to such matters might be injurious to the interests of the wit- ness or of the public. Among these may be classed all communications made by a client to his legal adviser, which such legal adviser would not be allowed to disclose without the client's permission, although they may have been made before any dispute arose as to the matter referred to.^'' § 102. Privilege as to facts tending to criminate witness.— In accordance with the common-law principle which has been incor- porated in the federal constitution,^^ and also made a part of the fundamental law of the several states of the Union, that no person 36 Ste. Dig., art. 116; 1 Gr. Ev., § 239a; Tay. Ev., § 924 ; 1 Whar. Ev., § 583. In Massachusetts it has been held that when the client, being a party to the cause, has testified as a witness on his own offer, he thereby waives the privilege and may be compelled to disclose, on cross-examination, any communications made by him to his legal adviser. Inhabitants of Wo- burn V. Henshaw, 101 Mass., 193, 200; 3 Am. K., 333. But the contrary has been held in other states. Hem- enway v. Smith, 28 Vt., 700, 707 ; Bigler v. Reyher, 43 Ind., 112; State v. White, 19 Kan., 445; 27 Am. R., 137; 1 Elliott Ev., §§ 625, 627. 37 Const. U. S., Amend. V. 264 PRODUCTION OF EVIDENCE [PART III shall be compelled in any criminal case to be a witness against himself, every witness is privileged to decline answering any question, if the answer thereto might, in the opinion of the judge, have a tendency to expose such witness (or his or her wife or husband) to any criminal charge, or to any penalty or forfeit- ure, which the judge regards as reasonably likely to be preferred or sued for;^^ or to be compelled to produce any document which would have a like effect, but this privilege does not excuse a witness from answering any question material to the issue, merely because the answer may establish that he owes a debt, or is otherwise liable to any civil suit, either at the instance of the state or of any other person,^^ or because the answer thereto may have a tendency to disgrace or degrade him, without rendering him liable to any criminal 38 Ste. Dig., art. 120; 1 Gr. Ev., § 451 ; Tay. Ev., §§1453, 1454; 1 Whar. Ev., §§533-541; Counsel- man V. Hitchcock, 142 U. S., 547 ; Fries v. Brugler, 7 Halst., 79; 21 Am. D., 52; Chamberlain v. Wilson, 12 Vt., 491 ; 36 Am. D., 356 ; Calhoun v. Thompson, 56 Ala., 166; 27 Am. R., 754; Ballman v. Fagin, 200 U. S., 186, 195; 2 Elliott Ev., § 1001. 39 Ste. Dig., art. 120; Tay. Ev., §1463; Bull v. Loveland, 10 Pick., 912 ; Taney v. Kemp. 4 H. & J., 345; 7 Am. D., 673; 2 Elliott Ev., § 1009. CHAP. Ill] INCRIMINATING FACTS 265 prosecution.'*'^ This privilege, however, may- be waived by the witness if he voluntarily testifies to any matter which might expose him to a criminal prosecution; for in such case he is bound to give all the details of the transaction, if required. Parties to the cause who testify on their own offer are con- sidered as thereby waiving the privilege as to the subject-matter of their testimony in chief, and must submit to a full cross-exam- ination thereon, however much the answers may tend to criminate them.^^ As to how far a witness may be compelled to submit to a physical examination see Sec, 131 post. The privilege against self-incrimination is purely ^M Gr. Ev., §454; Tay. Ev., §§1459, 1460; 1 Whar. Ev., § 543 ; People v. Mather, 4 Wend., 229, 250-254; 21 Am. D., 122;Lohman v. People, 1 N. Y., 379 ; 49 Am. D., 340 ; People v. Sharp, 107 N. Y., 427; 14 K E., 319; 1 Am. St. P., 857; act Cong., 1906, c. 389 : 2 Elliott Ev., § 1005. 41 1 Gr. Ev., § 451a ; 1 Whar. Ev., § 539 ; 1 Thomp. Tr., §307; Spies v. Illinois, 123 U. S., 131, 180; Com. V. Nichols, 114 Mass., 285; 19 Am. R, 346; State V. White, 19 Kan., 45; 27 Am. R., 137; State v. Duncan, 7 Wash., 336; 35 P., 117; 38 Am. St. R., 888, and note. Fitzpatrick v. United States, 178 U. S., 304, 5; Sawyer v. United States, 202 U. S., 150, 165; 2 Elliott Ev., § 1012. 266 PRODUCTION OF EVIDENCE [PART III personal to the witness, and he cannot claim the privilege of another person or of the cor- poration of which he is an officer."*^ § 103. Privilege of government and state officials as to public matters.— The executive of the nation or of a state and the heads of de- partments of the government are privileged, in the exercise of their discretion, to deter- mine how far they will produce papers or an- swer questions as to public affairs in a ju- dicial inquiry; this privilege, however, is re- stricted to these officers and cannot be claimed by a subordinate.^^ § 104. Cases where corroborative evidence required.— Besides the above cases in which certain witnesses are either disqualified or privileged from testifying, there are other cases in which the testimony of a witness, al- though admissible, is not sufficient to form the basis of a verdict unless supported by other corroborative evidence. These will now be briefly considered. 42 Hale V. Henkel, 201 U. S., 43, 70; see Vol. 5, Cent. Dig. Witness, §§ 1058-1060. 43 1 Gr. Ev., § 251; 1 Whar. Ev., § 604; Totten v. United States, 92 U. S., 105; Marbury v. Madison, 1 Cr., 137, 144 ; Worthington v. Sribner, 109 Mass., 487 ; 13 Am. R, 736; 1 Elliott Ev., § 639. CHAP. Ill] TWO WITNESSES REQUIRED 267 § 105. Prosecutions for treason.— The first case is that of prosecutions for treason, in which the testimony of two witnesses is al- ways required. The federal constitution pro- vides ^^ that no person shall be convicted of treason against the United States unless on the testimony of two witnesses to the same overt act, or on confession in open court. But a person may be convicted of treason against a state (where there is no express law to the contrary) by the testimony of two wit- nesses, one of them to one, and another to another, overt act of the same treason, or both of them to a voluntary confession out of court.^^ § 106. Prosecutions for perjury.— If, upon a trial for perjury, the only evidence against the defendant is the oath of one witness con- tradicting the oath on which perjury is as- signed, and no circumstances are proved which corroborate such witness, the defendant is entitled to be acquitted,^ ^ for the reason that the oath of a single witness is not deemed 44 Const. U. S., art. Ill, § 3. « 1 Gr. Ev., § 255 ; 3 id., § 246 ; 7 and 8 Will. Ill, c. 3, §§ 2, 4. 48Ste. Dig., art. 122; 1 Gr. Ev., §257; United States V. Wood, 14 Pet., 430, 440 ; 4 Ell. Ev., § 3089. 268 PRODUCTION OP EVIDENCE [PART III sufficient to counterbalance the oath of the prisoner and the legal presumption of his in- nocence by which it is supported. § 107. To contradict answer in equity called for upon oath.— So, also, the general rule in equity is that where the complainant, by calling on a defendant to answer under oath an allegation which he makes, thereby admits the answer to be evidence, and the de- fendant in express terms negatives that al- legation, either the testimony of two wit- nesses, or of one witness with corroborative circumstances, will be required to outweigh such an answer. Cases, however, sometimes occur when the evidence arising from circum- stances is of itself strong enough for this purpose.^^ § 108. Generally required to establish gen- eral usage or proof of adultery.— The testi- mony of more than one witness is usually re- quired to establish any usage of trade of which all dealers in that particular line are bound to take notice and presumed to be in- formed.^^ And courts will not ordinarily 47 1 Gr. Ev., § 260 ; Tay. Ev., § 959 ; Clark's Ex'r V. Van Reimsdyk, 9 Cr., 153, 160; Tobey v. Leonards, 2 Wall., 423, 430. 48 1 Gr. Ev., § 260a ; 8 Whar. Ev., § 964; Boardman CHAP. Ill] CORROBORATION REQUIRED 269 grant divorces upon the evidence of the parties alone without some corroborative proof, upon the ground that, whenever other testimony can be had, it is neither safe nor fit to rely upon that of the party alone.'*^ These, however, are only general rules of practice, without the binding authority of law, and may be departed from by the courts at any time in their discretion. § 109. Testimony of an accomplice should generally be corroborated to warrant convic- tion.— When the only proof against a person charged with a criminal offense is the evi- dence of an accomplice, 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 ; but it is questionable whether the failure of the judge to so warn the jury is sufficient ground for granting a new trial.^*^ V. Spooner, 13 Allen, 359; Eobinson v. United States, 13 Wall., 366. 49 Eobins v. Robins, 100 Mass., 150; 1 Whar. Ev., §433. 50 Ste. Dig., art. 121 ; 1 Gr. Ev., § 380 ; Tay. Ev., §§ 967-971; Cheatham v. State, 67 Miss., 335; 7 So., 204; 19 Am. St. R., 310 ; Com. v. Price, 10 Gray, 472 ; 71 Am. D., 665. But see Blakely v. State, 24 Tex. Ap., 616; 7 S. W.,.233i.5 Am. St. R., 912. CHAPTER IV. EXAMINATION OF WITNESSES. §110. All witnesses must be examined upon oath or affirmation.— All oral evidence must be given upon oath, unless the witness objects to being sworn from alleged con- scientious scruples, in which case he will be allowed to make a solemn religious affirma- tion, involving a like appeal to God, for the truth of his testimony, in any mode which he shall declare to be binding upon his con- science; and any person who, having made such affirmation, wilfully and corruptly gives false evidence, is punishable as for perjurJ^ All witnesses are to be sworn according to the peculiar ceremonies of their own religion, or in such manner as they may deem binding on their own consciences; and if the witness be not of the Christian religion, the court will inquire as to the form in which an oath is ad- ministered in his own country or among those of his own faith, and will impose it in that form. In ascertaining what form of oath is binding upon the conscience of the witness, 270 CHAP. IV] ORAL EVIDENCE 271 the court may inquire of the witness himself, and the proper time for making this inquiry is before he is sworn. ^ § 111. How oral evidence may be taken.— Oral evidence must be taken either in open court, or out of court for future use in court under a commission or by deposition before some officer of the court or other person or persons appointed for that purpose, either by agreement of the parties or under the provi- sions of some statute or rule of court govern- ing the tribunal in which said evidence is to be used. If taken under a commission, it must be done in the manner prescribed by its terms, or by the rules of court or statute regulating the mode of executing it; and if taken by deposition, it must be only in the manner and under the circumstances pre- scribed, and can be used only for the purposes and upon the contingencies expressly pro- vided by the terms of such agreement, statute or rule of court. The testimony of witnesses who are beyond the reach of the process of the court, or who, from sickness or any other 1 1 Gr. Ev., § 371 ; 1 Whar. Ev., § 387; Omichund V. Barker, 1 Sm. Lead. Cas., 7th Am. ed., pp. *535, *545 ; 1 Thomp. Tr., § 365 ; 2 Elliott Ev., § 805. • 272 PRODUCTION or evidence [part III reason, are physically unable to attend court,^ and (unless otherwise provided by statute) all testimony in chancery proceedings, ^ may be taken either under a commission or by dep- osition, according to the practice of the court before which the case is tried.^ All other tes- timony must be given orally in open court, except in cases otherwise specially provided for by statute or rule of court or agreement of parties. In civil cases, when witnesses are about to leave the jurisdiction of the court, or, by reason of feeble health or advanced age, are not likely to be alive and capable of tes- tifying at the time of trial, their testimony may be taken by deposition for future use de bene esse in the event of it being impossible for them to give their evidence in court at the hearing; provided the party taking such de- positions shall have first given such notice as may be required by statute or rule of court to the party against whom such depositions are to be used.^ 2 1 Gr. Ev., § 321. Sid., §§251, 259. ^ Practice in Courts of United States ; Blease v. Garlington, 92 U. S., 1 ; Nelson v. United States, 201 U. S., 92. B 1 Gr. Ev., §§ 321-325. See Rev. Stats. U. S., § 863, etc.; 2 Elliott Ev., §§ 1136-1200. CHAP. IV] OBJECTION TO EVIDENCE 273 § 112. When and how objections to evi- dence may be made.— When a deposition or the return of a commission is used in court as evidence, the party against whom it is read may object to the reading of anything therein, on any ground upon which he could have ob- jected»to its being stated by a witness exam- ined in opeii court ;'^ but no one can object to the reading of the answer of any question asked by his own representative, unless upon the ground of its being irresponsive to such question ; "^ and no question may be objected to for matter of form merely, unless excep- tion was taken thereto before it was an- swered, in cases where the party objecting or his representative had the opportunity of so excepting.* All objections to the admissibility of oral evidence should be made at the time it is of- fered, when apparent, otherwise they must be made within a reasonable time after they « Ste. Dig., art. 125; Scaggs v. B. & W. K. E., 10 Md., 268, 281. 7 Mayfield v. Kilgour, 31 Md., 240, 243 ; Packham V. Glendemeyer, 102 Md., 416, 424; 63 A., 1048. 8 Strickler v. Todd, 10 S. & E., 63, 73 ; 13 Am. D., 649; Doane v. Glenn, 21 Wall., 32, 35; Brown v. Hardcastle, 63 Md., 484, 494; 1 Thomp. Tr., § 701. 274 PRODUCTION OF EVIDENCE [PART 111 are disclosed to the party making them;^ for a party who sits by and allows his ad- versary to put in evidence which he knows to be incompetent, without objecting when he has the opportunity to do so, will ordinar- ily be deemed to have waived all objections to it, and the evidence thus received will be al- lowed to have the same effect as if admitted according to the strict rules of law.^^ Thus objection to the competency of a witness should be made before he is sworn, or at least before he has testified — although when the opposite party does not become aware of the incompetency until the witness has begun his testimony, objection may then be made, » Dent V. Hancock, 5 Gill, 120, 127 ; Marsh v. Ward, 35 Md., 123 ; Maxwell v. Hannibal, etc., R. R. Co., 85 Mo., 95, 108; Gerting v. Wells, 103 Md., 624, 628; 64 A., 298, 433. 10 Farmers' Bank v. Duvall, 7 G. & J., 78, 95; At- well V. Grant, 11 Md., 101, 107; Deutsch v. Bond, 46 Md., 164; Lamb v. Taylor, 67 Md., 93; 8 A., 760; Sentman v. Gamble, 69 Md., 304, 305 ; 13 A., 58 ; 14 A., 673; Slingluff v. Builder's Supply Co., 89 Md., 557, 562; 43 A., 759; Maxwell v. Hannibal, etc., R. R. Co., 85 Mo., 95, 108 ; Cleveland, etc., R. R. Co. v. Wyant, 134 Ind., 681; 34 N. E., 569; Winter v. Winter, 102 Iowa, 53; 71 N. W., 184; 63 Am. St. R, 428. CHAP. IV] OBJECTION TO EVIDENCE 275 and if sustained the testimony already given will be stricken out.^^ If a question be put which is leading or otherwise objectionable in form, or which plainly calls for inadmissible testimony to be given in answer thereto, ob- jection should be made to such question be- fore it is answered.^ 2 But if the question be one which does not necessarily call for in- competent testimony, but such testimony is in fact given in reply thereto, objection should be made not to the question but to the answer or such part thereof as may be incompetent or irrelevant as soon as such in- competency or irrelevancy shall become ap- parent.^ ^ Thus if a witness be asked whether there was a contract between the plaintiff and the defendant and what it was and his an- swer discloses for the first time that the al- ii 1 Gr. Ev., § 421; 1 Whar. Ev., § 393; Tay. Ev., § 1392; Hickory v. United States, 151 U. S., 303, 307; Andre v. Bodman, 13 Md., 241; 71 Am. D., 628; 2 Elhott Ev., § 881. 12 WilHams v. Grand Eapids, 53 Mich., 271 ; 18 N. W., 811; Levin v. Russell, 42 F. Y., 250, 256; Wig- gins V. Guthrie, 101 N. C, 661 ; 7 S. E., 761. 13 Gould V. Day, 94 U. S., 405, 419; Holms v, Roper, 141 N. Y., 64; 36 N. E., 180 ; Denise v. Denise, 110 N. Y., 563; 18 N. E., 368. 276 PEODUCTION OF EVIDENCE [PART III leged contract was in writing, the opposing counsel may at once require the witness to produce the writing and if he fails to do so, or to give a satisfactory excuse for its non- production, any testimony which he may have already given as to the terms of such con- tract will be stricken out.^^ When a question calls for evidence that may or may not be competent, the opposing counsel has a right to interpose and cross-examine the witness upon facts material to the competency of his proposed answer ;^^ and when a question calls for evidence which may or may not be relevant the party putting it may be required to state beforehand the substance of what he expects to prove by the witness in order that its admissibility may be determined.^ ^ Im- proper evidence admitted on one side without objection does not give the other side the right to introduce in reply the same kind of 1^ Common practice at nisi prius. Mt. Vernon Brewing Co. v. Tucker, 108 Md., 158, 162; 69 A., 703. it^ Maurice v. Worden, 54 Md., 330; Trussell v. Scarlett, 18 Fed. Eep., 217 and note. 18 Morgan v. Brown, 71 Pa. St., 130, 136; Susque- hanna Fertilizer Co. v. Wliite, G6 Md., 435 ; 7 A., 802 ; 59 Am. Rep., 186, 189 ; Bauernschmidt v. Md. Trust Co., 89 Md., 507, 570; 43 A., 790. CHAP. Ill] EXAMINATION IN CHIEF 277 evidence if objected to;^^ but the court has a discretionary power when one side has so given immaterial or irrelevant evidence with- out objection to permit the other side to con- tradict it.^^ But whenever improper evidence has been received against the objection of the opposing party, it is error for the court to re- fuse to allow the latter to contradict it/^ yet the court has the right to exclude sua sponte evidence which is clearly inadmissible though not objected to or excepted to by either party.2" § 113. Examination in chief — Leading questions.— When a witness has been duly sworn, he must be first examined in chief by questions propounded on behalf of the party who called him. This examination must re- ^7 Stringer v. Young's Lessee, 3 Pet., 320, 325 ; People V. Bowling, 84 N. Y., 478, 486; Blossom v. Barnett, 37 N. Y., 438; 97 Am. Dec, 747; Higgins v. Carlton, 28 Md., 105 ; 92 Am. D., 666, 671 ; Manning V. Burlington, 64 Iowa, 240; 20 N. W., 169. 18 Farmers' -Bank v. Whinfield, 24 Wend., 419, 425 ; Waldron v. Romaine, 22 N. Y., 368, 371 ; Fur- bish V. Goodwin, 25 N. H., 425, 447. 19 Lake Roland Ry. Co. v. Weir, 86 Md., 273 ; 37 A., 714. 20 B. & 0. R. R. Co. V. State use of Block, 107 Md., 642, 657 ; 69 A., 439 ; 72 A., 340. 278 PRODUCTION OF EVIDENCE [PART III late to facts in issue or relevant thereto ; and all leading questions, i. e., such as suggest the answer which the person putting them wishes or expects to receive, or suggest disputed facts as to which the witness is to testify, must not be asked if objected to by the ad- verse party, except with the permission of the court. This should always be given when the witness is evidently hostile to the party calling him, or reluctant to give evidence, or when omissions in his testimony are plainly caused by want of recollection which a sug- gestion may assist.^^ A witness under ex- amination will not be permitted to obtrude irrelevant matter in answer to a question not relating to it, and if he should attempt to do so, such answer may, upon application of either party, be excluded from the evidence; for otherwise an adverse witness might ser- iously injure the case of the party who called him, or a too friendly one might introduce matters foreign to the question and unfavor- able to the other side. If, however, the ex- 21 Ste. Dig., art. 128; 1 Gr. Ev., § 435; Tay. Ev., §§ 1404, 1405; Turney v. State, 8 Sm. & Marsh., 104; 47 Am. D., 84; Barton v. Kain, 17 Wis., 38; 84 Am. D., 728 ; Graves v. Merchants' & Bankers' Ins. Co., 83 Iowa, 657 J 49 N. W., 65; 31 Am. St. E., 507. CHAP. TV] EXAMINATION IN CHIEF 279 amining party fails to have such irresponsive answer excluded as irrelevant, his adversary has the option of either doing so himself, or treating it as evidence and cross-examining upon it. This rule applies also to irrelevant answers to questions put on cross-examina- tion, which, unless the person cross-examin- ing applies to have them stricken out, may be made the subject of re-examination by the other side.^^ § 114. Refreshing memory.— A witness, while under examination, may refresh his memory by referring to any writing made by himself at the time of the transaction about which he is testifying, or so soon afterwards that the judge considers it to have been then fresh in his memory, or by any writing made by any other person which he examined within the time aforesaid and then knew to be correct.^ ^ If the witness can testify pos- itively to its accuracy, such writing may itself be put in evidence.^'* A witness may not use 22 1 Starkie Ev., p. *316; 1 Gr. Ev., § 468; Tay Ev., § 1475; 1 Thomp. Tr., § 718; Abb. Tr. Bf., p. 62 ; Brashears v. Orme, 93 Md., 541 ; 49 A., 620. 23Ste. Dig., art. 136; Tay. Ev., §§ 1406-1410; 1 Gr. Ev., §§ 436-438; 1 Thomp. Tr., § 398, etc. 2-^ 1 Gr. Ev., § 437, note 3 : Insurance Co. v. Weides, 280 PRODUCTION OF EVIDENCE [PART III for this purpose a copy of such writing, un- less, after he has refreshed his memory by looking at it, he can swear to a distinct recol- lection of the matters contained in it, inde- pendently of the paper.-^ The reason for this distinction is, that whenever the witness' testimony is in any degree dependent upon the contents of a writing, the existence and genuineness of such writing become impor- tant factors in estimating the weight to be given to his testimony, and must therefore be established by the best evidence, which is the production of the original paper; but of course this is not applicable to cases where the matters, after having been recalled to mind, are recollected perfectly, and without reference to the means by which they are so recalled. It appears to be somewhat upon this principle that expert witnesses are per- mitted to refresh their memory by referring to professional treatises.^^ Whenever a wit- ness uses any document to refresh his mem- 9 Wall., 677-680; S. C, 14 Wall., 375-380; Euch v. Eock Island, 97 U. S., 693-695; 2 Elliott Ev., § 873. 25 1 Gr. Ev., §§ 436, 437; Tay. Ev., §§ 1408, 1409; Hill V. State, 17 Wis., 675, 679; 86 Am. D., 936. 26 Tay. Ev., § 1422; Ste. Dig., art. 136; Eippon v. Bittel, 30 Wis., 614; Harvey v. State, 40 Ind., 516. CHAP. IV] REFRESHING MEMORY 281 ory, the adverse party has a right to inspect it, and cross-examine him upon it; not only that he may test its genuineness and admis- sibility for the purpose intended, but also that he may have the benefit of the witness refreshing his memory by every part of it. When, however, a paper which has been shown to a witness for the purpose of re- freshing his memory ^oes not have that ef- fect, the adverse party has no such right to inspect it, for there would be no object to be gained by his so doing.^^ § 115. Cross-examination — Questions af- fecting credibility — Leading questions.— Whenever a witness has been examined, the opposite party always has a right to cross- examine him; and in case a witness dies, or becomes incapable of being further examined before an opportunity for his cross-examina- tion has been afforded to the party against whom his evidence is to be used, the testimony already given must be excluded.^^ The cross- examination must be confined to the facts and 27 Tay. Ev., § 1413 ; 1 Gr. Ev., §§ 437, note 3, 466; Ste. Dig., art. 137; 1 Whar. Ev., § 525 ; Eosc. Ev. K P., 185 ; 2 Elliott Ev., § 903. 28 1 Gr. Ev., § 445, note 2 ; Kissam v. Forrest, 25 Wend., 651 ; People v. Cole, 43 N. Y., 508. 282 PRODUCTION OF EVIDENCE [PART III circumstances connected with the matters stated by the witness in his direct examina- tion, and to questions tending to test his ac- curacy, veracity or credibility, or to shake his credit by injuring his character.^^ The wit- ness may be compelled to answer any such question, however irrelevant it may be to the facts in issue, and however disgraceful the answer may be to himself, if, in the opinion of the judge, such question be material to af- fect the credibility of his testimony, and un- less it be such that the answer might have a tendency to render the witness liable to some criminal prosecution, penalty or forfeiture, as explained in sec. 102, ante.^^ 29 1 Gr. Ev., § 445 ; 1 Whar. Ev., § 529. But this limitation is not applied in several of the states, as Massachusetts, New York, Ohio, Alabama, Mississippi, Missouri and Michigan; 2 Elliott Ev., § 917, etc. 30 Ste. Dig., art. 126 ; 1 Gr. Ev., §§457-460 ; 1 Whar. Ev., §§529-548; Carroll v. State, 32 Texas Cr. R., 401; 24 S. W., 100; 40 Am. St. R., 786. There has been considerable conflict of authority in this country [see 1 Gr. Ev., § 457; Newcomb v. Griswold, 24 N. Y., 298; contra. State v. March, 1 Jones' (N. C.) L., 526; and State v. Garrett, Busb. (N. C.) L., 327], as to whether, if objection be made, a witness can be asked if he has been previously convicted of any crime or misdemeanor, inasmuch as the record of the judg- CHAP. IV] CROSS EXAMINATION 283 Subject to this exception, the party cross- examining has a right to ask and require an answer to any question concerning the situa- tion of the witness with respect to the parties and to the subject of litigation, his interest, his motives, his inclination and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used ment is the best evidence of such conviction ; but this technicality does not necessarily stand in the way of his being asked whether he has ever been in jail or the penitentiary, and if so, how long he has been there. Real V. People, 42 N". Y., 270-280; 1 Whar. Ev., § 541, note. The modern tendency, however, is to allow such questions and to require an answer to them when they appear to be put for the purpose of honestly dis- crediting the witness. Wliar. Cr. Ev., § 474 ; State v. Bacon, 13 Oreg., 143; 9 P., 393; 57 Am. Rep., p. 8, and cases cited in note, p. 16. Also, Com. v. Racco, 225 Pa. St., 113, 116; 73 A., 1067; 133 Am. St. R., 872. In England it has been provided by statute (28 and 29 Vic, c. 18, § 6) that a witness may be ques- tioned as to whether he has been convicted of any felony or misdemeanor ; and upon being so questioned, if he either denies or does not admit the fact, or refuses to answer, the cross-examining party may prove such conviction by a certificate of the clerk of the court where he was convicted. Tay. Ev., § 1434. 284 PRODUCTION OF EVIDENCE [PART III those means, and his powers of discernment, memory and description ; for it is the purpose of cross-examination to investigate, ascertain and submit all such matters to the considera- tion of the jury before whom the witness has testified, in order that they may have an op- portunity of observing his demeanor and de- termining the just weight and value of his testimony.'^^ The extent to which a witness may be cross- examined as to matters that are only relevant in so far as they may shake his credit by in- juring his character is a matter confided to the discretion of the judge who presides at the trial ; ^^ and as the exercise of this dis- cretion is not subject to review on appeal, ex- cept in cases of plain abuse and injustice,^^ he should never compel a witness to answer, or even allow him to be asked, vexatious or degrading questions, unless, under the pecul- iar circumstances of the case, the ends of justice appear to require it.^^ In criminal 31 1 Stark. Ev., p. *195 ; 1 Gr. Ev., § 446 ; Tay. Ev., §§1460, 1461 ; 1 Whar. Ev., § 545. 32 Gr. Western Turnpike Co. v. Loomis, 32 N. Y., 127, 132 ; Storms v. United States, 94 U. S., 76, 85. 33 Johnston v. Jones, 1 Black (U. S.), 210, 226. 34 Probably the best rule for the exercise of this CHAP. IV] CROSS EXAMINATION ^ 285 cases when the accused is a witness and the judge permits questions to be put to him on cross-examination which have no bearing upon the charge on which he is being tried, and do not legitimately tend to impeach his credibility, but may prejudice the mind of the jury against him, a judgment of conviction will be reversed on appeal.^^ Leading ques- tions are generally permitted on cross-ex- discretion is that given in § 148 of the Indian Evi- dence Act of 1872, which provides: (1) Such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies. (2) Such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the im- putation 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 imputa- tion made against the witness' character and the im- portance of his evidence. See Ste. Dig., note XL VI. 35 People V. Crapo, 76 N. Y., 288 ; 32 Am. Rep., 302 ; but see Jackson v. State, 33 Tex. Cr. R., 281 ; 26 S. W., 194, 622; 47 Am. St. R., 30. 286 PEODUCTION OF EVIDENCE [PAET III amination, upon the theory that the witness is presumably favorably inclined towards the party who called him ; ^^ but as the judge may permit them in the direct examination when the witness is evidently hostile to the party who called him, so he may prohibit them on cross-examination when the witness shows a strong interest or bias in favor of the cross- examining party."'^ Especially is this the case when a party to the suit is examined as a witness by his adversary, where the exam- ination in chief should be governed by the rules applicable to a cross-examination, and the cross-examination should be conducted as a re-examination. This would seem to be the correct rule upon principle, although there does not appear to be any reported de- cision directly bearing upon the point. § 116. How far answers on cross-examina- tion may be contradicted.— 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 38 1 Gr. Ev., § 447 ; 1 Whar. Ev., § 527. s7Tay. Ev., §§1404, 1431; Moody v. Eowell, 17 Pick., 498; 28 Am. D., 317; Clarke v. Saffery, Ey. & M., 126. CHAP. IV] CROSS EXAMINATION" 287 evidence can be afterwards given to contra- dict his answer.^* This rule is founded on two reasons : first, that a witness cannot be expected to come prepared to defend all the actions of his life; and next, that to admit contradictory evidence on such points would of necessity lead to inextricable confusion, by raising an almost endless series of collateral issues. ^^ As neither of these reasons apply to questions relating to relevant facts, the best test of whether the denial of a fact on cross-examination may be contradicted is this: ''Would the cross-examining party be entitled to prove such fact as part of his case if it had not been alluded to in the cross-ex- amination?"**' Hence, when a witness de- nies, on cross-examination, any fact tending to show that he is not impartial, such fact may be proved by other testimony, notwith- standing his denial; for the other party would have had the right to give evidence of 38 Ste. Dig., art. 130; Tay. Ev., § 1438: Carroll v. State, 38 Tex. Cr. R., 431 ; 24 S. W., 100 ; 40 Am. St. R., 786. 39 Tay. Ev., § 1439. 40 1 Whar. Ev., § 559; per Sharswood, P., in Hilde- burn V. Curran, 65 Pa. St., 63 ; Combs v. Winchester, 39 K H., 13; 75 Am. D., 203; 2 Ell. Ev., § 977. 288 PEODUCTION OF EVIDENCE [PART III that fact without having interrogated the wit- ness in regard to it at all.^^ §117. When proper foundation laid on cross-examination, previous inconsistent state- ments may be proved.— But a witness may always be asked on cross-examination whether he has not made any former state- ment as to some fact relative to the subject matter of the action, and inconsistent with his present testimony; and if the circum- stances of such supposed statement are re- ferred to with sufficient particularity to clearly designate the occasion, and he does not distinctly admit having made such a state- ment, proof may be afterwards given that he did in fact make it.'*^ Such proof is admitted upon the ground that the fact of the witness having previously made conJ9icting state- ments would materially diminish the confi- dence which might otherwise be placed in his present testimony; but the general rule is, 4^ Tay. Ev., § 1442 ; Att'y-Gen. v. Hitchcock, 1 Ex. R, 94, 100, 102; Lodge v. State, 122 Ala., 99; 26 So., 210; 82 Am. St. R., 23, note. 42 Ste. Dig., art. 131 ; Tay. Ev., § 1445; 1 Gr. Ev., § 449 ; 1 Whar. Ev., § 551 ; Conrad v. Griffey, 16 How., ^ 38, 46 ; Whiteford v. Burckmyer, 1 Gill, 227 ; 39 Am. D., 640; 2 Elliott Ev., § 974. CHAP. IV] INCONSISTENT STATEMENTS 289 that a proper foundation must be laid for it by first asking the witness whether he has not made such prior contradictor^^ statements, in order to enable him to recall the incidents, and explain, if he can, the apparent inconsist- encies.'*^ Such a restriction would seem to be no more than simple justice to the witness whose credibility is thus attacked, but in sev- eral of the states of the Union it is either not imposed at all,'*'* or else left discretionary with the court."*^ § 118. Previous inconsistent statements in writing may not be proved unless writing- first shown to witness or its absence explained.— Where the previous inconsistent statement referred to in the preceding section has been made in writing, the witness may not be cross-examined in reference to it, until the paper has first been shown to him, and he has 43 1 Gr. Ev., § 462; 1 Whar. Ev., § 555; Mattoi v. United States, 156 U. S., 237, 244; Skaggs v. Martin- ville, 140 Ind., 476 ; 39 N. E., 241 ; 49 Am. St. R., 209 ; 33 L. E. A.. 781. 44 In Maine, New Hampshire, Vermont, Massa- chusetts and Connecticut. See cases cited, 1 Whar., Ev., § 556. 45 Pennsylvania and Minnesota. See 1 Whar. Ev., § 556. 19 290 PRODUCTION OF EVIDENCE [PART III admitted that he wrote it. If he admits hav- ing written it, the paper must itself be put in evidence as the best proof of its contents, but if he denies having written it, he cannot be further interrogated in regard to it, nor has the opposing party a right to inspect it until it has been proved by other evidence to be in the handwriting of the witness ; for until this is done, it is not admissible in evidence at all, and its contents can have no relevancy to the case.'^^ If it be shown that the paper has been lost or destroyed, or that it is not in the power of the cross-examining party to obtain it, the regular course would be to first prove its contents by secondary evidence, and then ask the witness if he wrote such a paper; but it is always discretionary with the judge to depart from this order of proceeding whenever it seems likely to occasion inconven- ience by disturbing the regular progress of the trial.4^ § 119. Re-examination restricted to expla- nation of statements on cross-examination- Leading questions.— After the cross-examina- tion is concluded, the party who called the witness has a right to re-examine him for the 46 1 Gr. Ev., § 463; 2 Elliott Ev., § 976. 47 1 Gr. Ev., §§ 464, 465; Tay. Ev., § 1447. CHAP. IV] IMPEACHING WITNESSES 291 purpose of obtaining an explanation of the matters referred to in cross-examination. He may ask him all questions proper to draw forth an explanation of the sense and mean- ing of the expressions used by the witness on cross-examination, if they be in themselves doubtful, and also of the motives which moved him to use such expressions; but he cannot go further and introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness.^^ A witness may be re-examined upon every matter stated by him on his cross- examination, whether the facts so stated by him were properly admissible in evidence or not, unless such statement was expressly ex- cluded from the evidence at the time it was made, as irresponsive to the question or otherwise irrelevant.^^ The rule restricting the putting of leading questions on examina- tion in chief applies equally to putting them on re-examination.^'' Whenever, by permis- sion of the court or consent of the other side, a party elicits from his witness on re-exam- 48 1 Stark. Ev., p. *231 ; 1 Gr. Ev., § 467 ; Tay. Ev., § 1474; 2 ElHott Ev., §§ 929-938. 49 1 Gr. Ev., § 468; Tay. Ev., § 1475; ante, § 99. 50 Ste. Dig., art. 128. 292 PRODUCTION OF EVIDENCE [PART III ination matters which should properly have been given in evidence upon the examination of the witness in chief, his adversary has a right to cross-examine the witness upon such new matters; and the party who called the witness may re-examine him again, but only upon the subject of such second cross-exam- ination.'^^ §120. Impeaching credit of witness, in what cases allowable.— After the examination of a witness has been concluded, his credit may be impeached in four ways : 1. By dis- proving by the testimony of other witnesses, any facts stated by him which are material to the issues on trial.^^ 2. By proof of his hav- ing made statements out of court inconsistent with his testimony, in cases where the neces- sary foundation has been first laid by inter- rogating the witness about such contradictory statements, as already explained.^^ 3. By proof of any facts showing a bias or prejudice on the part of the witness in favor of the party by whom he was called or against the opposite party, as relationship, sympathy, or interest in the matter of controversy or in the 51 Ste. Dig., art. 186. «2 Ante, § 116. fi^Ante, § 117. CHAP. IV] IMPEACHING WITNESSES 298 event of the suit;^^ or proof of the witness having been convicted of any infamous crime, in cases where such conviction would not ren- der him incompetent to testify.^^ 4. By gen- eral evidence affecting his character for ver- acity.'*^ A party may not thus impeach the credit of his own witness further than by contradicting his testimony as to any par- ticular facts by the testimony of other com- petent witnesses. The reason for this rule is, that a party who, by calling a witness, repre- sents him to the court as worthy of credit, or at least not so infamous as to be wholly un- worthy of it, should not be permitted to im- pugn that witness' general reputation for truth, or to impugn his credibility by general evidence tending to show him unworthy of belief; for this would ^'enable him to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him, with the means in his hands of destroying his credit if he spoke against him.'"^^ As this 54 1 Whar, Ev., § 566 ; State v. Burpee, 63 Vt., 1 ; 25 A., 964; 36 Am. St. R, 772 ; 19 L. E. A., 145. 55 1 Whar. Ev., § 667 ; Com. v. Knapp, 9 Pick., 496 ; 20 Am. D., 491. 56 1 Gr. Ev., § 461 ; 1 Whar. Ev., § 562. 57 Bull. N. P., 297 ; 1 Gr. Ev., § 442 ; 1 Whar. Ev., § 547 ; 2 Elliott Ev., § 985. 294 PRODUCTION OF EVIDENCE [PART III reasoning is not applicable where the witness is not one of the party 's own selection, as the subscribing witness to a will or deed, a party is generally allowed to impeach the veracity of any witness whom the law obliges him to call f^ and as it often happens that a witness who intends to speak the truth may, either from misapprehension or imperfect knowl- edge or recollection, state a particular fact in- correctly, there is no reason why, when one of a party's witnesses has misstated a fact, such party should be precluded from showing what actually did take place by any other competent testimony.^ ^ A party who has been taken by surprise by the testimony of his own witness is generally permitted to cross-examine him as to what he had stated in regard to the matter on former occasions, either in court or otherwise, for the purpose of refreshing the memory of the witness and giving him full opportunity to set the matter right, as well as for the purpose of explaining the attitude of the party calling the witness. But such questions cannot be put for the mere purpose of discrediting the witness, nor can 58 1 Gr. Ev., § 443. «» 1 Gr. Ev., § 443; 1 Stark. Ev., p. *244; 1 Whar. Ev., § 549. CHAP, IV] IMPEACHING WITNESSES 295 his contradictory statements upon other oc- casions be proved ordinarily by other wit- nesses.*^*^ § 121. Proof of particular facts tending to show bias, or previous conviction of an in- famous crime.— Of the four methods above enumerated by which the credit of a witness may be impeached by the adverse party, the first and second need no further explanation in addition to what has been already stated concerning them.®^ The third method, which is by proof of particular facts tending to show that the witness is subject to some bias, or has been convicted of an infamous crime, derives its origin mainly from the effect of the statutes removing the former disqual- ification of witnesses upon the ground of in- terest or of infamy. To that extent it is an 60 1 Gr. Ev., § 444a ; 1 Whar. Ev., § 549 ; Cox v. Eayres, 55 Vt., 24; 45 Am. Rep., 583; Hickory v. United States, 151 U. S., 303, 9. While the weight of authority is against receiving testimony of such con- tradictory statements, it has been held in several late cases that the court has discretionary power to admit it. See Selover v. Bryant, 54 Minn., 534 ; 56 N. W., 58;. 40 Am. St. E., 349; 21 L. R. A., 418; Smith v. Briscoe, 65 Md., 561 ; 5 A., 334. «i Ante, §§ 116, 117. 296 PRODUCTION OF EVIDENCE [PART III innovation upon the common law, which re- quires all objections going to the competency of a witness to be made before he is sworn, or if subsequently discovered, as soon as they come to tlie knowledge of the objecting party, and to be sustained by proof to the court, and, unless this is done, considers them waived.^- In actual practice it is usual to first interrogate a witness upon cross-exam- ination as to the existence of any facts show- ing that he is subject to some bias, or has an interest in the event of the suit, and only to introduce other evidence of such facts in case he denies or does not admit them; yet, al- though this course is to be commended both on account of its fairness and as calculated to save time, there seems to be no reason why a party who omits to lay such a foundation should therefore be precluded from after- wards introducing independent evidence upon these points.^^ In the absence of any stat- es 1 stark. Ev., pp. *115, *144; 1 Gr. Ev., §§ 421- 425; 2 Elliott Ev., § 973, § 981. ^2 See ante, § 116, The only reported case which I have found that excluded this kind of evidence be- cause the witness had not been previously interrogated on the subject is Edwards v. Sullivan, 8 Ired. L., 302. But see contra, Martin v. Barnes, 7 Wis., 239, which CHAP, IV] IMPEACHING WITNESSES 297 utory provision upon the subject, the proof that a witness has been convicted of any in- famous crime (unless he has admitted it on cross examination) must always be by pro- duction of a copy of the record of the judg- ment of his conviction.^'* § 122. Proof of general reputation for want of veracity.— The fourth method of impeach- ing the credit of a witness is by the testimony of other witnesses to the effect that they know his general reputation for truth and veracity in the community in which he has lived, and that such general reputation is bad. Such evidence must be confined to his general rep- utation, and no testimony as to particular facts is permitted; for every man is sup- posed to be capable of supporting the one, but it is not likely that he would be prepared to answer the other without notice.''^ After seems the better law. Also Wyeth v. Walzl, 43 Md., 426 ; Chilton v. State, 45 Md., 564, and Lodge v. State, 122 Ala., 97; 26 So., 210; 82 Am. St. R., 23, and ex- tended note. But witness cannot be impeached by proof of his having been indicted. People v. Morri- son, 195 N. Y., 116; 88 N. E., 21; 133 Am. St. R., 780. ^^ See ante, § 115, note. 6f* 1 Gr. Ev., § 461; 1 Whar. Ev., §§ 562-5; conf. Tay. Ev., §§ 1470-1 ; Ste. Dig., art. 123 ; and see Teese 298 PRODUCTION OF EVIDENCE [PART III the impeaching witnesses have testified that they know the general character for truth and veracity of the witness sought to be im- peached, and that it is bad, they may be fur- ther asked whether they would believe him on oath ; ^^ but it is not held essential, in or- der to throw discredit upon his testimony, that they should state that they would not be- lieve him on his oath.^'^ Although the testi- mony in chief of the impeaching witnesses must be strictly confined to general reputa- tion, they may be asked on cross-examina- tion to name the persons whom they have heard speak against the character of the wit- ness impeached.^^ AYlien the character of a witness has been thus impeached, the party who called him may give evidence in reply to V. Huntingdon, 23 How., 2, 11 ; also note, 71 Am. D., pp. 771-775 ; Griffin v. State, 26 Tex. Ap., 157 ; 9 S. W., 459; 8 Am. St. E., 46; 2 Elliott Ev., § 978. 66 1 Whar. Ev., § 565; see 1 Gr. Ev., § 461; Tay. Ev., § 1470 ; Spies v. People, 122 111., 1 ; 12 N. E., 865; 17 K E., 898; 3 Am. St. R., 320, 426; Holbert V. State, 9 Tex. Cr. Ap., 219 ; 35 Am. R., 738. 67 1 Whar. Ev., § 565; 1 Gr. Ev., § 461; People v. Tyler, 35 Cal., 353. 68 1 "\Vliar. Ev., § 565; 1 Gr. Ev., §§ 461-2; Mont- gomery V. Crossthwaite, 90 Ala., 553; 26 N. E., 575; 24 Am. St. R., 832, 843; 12 L. R. A., 609. CHAP. IV] IMPEACHING WITNESS 299 show that he is worthy of credit, by either contradicting the testimony or attacking the credibility of the impeaching witnesses.^^ In the courts of the United States and of most of the states when a witness is impeached in this manner, the inquiry is restricted to his gen- eral reputation for truth and veracity, but the English rule which extends it to his gen- eral moral character is followed in the states of Alabama, Kentucky, Missouri, New York, North Carolina, South Carolina and Ten- nessee/*^ 69 1 Whar. Ev., § 568 ; 2 Elliott Ev., § 972. 70 Teese v. Huntingdon, 20 How., 2 ; Blue v. Kibby, 1 T. B. Mon., 195 ; 15 Am. Dec, 95, and note ; 1 Whar. Ev., §§562, 563. CHAPTER V. PRODUCTION OF DOCUMENTS. § 123. How party to suit may compel his adversary to produce documents.— The com- mon law provides no means of compelling any party to a suit to produce any document in his possession or power, in order that it may be used in evidence by his adversary,^ excepting that the courts may, under certain circum- stances, as hereafter explained, make an order for the inspection of writings in the posses- sion of one party to a suit in favor of anoth- er ; 2 and that whenever, as we have already seen,^ due notice has been given to any party to produce at the trial any document in his possession or power, his failure to do so gives the adverse party a right to prove the contents of such document. This omission to pro- vide means for compellmg a party to the suit 1 1 Gr. Ev., § 560. 2 1 Gr. Ev., § 559; 1 Whar. Ev., §§ 743-755. See § 124 post. 3§ 71 (6), ante. 300 CHAP. V] PRODUCING DOCUMENTS 801 to produce any documentary evidence in his possession or power, was but carrying out the old common law rule that parties to the record could not be compelled, in trials by jury, to give evidence for the opposite party against themselves, either in civil or criminal cases.^ Although by statutory enactments, both in this country and in England, this rule has been so far abrogated as to make a party com- pellable to testify at the summons of his adversary in civil cases, yet as very few, if any at all, of these statutes contain express provisions for compelling parties to produce any documents in their possession or power, it has been denied by some courts that the common law rule in this particular has been at all affected by them ; ^ but it may be con- sidered as now well established by the weight of authority that under these statutes an ad- versary may be compelled by a subpoena duces tecum to produce books and papers in his pos- session the same as any other witness.® 4 1 Gr. Ev., § 330. ^ See Trotter v. Latson, 7 How. Pr., 261 ; Duke v. Brown, 18 Ind., Ill; Cross & Co. v. Johnson, 30 Ark., 396. « Bonesteel v. Lynde, 8 How. Pr., 226 ; People v. Dyekman, 24 id., 222; Mitchell's Case, 12 Abb. Pr., 302 PRODUCTIOX OP F.VIDEXCE [PART IIT § 124. When an inspection of doctiments in the hands of opposite party will be allowed at common law.— The cases in which common law courts will order an inspection of docu- ments in the possession or power of one party to be allowed to his adversary independently of any statutory provisions upon the sub- ject, are: (1) When the document of which inspection is desired has been set forth and relied upon by either party in his pleadings.''^ (2) When the plaintiff is desirous of bringing an action upon an instrument executed by himself or in which he is otherwise interested, and which, being in the hands of his opponent, he cannot safely declare upon without first in- 249 ;- conf . Texas v. Chiles, 21 Wall., 488 ; U. S. v. Tilden, 10 Ben., 566; Merchants' Nat. Bk. v. State Nat. Bk., 3 Cliff., 201. See note in Fed. Rep., vol. 15, p. 722, by Jno. D. Lawson, to case of Wertheimer V. Continental R'y & Trust Co., p. 716, Circt. Ct. S. Dist. N. Y., Feb'y 17, 1883 ; Bischoff's Heirs v. Brown, 29 Fed. Rep., 341, 343 ; 2 Elliott Ev., § 700. 7 Tay. Ev., § 1588 (6th ed.). Mem.— This and the following sections, cited as of the sixth edition of Taylor, are omitted in the later editions in consequence of statutory changes in the English law. See, also. Woodman v. Devereux, 2 M. & Gr., 758; Blogg v. Kent, 6 Bing., 614. CHAP. V] PRODUCING DOCUMENTS 303 specting it.® (3) Where an instrument to which the applicant is either a party or a privy, or in which he has a legal interest, has been deposited in the hands of another party to the suit, either as trustee for the applicant only, or at least for the applicant jointly with himself.^ (4) Where it appears that a party has some legitimate control over a document, which, if in his possession, he would be re- quired to allow his adversary to inspect, the order for inspection will be passed, although such document be actually held by a third person, if he hold it as the agent of such party, or subject to his authority.*^ In all such cases the method of obtaining an inspec- tion is for the party seeking it to make an application to the court or to a judge at cham- bers, supported by an affidavit setting forth the facts, and stating that he possesses no copy of such document, and that no counter- part thereof was ever executed.^ ^ § 125. Statutory enactments upon this sub- ject. — These common law powers of the courts 8 Tay. Ev., § 1589 (6tli ed.) ; 1 ^YhsiT. Ev., § 743; 1 Gr. Ev., § 559 ; Rowe v. Howden, 4 Bing., 539, note. 9 Tay. Ev., § 1590 (6th ed.) ; 1 Whar. Ev., § 743; Blogg V. Kent, 6 Bing., 615. 1" Tay. Ev., § 1591 (6th ed.) ; 1 Whar. Ev., § 743. " Tay. Ev., § 1592 (6th ed.) ; 1 Whar. Ev., § 743. 304 PRODUCTION OF EVIDENCE [PART III have, however, in modem times, been greatlj^ enlarged by statute. The courts of the United States are empowered by act of congress,^ ^ upon motion being made, after due notice thereof, by either of the parties to any action or legal proceeding pending before them, to require the opposite party to produce books or writings in his possession or power, which contain evidence pertinent to the issues, in cases and under circumstances where such party may be compelled to produce the same under the ordinary rules of proceedings in chancery, and if said party fails to comply with such requirement, to enter up judgment of non-suit or by default against him. Sim- ilar provisions have been enacted in most of the states of the Union. §126. When production or inspection of documents may be compelled in equity.— The cases and circumstances under which the pro- duction or inspection of documents may be compelled in equity, are briefly as follows: The complainant or party desiring such pro- duction or inspection must first allege in his bill (in effect) that his adversary has in his possession or power documents relating to the matters mentioned in the bill, and that by 12 Rev. Stats. U. S., § 724. CHAP. V] INSPECTION OF DOCUMENTS 305 the contents of said documents, if the same were produced, the truth of such complain- ant's case would appear. The defendant is then required to admit or deny the truth of these allegations ; if he denies having posses- sion or power over the documents described, that ends the matter ; but if he admits having possession or power over them, he is bound to describe them in his answer, and will be required to produce them for the inspection of the complainant,^^ if it appears to the court, from the answer of the defendant, that the documents so admitted by him to be in his possession or power^^ are relevant to the case of the complainant, either as affording af- firmative evidence of some right or title be- longing to him, or as tending to disprove the title or case of his opponent by showing some specific defect therein,^ '^ unless it also appears that such documents might subject the defendant to a criminal prosecution or forfeiture, or would violate the rules which 13 Wigram on Discovery, § 285 ; 1 Pomeroy's Equity Jurisp., § 229 ; Lancy v. Randlett, 80 Me., 169 ; 13 A., 686; 6 Am. St. R., 169. 14 Wigram on Discovery, § 294. iMVigr. Disc, §295; Tay. Ev., §§1604-5 (6th ed.) ; 1 Wliar. Ev., § 754; 2 Elliott Ev., § 1385. 20 306 PRODUCTION OF EVIDENCE [PART lit relate to professional privilege.^® Sucli pro- duction of documents will be compelled in aid of civil rights only, and never to aid either in the prosecution of or the defense to an indictment or information.^^ Nor has a party any right whatever to the discovery of the evidence, or an .inspection of writings, which either relate exclusively to his adver- sary's case, or are not material to the issues about to be tried at law,^^ except that when- ever the defendant, having admitted such doc- uments to be in his possession, so incorpo- rates them by general or special reference with his answer as to make them form a s*ub- stantial part of it, the complainant will in such case be entitled to their production, whether they constitute his title or the ex- clusive title of the defendant ; because the latter, by thus dealing with the documents, will be held to have waived all objection to their production.^ '^ In all cases the 07ius is i« Tay. Ev., § 1603 (6th ed.) ; 1 Whar. Ev., § 754; Wigr. Disc, §§ 127-147, 443. 17 M^igr. Disc, § 10; Tay. Ev., § 1603 (6th ed.). 18 Tay. Ev., § 1603 (6th ed.) ; Wigr. Disc, §§224- 237; Howell v. Ashmore, 1 Stock., 82; 57 Am. D., 371, 375; Boyd v. United States, 116 U. S., 616. 19 Tay. Ev., § 1606 (6th ed.) ; 1 ^Vhar. Ev., § 755. CHAP, V] PRODUCING DOCUMENTS 307 upon the party seeking the discover}' of the contents of documents to prove his right thereto, and the only evidence upon wiiich he can rely is the admissions of his adversary."'^ § 127. Production of documents in hands of one not a party may be compelled by subpoena duces tecum.— But whenever any documents which can furnish evidence material to the issues on trial are in the hands of a person other than a party to the suit, such person may be compelled to produce all such docu- ments in his possession, unless he have a law- ful or reasonable excuse to the contrary; upon the same principle that every man, in furtherance of justice, is bound to disclose all the facts within his knowledge which do not tend to his own crimination.^^ The method by which such production is compelled is by a subpoena duces tecum, which is issued upon application of the party who desires to offer the documents in evidence, and must specify them with reasonable distinctness.^^ 20 Tay. Ev., § 1605 (6th ed.) ; 1 Whar. Ev., § 755. 21 Starkie Ev., p. *110; 2 Elliott Ev., § 700. 22 Tay. Ev., § 1240 ; 1 Whar. Ev., § 277. The power to issue it is alwaj^s discretionary with the court which must first be shown that priind facie the document called for would be competent evidence in the case. Daniel v. Goodyear Mfg. Co., 128 Fed. R., 753. 308 PRODUCTION OF EVIDENCE [PART III When a witness lias been served with a sub- poena duces tecum he is bound to attend with the documents demanded, if he has them in his possession, and he must leave the ques- tion of their actual production to the court, which will decide upon the validity of any ex- cuse that may be offered for withholding them.22 The witness will not be compelled to produce any document which might tend to criminate him or expose him to any pen- alty or f orf eiture,^^ or which does not appear to be in some manner relevant to the issues on trial. Nor will an attorney be required to produce any document which he holds confi- dentially for his client, and which his client has the right to keep back ; but he may be re- quired to testify as to the existence of such documents, and whether they are in his pos- session, so as to enable the other party to give secondary proof of their contents.^^ This is upon the theory that documents so held by an attorney for his client are in contempla- 23 1 Starlrie Ev., p. *110; Tay. Ev., §1340; 1 Whar. Ev., § 377 ; 2 Elliott Ev., § 1443. 24 Ste. Dig., art. 118; Tay. Ev., § 1464. 25 Tay. Bv., §§ 457, 458; Ste. Dig., art. 119; 1 Gr. Ev., § 246 ; 1 Whar. Ev., § 585 ; 2 Elliott Ev., § 1413. CHAP. V] IKTRODUCING DOCUMENTS 309 tion of law in the possession of the client him- self. § 128. Eow documentary evidence^ is intro- duced.— Excepting those documents which, being authenticated by some official seal or signature of which the court takes judicial notice, may be said to prove themselves, no document is received as evidence until the party desiring to offer it has first established its genuineness, to the satisfaction of the judge, by the oral testimony of one or more witnesses to the handwriting, or to the place or custody from which it was obtained. Be- fore the document can be read, the judge must decide, as a preliminary question, whether such introductory testimony is sufficient, as- suming it to be true, to render the document prima facie competent as evidence. Its cred- ibility must be left for the jury to pass upon in making up their final verdict.^® And therefore, although the party against whom it is proposed to offer the document is not per- mitted at this stage of the trial to call other witnesses to contradict this preliminary tes- timony, he may cross-examine the witnesses by whom it was given, in order to show its in- sufficiency, and thus exclude it as incom- 26 1 Gr. Ev., § 49 ; 1 Elliott Ev., § 28. 310 PRODUCTION OF EVIDENCE [PART III petent.^'^ After thus producing competent testimony as to the genuineness of the docu- ment, the party by whom it is offered must next submit it to the inspection of the oppos- ing counsel, in order that he may then state his objections, if any, to its admissibility. Al- though it is by no means unusual in practice to permit the opposing counsel to examine documents before the preliminary proof of their genuineness has been given, yet they are not entitled to do so, as a matter of right, until afterwards; for until its genuineness has been thus established prima facie, no doc- ument can be considered as properly before the court for any purpose.^^ If, upon in- spection of the document, any objection to its admissibility is apparent, it must be stated before the paper is read, as otherwise it will be considered to have been waived. After a document has once been read in evidence, no new objections can be raised to its admissi- bility, excepting such as the party objecting had no opportunity to make sooner, or un- less the document was expressly admitted subject to exception. In general, all ques- " Jones V. Fort, M. & M., 196; Rose. N. P., 271 ; II Phil. Ev., 4th Am. ed., C, H. & E.'s note, p. 503. 28 Tay. Ev., § 1413; Rose. N. P., 185. CHAP, v] IXTRODUCIKG DOCUMENTS 811 tions as to the admissibility of documents are decided bj^ the judge before they are al- lowed to be read, unless the objection be founded upon some extrinsic fact alleged by the party objecting. If such extrinsic fact would constitute a valid cause for excluding the document, and the party objecting can es- tablish it by cross-examination of the witness who proved the document, or by other proof not open to contradiction by his opponent, he may do so at once, and so exclude the paper altogether; but if the fact so alleged be one which is disputed by the party offering the document, then the paper must be read in evi- dence to the jury, who should be instructed to exclude it from their consideration, if they find the existence of the facts which would render it inadmissible.^*^ Thus in an ac- tion for libel, where the plaintiff offered in evidence the alleged libelous paper, after proving by a third party that he had received it from the defendant, and the lat- ter objected upon the ground of its being a privileged communication, he was permitted to cross-examine the witness in order to show its privileged character, and, having estab- ^^ Richardson v. Eobbins, 124 Mass., 105 ; Coxe v. England, 65 Pa. St., 212. 312 PRODUCTION OF EVIDENCE [PART III lished this to the satisfaction of the court, the paper was not allowed to be read.^*^ And so, also, in a case where the alleged libel was an indorsement made by the defendant, a naval officer, upon a resignation sent by the plaintiff, through him, to the Navy Depart- ment, the defendant was allowed not only to cross-examine the witness who proved the indorsement, but also to put in evidence, be- fore the paper was read, a copy of the Regu- lations of the Navy, for the purpose of show- ing that it was his duty to make such indorse- ment upon the resignation under the circum- stances detailed by the witness. ^^ But if in either of these cases the existence of the al- leged facts, which made the communications privileged, could not have been established by the witnesses who produced them, and had been open to dispute, and had been denied by the parties offering the writings in evi- dence, the papers must have been admitted to go to the jury, subject to be excluded by them from consideration if they should find the al- leged facts to be true.^^ § 129. Effect of alterations or spoliation.— No document which after its completion has 30 Trussell v. Scarlett, 18 Fed. Rep., 214. 31 Maurice v. Worden, 54 Md., 251. 32 Odgers on Libel and Slander, p. *185. CHAP. V] ALTERATIONS 313 been altered in any material point is admis- sible in evidence for the purpose of enforcing any right dependent upon it in favor of any person by whom or by whose concurrence such alteration was made, or in favor of the representative in interest of any such person, unless the alteration was made with the con- sent of the party sought to be charged, or of his representative in interest.^^ This rule is founded upon the very obvious principle of natural justice that no one who has designed- ly falsified a document should afterwards be allowed to avail himself of such falsified docu- ment as evidence in his own behalf.^^ And therefore one who for this reason is pre- cluded from offering in evidence an original paper is not allowed to establish its contents by secondary proof .^^^ Upon the same ground 33 1 Whar. Ev., § 632 ; Ste. Dig., art. 89 ; 1 Gr. Ev., §§ 564-568; Tay. Ev., §§ 1819-1838; 1 Thomp. Trials, §§1392-1404; Woodworth v. Bank of America, 19 Johns., 391; 10 Am. D., 239, note p. 267; Smith v. United States, 2 Wall, 219 ; Fiilmer v. Seitz, 68 Pa. St., 237 ; 8 Am. E., 172 ; Draper v. Wood, 112 Mass., 315; 17 Am. R., 96; 2 Elliott Ev., § 1491. 34 1 Whar. Ev., § 622 ; 1 Gr. Ev., § 565 ; Tay. Ev., § 1821 ; Masters v. Miller, 4 T. R., 329 ; S. C, 1 Sm. Lea. Cas., *934; Wood v. Steele, 6 Wall. 80. 35 Id. ; Martindale v Follett, 1 N. H., 95 ; Newell 314 PRODUCTION OF EVIDENCE [PART III any person by whom or by whose connivance a document has been fraudulently destroyed or mutilated is not permitted to prove its con- tents by secondary evidence.^^ But a person who cannot be shown to have been in any way responsible by negligence or otherwise, and who does not claim as the representative of one who is so responsible for such alteration, destruction or mutilation of a document may support his case by any legal proof as to what such document was before its alteration or destruction, for otherwise the person who had altered or destroyed a document might de- rive a great advantage from his own wrong- ful act.^'^ In the absence of positive proof as to when and by whom any alterations appar- V. Mayberry, 3 Leigh, 250 ; Wood v. Steele, 6 Wall., 80. 38 Blade v. Noland, 12 Wend., 173 ; 27 Am. D., 126; Price V. Tallman, 1 Coxe, N. J. (L.), 447. But see Steele v. Lord, 70 N. Y., 280 ; 26 Am. E., 602 ; Stone V. Sanborn, 104 Mass., 319 ; 6 Am. R., 238. 37 1 Gr. Ev., § 566 ; 1 Whar. Ev., § 627 ; Cutts v. United States, 1 Gall, 69; 6 Fed. Cas., p. 1086; United States v. Spalding, 2 Mass., 278, 482 ; 27 Fed. Cas., p. 1278 ; United States v. Linn, 1 How., 104, 110; Rees v. Overbaugh, 6 Cowen, 746; Piersol v. Grimes, 30 Ind., 129 ; 93 Am. D., 673 ; Hmit v. Gray, 35 N. J., 227; 10 Am. E., 232; Drum v. Drum, 133 CHAP. V] ALTERATIONS 315 ent upon the face of a document were made, the general presumption of law, as already stated,^^ is that they were made contempora- neously with its execution, for the law will not presume fraud without some evidence to sus- tain the imputation; but any ground of sus- picion appearing upon the face of the instru- ment or arising from the circumstances of the case is sufficient to rebut this general pre- sumption, and throws upon the party offering the document the burden of showing how, when, by whom and with what intent such alterations were made, it being judged onlj reasonable that one who desires to avail him- self of the benefit of a document bearing sus- picious alterations on its face should be pre- pared to show how they came there.^^ When a document bearing alterations apparent up- on its face is offered in evidence it is for the court to determine in the first place whether in view of the evidence already given in the cause the paper shows sufficient grounds for suspicion upon its face to rebut the general Mass., 566 ; conf. Davidson v. Cooper, 13 M. & W., 358; 2 Elliott Ev., § 1491. 38 Ante, Sec. 79, p. 174. 39 1 Gr. Ev., 564; Tay. Ev., § 1819; ante, p. 175, note 23. 316 PRODUCTION OF EVIDENCE [PAKT III presumption against fraud, and to require a satisfactory explanation of the alterations before it can be received in evidence at all; but after such explanations have been given it is for the jury to decide as a question of fact what weight they are entitled to.^° The rule requiring the person who offers such a docu- ment in evidence to clear himself from all re- sponsibility for any material alterations ap- pearing upon its face is in England limited to cases where the altered instrument is relied on as the foundation of a right sought to he en- forced,'^^ and has been held not to apply to cases where such instrument was introduced merely to prove a right or title which, al- though originally created by the execution of the altered paper, was no longer depend- ent upon its continuing efficacy, or to prove some collateral fact.'*^ An alteration is re- "0 1 Gr. Ev., 561, note 1 ; Abb. Tr. Ev., eh. xxi, 31, and note 9; Id., ch. xlviii, 7 note 6; 1 Whar. Ev., § 629; Tillou v. Chnton Ins. Co., 7 Barb., 564; Little V. Herndon, 10 Wall., 26, 31 ; Parramore v, Lindsay, 63 Mo., 63 ; Belfast Nat. Bank v. Harrison, 68 Me., 522; 2 Elliott Ev., § 1505. 41 Tay. Ev., §§ 1824-1827; Davidson v. Cooper, 11 M. & W., 779, 800. 42 Id. ; Hutchins v. Scott, 2 M. & W., 809 ; Agr. Cattle Ins. Co. v. Fitzgerald, 16 A. & E., N. S., 433; CHAP. V] ALTERATIONS 317 garded as immaterial when it does not vary the legal effect of the document, as where words are inserted which the law would sup- ply, or which are altogether inoperative, or are necessary to correct an obvious error, and in such cases does not affect the admis- sibility of the document in evidence.^ ^ Ld. Ward v. Lumley, 5 H. & N., 87 ; 15 L. J. Ex., 322 ; Lewis V. Payne, 8 Cow., 71; 18 Am. D., 427; Priest V. Whitacre, 78 Va., 151. 43 Tay. Ev., § 1883 ; 1 Gr. Ev., § 567 ; 1 Whar. Ev., 623 ; Aldous v. Cornwell, L. R., 3 Q. B., 573 ; Craig- head V. McLoney, 99 Pa. St., 211, 214. See Suffell v. Bank of England, L. R., 9 Q. B. Div., 555 ; Duker v. Franz, 7 Bush, 273; 3 Am. R., 314; Vose v. Dolan, 108 Mass., 145 ; 11 Am. R., 331. As to filling up blanks, see Angle v. N. W. Mut. Life Ins. Co., 92 U. S., 330 ; 2 Elliott Ev., § 1496. CHAPTER VI. PRODUCTION OF PERSONS AND THINGS. § 130. Production of persons or things for inspection by court or jury.— Independently of any statutory provision the courts have a discretionary power to compel the produc- tion before them for inspection of any per- son or tjiing described or referred to in the oral testimony of the witness, whenever they may deem such inspection to be material and proper in order to illustrate or confirm or contradict the oral testimony of tlie wit- nesses as to the identity, appearance, condi- tion or nature of such person or thing,^ and the exercise of this discretion will not be re- viewed on appeal except in cases of manifest ^ Best on Evidence, § 197 ; 1 Thomp. on Trials, ch XYII, § 850 et seq. ; 1 Whar. Ev., § 346 ; Mulhado v. Brooklyn, etc., R. R., 30 N. Y., 370; Schroeder v. Chicago, etc., Ry. Co., 47 Iowa, 375; Springer v. Chicago, 135 111., 523, 561; 26 N. E., 514; 2 L. R. A., 609; 2 Elliott Ev., § 1231, etc. 818 CHAP, VlJ PHYSICAL EXAMINATION 319 abuse.^ They have a like power to permit any experiments to be made before the jury which will elucidate the questions at issue. ^ § 131. Power to compel parties to submit to personal examination.— Whether, in a civil action for physical injuries sustained by the plaintiff, he may be compelled to submit to an examination of his person, either by ex- perts before the trial or by the court or jury at the trial, for the purpose of ascertaining the nature and extent of his injuries, is a question upon which the decisions are con- flicting. While it is permitted in some of the states,^ it is held in others and in the courts of the United States that a party cannot be 2 Shepard v. Mo. Pac. Ry. Co., 85 Mo., 629 ; 55 Am. E., 390; Hatfield v. St. Paul, etc., R. P. Co., 33 Minn., 130 ; 22 N. W., 176 ; 53 Am. R., 14 ; Sidekum v. Wa- bash, etc., Ry. Co., 93 Mo., 400; 4 S. W., 701; 3 Am. St. P., 549 • Ala. Gt. So. P. P. Co. v. Hill, 90 Ala. 71 ; 8 So., 90; 24 Am. St. P., 764; 9 L. P. A., 442. ' 3 United States v. Ball, 163 U. S., 662, 673. See extended note in Vol. 53, Am. St. R., 375. Also notes in Vol. 15, L. R. A., 221, and Vol. 42, L. E. A., 384. 4 Atchison, etc., Ry. Co. v. Thai, 29 Kan., 466; 44 Am. P., 659 ; White v. Milwaukee City Ry. Co., 61 Wis., 536; 21 N. W., 524; 50 Am. P., 165; Ala. Gt. So. E. E. Co. V. Hill, supra. 820 PRODUCTION OF EVIDENCE [PART III subjected to such an examination without his consent.^ There is also conflict in the de- cisions of the courts in different states as to how far the accused in a criminal trial may be compelled to submit to a physical exam- ination without his consent.^ It may be safe- ly stated however as the general rule that the accused when on trial may be compelled to stand up. in court for the purpose of identifi- cation and to expose such parts of his person as are not usually covered, but only such partsJ § 132. Power to seize and impound things to be used as evidence.— Independently of ex- ^ Eoberts v. Ogdensburg, etc., E. R. Co., 29 Hun, 154; Parker v. Enslow, 102 111., 273; Union Pacific Ry. Co. V. Botsford, 141 U. S., 250. But see Holt v. United States, 218 U. S. 245, 252. Otherwise when there is a state statute permitting such examination. Camden & So. Ry. Co. v. Stetson, 177 U. S., 172, 178; United Railways v. Cloman, 107 Md., 681, 690 ; 69 A., 370. « 1 Whar. Crim. Ev., § 315; State v. Ah Chuey, 14 Nev., 79, 83; 33 Am. R., 530; State v. Garrett, 71 N. C, 85 ; 17 Am. R., 3 ; Stakes v. State, 5 Baxt., 619 ; 30 Am. R., 72 ; Day v. State, 63 Ga., 667. 7 State V. Height, 117 Iowa, 650; 91 N. W., 935; 94 Am. St. R., 323 and note; Holt v. United States, 218 U. S. 245, 252. CHAP. Vl] POWER TO SEIZE 321 press statutory authority, it has been held to be the duty of the officers who arrest a per- son on a criminal charge to search him and seize and remove from him any dangerous weapons found upon his person, and also to take from him any articles which may be of use in the trial of the offense of which he is accused, and retain them in their custody for that purpose.* But whether this common- law power extends so far as to authorize the court to take into its possession and retain for future use as evidence any things other than those found upon the person, or in the im- mediate actual possession of one arrested on a criminal charge, or such as may be volun- tarily deposited in court as exhibits by a party, is at least doubtful. The question was fully discussed in a late case before the su- preme court of Michigan,® which held that where a steam-boiler had exploded and the 8 Whar. Cr. PI. & Pr., § 60; Bish. New Cr. Proc, §§ 210, 211; Ex parte Hurn, 92 Ala., 102; 9 So., 515 ; 13 L. R. A., 120 ; Closson v. Morrison, 47 N. H., 483 ; 93 Am. D., 459 ; Spalding v. Preston, 21 Vt., 9 ; 50 Am. D., 68. 9 Newberry v. Carpenter, 107 Mich., 567 ; 65 N. W., 530; 61 Am. St. R., 346 and note; 31 L. R. A., 163. Conf. Adams v. New York, 193 TJ. S., 585. 322 PRODUCTION OF EVIDENCE [PART III engineer was charged with manslaughter, the circuit judge had exceeded his powers in ordering the boiler and engine into the cus- tody of the police, to be used as evidence at the trial. McGrath, C. J., however, delivered an elaborate and able dissenting opinion. PART IV. ON THE CONDUCT OF THE EXAMINATION OF WITNESSES. CHAPTER I. EXAMINATION IN CHIEF. § 133. The examination of witnesses, an art.— The examination of witnesses is an art, and as with all the other arts, in order to at- tain the highest degree of success in it, three things are requisite, viz. : correct theoretical knowledge, some practical experience in the application of that knowledge, and a pecu- liar talent for it. Without the last no man can ever become great in this branch of advoca- cy; but any person possessing the average amount of tact and common sense, may, with the aid of the other two requisites, acquire a respectable degree of proficiency. It is here proposed to state briefly the general theory upon which it should be conducted, as laid down by the best authorities upon the sub- ject,^ and confirmed by some personal ob- servation and experience. 1 See Quintilian, Inst., lib. V, cap. De Testibus ; 333 324 CONDUCT OF EXAMINATIONS [PART IV § 134. Object of examination in chief, and how accomplished.— Tlie duty of counsel in ex- amining a witness is to elicit the truth, and nothing but the truth, yet only so much of it as in his judgment may be calculated to bene- fit the cause of his client; and therefore, in order to avoid making the witness say any- thing else, the first and most important rule to be observed is: Never to ask a question without a definite object, and, when the wit- ness has given the testimony for which he has been called, to discontinue the examina- tion at once. For any further prosecution of the examination cannot possibly do the case much good, and may result in a serious disadvantage to it by bringing out something- injurious. Hence it is always important to ascertain as far as posible, before the wit- ness is put upon the stand, exactly what facts are expected to be proved by him, and if these facts are at all numerous, it is best for the examining counsel to have a brief memor- andum of them before him during the exam- Best on Ev., §§649, 663; Alison, Pr. Crim. Law, 546, 547; Evans on Cross-ex., in his appendix to Poth. Obi, No. 16, vol. 2, pp. 233, 234; The Advocate, by Cox; Hints on Advocacy, by Harris; Sergt. Ballan- tine's Experiences. CHAP. l] THE ORDINARY WITNESS 325 ination, as few things are more mortifying to him, than, after turning a witness over to his adversary, to suddenly remember that he has omitted to interrogate him upon some material fact which cannot be proved by any one else. § 135. The ordinary witness.— For the pur- poses of an examination in chief, witnesses may be divided into three general classes : 1. The ordinary witness, who intends to tell the truth, and whose bias, in so far as he has any, is in favor of the party by whom he is called. 2. The swift witness. 3. The hos- tile witness. The general rule for dealing with the ordinary witness is : To put him at his ease, to direct his mind to the matters about which his testimony is required, and to let him tell his story in his own way, with no further interference than is necessary. The best way to do this is to adopt a pleasant, respectful and friendly manner, and to begin by asking a few unimportant questions, very deliberately, and in an ordinary conversa- tional tone, in order to give him time to col- lect his ideas and get over the natural em- barrassment which most persons feel when first put upon the stand, before bringing him to speak of the matters about which his tes- timony is required. Having once put the wit- 326 CONDUCT OF EXAMINATIONS [PAiT IT ness at his ease and started him upon the right track, it is not well to interrupt him un- necessarily, for all interruptions have a ten- dency to confuse or irritate; and in order to reduce this tendency to a minimum, when- ever interruptions are necessary, as for the purpose of excluding irrelevant matter, they should always be made in a pleasant and rather apologetic manner. It is best to make a witness relate the facts about which he tes- tifies in the order of time in which they oc- curred, and it is generally advisable to call his attention as he goes along to any material facts which he omits, in so far as it can be done without putting directly leading ques- tions. As soon as he has given the testimony for which he was called, he should at once be turned over to the other side for cross-exam- ination. The practice of cross-examining one's own witness and making him repeat his testimony, is worse than useless. For suc- cessfully conducting an examination in chief, great patience and good temper are all im- portant, and especially is this the case where the witness is stupid. Nothing can be more damaging than any display of irritability towards one's own witness. § 136. Questions should be simple, short and deliberately put.— It is of the utmost con- CHAP. l] THE ORDINARY WITNESS 327 sequence that all questions should be per- fectly intelligible, and that in an examina- tion in chief they should be put deliberately, so that the witness may have time to take them in fully and not be flurried in answer- ing them. It is far better to ask half a dozen short, simple questions than a single long, complicated one covering the entire ground, and it is therefore important that all ques- tions should be as brief as possible, and al- ways clothed in such plain and familiar lan- guage as to be fully understood by the wit- ness, especially if he be an uneducated per- son. Verbosity and pomposity are alike in- excusable in an examining counsel. § 137. The swift witness.-The swift wit- ness, or one who wants to say too much, is a very dangerous character to deal with, and requires to be repressed instead of encour- aged. This is best done by adopting a rather grave and ceremonious manner so as to check him at the outset, and then kindly, but per- emptorily, requiring him to do no more than answer the questions put to him, which should be so framed as to give no room for expatiating. Such a witness should be got rid of as soon as possible, for there is al- ways the greatest danger that he may seri- 328 CONDUCT OF EXAMINATIONS [PART IV ously injure the cause which he is over anx- ious to sustain. § 138. The hostile witness.— A hostile wit- ness should never be called excepting when his testimony is absolutely necessary, and where this is the case, the great point is to make him state just so much as is required, and no more. It is well to make his hostility appear as soon as possible, for two reasons : first because as soon as the judge is satisfied that he is really an adverse witness, he will permit leading questions to be put on his ex- amination in chief; and secondly, because the more hostile he appears to the party calling him, the more will his favorable evidence be esteemed, and the less weight will be given to whatever he says that is unfavorable. As a general rule, the less said to a witness of this kind the better. He should be brought directly to the point which he is called to prove by questions so framed as to afford the least possible room for evasion or explana- tion. All attempts at explanations should be stopped by telling him that he will have an opportunit}^ for making them as soon as he has answered all the questions. When this time arrives, he will probably have for- gotten at least half of them, and the otliers will prove far less effective than if made in CHAP. l] THE ItOSTILE WITNESS 329 connection with the statement of the facts which they are intended to qualify. It is needless to add that a witness of this kind should be dismissed at the earliest possible moment. The importance of restricting the testimony of a hostile witness within the nar- rowest possible limits is even greater in the United States than in England, by reason of the rule generally prevailing in this country, by which the range of cross-examination is limited excepting (for the purpose of testing or attacking his credibility) to the facts and circumstances connected with the matters stated by the witness in his direct examina- tion. §139. Duties of opposing- counsel during examination in chief.— The duties of opposing counsel during an examination in chief are to give the strictest attention to all the ques- tions and answers, and to take notes of the testimony. Attention must be given to the questions as well in order to see that they are properly put as to ascertain their design ; and to the answers, so as to consider their effect, and prevent any illegal testimony from being received without objection. The notes of tes- timony are of use principally as memoranda for the cross-examination and the argument before the jury, and also to assist in prepar- 330 CONDUCT OF EXAMINATIONS [PART IV ing- the bills of exception in case of an ap- peal by either party. Improper questions must be objected to before they are an- swered; and as soon as a witness begins to state anything that is not legal evidence, he should be interrupted with an objection at once. For instance, when a witness, after stating that there was some agreement made between the parties to the suit, begins to tell what it was, he should be required to state whether such agreement was verbal or in writing before being allowed to proceed. § 140. Leading" questions — Frivolous ob- jections.— Leading questions should never be objected to, unless suggestive of an answer in some way material to the case. As to mere formal or introductory matters, about which there can be no room for dispute, they are not only unobjectionable, but rather to be en- couraged as calculated to save time, and bring the witness to the point at once. As leading questions are oftener put through inadvert- ence than designedly, objection to them should not ordinarily be made to the court in the first instance, but rather by a good- natured caution to counsel. If, after such a hint, he should persistently continue to of- fend in the same way, a more pereniptory tone, or a direct appeal to the judge, ^ould CHAP. l] FRIVOLOUS OBJECTION'S 331 be warranted. Good judgment and great quickness of perception, as well as a thor- ough familiarity with the law of evidence, are required to know exactly when and how to object to evidence; for while on the one hand the making of too frequent and too frivolous objections is apt to have a very bad effect up- on the jury, especially if they are overruled, yet, on the other hand, many a case has been won solely through the advantages gained by the practiced skill with which the success- ful counsel, having perfect command of the rules of evidence, could invoke and enforce them at the right moment against his less ready opponent. CHAPTER II. CROSS-EXAMINATION. §141. Sergeant Ballantine's theory of cross-examination.— Cross-examination is a most powerful weapon in the hands of the skillful advocate, but likewise a dangerous one to be trifled with by a person who does not understand how to manage it, as it is a matter of every-day occurrence for a witness who has utterly failed to establish by his tes- timony in chief the facts that he has been called to prove, to be completely rehabilitated by an injudicious cross-examination. As Ser- geant Ballantine very justly observes,^ ''If the principles upon which cross-examination ought to be founded are not understood and acted upon, it is worse than useless, and it becomes an instrument against its employer. . . . In order to attain success in this branch of advocacy, it is necessary for coun- sel to form in his own mind an opinion upon ^ Some Experiences of a Barrister's Life, H. Holt & Co., N. Y., 1882, pp. 104-6. 833 CHAP. Il] THE CROSS-EXAMINATION 333 the facts of the case, and the character and probable motives of a witness before asking a question. This doubtless requires experi- ence, and the success of his cross-examina- tion must depend upon the accuracy of the judgment he forms." And again he says, *'The object of cross-examination is not to produce startling effects, but to elicit facts which will support the theory intended to be put forward." § 142. Never ask a question without a defl- nite object.— The cardinal rule already given for examination in chief. Never to ash a ques- tion without a definite object, is doubly im- portant as applied to cross-examination ; for here the witness, being presumably more or less adverse, is much more likely to say some- thing damaging. The plan so often adopted by unskillful advocates, of recklessly asking a nmnber of questions on the chance of get- ting at something, cannot be too much con- demned; for it must always be remembered, that what is called a severe cross-examina- tion, when applied to a truthful witness only makes the truth stand out more clearly ; and, also, that if a dishonest witness, having inad- vertently made an omission injurious to him- self, is informed of its effect by the counsel persistently dwelliQg upon it, he will proba- 334 CONDUCT or examinations [part IV bly endeavor to shuffle out of it, and perhaps succeed in doing so. Hence the force of Lord Abinger's celebrated axiom for the conduct of a cross-examination, * ' Never drive out two tacks by trying to hammer in a nail." § 143. General character of cross-examina- tion, how determined.— The manner of a cross- examination, like its matter, must be deter- mined by the nature of the facts sought to be elicited, and the opinion formed of the char- acter and disposition of the witness, and the motives by which he is probably actuated. In the great majority of cases, where the witness does not intend to misrepresent, a pleasant, frank and courteous manner is gen- erally the best, for the reason that most peo- ple are much more easily led than driven, and a quarrelsome frame of mind is very apt to induce a spirit of contradiction. If, on tlie other hand, it appears that the witness de- liberately intends to misrepresent, it is im- portant to form an opinion as to how far he will probably be willing to go — whether he will flatly perjure himself, if necessary for the purpose, or whether he will not venture be- yond equivocation; for while in the latter case he should be closely pressed upon the more salient points of his testimony, in or- der to deprive him of every opportunity of CHAP. Il] THE CROSS-EXAMINATION evasion, such a course would be injudicious if he were evidently prepared to swear his case through at all hazards; for in that event he would probably have made himself thorough- ly acquainted with all that he must say in or- der to sustain them, and therefore the more rigidly he is cross-examined upon these points, the more consistent and truthful will his storj^ appear. In such cases it is better to direct the cross-examination to circum- stances about which he would not naturally expect to be interrogated, and for which he would not therefore be likely to prepare him- self in advance, and to put the questions in rapid succession. It is quite possible for a shrewd witness to concoct a story so plaus- ible and consistent with itself, as to sustain triumphantly the severest cross-examination upon everything connected with it, which he has thought over and arranged in his own mind before hand. But if he is questioned in regard to minute cirumstances, having no apparent immediate bearing upon the main points at issue, it will be almost impossible for him to invent answers upon the spur of the moment that will not be likely to betray him. In forming an opinion as to the moral character of a witness's testimony, it will be well to bear in mind the statement of Ser- 336 CONDUCT OF EXAMINATIONS [PART IV geant Ballantine, who says that his expe- rience has led him to the conclusion that hon- est witnesses endeavor to keep themselves to the facts they come to prove, but that ly- ing ones endeavor to distract the attention by introducing something irrelevant. Often the best method to deal with an adverse witness is to decline cross-examining him at all, which, if done with a rather supercilious air, will frequently impress the jury with the idea that bis testimony is either totally un- trustworthy, or else has little or no bearing upon the case. § 144. Things to be avoided in cross-exam- ination.— The principal things to be guarded against in a cross-examination are, first, per- mitting the witness to supply any omissions which he may have made in his testimony in chief; second, getting from him explanations of any apparent inconsistencies that he may have fallen into ; third, allowing him to repeat and impress upon the jury the points of his testimony which tell most strongly in favor of the party who called him ; and finally, giv- ing the opposing counsel the opportunity of bringing out on re-examination some unfav- orable testimony which would not have been admissible but for an injudicious question put during the cross-examination. Hence it is CHAP. Il] THE CROSS-EXAMINATION 337 always advisable to keep in mind the follow- ing rules, and never to depart from them without being able to give a satisfactory reason for so doing: Upon perceiving that a witness has omit- ted some important point in his testimony, do not allude to it, but keep him as far from it as possible, that he may not have the op- portunity to repair his blunder. Never ask for explanations unless perfect- ly sure that they cannot be given, and even then be very cautious about doing so. It is always much better to point out the improb- abilities and contradictions in a witness's testimony, in the argument to the jury, than to let him explain them away upon the stand. Da not give the witness the opportunity to repeat in detail on cross-examination the strong points of his testimony in chief. Never ask him a question to which he is at all likely to give an answer adverse to your case. Never introduce new matters into the case by cross-examination, or interrogate the wit- ness about conversations, without having considered what additional testimony his an- swers may possibly let in. If the witness have a strong bias or preju- 23 838 CONDUCT or examinations [part IV dice against your client, make this manifest to the jury as soon as possible. Never dispute with the witness. Never attack a witness without just provo- cation, and then let it always plainly appear to the jury that you are in the right, for oth- erwise they will be likely to sympathize with him. Hence, although it may sometimes be necessary to make the witness angry, nothing will ever justify or excuse any display of petulance or ill-temper on the part of counsel. Of course the conduct of every cross-exam- ination must be governed in some degree by the circumstances of the case and the partic- ular object to be accomplished by it, and therefore occasions may arise which will at times require a departure from every one of the foregoing rules, excepting the one which forbids putting any question without a dis- tinct purpose. This must be rigidly adhered to under all circumstances. § 145. Duties of opposing counsel during cross-examination.— The duty of opposing counsel during cross-examination is to take note of all answers of the witness which may justify or require him to ask an explanation upon the re-examination, and not to interrupt except in cases of absolute necessity; as where the cross-examiner puts a question CHAP. Il] THE CROSS-EXAMINATION 339 which is clearly inadmisible, such as inter- rogating the witness about matters not con- nected with the subject of his examination in chief, or cross-examining him as to al- leged previous statements in writing, without producing the paper referred to or satisfac- torily accounting for its absence. Frivolous interruptions of a cross-examination are not only unjustifiable, but extremely foolish, for, as they always deserve, they frequently get, a sharp rebuke from the court, which is sel- dom without its weight with the jury, who are very apt to attribute such interruptions to a want of confidence on the part of the counsel making them, either in his case or in his witness, since he evidently fears to trust the latter to take care of himself in the hands of his adversary. CHAPTER in. RE-EXAMINATION. §146. Purpose and scope of re-examina- tion.— Although the object of the re-examina- tion is merely to give the witness an oppor- tunity to explain any of his answers given on cross-examination which may be deemed to require it, and its range is therefore strictly limited to matters connected with or relating to such answers, yet it often affords the means of getting out of the witness matters which would not have been admissible upon the examination in chief; as for example, where a witness is asked on cross-examina- tion as to statements made in a conversation which he could not have testified to in chief on behalf of the party who called him, he may nevertheless be required, on re-examination, to give the whole conversation, in order to explain the statements about which he was asked on cross-examination. A great matter in re-examination is to be tolerably certain beforehand as to the nature of the answer which the witness will give to any question you may think of putting to him, and also as 340 CHAP. Ill] THE RE-EXAMINATION 341 to whether such answer is likely to benefit your case. If at all doubtful upon either point, it is better not to ask the question, as the witness may be unable to give the ex- planation asked for, or, when given, it may only sen^e to make matters worse, and new matter thus brought out sometimes proves very damaging to the case of the party by whom it is elicited. Therefore, in re-exami- nation as in cross-examination, the golden rule is to ask nothing except upon a reason- ably fair prospect of gaining enough thereby to justify the venture; and the important thing for a counsel to know is when to let well enough alone. In many cases a skillful advo- cate can with great effect avail himself of the re-examination to make his witness, in the course of his explanation of the answers giv- en on cross-examination, go over again the more important points of his testimony in chief, and thus impress them more forcibly upon the minds of the jury. §147. Duties of opposing counsel during re-exajnination.— The duty of opposing coun- sel pending re-examination is to object to leading questions, and prevent the witness from giving evidence of any new matters, not strictly explanatory of his testimony on cross-examination. INDEX. [references are to pages] Access, when presumed, 125. Accomplice, evidence of, must generally be cor- roborated, 144. Acquiescence, what is, so as to bind the party, 32. Acts of congress, public, judicially noticed, 96. Acts, legislative, public, judicially noticed, 96. Acts of state, statements as to in statutes, procla- mations, etc., when relevant, 47. Admiralty, courts of and seals judicially noticed, 98. Admissions, definition of, 30. when relevant, 30, in divorce cases, 30. how they may be made, 32. whole statement must be considered, 33. by whom they may be made, 34. by parties and privies, 34. by those whose interest a party represents, 35. by one suing in a representative character merely, 35. S13 344 INDEX [references are to pages] Admissions by those jointly interested with party, 36. must be made while joint interest subsists, 36. by former partner after dissolution of firm as to claim barred by limitation, effect of, 37. by those whom party has authorized to make them, as counsel, attorneys, agents, etc., 37. by persons referred to by party, 38. by principal, when receivable against his surety, 38. offers of compromise not admissions, 39. but otherwise as to independent facts admit- ted during treaty of compromise, 40. made under duress, excluded, 40. (See Confessions.) Adverse possession, presumption from, 123. Affirmation, in place of oath, 270. Affirmative (see Burden of proof). Agent, how far his admissions bind principal, 37. Agreement (see Contract). Alteration of written contracts by subsequent oral agreements, 157. of documents, effect of, 312-317. presumptions as to, 174, 315. Atheists, incompetent witnesses at common law, 246, 247. INDEX 345 [references are to pages] Attested documents must be proved by at least one attesting witness, if any alive, 134-136. except in certain enumerated cases, 136-139. Attorneys and counsel, how far admissions bind principal, 37. communications with client privileged, 260- 263. when not compellable to produce documents, 308. Begin, right to, how determined, 239-243. Belief (see Opinion). Bible, family (see Pedigree). Bodily feeling, statements showing, when relevant, 13. Books of corporation, when evidence, 51. medical and scientific, 50. Boundaries, when provable by general reputation, 65. Burden of proof, lies on party substantially assert- ing affirmative of the issue, 165. except where disputable presumption of law exists in his favor, 167. or the subject-matter of his allegation lies peculiarly within the other party's knowl- edge, 175-177. in particular classes of cases, 178. 346 INDEX [references are to pages] Burden of proof as to jurisdictional facts, 179. in suits by and against special characters, 183. (a) partners, 183. (b) executors and administrators, 185. (c) trustees, 187. (d) receivers, 189, (e) assignees, 192. (f) heirs, devisees, legatees, etc., 194. as to wills, 197. (g) associations, 199. (h) corporations, 201. (i) husband and wife, 205. in actions ex contractu, 209. in actions ex delicto, 211. in particular actions ex delicto, 212. in case for negligence, 213. in suits against public officers for breach of duty, 214. in actions for deceit and fraud, 214. in wrongful conversion of personal property, 215. in trespass to personal property, 216. in trespass to real property, 216. in action for nuisances, 217. in action of replevin, 217. in action for assault and battery, 218. INDEX 347 [references are to pages] Burden of proof in action for malicious prosecu- tion, 220. in action for false arrest and imprisonment, 222. in action for slander or libel, 224. in action for alienating affections, 227. in action for enticing away servant, 228. in action for seduction, 228. in action for criminal conversation, 229. in action of ejectment, 230. when limitations pleaded, 230. when on defendant, 231. when shifted, 233. quantity of evidence required to sustain, 234. Cause, facts showing probable cause for existence of fact in issue or relevant thereto, are generally relevant, 15, 20. Certified copies of documents, when admissible, 140. of public documents, primary evidence, 140, 141. Character, generally irrelevant, 23. but admissible in favor of a person indicted criminally, 24. or when put directly in issue by the nature of the action, 24. Circumstantial evidence defined, 8. Clergymen, confidential communications to, not 348 INDEX [references are to pages] privileged at common law, 262; but made so by statute in some states, id. Communications during marriage, privileged, 252- 251 Comparison of handwriting, to what extent ad- mitted, 91, 92. Competency of witnesses (see Witness), 244-262. Complaint of person against whom crime com- mitted, fact of, relevant, but terms not, 17. Compromise, offer of, not an admission, 39. Conclusive presumptions (see Presumptions). Conduct of the examination of witnesses, 323-341. the examination in chief, 323-331. the cross-examination, 332-339. the re-examination, 340, 341. Confessions not made voluntarily, excluded, 41. what deemed involuntary, 41. facts discovered by means of involuntary, may be proved by other evidence, 42. sworn, made by accused deemed involuntary at common law, 43. how far this rule modified by statutes per- mitting accused to testify, quaere, 44. made under promise of secrecy, or obtained by deception, not involuntary, 45. INDEX 349 [references are to pages] Confession, failure to warn prisoner does not ren- der them inadmissible, 46. Confidential communications (see Privileged com- munications). Confirmation of testimony of accomplices, when required, 269. Conspirators, when bound by each other's acts and declarations, 13, 14. judge must be satisfied of prima facie case against, 14. Contract, written, terms of must be proved by the writing itself, if obtainable, 130, 150 ; except in certain cases, 151, 158. to what extent its terms may be interpreted or explained by extrinsic evidence, 160-164. Conviction, record of, is the only proper evidence, except when admitted on cross examination by the party himself, 282, note. Copies of documents, when equivalent to exempli- fication, 139-143. Copy, proof by, in what cases allowed, 131, 139-148. Corporation when books of evidence, 51. burden of proof in cases by and against, 201- 204. Corroboration required to overcome sworn answer in chancery, 268. 350 INDEX [references are to pages] Corroboration of plaintiff in divorce proceedings, generally required, 269. required in criminal cases when only testi- mony is that of accomplice, 269. Counsel (see Privileged communications). Course of business, relevancy of, 16. Credit of witnesses, impeaching, 288-299, (see Wit- ness). Crime, conviction of, disqualified witness at com- mon law, 248. may in most states be proved to affect the cred- ibility of a witness, 249. Crimen falsi, what, 248. Crimes, what render witness incompetent at com- mon law, 248. Cross-examination of witnesses, 281-290. to what must be directed, 281. questions lawful in, 282-287. as to inconsistent statements, 288-290. conduct of, 332-338. Custom, how proved, 65, 77. proof of, to what extent admitted to explain or vary terms of written contract, 155-157. Date of document, presumption as to, 173. Death, presumption of, 171. Declarations, or statements made by persons since INDEX 351 [references are to pages] dead, insane or absent from the state, when admitted in evidence, 29, 66. evidence given in former proceeding, 67. dying, admissible to prove cause of death, 69. made in the ordinary course of business, 70; written entries, 70; made by party in his own shop books, 71, note, made against interest of declarant, 72. of testator as to contents of will, 76. as to any public or general right or custom, 77. as to matters of pedigree, 79 ; entries in fam- ily Bible, 82. Deeds, presumption as to sealing and delivery of, 173, 174. Depositions of witness, how taken, 271. when admissible in evidence, 271, 272. Disputable presumptions of law, 167-175. (See Presumptions.) Documents, how put in evidence, 109, 300, 309-312. effect of alteration or spoliation of, 312-317. Duress, confessions made under duress, excluded, 40-42. Dying declarations, when admissible, 69. Entry in public record, made in performance of duty, relevant, 47, 48. 352 INDEX [references are to pages] Entry in books of corporations, for what purposes relevant, 51. by deceased person, made in ordinary course of business, 70. or in books of account when against his own interest, 72. in party's own books, when relevant, 71, and note, in family Bible or Testament, admissible to prove pedigree, 82. Estoppel, doctrine of, 126. of acceptor of bill of exchange, 127. of tenant, licensee, bailee or agent, 128. Evidence, definition of, 4. direct and circumstantial, 8. relevancy of evidence, how determined, 9, 10, res gestce admissible as evidence, 11-14. facts showing probable cause generally rele- vant, 15. ordinary course of business, 16. probable effects may be shown in evidence, 16- 18. explanatory facts, 19. res inter alios not admissible in, 21. INDEX 353 [references are to pages] Evidence, character, hearsay and opinion generally inadmissible, 23. best attainable required, 93. all facts not judicially noticed or expressly ad- mitted must be proved by, 94, 95, oral (see Oral evidence), real, 109, 112. primary and secondary, 132, 133. (See Facts; Presumptions; Witness.) Examination of M'itness, 273-299 (see Witness). theory of the conduct of, 323-341. Examined copy of public document, 139-143. Exemplifications, what are, 142. Experiments, 20 note, 319. Experts, who are, 87. to what matters they may give opinions, 87-89. testimony of, as to handwriting, 90-92. Facts must always be proved, unless judicially noticed or expressly admitted, 94-107. what judicially noticed, 94-104. in issue, definition of, 7. relevant to the issue, what are, 9. those forming part of same transaction, 11. statements accompanying an act, 12. 2S 354 INDEX [references are to pages] Facts relevant acts of conspirators, 14. facts showing probable cause, 15. ordinary course of business, 16. natural effects, 17. complaints, 17. facts showing animus, 18. similar occurrence showing intention, 19. facts explanatory of relevant facts, 19. all facts connected with another by way of cause and effect not necessarily rele- vant thereto, 22. character, hearsay and opinion generally irrelevant, 23. ultimate, defined, 109. must be established by direct oral testi- mony, except in four cases, 108. Foreign acts of state, how proved, 47. Foreign judgments, practically the same doctrine applicable to them as to domestic judgments, 62 ; how proved, 62, 142 ; attachment, burden of proof of defendant's non-residence, 177; note 182. laws, how proved, 89, 142. General reputation, in what cases relevant, 24, 63-66. (See Character.) INDEX 355 [references are to pages] Handwriting, opinion as to disputed, 90-92, what persons deemed competent to express opinion as to, 90. comparison of disputed with genuine, 91, 92. Hearsay, generally irrelevant, 26. Hearsay, exceptions to rule excluding, 28-30. Husbands and wives, confidential communications between, privileged, 254. when competent witnesses for or against each other, 252. Information as to commission of offense, 258. Innocence, presumption of, 168. Inquisitions, prima facie evidence only, 58. Insanity, generally held in United States to have same effect as death in rendering declara- tions admissible, 30. opinions of witnesses as to, 85, 86. Inspection of private writings, 302-307. Interlineation of documents, presumption as to, and effect of, 174, 312-317. Interpretation of documents by extrinsic evidence, 160-164. Judges, their competency and privileges, 254. Judgment, conclusive evidence of the substantive facts recited. 52. 356 INDEX [references are to pages] Judgment not evidence of the correctness of the decision rendered, except as between the parties and their privies, 55. or when declaratory of the status of a person or thing, 58, 59, and in certain cases involving custom and ped- igree, 58. who are parties to a, 60. must be proved by records of the court, 129. Judicial notice, of what facts courts take, 95-104. when courts may refuse to take judicial notice of such facts, 104. proceedings, how proved, 129. Jurisdiction of court rendering judgment may al- ways be inquired into, 61. Jurors, when competent to testify, 256, 257. Leading questions, 278, 285, 291, 330. Legal advisers, confidential communications with, 260-263. Legislative acts of states and territories, how proved, 130. Legitimacy, when presumed, 125. Life Tables admitted, 50. Magistrate, confessions made to, 43-45. Maps, 49. Marriage, communications during, privileged. 254. iNDSZ 357 [references are to pages] Marriage, opinion as to existence of, 196. Medical men, confidential communications to, not privileged at common law, 262. Motive, relevancy of facts supplying motive, 15. Negative (see Burden of proof). Notice to produce, rules as to, 145-147. Oath, nature of, 270. how administered, 270, all oral testimony must be given under, 270. Objections to evidence when and how to be made. 244, 273, etc. Office, appointment to, when presumed, 175. Opinions, generally irrelevant, 83. formed from personal observation admissible, when the best evidence that the nature of the case admits of, 84, 85. of subscribing witnesses to a will as to testa- tator's sanity, 85, 86. of experts, when admissible, 87-89. as to handwriting, 90-92. Oral evidence, all ultimate facts must be proved by, except in certain enumerated cases, 108-110. may not be received to controvert conclusive presumptions of law, 121-128. 353 INDBX [references are to pages] Oral evidence excluded as to matters of which law requires full ofScial record to be kept, 128-130. contents of written instrument may not be proved by, except in certain enumerated cases, 130-133. may not be given to prove or vary terms of written contract, 150-153. rule only extends to writings intended as a binding statement of contract, 153, 154. admitted to prove collateral agreement, 155. or usage, 155-157. or subsequent parol modification, 157, rule limited to controversies between parties and those claiming under them, 158-160. how far meaning of writing may be explained by, 160-164. how it may be taken, 271-272. Order of proof discretionary with judge, 243. Overt act, proof of, in treason, 267. Parol evidence (see Oral evidence). Parties incompetent as witnesses at common law, 249. how far made competent by statute in United States, 250-254. to negotiable instruments, incompetent to im- peach them. 259. INDEX 359 [references are to pages] Pedigree, matters of, how proved, 79-82. Perjury, what amount of evidence necessary to establish, 267. Physicians generally obliged to disclose confidential communication, 262. Phonographic records, 119, 120. Photographs, 113-116. Preparation, relevancy of facts constituting, 15, Presumption, conclusive, defined, 121. of title from twenty years' adverse pos- session, 123. of the correctness of judicial proceeding, 123. that instrument under seal has been made upon good consideration, if not im- peached, 123. of the regularity of acts done under legal authority, after lapse of thirty years, 124. in respect to capacity of infants, 124. as to legitimacy, 125. resting upon doctrine of estoppel, 126. disputable, effect of, in shifting the burden of proof, 167. of innocence, 168. 360 INDIX [references are to pages] Presumption disputable as to coercion of wife committing felony in company with her husband, 169. that every sane man contemplates the nat- ural consequences of his intentional acts, 169. of the continuance of state of things once proved to exist, 170. of the death of a person not heard from for seven years, 171. of sanity, 171. that a person sued in a written contract who pleads infancy is of full age in the absence of proof that he is not, 172. of the regularity of judicial and official acts, 172. as to the identity of two persons having the same name, 172. as to date of documents, 173. as to sealing and delivery of deeds, 173. that documents thirty years old, produced from proper custody, are genuine, 174. as to alterations and interlineations, 174. that a person who acted in any official capacity was duly authorized, 175. INDEX 361 [references are to pages] Previous conviction, proof of, when relevant, 248, 297. must be proved by record, 282, note. Primary evidence of documents, what, 130-133. Privileged communications, 254-266. between husband and wife, 254. to public officers and grand jurors, 256. as to state secrets, 256, 266. between legal adviser and client, 260-263. Proclamation recital of facts in, admissible when relevant, 47. Production of document, how enforced, 300-312. of persons or things as evidence, 318-322. Professional communications, when privileged, 260-263. Public documents, how proved, 139-143. certified copies of, 140. I right, common to all citizens of state, how proved, 77, 78. Beeitals of public facts in statutes and proclama- tion, when relevant, 47. Refreshing memory by document, when admissible, 279-281. Relevancy of facts, how determined, 9-23. (See Evidence; Facts.) 362 INDEX [references ABE TO PAGES] Right to begin, 239. when plaintiff has, 241. Secondary evidence, 131-134, 139-150. Silence, when decreed admission, 32. Spoliation of documents, effect of, 312-317. Statements accompanying or explaining act, how far relevant, 12-14. by deceased, insane or absent persons, rele- vancy of, 66-82. previously made by witness inconsistent with his testimony, may be proved when, 288-295. in works of history, almanacs, maps, etc., how far relevant, 49. made in presence of party to suit, 32. Subpoena duces tecum, 307. party to suit may be compelled to produce doc- uments by, 301. Telegrams, when primary evidence, 133. Telephone, conversations by, 33, 116-118. Things produced as evidence, 109, 318-322. Treason, two witnesses always required in prose- cutions for, 267. Usage, proof of, wher admissible to explain written contract, 154. more than on? witness ordinarily required to establish general usage, 268. INDEX 363 [references are to pages] Witness, presumed to be competent until the con- trary is affirmatively shown, 244. when objection to competency of, must be made, 244. what rendered incompetent at common law, 245. want of mental capacity'-, 245. want of religious belief, 246, 247. conviction of any infamous crime, 248. being a party to the record or interested in the result of the suit, 247; this disqualifica- tion now abolished by statute, 250-252. being husband or wife of party to record, 252. forbidden to testify as to certain matters, 253. confidential communication between husband and wife, 254. how far judge may be examined as, 254, 255. as to what matters grand or petit juror may be a, 256, 257. communications made to public officers and grand jurors with a view to criminal prose- cutions may not be disclosed by, 258. state secrets may not be disclosed by, 258, parties to negotiable instruments incompetent to impeach them, 259. 364 IKDEX [references are to pages] Witness, legal adviser may not disclose confiden- tial communications of liis client, 260-262. privilege of client as to disclosing communi- cation made by him to legal adviser, 262. privileged as to facts tending to criminate him, 263-266. privilege of government and state officials aa to public matters, 266. when corroboration required to testimony of single, 266-269. must be examined on oath or affirmation, 270. in open court, or under a coi ^nission, or by deposition, 271, 272. when and how objections to deposition may be made, 273-277. examination in chief, 277. leading questions forbidden, 278. except by permission of court in special cases, 278. irrelevant and irresponsive answers excluded, 278, 279. refreshing memory, 279-281. cross-examination of, 281. confined to matters connected with testimony in "hief, 281, 282. INDEX 365 [references are to pages] Witness, questions to test accuracy and credibility, 282. privilege as to questions tending to criminate him, 283. extent to which cross-examination to test cred- ibility may be carried is always discretion- ary with court, 284. rule for exercise of this discretion as laid down in India evidence act, 285, note, leading questions generally allowed on cross- examination, 285, 286. how far his answers on cross-examination may be contradicted, 286, 287. his previous inconsistent statements may be shown when proper foundation laid, 288. when his previous inconsistent statements in writing may be shown, 289, 290. re-examination of, to what restricted, 290, 291. leading questions forbidden on re-examination, 291. impeaching credit of, 292-299. party may not impeach credit of his own, 293. but may contradict his own, 293, 294. of adversary, may be impeached by showing bias, 295. 366 INDEX [eeperences are to pages] Witness impeached by showing previous convic- tion of infamous crime, 295-297. or general reputation for want of veracity, 297-299. may be compelled to produce documentary evi- dence material to the case by subpoena duces tecum, 301. (See Conduct of the examination of witnesses.) \ LAW LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELES AA 000 838 128 7