(gorn^ll Ham i^rl^onl ffiibraty Cornell university Library KF8841.H26 assistant in civil ca Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020115279 This book is affectionately dedicated to my daughter, Elizabeth B. Hardwicke THE TRIAL LAWYERS' ASSISTANT IN CIVIL CASES BY HENRY HARDWICKE Member of the New Tork Bar AUTHOR OF " THE ART OF WINNING CASES," OR MODERN ADVOCACY, "history of oratory and ORATORS," "tHE ART OF GETTING RICH," " THE TRIAL LAWYERS' ASSISTANT IN CRIMINAL CASES," ETC. BANKS & COMPANY ALBANY, N. Y. 1902 Copyrighted 1902 by HENRY HARDWICKE INTRODUCTION. " Their glory shall never die ; the whole wide world is their sepulchre ; their epitaphs are written in the hearts of mankind, and wherever there is speech of noble deeds their names are held in remembrance." Pericles, in the funeral oration which he delivered over the patriots who had been slain in the defense of their country, thus paid a high tribute to the patriotism and valor of his heroic countrymen. What advocate does not wish to so live as to merit such an eulogium? The soldier and the advocate have many qualities in common. The advocate who resolutely, and fearlessly discharges the duties which will de- volve upon him in the course of his professional career, will be often compelled to exhibit a moral and physical courage, to undergo toils, privations, and hardships, from which the hardiest soldier might well shrink. Lawyers have existed under some name or other in all civil- ized countries, and must continue to exist just so long as human nature continues to be imperfect and it becomes neces- sary to administer the law. From the time of Demosthenes, the glory of the Athenian bar, until the present time lawyers have been the great cham- pions of popular liberty and enlightenment. They have al- ways championed the cause of the innocent and the weak against tyranny and injustice, and have always been among the most liberal, courageous and patriotic members of society. Our country would never have achieved her independence but for the noble, self-sacrificing, courageous efforts of the lawyers who came to the aid of an oppressed people in an hour that tried men's souls. Hamilton, Jefferson, Marshall, Madi- son, Jay, Adams, and a host of others who founded our sys- 1 V INTRODUCTION. tern of government builded more wisely than they knew, and the more closely we adhere to their views of government, the greater will be our prosperity. We earnestly hope that the younger members of the bar will be true to the traditions of the learned and highly honor- able profession to which they belong. The lawyer who achieves the highest success must permit his mind to dwell upon some- thing besides the mere accumulation of money. He must not regulate his exertions according to the fee he receives in each case. He should be inspired by a noble and generous love of fame, and should be desirous of honorably assisting in the administration of justice. He should obtain redress for the injured, become the scourge of oppression, the terror of deceit, defend the innocent and uphold the right. He should give much time to the complete mastery of the difficult science of jurisprudence. He should store his mind, refine his taste, and improve his judgment by a general acquaintance with useful and with elegant literature, bearing in mind the fact that knowledge is of three kinds, first, knowledge that is necessary, second, knowledge that is useful, and third, knowledge that is ornamental. To a lawyer, of course, a comprehensive knowl- edge of the law is necessary, and everything must give way to the acquisition of the law. The young lawyer desirous of suc- ceeding, must become acquainted with human nature, and ob- tain an insight into the springs of human passion. He should possess prudence as well as courage, and caution along with enthusiasm. He should not only be able by his powers of per- suasion and knowledge of the law to give the best chance of success to every client whom he represents in every kind of private causes, but he should be able to defeat conspiracies against public liberty founded upon a perversion of the criminal law, and by the victories which he gains, and the principles he upholds, place the free Constitution of his country upon an imperishable basis. While an arrogant or immodest bearing at the bar is to be avoided, the advocate must, at all times be dignified, courteous, vi INTRODUCTION. cool and courageous. It has been said, in substance, by an ac- complished and successful lawyer, that self-possession should be acquired as soon as possible by the advocate; that nothing is more unfriendly to the art of pleasing than morbid timidity (bashfulness — mauvaise honte); that all life teems with ex- amples of its -prejudicial influence, showing that the art of rising in life has no greater enemy than this nervous and sense- less defect of education ; that self-possession — calmness — steady assurance — intrepidity — are all perfectly consistent with the most amiable modesty, and none but vulgar and illiterate minds are prone to attribute to presumptuous assur- ance the apparently cool and unconcerned exertions of young men at the bar ; that what is done under concern and em- barrassment is sure to be ill done; that the judge who can scowl on the early endeavors of the youthful advocate who has fortified himself with resolution must be a poor man in the knowledge of human character, and perhaps still more so in kindness of heart ; that while he should ever cherish these opinions, he would himself be bound to distinguish the arro- gant, noisy, shallow and dictatorial impudence of some, from the gentle, though firm and manly confidence of others — they who bear the white banner of modesty, fringed with resolution. Lord Westbury, the celebrated English lawyer, once said that he never quite knew how his success came about, but he be- lieved it was due to his self-confidence in difficulties and his painstaking industry. When he gave an opinion he gave it boldly. He said he was paid for his opinions and not his doubts. An advocate should treat his professional brethren with the greatest courtesy, but the passions or arts of the most promi- nent advocates should not intimidate him from asserting fully his own or his client's rights. A distinguished lawyer has said : " Should I attain that eminent standing at the bar which gives authority to my opinions, I shall endeavor, in my inter- course with my junior brethren, to avoid the least display of it to their prejudice. I will strive never to forget the days of vii INTRODUCTION. my youth, when I tcx) was feeble in the law, and without standing. I will remember my then ambitious aspirations (though timid and modest) nearly blighted by the inconsider- ate or rude and arrogant deportment of soine of my seniors; and I will further remember that the vital spark of my early ambition might have been wholly extinguished, and my hopes been forever ruined, had not my own resolutions, and a few gen- erous acts of some other-s of my seniors, raised riie froifi my de- pression. To my juniors therefore I shall ever be kind and encouraging ; and never too proud to recognize distinctly that, on many occasions, it is quite probable that their knowledge may be more accurate than my own, and that they, with their limited reading and experience, have seen the matter more soundly than I, with my much reading and long experience." Every lawyer will find it extremely useful to study care- fully, the lives of eminent lawyers of this and other countries. Erskine's Biography should be carefully studied by. every advocate desirous of becoming famous. It is said that Lord Erskine's manner while at the bar was perfect, and his ad- mirable demeanor should be imitated by all advocates who wish to win fornesic renown. He was respectful to the judges, but ever ready to assert his independence, polite to the jury, while he boldly reminded them of their duties, free from ani- mosity or asperity towards his adversaries, constantly kind and considerate to his juniors, treating the witnesses as citizens, generally speaking, called from their daily avocations to assist in the investigation of truth, — looking benevolently even on the bystanders, and pleased when he could accommodate them with a seat. He was of a gay and joyous temperament, en- joying continually a youthful flow of animal spirits, and en- livening the dullest cause with hilarity and good humor. He was such a universal favorite that there was a general desire, as far as law and justice would allow, that he should succeed, and the prestige of his reputation was considered the sure forerunner of victory. Butler, who often heard him, says that he often rose to the viii INTRODUCTION. highest oratory, but that it was always simple ; that even in his sublimest flights there was much that was very familiar, but that this rather set off than diminished their general effect. Roscoe says that in examining those particular qualities of Lord Erskine's speeches which contributed more obviously to their success, the most remarkable will appear to be the exact and sedulous adherence to some one great principle which they uniformly exhibit. That in every case he pro- posed a great leading principle, to which all his efforts were referable and subsidiary — which ran through the whole of his address, arranging, governing, and elucidating every por- tion ; that as the principle thus proposed was founded in truth and justice, whatever might be its application to the particular case, it necessarily gave to the whole of his speech an air of honesty and sincerity which a jury could with diffi- culty resist. Lord Brougham says that juries have declared that they felt it impossible to remove their looks from him, when he had riveted, and, as it were, fascinated them, by his first glance. Lord Brougham also says that his voice was of surpassing sweetness, clear, flexible, strong, exquisitely fitted to strains of serious earnestness, deficient in compass indeed, and much less fitted to express indignation, or even scorn, than pathos, but wholly free from harshness or monotony. He says also that no man made fewer mistakes, and that none left so few ad- vantages unimproved; that before none was it so dangerous for his adversary to slumber and be off his guard, for he was ever broad awake himself, and was as adventurous as he was skillful, and as apt to take advantage of any the least open- ing, as he was cautious to have none in his own battle. Expinasse says that his action was always appropriate, chaste, easy, natural, in accordance with his slender and finely proportioned figure and just stature, and that his features regular, prepossessing, as well as harmonious, bespoke him of no vulgar extraction. He says that the tones of his voice, though sharp, were full, destitute of any tinge of Scottish ac- ix INTRODUCTION. cent, and adequate to . every emergency, and almost scienti- fically modulated to the occasion. It is said, also, that it was hardly possible to form any no- tion of the admirable versatility with which he glided from one cause to another — the irony, the humor, the good-nature with which he laughed down the adverse cause, and the vehemence and spirit with which he sustained his own. One who had seen Erskine's briefs says that the notes and interlineations were few, but that particular parts were doubled down and dashed with peculiar emphasis, his plan being to con- centrate all his strength upon the strong points of the case, instead of wasting it upon details. It is a rule followed by some of the very best advocates, not to perplex the jury with too many details, but to select the strongest points and press them earnestly. The intimate relation between the bench and the bar, like every other intimate relation requires mutual patience and fore- bearance. The pertinacity and zeal of counsel in the presentation of their contentions to the bench are unquestionably exasperating, and many judges doubtless feel like making the same appeal for forbearance that it is said an English judge did to Lord Westbury on one occasion. When this distinguished lawyer was at the bar he was sometimes so strong in his criticisms that one of the judges once appealed to him to be addressed at least as " a vertebrate animal." In court, however, every lawyer should be respectful to the judges. They are the law's vicegerents, and whatever may be their character and deportment, the individual should be lost in the majesty of the office. One of the highest honors, and one of the gravest responsibilities which can be con- ferred on man, is to hold the scales of justice in equipoise, to sit in judgment in controversies between man and man, and between the State and the individual; to protect the lives, lib- erties and property of the citizen, and secure the enforcement of the law, upon which depends at once the continuance of X INTRODUCTION. free government, and the stability of human society. The bar is the complement . of- .the bench, and their interests are the same. This close relation between the bench and the bar is one reason why our judicial system has been the most success- ful of any of the departments of our government. The func- tions of the members of the executive and legislative depart- ments of the government are discharged in great part by per- sons untrained to their duties. While on the other hand the powers of the judicial department are exercised by men edu- cated and trained for the discharge of their particular duties, with the assistance of an able bar, both sides of every cause being presented by able learned advocates, the arguments of each being subjected to the close reasoning and searching an- alysis of his opponent. England and America are now, and have been for genera- tions, justly proud of their judges. They have not only de- fended themselves with vigor and ability when unjustly as- sailed, but they have always protected the rights of the bar as well. Their labors are much more arduous than is generally believed, and their salaries in some of the States are wholly in- adequate. . The salaries of the Federal judges should all be considerably increased. It must not be believed that some of the judges do not lead strenuous lives. It is said that the summing up of Lord Chief Justice Cockburn in the celebrated Tichborne case, aside from his excellent conduct of the trial generally, is a perfectly un- paralled feet in justicial annals. It fills two volumes of eight hundred pages each, and reads like a novel. The dignified re- buke which he administered to the prisoner's counsel, was hardly less remarkable. He spoke of " the torrent of invec- tive," " of dirty foul slime " which had been poured forth on everybody and the necessity for the court intervening. " And how were we met," he went on, " By constant disrespect, by in- sult and obloquy, by covert allusions to Scroggs and Jeffreys — judges of infamous repute — as though, by the way, if the spirit of Scroggs and Jeffreys still animated the bench in the xi INTRODUCTION. administration of justice, the learned counsel would not have been pretty quickly laid by the heels and put to silence." At the banquet given to the leading French advocate of his day, M. Berryer, Lord Brougham was present, and in an eloquent speech declared that " The first great quality of an advocate is to reckon everything subordinate to the interests of his client." A few minutes later the Lord Chief Justice was replying to the toast of " The Judges of England." He said : " Much as I admire the great abilities of M. Berryer, to my mind, his crowning virtue — as it ought to be that of every ad- vocate — is that he has throughout his career conducted his cases with untarnished honor. The arms which an advocate wiglds he ought to use as a warrior, not as an assassin. He ought to uphold the interests of his clients per fas and not per nefas. He ought to know how to reconcile the interests of his client with the eternal interests of truth and justice." The most learned lawyer best knows how deep a science the law is, that its boundaries, like space, seem to recede as we advance, and that the knowledge he has acquired, however extensive, is but as a torch flung into an abyss, making the darkness visible, and showing him the extent of his own ignor- ance. It is, therefore, with many misgivings that the author submits the following pages to the examination of an indulgent and generous profession. HENRY HARDWICKE, 220 Broadway, New York. August 9, 1902. Xll THE TRIAL LAWYERS ASSISTANT ADMINISTRATION, liETTEBS OF. The following is the order of preference among rela- tives in New York, according to the statute of dis- tributions. I. To surviving husband or wife. 2. To the children. 3. To the father. 4. To the mother. 5. To the brother. 6. To the sisters. 7. To the grand- children. 8. To any other next of kin entitled to share in the distribution of the estate. Redf. Sur. Pr. 604 3d ed. ABANDONMENT. As to the abandonment of property, see cases collected in 40 Am. Dec. 464. Witness may testify that a contract was abandoned, leaving details to be called out on cross-examination. Ab- bott's Trl. Brf. on Facts, i. The declarations of a wife made immediately before her flight, manifesting her feelings such as satisfaction, or distress, or made immediately afterward to the persons with whom she took refuge, or to a third person, are ad- missible as a part of the Res Gestce, on the question of abandonment. Id. i. ABBREVIATIONS. Court may take notice of abbreviations in common use. Abb. Trl. Brf. on Facts. 2. I THE TRIAL LAWYERS' ASSISTANT. Abbreviations may be explained by oral evidence of usage. Id. 2. Meaning of an abbreviation must be alleged in pleading. Id. 2. ANIMALS. As to liability of owners of vicious animals, scienter, etc. See 54 L. R. A. 420. (1902.) ABILITY. Witness may testify as to what acts a person can do, or not do, though not an expert. Abb. Brf. Facts. 4. Ability to perform act of walking, or other act, may be tested in presence of jury if permitted by the court. Id. 4. It is competent to ask witness whether he was able to do a specified act. 37 N. Y. 586 (cited in 159 N. Y. 38), or used the best skill and ability that he possessed. 80 N. Y. 631. His ability is a fact within his own knowl- edge. 80 N. Y. 108, 116. This case is cited in i L. R. A. 564; 162 N. Y. 304; 156 Id. 636; 140 Id. 28; 112 U. S. no. ABSENCE. Absence of a person from the state cannot be proved by general reputation, i E. D. Smith N. Y. i. In this case the court refused to take judicial notice that Daniel Webster was not a resident of New York. Testimony that the witness knew the person, and that he had recently broken up his establishment, and was sold out, and thereafter either departed or kept concealed ; that previous thereto witness saw him frequently, but since then not at all, and that it is generally understood and believed, etc. Held sufficient to give magistrate juris- diction under the statute as to absent and absconding debtors. 4 Hill, N. Y. 598; 11 N. Y. 331. Cited in 12 L. R. A. 836n; 30 Id. 471 ; 54 N. Y. 372. Receiving letters from persons out of state competent evidence of absence if they were received shortly before 2 THE TRIAL LAWYERS' ASSISTANT. trial. Abb. Brf. on Facts. 5. Contents of letters compe- tent to explain absence. Id. 6. Answers of third persons to inquiries as to absence, admissible as part of Res Gestae. Id. 6. Absence once shown presumed to continue. Id. 7. Declarations of party as to motive of absence competent if made prior to, during, or after absence. Id. 8. See N. Y. Code Civ. Pro. § 841, as to effect of seven years absence. ABSTRACTS. Abstracts of voluminous documents may be given if court will permit. 72 N. Y. 548; 38 Sup. Ct. R. 396; 38 N. Y. 71. But it is not error for a referee to refuse to allow a witness to show the results derived from his examination of books of account, where it does not appear that it requires expert testimony to ascertain the facts offered to be shown, while he may allow a witness with the books before him to give a summary of their contents, this is discretionary with him. 72 N. Y. 548. Explana- tions of the books of double entry by an expert are usually admitted. 38 Sup. Ct. R. 396; 38 N. Y. 71. ACCEPTANCE. When parties agree to deal by telegram, an offer by one, and acceptance in the same manner by the other, is a binding contract, though the acceptance be not received in time to enable such party to comply with his proposal, in consequence of a derangement of the line of telegraph. Trevor v. Wood. 36 N. Y. 306, reversing s. c. 41 Barb. N. Y. 255. Cited in 149 N. Y. 391 ; 130 Mass. 175. As to contracts by telegrams see Schonberg v. Cheney, 3 Hun, N. Y. 677; 4 Bush. Ky. 261; 30 Wis. 605; 38 Tex. 312; I Woods, 286; 4 Dill. 431; in 111. 426; 130 Mass. 175; 2"^ Alb. L. J. 24. As to acceptance of goods sold see Abb. Trl. Ev. 318. Acceptance is proved by possession. Abb. Brf. Facts 10. A symbolical delivery of articles in bulk may be proved by any act indicative 3 THE TRIAL LAWYERS' ASSISTANT. of a surrender on one side, and acceptance on the other. Stanton v. Smith, 3 Sandf. 230, for instance deHvering a schedule of them. Dixon v. Buck, 42 Barb. N. Y. 70, or the keys of the repository, with that intent, 3 Abb. Ct. App. Dec. 248; rev'g 33 Barb. N. Y. 543. ACCIDENT. Witness cannot be asked whether an act done by another other than himself was accidental or done on purpose. Abb. Bf. on Facts. 10. As to the effect of an injury by, and definition of, inevitable accident, see 150 U. S. 312; 21 Wend. N. Y. 198; 4 Dougl. 287; Story on Bailments, §489- AMENDMENT. An amendment is the correction of an error committed in any process, pleading or proceeding, at law or in equity. Burrill Law Diet., Black Law. Diet. Under statutes in modern practice, amendments are very liberally allowed in all formal and most substantial matters, but they are in the discretion of the court, and will only be allowed for the furtherance of justice. Amendments are allowed either without costs to the party amending, or upon such terms as the court think proper to order. Amendments were allowed at common law independently of statutes, but the power of the courts has been extended by statute. But no amendment which is unfair to the adverse party will be granted. A new defence may be added by amend- ment. 62 Wis. 542. Clerical errors in the names of parties may be amended like other clerical mistakes. 76 Me. 434; 136 Mass. 335- Whether an amendment should relate back to the date of the matter amended, so as to prevent the plea of the statute of limitations from being pleaded, is a point upon which the cases are at variance, i Am. & E. Enc. L. 4 THE TRIAL LAWYERS' ASSISTANT. 551 and cases cited. In 29 Me. 108 and 134 Mass. 308, it was held that the amendment related back, irrespective of the statute of limitations. Where the cause of action is the same it seems just that it should have this effect. 'j'j Pa. St. 441 ; 95 Id. 107. Compare 2 Sneed (Tenn.) 492; 8 Tex. 427. Unless a plain abuse of discretion is shown the allowance or refusal of an amendment will not be reversed by an appellate court. 121 U. S. 46; 139 111. 128. The following provisions of the New York Code of Civ. Pro. § 723 contained substantially the provisions adopted by the statutes of the various states throughout the United States. This section reads as follows : § 723. The court may, upon the trial, or at any other stage of the action, before or after judgment, in further- ance of justice, and on such terms as it deems just, amend any process, pleading, or other proceeding, by adding or striking out the name of a person as a party, or by cor- recting a mistake in the name of a party, or a mistake in any other respect, or by inserting an allegation material to the case ; or, where the amendment does not change substantially the claim or defence, by conforming the pleading or other proceeding to the facts proved. And, in every stage of the action, the court must disregard an error or defect, in the pleadings or other proceedings, which does not affect the substantial rights of the ad- verse party. When amending a pleading or permitting the service of an amended or supplemental pleading in a case which is on the general calendar of issues of fact, the court may direct that the case retain the place upon such calendar which it occupied before the amendment or new pleading was allowed, and that the proceedings had upon the amended or supplemental pleadings shall not affect the place of the case upon such calendar, or render necessary the service of a new notice of trial." Am'd by ch. 416 of L. 1877 and ch. 591 L. of 1900. 5 THE TRIAL LAWYERS' ASSISTANT. As to change of parties by amendment of pleading see 54 L. R. A. 42on. (1902.) ACCOUNT. An account is not incompetent merely because it is kept by marks. 145 Mass. 162. Photographic copies of ac- counts and other papers which, by reason of being public records, cannot be removed for production in court, may be admitted in evidence. 2 Wood U. S. Cir. Ct. 680. Otherwise of originals the genuineness of which is dis- puted. 2 Cent. L. J. 121. Authentication of account sufficient if proved to be in handwriting of party or agent. Abb. Brf. Facts. 12. Entries in book of party's agent are competent against the party. 64 N. Y. 85, 91, aff'g 3 Hun, N. Y. 591, s. c. more fully reported in 6 N. Y. Sup. Ct. (T. & C.) 300. Firm books evidence between partners. 64 N. Y. 471, aff'g 5 Hun, N. Y. 407. An open account is one in which some item of the account is not settled by the parties, whether the account consists of one item or many, i Ala. 62. An account presented, and retained without an objec- tion becomes an account stated, and draws interest. Case v. Hotchkiss, 3 Keyes 334; s. c. i Abb. Dec. 324; 11 N. Y. 170; 10 Wall. 129; I Story's Eq. §§ 520, 526; i Kernan 170, unless the omission to object to it is explained. Guernsey v. Rexford, 63 N. Y. 631. The acceptance and retention of an account without objection, though tending to establish its correctness is not conclusive. Sharkey v. Mansfield, 90 N. Y. 227. The giving of a promissory note is prima facie evidence of a settlement between the parties, but not conclusive. Sherman v. Mclntyre, 90 N. Y. 227. But an account stated can only be opened on proof which is dear that the party has been misled by fraud, mistake, or manifest error. Hurley v. Bank, 56 N. Y. 618. See also 42 N. Y. 432; 52 How. Pr. 382; 11 Wheaton 256. 6 THE TRIAL LAWYERS' ASSISTANT. The inference may be repelled also by showing facts which are inconsistent with it, as that the party was absent from home, ill, or expected shortly to see the other party, and intended, and preferred to make his objections in person. Other circumstances of a like nature may also be sufficient. i8 N. Y. 289; 10 Wall. 131. Part payment on account rendered is enough to go to the jury, as showing an ac- count stated. 102 N. Y. 699. What is a reasonable time to allow for objections to an account is a question of law unless the facts are in doubt. 107 U. S- 325. Giving note implies an accounting in full. 6 N. Y. 461 ; 13 Abb. N. C. 340, 351, and cases cited. As to what constitutes an account stated see 27 L. R. A. 811 note. ACCOUNT BOOKS. In New York, and in some other jurisdictions. Account Books are admissible in evidence in a party's favor upon proof. I. That they are his books of account kept in the regular course of business. 2. That there was a course of dealing between tlie parties. 3. That some article or service charged was actually furnished. 4. That the party had no clerk or book-keeper. 5. That he kept fair and honest accounts. Vosburgh v. Thayer, 12 Johns. N. Y. 461, and note; Abb. Tr. Ev. (2nd ed.) 401. See also 11 Wend. N. Y. 568; 8 Johns. N. Y. 211; t Brown, Pa. 257; I Yeates 347; i Bay 119; Mart. N. C. 26; Cooke, Tenn. 388; 3 N. Y. Supp. 876; 30 Hun, N. Y. 297. Party offering account book may commonly use it to refresh his memory. Abb. Tr. Ev. (2nd ed.) 399. Com- pare 22 Conn. 360; 30 Barb. N. Y. 42. Alterations, etc., seriously impair the credit of the entry. Id. 399, 17 Cal. 466. Entries in account books of a bank are made competent evidence against a depositor, customer or officer, by pro- ducing the clerk who made the entries, he testifying to 7 THE TRIAL LAWYERS' ASSISTANT. the transactions, or testifying that it was his uniform custom to make entries at the time of the transaction, and that he has no doubt that the entry he offers now was truly made; or by proving the handwriting of the clerk who made the entries, and that he is dead or insane. Abb. Brf. on Facts. 14. 42 N. Y. 139; 4 Abb. App. Dec. 324; 30 Barb. N. Y. 42; 30 Hun, N. Y. 297; 12 Johns. N. Y. 461. Without such evidence they are not competent, unless the party against whom they are adduced is a stock- holder or officer. It is error to receive them upon the testimony of other officers or clerks of the bank, who have not personal knowledge of the transactions. Abb. Brf. on Facts 14. An account in the handwriting of one party, produced from the possession of the other party, may be presumed to have been rendered by the former to the latter. 10 Conn. 263. Pass books containing debit and credit entries, and proved to have been kept usually in the possession of one party, and delivered from time to time to the other for the purpose of writing up, and to have been written up accordingly and returned, are admissible against either party, irrespective of whether their contents are original entries or not. 38 N. Y. Super. Ct. (Opinion by Freed- man J. reviewing cases as to accounts.) A bank pass book written up and returned, and not objected to, becomes conclusive as an account stated. 117 U. S. 96. Entries in an account book are not competent by producing a witness who testifies that he gave correct infor- mation to the writer, although he did not see the entries; and producing also the writer who testifies that he, at the time, and knowing his informant, correctly entered the information so received. 102 N. Y. 572 ; s. c. 3 Cent. R. 823. Entries made in the ordinary course of duty by a third 8 THE TRIAL LAWYERS' ASSISTANT. person, not appearing to have had any interest, are pre- sumed to have been made at the time they bear date. 6 N. Y. 276, reversing 5 Denio 342. (Entry by bank officer in Dealer's pass book.) A party whose accounts have been put in evidence, either in his own favor, or against him, may explain them by oral evidence of the intent and meaning of the entries. 44 N. Y. 653 ; 68 Id. 400 ; 66 Id. 308 ; 63 Id. 370. A book of original entry is one continuously used for that purpose. 44 Vt. 54. The entries in such a book must have been made immediately after such transaction occurred, and must have been made in the due course of business. The account should be itemized. 100 Pa. 169; 116 Mass. 333. Entries in books of entry made by the party in the regular course of business, may be received in evi- dence after the party's death, and a like ruling obtains in the case of entries written by a book-keeper or clerk since deceased. In each instance, however, a foundation must be laid for their introduction by proof of decedent's hand- writing. 56 N. Y. 518; 116 Mass. 98; 67 N. Y. 73; 62 Pa. 136; 27 Miss. 106. The entry should be complete in itself. 23 N. H. 220. In some jurisdictions account books are admissible in evidence as showing the delivery of goods sold, or the performance of work and labor. 34 Iowa, 123; 32 Tex. 229. The suppletory oath of the party in introducing the books in evidence is usually required, and where the charges were first entered on a slate, and then in a day- book, the day-book is treated as a book of original entry. 13 Mass. 427; I Brown, Pa. 147; 5 Harr. Del. 126. A note to Vosburgh v. Thayer, 12 Johns. N. Y. 461 states that where there are regular dealings between the parties, and there is evidence that plaintiff keeps honest books; that some of the goods have been delivered, or some of the work or services performed, and that the 9 THE TRIAL LAWYERS' ASSISTANT. plaintiff keeps no clerk, such books are from necessity admissible in evidence. See ii Wend. N. Y. 568; i Browne, Pa. 257; 8 Johns. N. Y. 211. In the case of Wilson v. Knapp, 70 N. Y. 597, the court said : " The book-keeper of the ship-wrights, who made the repairs, testified as to the account for materials fur- nished and labor applied to this vessel that there was a foreman carpenter and foreman caulker, whose duty and practice it was to superintend the men and provide the materials, and to report each night to the bookkeeper; the foreman of the yard also reported the material sent out. The foreman testified that the reports which they made were correct. The book in which the entries were made was produced and offered in evidence, it was ob- jected to as hearsay, and objection overruled and exception taken. Held, no error ; that an original memorandum was not always required, but that a copy was properly ad- missible. (49 N. Y. 303 and cases cited.)" Contra Thomas v. Price, 30 Md. 483. Upon the trial in the reference of a claim against the estate of appellant's testator for work done by respondent, it was proved that the items were first entered at the time upon a slate, usually by respondent, and then copied by his bookkeeper in a day-book about every day, and then in the ledger ; that no prices were entered until the charges were carried out in the ledger, when respondent fixed the same and they were entered in the ledger accordingly. It appeared that respondent directed the work generally and did a portion of it himself ; that he kept the account, which showed credit for money paid by the testator. There was no contradictory evidence as to the correctness of the amount, or that the work was not done. Respondent kept no clerk in connection with his business, but had the bookkeeper to make up the books under his direction. It was in evidence that several witnesses had settled their accounts with respondent and found them honest and cor- 10 THE TRIAL LAWYERS' ASSISTANT. rect, and they were proved to have been copied fronj the books. The bookkeeper testified that he had settled his own accounts from the books and that respondent kept fair and honest accounts. The ledger was admitted in evidence, as a book of original entries to prove the claim, under objection and exception. Held, no error; and that the booklceeper, having an account with his employer, was a competent witness to prove the correctness of the books. The clerk intended by the rule excluding books of account of a party who employs a clerk, is one who has something to do with and has a general knowledge of the business of his employer in reference to goods sold or work done, and not one who occupies the isolated position of bookkeeper. In the Matter of McGoldrick v. Traphagen, 88 N. Y. 334. Cited and followed in 163 N. Y. 169. The courts have admitted books kept wholly by book- keepers who could not remember anything about their entries, except that they were made in the usual course of business. 2 Hill, N. Y. 531; 16 Wend. N. Y. 536; 3 Keyes, 139; 4 Abb. Ct. App. Dec. 324; 20 Wend. 72; 16 How. 467; 3 Thomp. & C. 704; i Hun, N. Y. 171; 47 Ho-^v. Pr. R. 97; 23 Penn. R. 156; 5 Harr. Del. R. 126; 23 Geo. 528; 13 Mass. 427; 24 Iowa, 123. The practice of entering the items on a slate or on separate pieces of paper, and afterwards transferring them into a regular book does not affect the entries as evidence. 20 Wend. N. Y. 72; 12 Penn. 168; 2 Wait's Pr. and cases 447; 17 Penn. 389; 3 E. D. Smith's Rep. 72. To render books of account competent evidence, the party must prove that during the period the charges were made, he had no clerk ; that some of the articles or work were delivered or performed; that the books are the ac- count books of the party, and that he keeps correct ac- counts. II THE TRIAL LAWYERS' ASSISTANT. The statute allowing parties to be witnesses, has not abrogated the law admitting books of account as evi- dence, under the rules formerly settled. Where a plaintiff offers his books of account as evidence in support of his claim, the defendant will not be per- mitted to prove the general moral character of the plaintiff to be bad, for the purpose of discrediting such books. Tomlinson v. Borst. 30 Barb. N. Y. 42. See also 163 N. Y. 169. (1900.) ACCESSION. Accession is a mode of acquiring property in a thing which becomes united with that which a person already possesses. 40 Conn. 382. The owner of property whether the property be moveable or immovable has the right to that which is united to it by accession or adjunction. 22 Pick. Mass. 559. As to title by accession to crops, fruit, and timber wrongfully severed. See L. R. A. 32 : 422. ACTION, IN PRACTICE. The formal demand of one's right from another person or party, made and insisted on in a court of justice. In a quite common sense, action includes all the formal pro- ceedings in a court of justice attendant upon the demand of a right made by one person or party of another in such court, including an adjudication upon the right and its enforcement or denial by the court. Bouv. L. D. ACTION, CHANGE OF VENUE. It is not a contempt of court for a defendant petitioning' for a change of venue on account of prejudice on the part of the presiding judge, to allege in his petition, which is not read to the court, but is handed to the judge in a respectful manner for his perusal, that when the action was about to be called for trial, the judge's wife stated 12 THE TRIAL LAWYERS' ASSISTANT. that she must see the judge and arrange with him to have plaintiff win the case ; at least,, not if the allegation is true. 9 L. R. A. 566. As to Venue, see Trial, Place of. ADJOURNMENT. An adjournment of a cause from one day to another of the same or a subsequent term. The postponement or continuance of the trial of a cause. Usually adjournments are in the discretion of the trial court and an appellate tribunal will not interfere except in a case of abuse of such discretion. 34 St. Rep. 987. Where an adjournment of three days was granted on the ground of plaintiff's sickness, so as to enable de- fendants to ascertain the true condition of her health, and where the court was satisfied from subsequent affi- davits, and evidence, that plaintiff's application was merely for delay, and permitted defendant to take a dismissal there was no unwarrantable exercise of the discretionary power of the trial judge. 5 N. Y. Supp. 544. Usually an adjournment will not be granted, on ac- count of the absence of a material witness, if the witness be a transient person, and the plaintiff has neglected an opportunity of examining him. 2 Caines, N. Y. 384. If a party neglect to subpoena a witness, and rely upon his promise to attend, his absence is no ground for an adjournment. Anth. N. P. 272. Where the defendant wishes to eaxmine the plaintiff as a witness, the cause will be adjourned unless he attend in person, after notice. 20 Wend. N. Y. 611. In order to obtain an adjournment or continuance of a trial on the ground of the absence of a witness, it must appear that the witness is really material; that the party making the application has been guilty of no neglect, and that the witness can be had at the time to which the trial is adjourned. People v. Jackson, in N. Y. 362; s. c. 19 St. Rep.. 506; 6 N. Y. Crim, 393. 13 THE TRIAL LAWYERS' ASSISTANT A motion for adjournment should be based upon afifi- - davit. As to what affidavit should contain, see 38 How. Pr. N. Y. 451 ; s. c. 7 Abb. Pr. N. Y. 382. The absence of counsel on professional business is not a legal ground for putting off a trial. 2 Cow. N. Y. 578. See also 19 Johns. N. Y. 455 ; 23 How. Pr. N. Y. 530. It is error to refuse an adjournment, where sufficient cause is shown, and is sufficient ground for reversal on appeal. Howard v. Freeman, 7 Rob. N. Y. 25 ; s. c. 3 Abb. Pr. (N. S.) 292. See also Rose v. Stuyvesant, 8 Johns. N. Y. 426; Matter of Crooks, 23 Hun, N. Y. 696; 32 N. Y. Supp. 17. Filing amendments to the pleadings which introduce new matter of substance, is good cause for adjournment. 4 Mass. 506; 8 Mo. 500; 6 Pa. St. 171. A trial should be continued upon the defendant's at- torney's affidavit that defendant is confined to bed with pneumonia ; that his mind is affected, and that deponent has so seen him sick in bed. 28 St. Rep. 723. AGENCY. An agency may be created when express, by deed, in writing not by deed, or by an oral delegation of authority. 2 Kent. Com. 612; 11 Mass. 27, 97; 4 Johns. Ch. N. Y. 667. An agency when not express, may be inferred from the relation of the parties and the nature of the employ- ment, without proof of any express employment. 2 Kent. Com. 613 ; 2 Day, Conn. 556. The law will not presume that one who has accepted a bill as agent has done so without authority. 9 N. Y. 582, aff'g 13 Barb. N. Y. 636. Wife presumed to have authority in the absence of her husband, to control his property. 10 Wend. N. Y. 79. An entry made by an agent or clerk of a company on the Company's books will be presumed to have been made by authority of the company, in the absence of proof to 14 THE TRIAL LAWYERS' ASSISTANT. the contrary. Henry v. Travelers' Ins. Co. 42 Fed. Rep. 363. The receipt of an authorized agent binds his prin- cipal for the amount received, but no further. Dyer v. Girard, 2 Root 55; Pate v. U. S. 4 Ct. CI. 523. The admissions of an agent acting within the scope of his authority are admissible in evidence against his principal. 6 Hill, N. Y. 336; 62 111. 193; 13 Barb. N. Y. 246; 5 Duer, N. Y. 393; 71 N. Y. 118. But a casual statement made by an agent when not engaged in the performance of any duty, is inadmissible against his prin- cipal. 62 N. Y. 642. If papers indorsed in blank are left with a clerk with authority to use them for certain piirposes, and they were fraudulently obtained from him and used for different purposes the indorser is liable. 4 Mass. 45. See also i Parsons Notes and Bills 114; 54 N. Y. 236; 9 Wall. 544; 5 Cranch. 542; 4 Wall. 457. See also Admissions. AGENCY, RATIFICATION. A principal informed by his agent what the latter has done must express his dissatisfaction within a reasonable time, otherwise his assent will be presumed. 12 Johns. N. Y. 300. AFFINITY. Affinity is the connection existing, in consequence of marriage, between each of the married persons and the kindred of the other. It i:; distinguished from consan- guinity, which denotes relationship by blood. A person cannot by legal succession, receive an in- heritance from a relation by affinity ; neither does it extend to the nearest relations of husband and wife, so as to create a mutual relation between them. The degrees of affinity are computed in the same way as those of con- sanguinity. See I Sharswood's Black. Com. 435; Abb. Crim. Tr. Bf. §§ 233, 235. IS THE TRIAL LAWYERS' ASSISTANT. AFFIDAVIT. An affidavit is a statement reduced to writing, and sworn to before some officer who has power to administer an oath. The difference between a deposition and an affidavit is that in. the former the opposite party must be permitted to cross-examine the witness, but an affidavit is always taken ex parte. In general practice affidavits are used to present evi- dence upon the hearing of a motion, although the motion may involve the merits of the action, but they are in- admissible to present evidence on the trial of an issue raised by the pleadings. Here the witnesses must be produced before the adverse party. Affidavits are usually required on all motions to open defaults, or to grant delay in the proceedings and other applications by the defendant addressed to the favor of the court. Formal parts of an affidavit. — An affidavit must refer to the cause in which it is made, in an intelligible manner. The strict rule of the common law is that it must contain the exact title of the cause. The state and county in which the affidavit is taken must be given, to show that it was taken within the officer's jurisdiction, i Barb. Ch. Pr. 60 1. The deponent must sign the affidavit at the end. II Paige Ch. N. Y. 173. The jurat must be signed by the officer with the addition of his official title. In the case of some officers the statutes conferring authority to take affidavits require, in addition, his seal to be affixed. An affidavit must describe the person making it suf- ficiently to show that he is entitled to offer it ; for instance that he is a party, or agent or attorney of a party to the proceeding. 7 Hill, N. Y. 177; 4 Den. N. Y. 71, 258, and this matter must be stated, not by way of mere recital, or as mere matter of description, but as an averment in the affidavit. 3 N. Y. 41 ; 8 Id. 158. 16 THE TRIAL LAWYERS' ASSISTANT. An admission made in an affidavit may be proved by a copy thereof, if the original is out of the state and cannot be produced by subpoena. Hotthausen v. Pondir, 23 J. & S. 73; s. c. 18 St. Rep. 360; 120 N. Y. 622. ATTORNEY. An attorney will be liable to his client for any damages sustained by the latter in consequence of his negligence, misconduct or disobedience of instructions. 4 Pet. 174; 1 R. I. 245 ; 29 Ind. 435. A purchase made by an attorney of his client of the subject matter of an existing litigation will not be upheld. 18 Vesey, 119; 8 John. N. Y. 479; 21 Ind. 305. An attorney is bound to use care, skill and integrity, and if he be not deficient in any of these essential requisites, he is not responsible for any error or mistake arising in the exercises of his profession. 4 Burr. 2061, & see B. & A. 202. An attorney may at any proper time, sever the relation of attorney and client and demand his pay. 57 N. Y. 535 ; 2 Johns. N. Y. 296. An attorney who appears in an action is presumed to have been employed. Shain v. Forbes, 82 Cal. 577. The effect of a retainer to prosecute or defend a suit, is to confer upon the attorney all the powers exercised by the forms and usages of the court in which the suit is pending. 2 Greenlf. Ev. § 141. But a retainer to conduct a cause, or collect a debt does not ordinarily em- power the attorney to bind his client by a compromise entered into with the opposing party. 68 N. Y. 528; 99 Pa. St. 143 ; 56 Mo. 465 ; 92 111. 580 ; 7 Cranch. 436. He may however bind his client in court, or out by such stipulations as he may deem proper in the conduct of the action or suit. 28 N. Y. 293; 7 Cow. N. Y. 739; 3 Hill, N. Y. 526; 115 Mass. 36; 5 Pet. U. S. 99. In the case of Staples v. Parker, 41 Barb. N. Y. 648, 17 THE TRIAL LAWYERS' ASSISTANT. it is said to be the practice of the court to " hold the parties strictly, to their engagements made during the trial and in the face of the court, relating to the conduct of the suit, and its proceedings." Such a stipulation will not be set aside except upon the ground of fraud, accident, surprise or some similar ground. 52 N. Y. Super. 160; 6 Minn. 136. ATTORNEY, ADVICE OF. As a general rule when one commits a crime he cannot shield himself behind the plea, " my lawyer told me I could do it." People v. Weed, 29 Hun, N. Y. 628; Com. V. Bradford, 9 Mete. 268. See also 109 N. Y. 159, reversing s. c. 10 St. Rep. 246; 36 N. Y. 431; 57 Barb. N. Y. 625; compare 18 Weekly Dig. 156. The advice of an attorney will not protect a party in the violation of an injunction. 2 Edw. Ch. N. Y. 628; r Duer, N. Y. 512; 7 Paige, N. Y. 364, and the attorney is himself guilty of contempt in advising his client to dis- regard the injunction. AGE. Age may be proved by the person whose age is in question. Abb. Tr. Ev. 87; 142 Mass. 466, or by any other person having proper sources of knowledge, but not by opinion of a witness from appearances, unac- companied by the facts on which that opinion is founded. It has been held that the declarations of a deceased father were not admissible in evidence to prove the age of his son who had been sued for the price of a horse sold him, and who had set up the defence of infancy. They would have been admissible, the court stated if the case had been one of pedigree. Haines v. Guthrie, L. R. 13 Q. B. Div. 818; Eisenlard v. Clum, 126 N. Y. 552. Lord Hale is authority for the statement that it will be 18 THE TRIAL LAWYERS' ASSISTANT. presumed life will not exceed ninety-nine years. Weale V. Lower, Pollex, 54, and it will be inferred that a man will not live eighty years longer. Napper v. Sanders, Hutton, 118. ADMISSIONS. Concessions or voluntary acknowledgments made by a party of the existence of truth of certain facts. As to the parties by whom admissions must have been made to be admissible in evidence. They may be made by a party to the record, or by one identified in interest with him. 7 Term, 563 ; i Dall. Penn. 65. This is not true, however, where the party of record is merely a nominal party and has no active interest in the suit. 20 Johns. N. Y. 142; 7 Mass. 131; 5 Wheat. 277; 5 Pet, 580. Admissions may be made by one of several parties having a joint interest, so as to be binding upon all. i Johns. N. Y. 3 ; 7 Wend. N. Y. 441 ; 2 Pick. Mass. 581 ; I Stark. 488. Mere community of interest, however, as in case of co-executors, i Greenl. Ev. § 176; 16 Johns. N. Y. 277 ; trustees, 3 Esp. loi ; co-tenants, 4 Cow. N. Y. 483, is not sufficient. The interest in all cases must have subsisted at the time of making the admissions. 5 Johns. N. Y. 412; 14 Mass. 245 ; 9 Serg. & R. Penn. 47. Admissions may be made by any person interested in the subject matter of the suit, though the suit be prose- cuted in the name of another person as a cestui que trust. I Wils. 257 ; I Bingham, 45 ; but see 3 Neville & Perry, 598; 6 Manning & Granger, 261, on indemnifying creditor in an action against the sheriff. 4 East. 584; 7 Carr. & P. 629. Admissions may be made by a third person, a stranger to the suit, where the issue is substantially upon the rights of such person at a particular time, i Greenlf. Ev. § 181 ; 19 THE TRIAL LAWYERS' ASSISTANT^ 2 Stark. 42, or who has been expressly referred to for information, i Camp. 366n. ; or where there is a privity as ancestor and heir. 5 Barn. & A. 223, assignor and assignee, 2 Pick. Mass. 536; 3 Rawle, Penn. 437; intes- tate and administrator, 3 Bingh. N. C. 291 ; I Taunt. 141; grantor and grantee of land, 4 Johns. N. Y. 230; 4 Serg. & R. 174. Admissions may be made by an agent so as to bind the principal. Story, Agency, §§ 134-137, so far only, however, as agent has authority, i Greenl. Ev. § 114, and not it would seem in regard to past transactions. 4 Wend. N. Y. 394; 19 Pick. Mass. 220; 8 Mete. Mass. 142; 6 Mees & W. Exch. 58; 11 Q. B. 46; 7 Me. 421. Admissions of the wife bind the husband so far only as she has authority in the matter. 4 Camp. 92; i Esp. 142; 7 Term, 112. The formal admissions of an attorney within the scope of his authority bind his client. i Mees. & W. Exch. 508; 7 Carr. & P. 6. See 2 Carr. & K. 216; 3 C. B. 608. And he may waive objections to evidence and enter into stipulations for the admission of facts or conduct of the trial. 2 N. H. 520 ; i Camp. 140. And written admissions made for the purpose of a former trial may be used on a new one. 5 Carr. & P. 285 ; i Moody & R. 196. This is particularly true, where in the absence of gross mistake, or fraud, admissions are made by an attorney in a case, and on the faith of such admissions, reciprocal admissions have been made on the other side and a client is concluded by such admissions. Wharton on Agency, § 585; Wharton on Ev. § 1184; 64 111. 18; 2 Minn. 319. But admissions of an attorney, of a non-contractual character, not accepted as part of the mutual arrangements for the trial of the case, are prima facie evidence only. At the first instance they relieve the opposing party from the burden of proving that which they admit, provided the authority of the attorney is first 20 THE TRIAL LAWYERS' ASSISTANT. proven. 59 N. Y. 533; 12 Pa. St. loi ; 115 Mass. 36; 51 Ga. 621 ; I Camp. 141 ; 33 Ala. 235. After a case has been tried, and the employment ended, admissions made by an attorney are not binding. 55 Mo. 405. The admissions of an attorney in a criminal case are not admissible in evidence, unless made at the trial. Rex V. Thornhill, 8 Carr. & P. 575. In New York and many other states a party may be com- pelled to admit, in a civil action, a paper to be genuine or pay the expense of proving it. Section 735 of the New York Code Civ. Pro. reads as follows: " The attorney for a party may, at any time before the trial, exhibit to the attorney for the adverse party, a paper, material to the action, and request a written ad- mission of its genuineness. If the admission is not given, within four days after the request, and the paper is proved or admitted on the trial, the expenses incurred by the party exhibiting it, in order to prove its genuineness, must be ascertained at the trial, and paid by the party refusing the admission ; unless it appears to the satisfaction of the court, that there was a good reason for the refusal." Admissions made in treating for an adjustment are inadmissible in evidence where made under faith in a pending treaty. 2 Campb. 106; 2 Pick. Mass. 290; 4 Id. 374; 7 Bingham, loi ; 7 Wend. N. Y. 354; 45 How. Pr. 501. Admissions made while the parties are conducting negotiations for the purpose of preventing or discontinu- ing litigation are, according to the highest authorities in- admissible in evidence. The reason for the establishment of this rule is given by Lord Mansfield, who said that men must be permitted to buy their peace without prej- udice, if an offer to buy does not succeed. Peake Ev. 19. Lord Kenyon said in Turner v. Railton, 2 Esp. 474: " Concessions made for the purpose of settling the busi- ness for which the action is brought, cannot be given 21 THE TRIAL LAWYERS' ASSISTANT. in evidence, but facts admitted I have always received." If however, a litigant admits a particular item in an ac- count, or any other fact, meaning to make the admission as being true, it is admissible, although the purpose of the conversation was to amicably settle an action or suit. I Esp. 143; I Abb. App. Dec. 120; 4 Conn. 142; 49 Vt. 293. It was said in Williams v. Thorp, 8 Cow. N. Y. 201, an early New York case: "Propositions on either side, made by parties on a treaty for composing their differences, if it be ineffectual, ought not to operate as evidence in a future contest. It seems to me that a dif- ferent rule would be laying a snare for suitors, and cal- culated to entrap a party. It is taking advantage of expressions made in moments of confidence, when he is off his guard, by the prospect of compromise." See gen- erally 124 Mass. 53; 93 U. S. 527; 64 Ind. 545; 30 N. J. L. 212; 44 Wis. 609; 71 Ga. 649; II R. I. 4; 44 N. H. 223. When an admission is received in evidence it must be received in its entirety, in order that its true extent may be understood, i Abb. App. Dec. iii; 33 Mich. 515; 39 Cal. 52; 18 Minn. 316. The limitations of the rule in the admission of admissions, and explanations of ad- missions is laid down in Rouse v. Whited, 25 N. Y. 170: " It is plain that there must be some limitation of -the right of the party whose statement or admission, forming a part of a conversation, has been given in evidence against him to prove further or other statements or declarations made by him at the same time or as part of the same con- versation, otherwise the court and the jury might be compelled to listen to a long story about matters not at all connected with any matter or thing, in controversy be- tween the parties. No one will say that a party whose statement has been given in evidence against him by his opponent, has a right to prove all that he said at the 22 THE TRIAL LAWYERS' ASSISTANT. same time or in the same conversation; solely because such further or other statements were made at the time or in the same conversation." Abbott, C. J., said in the Queen's Case, 2 Brad. & B. 297, 298 : " The conversations of a party to the suit, are, in themselves, evidence against him in the suit, and if a counsel chooses to ask a witness as to anything which may have been said by an adverse party, the counsel for that party has a right to lay before the court the whole which was said by his client in the same conversation, and not only so much as may explain or qualify the matter introduced by the previous examination, but even matter not properly connected with the part introduced upon the previous examination, provided that it relate only to the subject matter of the suit, because it would not be just to take a part of a conversation as evidence against a party without giving to the party at the time, the benefit of the entire residue of what he said on this occasion. Compare Lord Denman's opinion in Prince v. Samo, 7 Ad. & El. 627. See also on same question, 6 Duer, N. Y. 102; 6 Barb. N. Y. 451 ; 10 Ad & El. 598. Judicial admissions, i Greenl. § 205; 5 Mass. 365; 2 Campb. 341 ; 5 Pick. Mass. 285 ; admissions which have been acted upon by others, 17 Conn. 355; 13 Jur. 253; 3 Rob. La. 243; admissions in deeds as between parties and privies, 4 Pet. i ; 6 Pet. 61 r, are conclusive against the party making them. The admissions or declarations of parties are competent evidence against them where parol evidence of the fact sought to be shown by such admissions or declarations would be competent. 8 Wend. N. Y. 480; 7 Wend. N. Y. 125, 139. Another rule is that the declarations of a person in the possession of land, as to his title, are admissible evidence against persons claiming under him who subsequently came into possession of the land, i 23 THE TRIAL LAWYERS' ASSIST ANT. Greenl. Ev. § 189; 4 Johns. N. Y. 230; 4 Cowen, N. Y. 587; 4 Wend. N. Y. 558; 9 Id. 416. Parol declarations of a person having title to land, are inadmissible as evidence to defeat that title. 9 Johns. N. Y. 61 ; 6 Id. 19; 15 Id. 234; 16 Id. 302; i John Cases, 114; 5 Cowen, N. Y. 485. This rule only excludes declarations when the facts sought to be established by ihem cannot be proved by parol evidence. 8 Wend. N. Y. 480; 7 Id. 125, 139. The admission of the maker of a note, that he signed it, is sufficient, without calling a subscribing witness. Hall V. Phelps, 2 Johns. N. Y. 451. The contrary is true if the note were not produced to him, at the time of the ad- mission. 16 Johns. N. Y. 201 ; 5 Denio. 51. So far as they give credits to the defendant, the plain- tiff's books are admissible in evidence as admissions; and such books are competent evidence against the defendant, after proof that he had examined the entries and made no objections thereto. 58 Barb. N. Y. 241 ; 2 Hun, N. Y. 424. Where a debtor promises to call and settle an account presented to him for payment, it is an admission that the claim is justly due. 2 E. D. Smith, 380; 3 Id. 596. The rule of law with regard to self -regarding evidence is, that when in the self-serving form it is not in general receivable; but that in the self-harming form it is, with few exceptions, receivable, and is usually considered proof of a very satisfactory kind. Rice. Ev. 434, citing Gilbert Ev. (4th ed.) 119. The declarations of a party in his own favor, in the absence of the opposite party are inadmissible, as a rule. 31 How. Pr. N. Y. 372; 3 Barb. N. Y. 147; 7 How. Pr. N. Y. 113; 8 Barb. N. Y. 530; 3 St. Rep. 481; 16 Daly 164; s. c. 30 State Rep. 547; 34 State Rep. 561. A defendant's silence to charges judicially made, is not 24 THE TRIAL LAWYERS' ASSISTANT. evidence against him as assenting to them. 47 Hun, N. Y. 13; 119 N. Y. loi. Silence will not be regarded as an admission against a party to whom a letter is addressed. 97 N. Y. i ; s. c. 6 Civ. Pro. 425 ; 4 Daly 233 ; s. c. 44 How. Pr. N. Y. 69. The admission of one of the former partners, after a dissolution of partnership, is not evidence to bind the other. 15 Johns. N. Y. 409. A principal is not bound by the representations of his agent tending to prove his own authority. 23 N. Y. 439. An agent being dead, a written statement of an account made by him. at the time of a settlement is evidence against the principal, i Paige, N. Y. 13. See as to admissions by agents 116 U. S. 161 ; 88 U. S. 21 ; 91 U. S. 415; 76 U. S. (9 Wall.) 726; 57 Pa. 339. The declarations of an agent acting within the scope of his authority are admissible against his principal as a part of the res gestce, but not statements made at any other time. 23 Pa. 244; 7 Serg. & R. 106; 4 Whart. 130. Admissions made by a client to an attorney are privi- leged. 30 N. Y. 330; 56 N. Y. 632; 45 N. Y. 51. The privilege is for the benefit of the client and the attorney cannot testify even if willing to do so. 24 U. S. (11 Wheat.) 280; 4 T. R. 759; Buller. N. P. 284. Generally the declarations of an agent or servant do not bind the principal. Where his acts will bind, his statements and admissions respecting the subject matter of those acts will also bind the principal, if made at the same time, and so that they constitute a part of the res gestcE. To be admissible, they must be in the nature of original and not of hearsay evidence. They must constitute the fact to be proved, and must not be the mere admission of some other fact. They must be made not only during the continuance of the agency, but in regard to a trans- action depending at the very time, i Greenl. Ev. § 13; 25 THE TRIAL LAWYERS' ASSISTANT. 4 Wend. N. Y. 396 ; 2 Hill, N. Y. 445 ; Story on Agency §§ i3S> 136; 10 Ves. 128; 4 Kern. 271 ; 54 N. Y. 341 ; 55 Id. 584; 60 Id. 297; 71 Id. 136; 85 Id. 88; 55 111. 505; 40 Iowa, 527; 47 Id. 551; 35 Kan. 299; 37 Mich. 362; 119 U. S. 560; 16 Nev. 345. Declarations or admissions of a servant or employee of defendant in an action for negligence, made some time after the accident, are inadmissible. 51 Ind. 246; 73 Mo. 516; 8 Baxt. 221. .When the fact of agency is established, aliunde, the declarations of the agent are admissible against the prin- cipal in regard to acts done within the scope of his authority. 5 Hun, N. Y. 63; 74 N. Y. 15. All entries or memoranda made in their course of busi- ness or duty, by any one, who would, at the time, have been a competent witness of the fact which he registers, are competent. In these are included entries of notaries, and bank-receivers, as to the demand and protest of notes (15 Mass. 383; 7 Wend. N. Y. 160,) merchants, clerks, surveyors and engineers and commercial agents, i Cowen, & Hill, note 675; i Greenl. Ev. §§ 115-17; 31 N. Y. 120. The declarations, or acts of a director in a corporation, will not bind, or in any manner affect the corporation, unless they are within the scope of his ordinary powers, or some special agency relative to the subject matter. 19 Barb. N. Y. 316. A corporation acts and speaks by its officers ; and what they say, when in discharge of their duties as officers, and in relation to that duty, is evidence against the cor- poration. 18 Barb. N. Y. 69. Where the plaintiff has referred to a third person for information sought, the declarations of such third person are admissible in evidence against him. i Hun, N. Y. 634 ; s. c. 4 S. C. 649 ; French v. Powers, 18 Weekly Dig. 86; 120 N. Y. 128; 21 Weekly Dig. 201 ; 118 N. Y. 671. Admissions whether oral or written, may always be ex- 26 THE TRIAL LAWYERS' ASSISTANT. plained or contradicted. 92 N. Y. 535; 9 Id. 531; 55 Id. 280; 58 Id. 203; 61 Id. 635; 60 Id. 397; 75 Id. 580; 81 Id. 460, and considered and weighed like other evi- dence. 39 111. 307. The admission of the correctness of an account for goods sold, admits the sale and delivery. 8 Bos. 688 ; s. c. 21 How. Pr. N. Y. 302. As against a holder for value, the declarations of a prior holder, forming no part of the res gestce, even while in possession of the note are inadmissible. Clews v. Kehr. 90 N. Y. 633. Such declarations are simply the unsworn declarations of a third person, and so inadmissible. 7 Hill, N. Y. 361 ; 16 N. Y. 497; 72 Id. 553. One who purchases commercial paper for full value before maturity, without notice of any equities between the original parties, or of any defect of title, is to be deemed a bona Me holder. He is not bound, at his peril, to be upon the alert for circumstances which might pos- sibly excite the suspicions of wary vigilance. He does not owe to the party who puts negotiable paper afloat, the duty of active inquiry, to avert the imputation of bad faith. The rights of the holder are to be determined by the simple test of honesty and good faith, and not by a speculative issue as to his diligence or negligence. The authority mainly relied on to support the opposite theory is the case of Gill v. Cubitt, 3 Barn. & C. 466. The doctrine of that case has been repeatedly overruled, as well in the English as in the American courts, and it cannot be rec- ognized as authority without an innovation in our system of commercial law, fraught with infinite mischief and uncertainty. 5 Barn. & Ad. 909; Id. 1098; 4 Ad. & El. 870; 33 Eng. L. & Eq. 276; 34 Barb. N. Y. 436; 61 U. S. 20 How. 343, 15 L. ed. 934; 63 U. S. 22 How. 96, 16 L. ed. 323; 69 U. S. 2 Wall, no, 17 L. ed. 857; Rice on Ev. 457- The drawee admits the genuineness of the drawer's 27 THE TRIAL LAWYERS' ASSISTANT. signature in accepting a bill of exchange. He is presumed to know the signature of one who calls on him to pay out money for him, and he is therefore estopped from showing, in any action against him, that the drawer's signature was a forgery. 2 Strange 946; 4 Esp. 226; 3 Burr. 1354; 23 U. S. 10, Wheat. 333, 6 L. ed. 334; 52 U. S. II How. 177; 46 N. Y. 'jy; 64 Id. 316. By such acceptance the drawee also admits that he has funds of the drawer in his possession, with which to pay the draft, and he is not permitted to deny this fact in any action by the holder of the bill. 46 Conn. 90; 79 U. S. 12 Wall, 181, 20 L. ed. 366; 15 Me. 131; 52 U. S. 11 How. 177; 31 111. 525; 55 Ind. 271. It is, however, only prima facie evidence against the drawer that the drawee had such funds in his possession, and it may be rebutted by any proper evidence. 55 N. Y. 294 ; 2 Stark. 145 ; 70 N. Y. 547- Allegations of complaint not denied, must be deemed true. § 522 N. Y. Code Civ. Pro. ; 96 N. Y. 125 ; go Id. no; 57 Id. 429; 38 Id. 161. Answer of tender a:dmits cause of action for that amount. 82 N. Y. 576. A defendant cannot raise an issue which he has closed by admissions in his answer, or stated in another form. A defendant who expressly admits, by his pleading, that which establishes the plaintiff's right, will not be per- mitted to deny its existence, or to prove any state of facts inconsistent with that admission. And whatever is ad- mitted in a pleading cannot be denied in a subsequent pleading, nor upon the trial, nor in a finding. 25 Hun, N. Y. 308; 38 N. Y. 28. A fact admitted in a pleading need not be proven. Wal- rod V. Bennett, 6 Barb. N. Y. 45. In testifying to an admission it is not necessary that the witness be able to testify to the exact language. 97 U. S. 693, but he must be able to give the substance. 54 28 THE TRIAL LAWYERS' ASSISTANT. Am. Dec. i86. He may state the impression on his mind as to the fact of what was said. 5 Eastern R. 187. The witness must be able to identify the person to whose ad- mission he testifies. 71 Iowa, 251. The express admissions, or the admissions implied, from the conduct of a party to a suit are presumptive evidence against him as between himself and another party; but they are not conclusive evidence, unless such other party have been induced by them to alter his condi- tion ; nor are they evidence as between third parties. Pow. on Ev. 95. The declarations of a party to the record or of one indentified in interest with him, are evidence as against such party. Id. 97. A recital in a deed is evidence against him who executed the deed, or any person claiming under him. Id. 98. The admission of a partner is evidence against his co- partners. Id. 99. A wife has no implied authority to make admissions in prejudice of her husband's rights, even though he possess such rights jure uxoris. (By right of a wife.) Id. 103. Admissions by a principal are not evidence against a surety unless connected and contemporaneous with the original transaction. Id. 104. The assumption of character is evidence to create a lia- bility for acting in it, and the title recognition of it waives objection to its validity. On this ground execu- tors de son tort are liable for interfering with the property of a deceased person. Id. 104. See also, generally on the subject of Admissions by acts on conduct. Pow. on Ev. pp. 104, 105. A formal admission of a fact by counsel binds his client, but does not supply lack of essential allegation in his adversary's pleading, i E. D. Smith, N. Y. 141. 29 THE TRIAL LAWYERS' AS SISTANT. Admissions made by an officer or agent of a corpora- tion in due course of business admissible against corpora- tion. 114 U. S. 224; 19 L. R. A. note. Frequently it occurs in practice, that in order to save expenses, as to proofs merely formal, the attorneys on each side agree to admit, reciprocally, certain facts in the cause without calling for proof of them. These are generally reduced to writing, and the at- torneys shortly add to this effect, to wit : " We agree that the above facts shall on the trial of this cause be admitted, and taken as proved on each side ; " and sign- ing two copies now called " admissions " in the cause, each attorney takes one. BOOKS AS EVIDENCE. The principles governing the admission of books in evidence may be stated as follows : 1. Records of judicial or legislative proceedings or other matters of a public nature are admitted as evidence at the common law on the ground that they have been made by authorized and accredited agents appointed for the purpose, and also because of their publicity. 2. Some — public records, public as to a certain part of the community because they proceed from an authority which it recognizes, but private as to the rest of the com- munity, are admissible, as between persons to whom they are such, on the same grounds as wholly public records. 3. Declarations or entries against the interest of the party making them are admissible as secondary evidence and as likely to be true. The best evidence is the testi- mony of the party making such entries. 4. Entries made in the usual course of business by one whose duty it was to make them are admissible for the rea- son that, being made in the usual routine of business, they are part of the res gestce. 5. Original entries have been made admissible in many 30 THE TRIAL LAWYERS' ASSISTANT. of the different states either by modifications of the rules of the common law by the courts or by act of legislature on the ground of necessity. The books which under these principles are generally admitted as evidence may be classified as follows : i . Books containing statutes, official registers, judicial records, his- tories, books of science or. art. 2. Account-books, memo- randum books, corporation-books, letter-books. 3. Books of original entries. 2 A. & E. Enc. L. 467J. Histories, books of science or art, and published maps or charts when made by disinterested persons are primary evidence of facts of general notoriety and interest, but they weigh only as hearsay against the evidence of wit- nesses to facts within their memory. Missouri v. Ken- tucky, II Wall. 395, 410. Maps and diagrams necessary or useful for the undertaking of evidence are admissible in evidence on proof of their correctness, although pre- pared for the purpose of the trial. 3 Hun, N. Y. 487, 490 and cases cited. The Supreme Court of the United States and the courts of many of the states have held that a printed volume purporting on its face to contain the laws of a sister state is admissible as prima facie evidence to prove the statute laws of that state. Young v. Bank, 4 Cranch. 384; 2 A. & E. Enc. L. 467J. See Account Books. BUIIiDING CONTBAOT. As to construction of a building contract see 10 L. R. A. 827n. BUBDEir OF PBOOF. Burden of proof, as a general rule, remains throughout on plaintiff. Abb. Tr. Ev. (2nd ed.) 498. In actions against telegraph companies it is usually necessary to prove, i. The undertaking to carry, shown by the delivery of the message to the apparently proper clerk, 31 THE TRIAL LAWYERS' ASSISTANT. and payment of charges, if prepaid. 2. A default, ■ ap- parently due, not to the nature of the electric telegraph, but to want of ordinary care — such as non-delivery or mis- delivery. 3. Damages. Abb. Tf. Ev. 763. See also Rice on Ev. 114. Telegraph companies are not under the obligations of common carriers. They do not insure the absolute and accurate transmission of messages delivered to them. They have a right to make reasonable regulations for the transaction of their business, and to protect them against negligence of employees, &c. The stipulations in the blank have usually been upheld in New York, and elsewhere. Rice on Ev. 115; 109 N. Y. 231; 11 Cent. Rep. 895. Proof of a negative is not usually required. In some jurisdictions there is an exception as to contributory negli- gence. Rice on Ev. 119, 121. The burden of proof is on a common carrier to show that a loss of freight occurred without fault on his part. Rice on Ev. 139; 67 Miss. 609. BILLS AND NOTES. As to Bills and Notes; fraud as affecting payees as bona fide holders ; drafts for future delivery of goods, dis- counted by bank; contemporaneous collateral written agreement as affecting third person, see 54 L. R. A. 6y6. As to intoxication of maker as affecting bona Me holder, see 54 L. R. A. 451. As to rights of payee of note after repurchasing from bona Ude holder, see 54 L. R. A. 673. As to rights of bona fide purchaser under circum- stances suggesting inquiry, see 54 L. R. A. 356 (1902.) BROKER. That a broker is to be considered the agent of both parties, is a presumption of fact, which may be rebutted by the particular circumstances of the case. He is not 32 THE TRIAL LAWYERS' ASSISTANT. by force of the term agent for both. Paley Agency 315; 2 Parson's on Con. 292; i Sweeney 581. BENEVOLENT SOCIETIES. As to power of benevolent society to change or amend its by-laws see 3 L. R. A. 409; 30 Id. 838; 47 Id. 136; 54 Id. 836. (1902.) As to forfeiture of benefit certificate by default of sub- ordinate lodge see 50 L. R. A. iii and note. BELIEF. Where the belief under which a witness did an act is material, his testimony to his belief is competent. 30 N. Y. 625, but he may be cross-examined as to subsequent declarations. 34 N. Y. Supr. Ct. 547, 553. A witness may state he thinks the fact was so. 140 Mass. 463. Be- lief at time of transaction is proper. Abb. Bf. on. Facts. 65. Reason for belief may be given in certain cases, see 19 Mass. 304, 309. An answer of a witness is not to be struck out because he qualified his statement of a fact by such cautious expressions as " I should judge," " I think." Hallahan v. Ry. Co. 102 N. Y. 198 ; s. c. 2 Cent. Rep. 924. In 102 N. Y. 198, the court said : " Cases fre- quently arise where witnesses are called upon to state the appearance of a person at a particular time, when a question arises as to his soundness of mind, and when the facts are stated, the witnesses can properly be allowed to testify, and as to such appearance in a manner which to some extent involves the judgment of the witness. Within this rule we think the answer given to the first question was not objectionable. But even if the evidence may be regarded as calling for an opinion in any way, as the testimony was based upon the personal knowledge of the facts, we think it may be considered as competent." (Blake V. Pec^le, 73 N. Y. 586.) 33 THE TRIAL LAWYERS' ASSISTANT. BIAS. The fact that a witness under cross-examination admits bias, does not impair the right of the cross-examiner to call out details and particular facts manifesting it. 42 Hun, N. Y. 103 and cases cited. The courts recognize one kind of bias, and it suffices them to influence them in their judgments. It is a bias favorable to a class of cases, or persons, as distinguished from an individual case or person. For instance, a bias is felt on account of convenience, i Ves. Sr. Ch. 13, 14; 3 Atk. Ch. 524. It is also felt in favor of the heir at law, as when there is an heir on one side, and a mere volunteer on the other. Willes Ch. 570; i W. Black. 256; Ambl. 645; I Ball & B. Ch. 309; i Wils. 310. On the other hand the court leans against double portions for children. McClell. 356; 13 Price Exchq. 599; against double provisions and double satisfactions. 3 Atk. Ch. 421, and against forfeitures. 3 Term 172. See generally I Burr. 419; I Bos. & P. 614; 2 Ves. Ch. 648. BETTERMENTS. Are improvements made to an estate. It signifies such improvements as have been made in the estate which render it better than mere repairing. The word is also used to signify the augmented value which an estate ac- quires in consequence of some public improvement as laying out or widening a street, etc. BUSINESS. Courts may take judicial notice of nature and usual course of business of banks, 83 N. Y. 338 and railroad companies; such as checking baggage through over sev- eral connecting lines. 94 N. Y. 278. BILL OF PARTICULARS. A bill of particulars is a detailed, informal statement of a plaintiff's cause of action, or of the defendant's set- 34 THE TRIAL LAWYERS' ASSISTANT. off. It is an account of the items of the claim, and shows the mode in which they arose. Its chief purpose is to ampHfy a pleading and more minutely specify the claim or defence set up. 96 U. S. 557; 25 Hun, N. Y. 214. Under statutory provisions which vary widely in dif- ferent states, the plaintiff is required to file a bill of par- ticulars in connection with his complaint, as in New Jersey, Mass. and some other states or subsequently to it, as in S. C, Ky. and other states. It is filed upon order of the court in N. Y. 3 Johns. N. Y. 348, and in still other states with- out such order. The bill is now generally obtained by a motion to the court before which action is pending. 48 Hun, N. Y. 621. The motion papers should specify what information the applicant desires. 5 Duer, N. Y. 663, and the necessity therefor, and must usually be supported by afHdavit. 26 N. Y. Supp. 457. Plaintiff in his bill of particulars need not give par- ticulars of matters which he does not seek to recover, 4 Exch. 486; nor of payments admitted. 4 Abb. Pr. 289. See Dowl. & L. 656. When the bill is filed the plaintiff is concluded by it. 9 Gill. Md. 146. Another purpose of a bill of particulars is to prevent surprise on the trial. 53 N. Y. St. Rep. 562 ; 45 Vt. 37, by furnishing informa- tion which a reasonable man would require concerning the matters against which he is called upon to defend him- self. 93 N. Y. 467; 84 Id. 493. It is not the object of a bill of particulars to disclose the evidence upon which a party relies in the action. 47 N. Y. 428 ; 66 Hun, N. Y. 58. At common law the court has power to order a bill of particulars in any action, without regard to its nature, subject or form, i Phil, on Ev. 799; 15 Pick. Mass. 321 ; 64 Penn. St. 470; 12 Irish. C. L. 25; Tidd's Pr. 526; 4 Cow. 396. The statutes of the various states, as a rule, enlarges, instead of diminishing this power. In the cele- brated case of Tilton v. Beecher, 59 N. Y. 134, the court 35 THE TRIAL LAWYERS' ASSISTANT. said : " A bill of particulars is appropriate in all descriptions of actions where the circumstances are such that justice demands that a party should be apprised of the matters for which he is to be put upon trial with greater particu- larity than is required by the rules of pleading." A bill of particulars may be ordered in an action of tort. 15 Pick. Mass. 321; 59 N. Y. 177; 6 T. R. 597; 4 Cow. N. Y. 54. A bill of particulars may be ordered in a criminal pro- ceeding. 15 Pick. Mass. 321; 11 Id. 432; 6 Mod. 261. An order for a bill of particulars is proper in an action of criminal conversation, or for a divorce. 11 Wend. N. Y. 154; 3 S. & T. 368; 16 Pick. Mass. 254; 17 Abb. Pr. 48; 4 Burr. 2057. Ordinarily it cannot be objected that the matters of which particulars are sought are more within defendant's knowl- edge than plaintiff's. 2 Paige, N. Y. 113; 9 Cow. N. Y. 578, 592. The effect of a bill of particulars is to confine the de- mand, and limit the proof to the matters stated therein. 3 Duer, N. Y. 691 ; 47 N. Y. 428; 68 Id. 547; 18 Id. 405; 10 Abb. (N. C.) 471. The matters contained in a bill of particulars is evidence against the party filing it whenever the pleading of which it is a part would be evidence but not otherwise. 47 111. 507; 17 Wend. N. Y. 20. But if so used it must be taken as a whole, and its weight is a question for the jury. 43 111. 197. CONVERSION, AT LAW. An unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another to the alteration of their condition or the ex- clusion of the owner's rights. 44 Me. 197; 36 N. H. 311. An original unlawful takmg is in general conclusive evi- dence of conversion. 15 Johns. N. Y. 431, without show- 36 THE TRIAL LAWYERS' ASSISTANT. ing a demand and refusal. But where original taking was lawful, and the detention only is illegal, a demand and refusal to deliver must be shown, i Chitty PI. 179; 16 Conn. 71. Demand and refusal only presumptive evidence of re- fusal. I N. Y. 522, presumption may be repelled by any evidence showing that a compliance with the demand was impracticable. Id. In conversion the sole object of a demand is to turn an otherwise lawful possession into an unlawful one by reason of a refusal to comply with it and thus supply evidence of a conversion. 9 Barb. N. Y. 176; I E. D. Smith, N. Y. 203; 2 Id. 352; 28 Barb. N. Y. 7S; 6 N. Y. 481. CONVERSION, IN EQUITY. The exchange of one kind of property for another, which takes place under some circumstances in the con- sideration of the law, although no such change has actually taken place. Land is held to be converted into money, in equity, when the owner has contracted to sell ; and if he die before making a conveyance, his executors will be entitled to the money, and not his heirs. 2 Vern. Ch. 52; i W. Black. 129. COMMON CABRIEBS. Such persons, or corporations, as carry goods for hire for all persons, are called common carriers. The term includes carriers by land and water. Common carriers are liable for all loss or damage during transportation, for whatever cause, except the act of God or the Public enemy. Angell, Carriers 70 § 67; i Term. 27; I Salk. 18 and cases cited; 6 Johns. N. Y. 160; 21 Wend. N. Y. 190; 23 Id. 306; Hutchinson on Carriers, § 46. Common carriers are as a rule liable for losses caused 37 THE TRIAL LAWYERS' ASSISTANT. by Riots, Strikes and Mobs. Coggs v. Barnard, 2 Salk. 919; 20 N. Y. 48. A common carrier is not liable for losses occurring from natural causes, such as frost, fermentation, evapora- tion, or natural decay of perishable articles, or the natural and necessary wear in the course of transportation, pro- vided the carrier exercises all reasonable care to. have the loss as little as possible. Buller Nisi p. 69; 6 Watts, Penn. 424; Redf. Railw. § 141. The act of God is held to extend only to such inevitable accidents as occur without the intervention of man's agency. 21 Wend. N. Y. 192; 3 Esp. 127; 4 Dougl. 287; 54 N. Y. 500; 48 N. H. 455; 102 Mass. 276; i Hih, N. Y. 235; 30 N. Y. 630; 10 Wall. U. S. 176; 45 N. Y. 712; 3 Lans. N. Y. 265; 80 111. 324; 62 Mo. 52; 25 Pa. St. 338; 115 Mass. 304; 18 W. Va. 361 ; 18 Am. & Eng. R. R. Cases, 651. Carriers by land or water, when they do a general busi- ness, are bound to carry all goods which are offered them, and if they refuse to do so without a reasonable excuse, they are responsible. 2 Show. 332; i Pick. Mass. 50; 6 Wend. N. Y. 335; 12 Mod. 484; 6 Railway Cases, 61; 15 Conn. 539; 6 How. (U. S.) 344. But a common carrier may restrict his business within certain limits, and he can- not be compelled to accept goods out of the line of his- usual business. 14 Penn. St. 48; 12 Mod. 484; 10 N. H. 481 ; 30 Miss. 231 ; 23 Vt. 186. The carrier may require the payment of freight in advance, but in an action for not carrying it, it is only necessary to allege a readiness to pay freight. 2 Show. 81 ; 18 111. 488. It is unnecessary to allege or prove a tender, if the carrier refuse to take the goods for transportation. The carrier is entitled to a lien upon the goods for freight. 2 Ld. Raym. 752, and for advances made to other carriers. 16 Johns. N. Y. 356. Where the value of articles delivered to a common carrier is intentionally and deliberately concealed bv the 38 THE TRIAL LAWYERS' ASSISTANT. consignor, the carrier is not liable except for the value of what he supposed he undertook to carry. 4 Burr. 2298; 51 N. Y. 266; 62 Id. 35. The common law liability of common carriers may be limited by special contract. Angell, Carriers, § 220; 4 Coke 83 ; i Ventr. 238. The bill of lading, or carriers acknowledgment of the receipt of the goods, is generally the written evidence of the contract between the parties, and is expected to con- tain all the exemption from general responsibility which it is competent for the carrier to claim. Parol evidence is inadmissible to vary the contract of shipment thus evidenced. 4 Ohio, 344; 2 Sumn. C. C. 567; Angell, Carr. §§ 228, 229. Common carriers who allow express companies to carry parcels and packages on their cars, boats or other vehicles, are liable as common carriers to the owners of the goods for all loss or damage which occurs, without regard to the express contract between them and such express carriers. 6 How. N. Y. 344; 23 Vt. 186. In an action against a common carrier for loss of goods the plaintiff must prove a delivery of goods to the carrier ; the carrier's express or implied contract to carry and deliver, and his failure to perform it. 42 Ark. 485; Ang. on Carr. (5th ed.) § 461. Common carriers of passengers, although not respon- sible for injuries to their passengers without their fault, are responsible for the baggage of such passengers in- trusted to their care as common carriers of goods, and such responsibility continues until the delivery of the same to the passenger or to his order. 26 Wend. N. Y. 591; 6 Hill, N. Y. 586; 7 Rich. S. C. 158. The baggage check given at the time of receiving such baggage is regarded as prima facie evidence of the liability of the company. It stands in the place of a bill of lading. 7 Rich. S. C. 158; Redfield, Railw. § 128. Baggage does not include mer« 39 THE TRIAL LAWYERS' ASSISTANT. chandise. 25 Wend. N. Y. 459; 6 Hill, N. Y. 586; 10 Cush. 506. A common carrier's liability begins as soon as the goods are delivered for immediate transportation. A delivery at the usual place of receiving freight, or to the employees of the company in the usual course of business is suf- ficient. 16 Barb. N. Y. 383; 20 Conn. 534; 2 Maule & S. 172. Like all other contracts, the contracts of common car- riers, are liable to be controlled and limited by the known usages and customs and course of the business in which they are engaged, and all who transact business with them are found to take notice of such usages and cus- toms as are uniform, of long standing, and generally known and understood by those familiar with such trans- actions. 25 Wend. N. Y. 660; 6 Hill, N. Y. 157; 21 Ga. 526; 23 Vt. 186, 211, 212. Common carriers of passengers are obliged to carry all persons who offer. 19 Wend. N. Y. 239; 10 N. H. 286; 15 111. 472. As to what is presumptive evidence of delivery to com- mon carrier see 38 How. Pr. 289 ; s. c. 2 Lans. N. Y. 269. In an action against a carrier, the presumption is that a fire by which the goods were destroyed, proceeded from the act of man, not from the Act of God. Angell on Carriers, § 156; 10 N. Y. 431 ; 13 Barb. N. Y. 353. A carrier does not rebut the presumption of negligence raised against him by a defect in his means of trans- portation, by proving that he had employed proper persons about the same, and that they were not negligent in the performance of their duties. 13 N. Y. 9; 34 Barb. N. Y. 256. The failure of a carrier of passengers to deliver a pas- senger's baggage when called for even after the delay of the latter to call for it at the end of the journey, prima facie establishes negligence, and the burden of accounting for the default lies with the carrier. 45 N. Y. 184. 40 THE TRIAL LAWYERS' ASSISTANT. The law presumes that a fact continuous in its character, still continues to exist. A partnership is presumed to con- tinue, until a dissolution is proved. Life is presumed to exist in certain limits. A party being once in possession, is presumed to continue in possession. A corporation once established is presumed to continue. An entry and ouster by a landlord on his tenant is presumed to continue till a restoration be shown. 9 Barb. N. Y. 271 ; 44 N. Y. 172. This principle may be applied to the condition of goods delivered, to be transported over several connecting railroads. The goods delivered in good order in such case, it is presumed continued so until they came to the posses- sion of the company which delivers them at the place of destination in a damaged condition. 43 Barb. N. Y. 225. It is the duty of carriers of passengers to allow persons entering their car a reasonable time within which to enter, and if it is prematurely started with such unusual or un- necessary violence as to do the passenger injury while entering, a jury may be justified in finding the defendant guilty of negligence. 49 N. Y. 673; affirming 3 Lans. N. Y. 469; 66 N. Y. 50; 66 Id. 50; 66 Id. 642; 71 Id. 489; 102 Id. 716; 30 Id. 370; 38 Id. 131; 61 Id. 621. Kellegher v. Manhattan, etc. R. R. Co., reported in N. Y. Law Journal, June 6th, 1902. (N. Y. Court Appeals, 1902.) As to carriers' duty to passenger ; liability where proxi- mate cause act of God see 54 L. R. A. 240. As to liability for injury to one passenger by another, see 54 L. R. A. 942. As to liability for assault by employees on passenger, see 54 L. R. A. 752. As to ejection of passenger; time and place; exposure to danger, see 54 L. R. A. 919. As to duty of passenger on tracks, to look and listen, and as to wanton and wilful negligence, see 54 L. R. A. 828. 41 THE TRIAL LAWYERS' ASSISTANT. As to provision agains't Rability for leakage or break- age; and against negligence, see 54 L. R. A. 774. (1902.) CONVERSATION. Conversation by telephone is admissible in evidence. 3 L. R. A. 539; 97 Mo. 473. See also 23 Mo. App. 451. In the case of Rouse v. Whited, 25 N. Y. 174, it was held that if the defendant's oral admissions are put in evidence, he is entitled to have the entire statement taken together, to the extent of all that was said by the same person in the same conversation that would in any way explain or qualify the portion adduced against him, but no further. In this case, the rule of evidence, in respect to parts of the same conversation, laid down in the Queen's Case, (2 Brad. & Bing. 627), disapproved, and that in Prince v. Samo, (7 Ad. & Ell. 627), approved, and the same case 25 Barb. N. Y. 279 was reversed. See also 45 N. Y. 340; 78 Id. 103; 87 Id. 512; 92 Id. 284; 47 Id. 83 ; 2 Duer, N. Y. 26. CONTEMPT. Courts have an inherent power to punish all persons for contempt of their rules and orders, for disobeying their process, and for disturbing them in their proceedings. 5 Ired. N. C. 199; 8 Coke, 38b; 11 Coke, 43b; 37 N. H. 450; 25 Miss. 883. As to the extent of the court's power to punish for contempt, see Ex parte Terry, 128 U. S. 40 (L. ed.) As to contempt for publishmg an article concerning case on trial, see 44 L. R. A. 159. Charging judges with dis- honorable conduct in pending case. 50 L. R. A. 195. By refusal to testify, 13 L. R. A. 66; 28 Id. 242. As to contempt in violating decree for abatement of nuisance, see 11 L. R. A. 804. Violation of injunction, 8 L. R. A. 589. By disobeying void injunction, 48 L. R. A. 824. 42 THE TRIAL LAWYERS' ASSISTANT. As to contempts generally, see 4 Black. Comm. 288 ; 20 Am. L. Reg. N. S. 150 and cases cited; 63 N. C. 397, (Moore's Case); 21 Gratt. 500; 64 N. C. 202; Wells, Jurisdiction, § 194; 2 Johns. N. Y. 290; 6 Mod. 73; 2 Bish. Cr. L. § 295, (6th ed.) ; i Lidd's Pr. 3d Am. ed. 88; Clay's Case, Sneed. Pr. Dec. (Ky.) 221. Power of court as to contempt, 50 L. R. A. 691 ; 8 Id. 584 ; 6 Id. 435 ; 16 Id. 108; 25 Id. no; 32 Id. 273; 38 Id. 554; 45 Id. 310. As to what constitutes contempt, see 8 L. R. A. 584; 50 Id. 195; 8 Id. 584; 23 Id. 789; 23 Id. 787. As to power of legislature to limit to certain acts, 50 L. R. A. 691. As to right to defend in case of contempt, see 39 L. R. A. 691. COBFOBATIONS. If a corporation is created by special act of the legisla- ture generally it is sufficient to put in evidence the statute in order to prove the corporation, and to show the actual use of the privileges of an incorporated company, under the name designated in the act. 36 N. H. 545; 3 j\Iet. Ang. & A. Corp. § 625. The records and books of a cor- poration are at least prima facie evidence of existence of the corporation. 10 Johns. N. Y. 154. The court is bound to take judicial notice of the or- ganization and existence of a corporation, where the statute incorporating it is a public law. 104 Ind. 97; 20 How. (U. S.) 227. See also 24 :\Ie. 139; 4 Mass. 245. Compare 31 Ala. 76; 29 N. J. L. 367; 33 Ala. 106 with two last cases cited. A person who has dealt with a corporation as such can- , not deny its corporate existence. 94 U. S. 70; 94 N. Y. 64, 118; 97 U. S. 146. It is in general necessary to pro- duce the by-laws of a corporation in order to prove what they are. 8 N. H. 35. A member of a corporation is presumed to know its by-laws. 10 Wend. N. Y. 99. The by-laws of a corporation are evidence against its officers, 43 THE TRIAL LAWYERS' ASSISTANT. although they are not corporators. 3 Harr. (Del.) 90. Parol evidence of the contents of by-laws is inadmissible. 8 N. H. 35. The capital stock of a corporation constitutes a trust fund for the payments of its debts. 103 U. S. 498; 91 U. S. 56. When it is material and not merely collateral, the fact of incorporation cannot be proven by oral evidence. Mad- dock V. Root, 72 Hun, N. Y. 178; affirmed in 150 N. Y. 561 without opinion. In order to render a corporation liable for the wrong- ful acts of its officers and agents, it must be shown that they were acting within the scope of their authority. 20 Barb. N. Y. 507 ; 46 N. Y. 2^. An entry in the books of the corporation that after due notice, (15 N. H. 493) the members met, imports that a quorum was present. 3 Serg & R. 32; 8 Allen, 217. The acts of a private corporation or of its board of direc- tors, or one of its committees, may usually be proven by oral evidence. 9 Paige, N. Y. 496; 25 Barb. N. Y. 146. In some jurisdictions it has been held that one dealing with an officer may be charged with notice of limits of authority in the by-laws of the corporation. See Dabney V. Stevens, 10 Abb. Pr. N. S. N. Y. 39; s. c. 2 Sweeney 415- A corporation has no other powers than such as are expressly granted, or such as are necessary for the pur- pose of carrying into effect those expressly granted. 14 Barb. N. Y. 471 ; 2 Cow. N. Y. 664. Though created but for a limited time, a corporation may take a conveyance in fee of lands necessary for the objects of its creation. Nicoll v. Erie R. R. Co. 12 N. Y. 121 ; s. c. 12 Barb. N. Y. 460. It was at one time held that a corporation could not be held liable in tort. The contrary doctrine is now well established. A corporation is liable to the same extent, and under the same circumstances as a natural person, 44 THE TRIAL LAWYERS' ASSISTANT. for the consequences of its wrongful acts, and will be held liable in a civil action at the suit of an injured party, for every grade and description of forcible, malicious or negligent tort or wrong which it commits, however foreign to its nature, or beyond its granted powers. 7 Wend. N. Y. 31 ; Ang Corp. §§ 382, 388, 391 ; 2 Md. Dec. 169; 22 Conn. 541 ; 22 N. Y. 305-309 ; i Wend. Black, note, 476 ; 24 Me. 490; 21 How. 209. See also Wilkinson v. Dodd, 42 N. J. Eq. 246. In an action against a corporation for stove sold and de- livered to an agent, his authority to buy may be estab- lished by proof of a similar purchase by the agent and pay- ment of the corporation therefor. 90 N. Y. 643; s. c. 15 Weekly Dig. 338, afif'g 12 Weekly Dig. 334, citing 27 N. Y. 546, 560. That one is the general manager of a cor- poration may be shown by the testimony of any one who knows the fact without proof of any written appointment. 14 Weekly Dig. 314. As to what represented by stock; rights of corporation in property ; dividend ; right of vendee to, see 54 L. R. A. 510. As to responsibility for crimes of servant; torts, etc., see 54 L. R. A. 712. As to assets of insolvent corporation as trust fund, see 54 L. R. A. 690. As to admission by agent; implied duties; scope of authority; inferred discretion, etc., see 54 L. R. A. 593. (1902.) CHARGE. * A charge is an exposition by the court to the jury of those principles of law which the jury are obliged to apply in order to render such a verdict as will, in the state of facts proved at the trial to exist, establish the rights of the parties to the action. Bouv. L. D. The most essential feature of a charge is th'it it is au- 45 THE TRIAL LAWYERS' ASSISTANT. thoritative as an exposition of the law, which the jury are bound by their oath and by moral obligations to obey. lo Mete. Mass. 285-287; 13 N. H. 536; 21 Barb. N. Y. 566; 21 How. St. Tr. 1039. It was held in the case of Kellegher v. Manhattan, etc., R. R. Co., by the Court of Appeals of New York, reported In N. Y. Law Journal, June 6, 1902, that the court erred in charging that if the jury believed the witnesses called by the plaintiff, the act of the conductor was negligent and constituted a cause of action in favor of the plaintifif, and that the court should have submitted the questions of the defendant's negligence and the plaintiff's freedom from contributory negligence to the jury as questions of fact, even if the evidence given by the plaintiff was to be be- lieved. 30 N. Y. 370; 49 Id. 673; 69 Id. 195; 108 Id. 640; 130 Id. 166; 131 Id. 599; 151 Id. 424; 32 App. D., 13, aff'd 164 N. Y. 586. Only questions of fact are submitted to the jury. If the jury disregard the instructions of the court, the judg- ment should be reversed. 69 Iowa, 154. As a general rule the construction of writings of all kinds are for the court. 104 N. Y. 147; no Id. 83; 67 Id. 563; 79 Id. 108. Contracts, 65 N. C. 104, and wills are included. 56 N. Y. 242. Where the facts are disputed, it becomes a question for the jury to pass upon the question as to whether there was a contract and to ascertain and fix its terms. 55 Mich. 383 ; 43 N. H. 469 ; 29 N. J. L. 373 ; 92 Mo. 440. But where the facts are undisputed the court must determine the legal effect of the contract. 13 Johns. N. Y. 294; 112 Pa. St. 371. In England, in the United States courts, and in some of the state courts, the judge is permitted to express an opinion upon the weight of evidence. 11 M. & W. 401; 125 U. S. 397; 128 N. Y. 420; 169 Pa. St. 555. But the trend of modern action, both legislative and judicial, is 46 THE TRIAL LAWYERS' ASSISTANT. the other way. The court should not pass the line which separates the law from the fact. And in a majority of the states it is believed that the court is not permitted to ex- press an opinion as to the weight and sufficiency of the testimony, iii Ala. 529; 43 Ark. 389; 114 Cal. 554; 33 Fla. 696; 160 111. 40; 138 Ind. 301 ; 72 Iowa, 295 ; 33 Kan. 627; 85 Ky. 123; 37 La. Ann. 125; 64 Me. 267; 75 Md. 604; 142 Mass. 463; 44 Mo. 20; 17 Mont. 17; 50 Neb. 426; 13 Nev. 502; 108 N. C. 619; I N. Dak. 30; 33 S. C. 151; 40 S. W. Rep. 1085, (Tenn.); 41 Tex. 516; 2 Gratt. Va. 333. In the case of State v. Williams, 31 S. C. 238, the court in passing upon this question used the following strong language : Judges " cannot legally indicate their opinion, either expressly or impliedly, intentionally or otherwise, as to the credibility of the witnesses, or as to the truth of any fact in issue, and the subject of the evidence. They may declare the law fully and freely, but whether a certain contested fact has been proved is entirely for the jury, which involves both the credibility of the witness and the existence of the fact, whether said fact depends upon direct and positive testimony or upon inferences to be drawn from other proved facts. In fine, the whole matter of finding the facts of the case must be left entirely to the jury, without suggestions or leadings by the court.'' See also 47 S. C. 488. It is the province of the court to decide what allegations are admitted, and what denied by the pleadings. 10 Iowa, 334- It is the duty of the court to define technical words and terms to the jury. 12 Ad. & El. 624. Where there is no conflict in the evidence, negligence, and contributory negli- gence are questions for the court. 14 Johns. N. Y. 304; 7 Robt. N. Y. 616; 27 Barb. N. Y. 221; 4 Daly, N. Y. 554- When there is no evidence, the court may direct a 47 THE TRIAL LAWYERS' ASSISTANT. verdict. 40 Mo. 151; 32 Vt. 612; 15 Ga. 491. In some jurisdictions it has been held that where in the opinion of the court the evidence is not sufficient to make out a case, it is the duty of the court to take the case from the jury. 34 N. Y. 9; 21 Wend. N. Y. 615; i Id. 376. We are incHned to believe that some of our courts have gone too far in invading the province of the jury in this regard. It is manifestly the right of the jury to pass upon the weight and the sufficiency of the evidence, while it is the duty of the court to pass upon the competency of the witnesses, and the relevancy of evidence. The doctrine of " Scintilla of Evidence " is that where there is any evi- dence, however slight, tending to support a material issue, the case must go to the jury, since they are the exclusive judges of the weight of the evidence. 106 Mass. 275 ; 48 Vt. 358; 50 Mo. 149; 43 Ga. 323; Pow. on Ev. 19. The Federal courts have, however, it is believed, virtually repudiated the doctrine of the Scintilla of Evidence. 94 U. S. 284 ; 14 Wall. U. S. 448. And so have the EngHsh courts. Jewell v. Parr, 13 C. B. 916; 8 El. & Bl. 262. Also some of our state courts. 49 N. Y. 671 ; 26 N. H. 351 ; 55 Me. 46. The instructions of the court should be strictly to the issues involved, in the principal rule. 56 Pa. St. 454; 37 Ga. 205. In the case of Little Miami R. Co. v. Wetmore, 19 Ohio St. no, the court said: "The charge ought not only to be correct, but to be so adapted to the case, and so explicit as not to be misconstrued or misunderstood by the jury in the application of the law to the facts as they find them from the evidence." The nature of the judge's duty in charging a jury was well stated by Chief Justice Parker in the famous Selfridge case. He said : " I hold the privilege of the jury to ascertain the facts, and that of the court to declare the law, to be distinct and independent. Should I interfere with my opinion on the testimony, in order to influence your minds 48 THE TRIAL LAWYERS' ASSISTANT. to incline either way, I should certainly step out of the province of a judge into that of an advocate. All which I conceive necessary or proper for me to do in this part of the cause is, to call your attention to the points of fact on which the case may turn, state the prominent testimony in the case which may tend to establish or disprove those points, give you some rules by which you are to weigh testimony, if a contrariety should have oc- curred, and leave you to form a decision according to your own best judgment, without giving you to understand, if it can be avoided, what my own opinion is." Instructions should always be given in open court. 23 111. 349- Instructions to the jury, should be hypothetical in form, that is founded upon the supposition that the jury find certain facts to be proved or disproved, then the legal consequence resulting therefrom is one way or the other. 14 Ark. 530. It has been held that the following words and phrases used in an instruction need explanation : " Warranty," " material facts," " exemplary damages," " malice," " un- lawfully," " fixtures," " presumptive notice," adverse possession," " for an illegitimate purpose," " to dispose of property, with intent to defraud creditors," " color of title," " gross negUgence," " presumption of law." 11 Eng. PI. & Pr. 204. Facts may be assumed for purposes of illustration. 5 Cush. Mass. 158; 137 Pa. St. 122. The court must charge the jury, when requested, upon all questions of law in the case so as to leave no reasonable ground for mistake. 136 Ind. 284; 32 Iowa, 176. Mere non-direction in absence of request to charge, does not usually constitute error. 161 Mass. 176; 122 Id. 298; 73 N. Y. 38 ; 180 Pa. 136. Contra. 76 Ga. 502 ; 78 Iowa, 486 ; 40 Neb. 676; 56 Vt. 374; 93 N. C. 523. In New York the court may be requested to charge after the charge is finished and before the jury take the 49 THE TRIAL LAWYERS' ASSISTANT. case. 88 N. Y. 671. The refusal to accept a request to charge is a fatal error in the conduct of a trial. 86 N. Y. 479. After the retirement of the jury the court may recall them and give them further instructions. 127 N. Y. 657, 38 N. Y. St. R. 675 ; aff' g 6 N. Y. Supp. 621 ; 100 Pa. 252; 160 111. 425. Where jury return for further in- structions, after their retirement, according to the weight of authority, the parties are entitled to additional instruc- tions. 160 111. 430; 109 Ala. 66; 43 N. H. 328; 44 Minn. 55; II Iowa, 80. Contra. 116 Mass. 367. The weight of authority is to the effect that all instruc- tions given to the jury after their retirement should be given in presence of counsel. 158 Mass. 405; 137 N. Y. 438; 51 N. Y. 558; 100 Ala. 55; 61 Ind. 257. In New York it has been held that a failure to object to evidence is not a concession that it is competent, and where the testimony is incompetent the party against whom it is received is entitled to a charge that such evidence is not to be taken into consideration by the jury. Hamilton v. R. R. Co. SI N. Y. 161; 20 Civ. Pro. R. 220; 28 La. Ann. 279; 62 Mo. 70; 7 111. 688. Contra. 75 Tex. jy; 85 Mo. 106; 13 Smed. & M. Miss. 295; 81 Iowa, 280. It is error to submit to jury a question raised by neither side, and as to which there is no proof. 112 N. Y. 536; 98 Id. 56; 103 Id. 639. The court is not required to submit mere abstract questions to jury. 96 N. Y. 76, 408 ; 114 Id. 350; I Silvernail, N. Y. 415. A reply to a request to charge that " it is unnecessary, I think, as my charge covers it, is a clear intimation to jury that request is proper, and if charge does not cover it, exception to response will not lie. i Silvernail, N. Y. 395. Instructions given by the court in a matter, finally left to the jury, and not expressly withdrawn in the final charge, held to have affected the verdict. 103 N. Y. 81, 82. An erroneous charge, which could not have affected verdict, is not ground for reversal, i Silvernail, N. Y. 9; 50 THE TRIAL LAWYERS' ASSISTANT. loi N. Y. 277. Particular words or expressions, which taken alone, are objectionable, not a ground for reversal if, when read with rest of charge, the meaning is clear, and instruction as a whole is not uncertain or erroneous. 125 N. Y. 214; 122 N. Y. 91. If while drift of a long charge on a particular subject is erroneous this is not cured by expressions which, if standing alone would free it from objection. 125 N. Y. 324- Where a portion of a judge's charge, which embraces several propositions, some of which are unexceptionable, a general exception is not available. 120 N. Y. 420. Where fair import, taken as a whole is according to law, but language may possibly be considered too broadly by jury, counsel must call attention to real error, and not simply take general exception, i Silvernail, N. Y. 345. An instruction in a civil case, after disagreement, that a juror should agree with the rest unless convinced be- yond all question, that he is necessarily right, and the others necessarily wrong, held error. 103 N. Y. 614. Where rule as to master's Hability for injury of servant by defective machinery was stated too broadly, but there was evidence of care in the selection of machinery, and the attention of the court was not called to the qualification of the rule, it was not error to omit allusion to it. 100 N. Y. 266. In an action against a railway company, de- fendant is not entitled to charge that, if there is reasonable doubt on the whole evidence as to the negligence, the verdict should be for the defendant. 95 N. Y. 562. A refusal to charge in ,a civil action that defendant is entitled to any doubt the jury may have, is not an error. 100 N. Y. 266. It is the duty of the court to instruct the jury as to facts, upon which the evidence is, as a matter of law, suf- ficient, or insufficient to establish them. 120 N. Y. 420. In an action by defendant's employee for injury by de- 51 THE TRIAL LAWYERS' ASSISTANT. fective machinery, refusal to charge that if plaintiff, knowing the defect, exposed himself to the danger he could not recover damages, was error. 120 N. Y. 323. As to charge of judge generally in cases of insanity, see 35 N. Y. 125; Estoppel, 69 N. Y. 113; Factors, 54 N. Y. 522; Fraud, Opinion, 56 N. Y. 83; Landlord and Tenant, 70 N. Y. 537; Larceny, i Hill, N. Y. 94; 14 Johns. N. Y. 294; 39 N. Y. 459; 6 Hun, N. Y. 491; Murder — Manslaughter, 13 Wend. N. Y. 163; 19 Id. 592; Malicious Prosecution, 66 N. Y. 525 ; 56 Id. 451 ; Measure of Damages, 29 N. Y. 252 ; 2 Kern. N. Y. 236 ; 30 N. Y. 285 ; Negligence, 35 N. Y. 9 ; Negligence of Municipal Cor- poration, 39 Barb. N. Y. 329; Negligence of Railroad Co., 23 N. Y. 343; 35 Id. 641 ; 25 Id. 562; 38 Id. 445; Negoti- able Instruments, 6 Hill, N. Y. 93. Notice 4 Paige, N. Y. 127; 2 Hill, N. Y. 421. Payment, 23 Wend. N. Y. 379; Perjury, 5 Wend. N. Y. 271 ; Principal and Agent, 71 N. Y. 205; 53 Id. 25; Replevin, i Den. N. Y. 327; i Hill, N. Y. 176; Slander, 51 Barb. N. Y. 484. Tender, 20 Wend. N. Y. 47; Trespass, 3 E. D. Smith, N. Y. 518; 4 Denio, N. Y.'2gs;Usury, 3 How. N. Y. 62; 8 Cow. N. Y. 685; Warranty, 51 N. Y. 198; 19 Johns. N. Y. 290; 11 Wend. N. Y. 584; 65 Barb. N. Y. 556; Wills, 22 Wend. N. Y. 526; 66 N. Y. 144. COURT, TRIAIi BY. Refusal to find questions of fact is not fatal to judg- ment where findings asked were not material to the de- cision nor beneficial to the party asking them. 107 N. Y. 360. Where at the close of plaintiff's case referee grants motion to dismiss complaint on the merits, that action is equivalent to a non-suit and he should make no finding on disputed evidence, and to support judgment defendant must show that upon undisputed evidence he was entitled to judgment. 117 N. Y. 487. 52 THE TRIAL LAWYERS' ASSISTANT. After submission of and decision of action and upon settlement of case, it is too late to present requests to find facts, no N. Y. 429. Trial court may correct apparent ambiguity in its find- ings, the result of inadvertance or omission, at another than the trial term. 121 N. Y. 546. It seems that New York Code Civ. Pro. has not changed the rule that, if two findings are irreconcilable, the appellant may take the finding most favorable to him. no N. Y. 671. Where findings are so inconsistent they cannot be rec- onciled, those more favorable to appellant will control on appeal. 116 N. Y. 87. COURTS— INHERENT FCWER Of PROCEDURE. Whatever judicial procedure is essential to enable courts to exercise their functions is authorized. The powers of courts are derived from statutes or from common law, or in other words are partly statutory and partly derived from immemorial usage, the latter constituting the inherent jurisdiction of the courts. 129 N. Y. 50. Hun's Court Rules 8. Where its own rules do not cover the case, the court follows the practice of the kings bench in England. 5 Johns. N. Y. 235; 7 Bosw. 695; s. c. 22. How. Pr. 518; 79 N. Y. 568. COURTS— JURISDICTION. The Supreme Court of the State of New York, having under the State Constitution general jurisdiction of law and equity, its jurisdiction cannot be limited either by the legislature, or by any power conferred upon it by the court itself. 79 N. Y. 582. COMMON LAW. In the absence of evidence to the contrary, the courts of one state will presume the common law of another state 53 THE TRIA L LAWYERS' ASSISTANT. of the Union to be the same as their own. ii Mich. i8i ; 29 Ind. 458; Cooley Const. Lim. (3d ed.) ch. 3 § 2411. The citizens of each state shall be entitled to all of the privileges and imrhunities of citizens of the several states. Const. U. S. art. 4. § 2, par. i. All taxes or duties levied directly or indirectly by a state upon goods imported from a sister state (100 U. S. 434), or which discriminate in favor of the products of the state, imposing the tax, (12 Wall. U. S. 418), or which impose a heavier burden upon citizens of other states than that imposed upon the citi- zens of the state levying them, (102 U. S. 123), are repugnant to these provisions, and are likewise void as constituting a regulation of interstate commerce. 25 Am. & E. E. L. (ist ed.) 41 and cases cited. And taxes or license charges upon business or privileges imposed upon traders from other states are included within the prohibition, as well as taxes upon property, (12 Wall. U. S. 418), and the fact that congress has not seen fit to legislate upon the subject is immaterial. Id. ; 91 U. S. 275. CONSTITUTION. By the word constitution as used in our system of government, is meant the fundamental law of a free coun- try which characterizes the organism of the country and secures and defines the rights of the citizen and determines his chief duties as a freeman. CONSTITUTIONAL LAW. The power of a state over its navigable waters is limited to the enactment of police regulations, which will enable all to enjoy the same by boats or otherwise including the taking of ice therefrom for public sale or domestic use. A law treating some persons within a state, differently from others, in respect to the enjoyment of public waters violates the 14th Amend, to Fed. Const, guaranteeing to 54 THE TRIAL LAWYERS' ASSISTANT. all persons within the jurisdiction of the state the equal protection of the laws. A statute requiring the payment of a license fee of ten cents per ton on all ice shipped out of the state, held to be unconstitutional in Rossmiller v. State, (Wis.) 89 N. W. Rep. 839. See also 15 Am. & Eng. Enc. 2nd ed. p. 912. The rule is the same as to large, navigable rivers. 26 Kan. 682 ; 3 Mo. App. 480. In this country the test of a navigable stream or river is not as originally at common law in England, the ebb and flow of the tide, but actual navigability for useful pur- poses of commerce. 33 N. Y. 461 ; no Id. 380. Chapt. 455 N. Y. Laws of 1879 amending C. 549 L. 1867 ofifers an illustration of the police regulation which may be adopted by a state. CONSTITUTION OF THE UNITED STATES OF AMERICA. The supreme law of the United States. 2. It was framed by a convention of the representatives of the people, who met at Philadelphia, and finally adopted it on the 17th day of September, 1787. It became the law of the land on the first Wednesday in March, 1789. 5 Wheat. 420. The preamble declares that the people of the United States, in order to form a more perfect union, establish justice, insure public tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity, do ordain and establish this constitution for the United States of America. 3. The -first article is divided into ten sections. By the ■first the legislative power is vested in congress. The sec- ond regulates the formation of the house of representa- tives, and declares who shall be electors. The third pro- vides for the organization of the senate, and bestows on it the power to try impeachments. The fourth directs the times and places of holding elections, and the time of 55 •THE TRIAL LAWYERS' ASSISTANT. meeting of congress. The iifth determines the power of the respective houses. The sixth provides for a compen- sation to members of congress, and for their safety from arrests, and disqualifies them from holding certain offices. The seventh directs the manner of passing bills. The eighth defines the powers vested in congress. The ninth contains the following provisions : ist. That the migration or im- portation of certain classes of persons shall not be pro- hibited prior to the year 1808. 2d. That the writ of habeas corpus shall not be suspended, except in particular cases. 3d. That no bill of attainder or ex post facto law shall be passed. 4th. The manner of laying taxes, sth. The manner of drawing money out of the treasury. 6th. That no title of nobility shall be granted. 7th. That no officer shall receive a present from a foreign government. The tenth forbids the respective states to exercise certain powers there enumerated. 4. The second article is divided into four sections. The iirst vests the executive power in the president of the United States, and (as amended) provides for his election and that of the vice-president. The second section confers various powers on the president. The third defines his duties. The fourth provides for the impeachment of the president, vice-president, and all civil officers of the United States. The third article contains three sections. The iirst vests the judicial power in sundry courts, provides for the tenure of office by the judges, and for their compensation. The second provides for the extent of the judicial power, vests in the supreme court original jurisdiction in certain cases, and directs the manner of trying crimes. The third defines treason, and vests in congress the power to declare its punishment. 5. The fourth article is composed of four sections. The first relates to the faith which state records, &c. shall have in other states. The second secures the rights of citi- 56 THE TRIAL LAWYERS' ASSISTANT. zens in the several states, — the delivery of fugitives from justice or from labor. The third, for the admission of new states, and the government of the territories. The fourth guaranties to every state in the union the republican form of government, and protection from invasion or domestic violence. The ftfth article provides for amendments to the consti- tution. The sixth article declares that the debts due under the confederation shall be valid against the United States ; that the constitution and treaties made under its powers shall be the supreme law of the land; that public officers shall be required by oath or affirmation to support the constitu- tion of the United States ; and that no religious test shall be required as a qualification for office. The seventh article directs what shall be a sufficient rati- fication of this constitution by the states. 6. In pursuance of the tifth article of the constitution, articles in addition to, and amendment of, the constitution, were proposed by congress, and ratified by the legislatures Df the several states. These additional articles are to the following import : — The tirst relates to religious freedom; the liberty of the press ; and the right of the people to assemble and to peti- tion for redress of grievances. The second secures to the people the right to bear arms. The third provides for the quartering of soldiers. The fourth regulates the right of search, and the manner of arrest on criminal charges. The fifth directs the manner of being held to answer for crimes, and provides for the security of the life, liberty, and property of the citizens. The sixth secures to the accused the right to a fair trial by jury. The seventh provides for a trial by jury in civil cases. The eichth directs that excessive bail shall not be re- 57 THE TRIAL LAWYERS' ASSISTANT. quired ; nor excessive fines imposed ; nor cruel and unusual punishments inflicted. The ninth secures to the people the rights retained by them. The tenth secures the rights to the states, or to the people the rights they have not granted. The eleventh limits the powers of the courts as to suits against one of the United States. The twelfth points out the manner of electing the presi- dent and vice-president. The following are the dates of the ratification of the constitution by each of the original thirteen states : Dela- ware, December 7, 1787; Pennsylvania, December 12, 1787; New Jersey, December 18, 1787; Georgia, January 2, 1788; Connecticut, January 9, 1788; Massachusetts, February 6, 1788; Maryland, April 28, 1788; South Caro- lina, May 23, 1788; New Hampshire, June 21, 1788; Vir- ginia, June 26, 1788; New York, July 26, 1788; North Carolina, November 21, 1789; Rhode Island, May 29, 1790. Bouv. L. D. CHALLENGES TO THE ARRAY. Challenges to the Array are those which apply to all the jurors as arrayed or put in order by the officer upon the panel. Such a challenge is, in general, founded upon some error or manifest partiality committed in obtaining the panel, and which applies to all the jurors so obtained. Ordinarily these are not allowed in the United States generally. Colby Prac. 235 ; Blatchf. C. C. 435, the same end being attained by a motion addressed to the court. They are however allowed in some states. See 33 Penn. St. 338; 12 Tex. 252; I Mann. Mich. 451; 24 Miss. 445; 20 Conn. 510; I Zabr. N. J. 656. As to challenges to the array because of the partiality of the summoning officer, (as this ground of challenging the array still subsists in some of the states), see Bac. 58 THE TRIAL LAWYERS' ASSISTANT. Abr. Juries E.-, Coke Litt. 156a; 3 Black. Com. 363; 3 Dyer, 319a; i Hill, N. Y. 654; People v. Tweed, 50 How. Pr. N. Y. 286; 10 Johns. N. Y. 107; 2 Id. 385. In some of the states, and among them New York, (Code Civ. Pro. N. Y. § 1177), it is not a good cause of challenge, to the panel or array of trial jurors, in an action in a court of record, that the officer who drew them is a party to, or interested in the action or counsel or attorney for, or related to a party. It is provided in § 1178 that it is not a good cause of challenge because officer noti- fying is a party, unless partiality is shown. CHALI.ENGES FOB CAUSE. Those for which some reason is assigned. They may be of different kinds, unlimited in number, may be made to the array or to the poll, and depend for their allow- ance upon the existence and character of the reason as- signed. Challenges to the poll are those made separately to each juror to whom they apply. CHALLENGES TO THE FAVOR. Challenges to the favor are challenges to the poll for cause which are founded upon reasonable grounds to believe that the juror will act under some undue influ- ence, bias or prejudice. Coke, Litt. 147a; 3 Wise. 823. CHALLENGES FOB GENERAL DISQUALIFICATION. Either at common law, or by statute, in most of the states, a person is disqualified from serving as a juror because he is not possessed of the requisite statutory quali- fications, which vary in different jurisdictions; alienage; ignorance of the English language; inability to read and write ; party to another suit at same term ; prior service as a juror within a stated period; not being a freeholder. CHALLENGE FOR CAUSE, USUAL GBOUNDS OF. The ordinary challenges for cause are lack of statutory qualifications, the interest of the juror; relationship by 59 THE TRIAL LAWYERS' ASSISTANT. consanguinity or affinity to one of the parties; personal hostility to one of the parties to the action; the depen- dence of the juror upon one of the parties; a pending suit or action between the juror and the party; and the expression of an opinion upon the merits of the contro- versy. All incapable persons may be challenged for cause, such as idiots, or persons of defective understanding, and the like. In Rhodes v. State, 128 Ind. 189, a juror with defective eyesight was held incompetent. CHALLENGE— DISQUALIFICATION OF JUBOR ON AC- COUNT OF INTEREST. See II Ind. 234; 59 Mich. 355; 5 N. J. L. 586; 5 Denio. N. Y. 345; 8 Cush. Mass. 69; one who has made a bet on result, is disqualified, Cluverius v. Com., 81 Va. 787; 64 111. 349; 58 Iowa, 41. Citizenship in a town or city, which is a party to the action, and interest therein as a taxpayer, will disqualify, 51 N. Y. 506. Compare 37 N. Y. 117. This is true unless otherwise provided by statute. loi N. Y. 234, com- pare 139 Mass. 315. Membership in a private corporation which is a party to an action is usually sufficient to dis- qualify. 6 Cow. N. Y. 166 ; i Yeates, Pa., 480 ; 40 Mich. 383. But membership in a church of the same denomin- ation as that interested in an action or suit, has been held not to disqualify. 14 Neb. 164. Compare 6 Heisk. Tenn. 73; 2 Utah, 19; s. c. 103 U. S. 304. In some cases it is held that membership in a mere benevolent society such as the Odd Fellows or Masons; is not of itself a disqualification. See 13 Wend. N. Y. 9; s. c. 27 Am. Dec. 167; 37 Ala. 478; ^2, Wis. 7; s. c. 35 N. W. R. 935. But see Brittain v. Allen, 2 Dev. L. (N. C.) 120; 5 Cal. 347; 4 Gray, Mass. 18. CHALLENGE— DISQUALIFICATION OF JUROR BECAUSE OF RELATIONSHIP. The relationship of a juror to one of the parties, either 60 THE TRIAL LAWYERS' ASSISTANT. by consanguinity, disqualified him at common laWj and does yet in many if not all of the states. See 7 Cow. N. Y. 47S; 62 Hun, N. Y. 84; 97 Pa. St. 543. Compare 16 So. Car. 635; 140 Mass. 425; 52 Tex. 481. Blackstone gives the rule as extending to all degrees within the ninth. 3 Black. Com. 363 ; Tidd's Pr. 853, but the degree of relationship which will now disqualify is now provided for by statute in most of the states. See 9 Am. St. R. 753 note. CHAIiLENGES, HOW TRIED. Challenges are usually tried by court. See N. Y. Code Civ. Pro. § 118 as amended by Laws of 1901. CHALLENGES, PEREMPTORY. (Those made without as- signing any reason, and which the court must allow.) Six peremptory challenges allowed in a court of record, and in a court not of record three peremptory challenges are allowed in New York. See New York Code Civ. Pro. § 1 1 76. The number varies in the different states. CHALLENGES, MANNER OF MAKING. Challenges to the Array must be made in writing, i Mann. Mich. 451 ; but challenges to the poll are made orally and generally by the attorney's saying " challenged," or " I challenge," or " We challenge."- i Chitty Crim. Law, 533-541 ; 4 Harg. St. Tr. 740; Trials per Pais, 172; 25 Penn. St. 134. COUNSEL. Advice of counsel, in absence of malice, a good defence to action for malicious prosecution, although advice given was erroneous. Snow v. Allen, i Stark. 502; 6 Barb. N. Y. 84; 16 Gray. 581; 32 Md. 282; 25 Penn. .St. 275; 2 Barn. & C. 693 ; 5 Taunt. 277. See Bigelow, Lead. Cases on Torts, 200. 61 THE TRIAL LAWYERS' ASSISTANT. CONFLICT OF LAWS. A contrariety or opposition in the law of states in those cases where, from their relations to each other or to the subject-matter in dispute, the rights of the parties are liable to be affected by the laws of both jurisdictions. As a term of art it also includes the deciding which law is in such cases to have superiority. Bouv. L. Diet. Among the leading canons on the subject are these: the laws of every state affect and bind directly all property, real or personal, situated within its territory, all contracts made and acts done, and all persons resident within its jurisdiction, and are supreme within its own limits by virtue of its sovereignty. Public ministers while in the state to which they are sent, and soldiers of an army marching through or stationed in a friendly state are not subject to this rule. 4 Barb. N. Y. 522. With the above qualification, possessing exclusive au- thority, a state may regulate the manner and circumstances under which property, whether real or personal, in pos- session or in action, within it, shall be held, transmitted, or transferred, by sale, barter, or bequest, or recovered or enforced; the condition, capacity and state of all persons within it; the validity of contracts and other acts done there ; the resulting rights and duties growing out of these contracts and acts; and the remedies and modes of ad- ministering justice in all cases. Story, Confl. of Laws, § 18; Vattel, b. 2. c. 7 §§84, 85. Ordinarily force and effect will be given by any state to the laws of another state or country in cases where from the transactions of the parties they are applicable, unless they affect injuriously her own citizens, violate her express enactments, or are contra bonos mores. The mode of conveying, incumbering, transmitting, de- vising and controlling real estate is governed by the law of the place of situation of the property, as a general rule. Judgments in personam regular on their face, which are 62 THE TRIAL LAWYERS' ASSISTANT. sought to be enforced in another jurisdiction, are con- clusive evidence, subject to a re-examination, in the courts where the new action is brought, only for irregularity, fraud or lack of jurisdiction as to the cause or parties, i Greenl. Ev. § 546; Westlake, Priv. Int. Law, 372; Story Confl. Laws § 607; 2 Munf. Va. 241; 15 N. H. 227. The constitution of the United States provides that " full force and effect " are to be given the decrees of the courts of any state in those of all other states. This has been held to mean that the judgments so rendered and properly authenticated shall be conclusive evidence of the rights of the parties. 15 Johns. N. Y. 121; 7 Cranch. 481; 11 How. U. S. 161, but not unless actual personal jurisdiction was obtained. 4 Brad. Surr. N. Y. 174; 15 Johns. N. Y. 121 ; 9 Mass. 467. Lack of jurisdiction may be shown even to contradict the record. 15 Johns. N. Y. 121 ; 4 Cow. N. Y. 292; 4 Cranch. 241 ; 26 N. Y. 152. The constitution and rules of comity apply to civil judg- ments only, and not to criminal decisions. 17 Mass. 515. Voluntary assignments of personal property, valid where made, will transfer property wherever situated. 15 N. Y. 320; 17 Penn. St. 91 ; 4 N. J. 162, 270. Foreign laws must be proved as matters of fact. 2 Barb. Ch. 582. Written laws, may be proved, by the text, or a collection, printed by authority, or a copy certified by a proper officer, or in their absence by opinion of experts as secondary evidence, i Greenlf. Ev. § 486; 6 Wend. N. Y. 475. They also must be averred and set forth in the pleadings as any other facts. 4 Cow. N. Y. 515, 5i6n; I Paige Ch. N. Y. 220. Unwritten laws may be proven, by the opinion of ex- perts. 4 Johns. Ch. N. Y. 520 ; 4 Cow. N. Y. 256n. See generally as to " Conflict of Laws " A. & E. Enc. of Law. 2nd ed. As to statute of frauds see 19 L. R. A. 792. 63 THE TRIAL LAWYERS' ASSISTANT. As to statutes forbidding re-marriage of guilty party after divorce. 24 L. R. A. 831. As to extraterritorial effect of adoption of children, see 17 L. R. A. 435. As to capacity of persons to make contract ; by what law tested. 10 L. R. A. 746. As to legality of contracts. 28 L. R. A. 570. As to Lex loci contractus, i L. R. A. 655 ; 3 Id. 523 ; 28 Id. 57; 30 Id. 514. As to enforceability of contracts of married women out- side of state in which they were legally made — contracts in relation to real estate situated where the action is brought ; outside of state of domicil ; the remedy applicable. 25 L. R. A. 178. Law by which endorser's contract is construed. 10 L. R. A. 784. As to carrier's agreements. 25 L. R. A. 81. As to negotiable paper. 13 L. R. A. 54. As to usury or interest. 8 L. R. A. 170; 10 Id. 784; 12 Id. 93; 13 Id. 299; 24 Id. 175. As to right of ship, crew, etc. 5 L. R. A. 53. Effect of antenuptial contract. 27 L. R. A. 794. Comity rights will be enforced not in their nature local and not contrary to the policy of the government of the tribunal, no matter where arising, and without regard to whether they are of common law or statutory origin. An action in one state to recover damages for the kill- ing of a person in another, must be governed by the laws of the latter state. 4 L. R. A. 261; 103 U. S. 11. See important note upon the subject in 4 L. R. A. 261, and upon subject of liability for death caused by negligence. See also note 15 L. R. A. upon Rights of Action causing, death accruing under foreign statutes. Where there is a right of action either at common law or given by statute, and a legal liability has been incurred, it may be enforced, and the right of action may 64 THE TRIAL LAWYERS' ASSISTANT. be pursued in any court which has jurisdiction of the subject-matter and can obtain jurisdiction of the parties. 103 U. S. II ; 80 Me. 234; 10 111. App. 618. Compare 10 Ohio St. 121. Courts will entertain jurisdiction of actions for personal injuries committed abroad, when both or either of the parties are citizens of the U. S. 9 Johns. N. Y. 67; 17 Wend. N. Y. 323; 2 Hill, N. Y. 320; i Cow. N. Y. 548. Contra. 8 Abb. Pr. 316; Well's Jurisdiction of Courts, no. See generally 126 N. Y. 10; 164 Id. 149; 131 Id. 341 ; 148 Id. 25; 146 U. S. 670; 15 L. R. A. 583n; Id. 609; 34 Id. 766; 38 Id. 94. An action is maintainable in New York by the personal representatives of one whose death resulted from an injury received in another state through the negligence of the defendant, where it appears that the laws of that state are similar to those of the state of New York, giving to the personal representatives the right of action in such cases; it is not essential that the statutes should be pre- cisely the same. Such statutes in other state should be alleged and proved. Leonard v. Nav. Co. 84 N. Y. 48. An administrator appointed in New York may maintain the action without showing that letters of administration have been taken out in the state where the death occurred. Id. This case is cited in 156 N. Y. 472; 112 Id. 321 ; 126 Id. is; 98 Id. 379; 113 Id. 517; 126 Id. 357; 119^.417,419; 160 Mass. 573; 2 L. R. A. 70; 4 Id. 262n; 5 Id. 367; 6 Id. 720; 13 Id. 461; 15 Id. 587; 17 Id. 314; 19 Id. 519; 21 Id. 47in. Where an injury received through the negligence of another person results in the death of the party injured, no remedy therefor can be had at the common law, be- cause personal actions under that law died with the person ; and even though the person died during its pendency, it could not be revived by his personal representatives. 21 Barb. N. Y. 245; 95 U. S. 754 (24 L. ed. 580). 4 L. R. 65 THE TRIAL LAWYERS' ASSISTANT. A. 261 note citing numerous cases. Lord Campbell's Act passed in England, has been adopted generally in the American states. CONFIDENCE, FBOFESSIONAI.. Attorneys cannot be compelled to disclose communica- tions which have been made to them in professional con- fidence by their clients. Powell on Ev. 52. DAMAGES. The indemnity recoverable by a person who has sustained an injury, either in his person, property or relative rights, through the act or default of another. The sum claimed as such indemnity by a plaintiff in his complaint. The injury or loss for which compensation is sought. DAMAGES, COMPENSATION. Those allowed for the injury actually received. DAMAGES, CONSEQUENTIAL. Those which though directly are not immediately con- sequential upon the act or default complained of. DAMAGES, EXEMPLARY. Damages rendered as a punishment for torts committed with fraud, actual malice, or deliberate violence or op- pression. Bouv. L. Diet. DAMAGES, GENEBAL. Those which necessarily and by implication of law result from the act or default complained of. Id. DAMAGES, LIQUIDATED. Damages whose amount has been determined by anticipa- tory agreement between the parties. Id. General damages need not be alleged in a complaint, nor is it necessary that any specific proof of damages be 66 THE TRIAL LAWYERS' ASSISTANT. given to enable the plaintiff to recover. The legal pre- sumption of injury in cases where it arises is sufficient to maintain the action. If special damage be the gist of the action, or only collateral to it, it must be particularly alleged in the complaint, as the plaintiff will not other- wise be permitted to go into evidence of it at the trial, because the defendant cannot also be prepared to answer it. Sedgw. Meas. Damages 575; i Chitty PI. 428; 2 Pa. St. 318;- 21 Wend. N. Y. 144; 4 Cush. Mass. 104; II Barb. N. Y. 387. The party claiming damages must have sustained a loss, before he is entitled to recover damages, and the party against whom they are claimed must be chargeable with a wrong, and the loss must be the natural and proximate result of the wrong. Where there is no loss there is no right to damages. 11 Johns. N. Y. 136; 11 Pick. Alass. 527. It is not necessary, however, that this loss should always be distinct and definite, capable of exact descrip- tion or of measurement in dollars and cents. A sufficient loss to sustain an action may appear from the very nature of the case itself. In many cases the law presumes a loss where a wilful wrong is proven, and damages are also awarded for bodily pain, grief of mind, injured feel- ings, injury to reputation, and for other sufferings which could not be made subjects of exact proof and computation in respect to the amount of loss sustained. 5 Ired. N. C. 545; 19 Conn. 154. Where there is no wrong there is no right to damages. In all cases there need not be a tort, strictly so called, — a wilful wrong, an act involving moral guilt. The wrong done may be either a malicious, wilful injury, as in the case of libel, assault and battery, and the like, or an act done through mere motives of interest, as in many cases of conversion of goods, trespasses, etc., or it may consist in a mere neglect to discharge a duty with reasonable skill or fidelity, as where a surgeon is held for malprac- 67 THE TRIAL LAWYERS' ASSISTANT. tice, a sheriff for the escape of his prisoner, or a common carrier for neglect to do his duty, or a simple breach of contract, as in case of refusal to deliver goods sold, or to perform services under a contract ; or it may be wrong of another person for whose act or default a legal liability exists as where a master is held liable for an injury done by his servant, or a railroad corporation for an accident resulting from the negligence of an employee. There must be, however, something which the law recognizes as a wrong, some breach of a legal duty, some violation of a legal right, some default or neglect, some failure in responsibility, sustained by the party claiming damages. A sufferer by accident or by the innocent or rightful acts of another for his misfortune. It is called damnum absque injuria, — a loss without a wrong; for which the law gives no remedy. 13 Wend. N. Y. 261 ; 11 Pick. Mass. 527; 15 Ohio, 659. The duty violated must be one owed to the plaintiff. The failure to perform a duty which the plaintiff had no legal right to enforce gives no claim to damages. 11 Barb. N. Y. 135; 17 Wend. N. Y. 554; 11 Pick. Mass. 526. The loss must be the natural and proximate result of the wrong. 2 Greenlf. Ev. § 256; Sedgw. Dam. Ch. 3. It is expected that every man will foresee the usual and natural results of his acts, and for these he may be justly held accountable, but not for results that could not have been foreseen. 28 Me. 361; 17 Pick. Mass. 78; 13 Ala. N. S. 490; 3 Tex. 324. It must also be the proximate consequence. Indefinite and vague results, are not em- braced in the compensation given by damages. It can- not be positively known that they are attributable to the wrong, or whether they are not rather connected with other causes. 4 Jones N. C. 163; i Smith Lead. Cases 302-304. In an action for damages for an injury caused by negligence the plaintiff must appear to have been free 68 THE TRIAL LAWYERS' ASSISTANT. from contributory negligence. 17 Pick. Mass. 284, for if his own negligence contributed directly to produce the injury, he can recover nothing. 3 Barb. N. Y. 49; 17 Pick. Mass. 284. By the common law no action was main- tainable to recover damages for the death of a human being, i Camp. 493 ; i Cush. Mass. 475. But in England by the 9 & 10 Vict. c. 93, known as Lord Campbell's Act, it has been provided that whenever the death of a person shall De caused by a wrongful act which would, if death had not ensued, have entitled the party injured to main- tain an action, the party offending shall be liable not- withstanding the death. Similar statutes have been passed in New York, New Jersey, Mass. and perhaps all of the other American states. See 15 N. Y. 432; 3 Id. 489; 18 Mo. 162. Where there is no fixed measure of damages, but they are left to the discretion of the jury, the court may review the verdict, and set it aside if the damages awarded are grossly excessive or unreasonably inadequate. The doc- trine is well established, however, that a verdict will not be set aside for excessive damages unless the amount is so large as to satisfy the court that the jury have been misled by passion, prejudice, ignorance or partiality. 19 Barb. N. Y. 461, 27 Miss. 68; 9 Cush. Mass. 228. But this power is very sparingly used ; and cases are numerous in which the courts have expressed themselves dissatisfied with the verdict, but have refused to interfere, on the ground that the case did not come within this rule. 22 Barb. N. Y. 87; 5 Abb. Pr. N. Y. 272; 3 Id. 104; Cowp. 230 ; I Zabr. N. J. 183 ; 16 111. 405. As to when verdict will be set aside in action of tort on ground of inadequacy of damages, see 2 E. D. Smith, N. Y. 349; I Cal. 450. DAMAGES— CONTRACT. The amount which would have been received, if the 69 THE TRIAL LAWYERS' ASSISTANT. contract had been kept, is the measure of damages if the contract is broken. Powell on Evidence, 141. Where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed. Id. 142. Damages for breaches of contract are only those which are incidental to, and directly caused by, the breach, and may reasonably be supposed to have entered into the con- templation of the parties, and not speculative profits, or accidental or consequential losses. Id. 143. DAMAGES— EARNINGS. Plaintiff may testify to earnings in action for personal injury, for a period covering six or seven years prior to the accident. 96 N. Y. 264, reversing 66 How. Pr. N. Y. 61, citing 41 Barb. N. Y. 381; 63 Barb. N. Y. 260; 19 Hun, N. Y. 366; 37 N. Y. 287; 52 N. Y. 612, and dis- tinguishing 58 N. Y. 391, on the grounds that the profits resulted, both from capital and services, and the services were rendered both by the plaintiff and his partner, and hence it could not be known how much of the profits were due alone to the plaintiff's skill and services. See also 5 N. Y. Supp. 316. In an action for damages for personal injury it is proper for plaintiff to show that at the time of the accident he was a married man, supporting himself and his wife solely by his earnings. 43 Hun, N. Y. 431. In an action for personal injuries, plaintiff may prove the value of medical services rendered necessary although he has not yet paid for them. 4 N. Y. Supp. 310; s. c. 22 St. Rep. 840. DAMAGES— FUTURE CONSEQUENCES. In an action for personal injuries, it is competent for the plaintiff to show by the testimony of a physician. THE TRIAL LAWYERS' ASSISTANT. that there is the probability of a continuance of the injury, and that it may lead to more serious results. 50 Hun, N. Y. 22; s. c. 2 N. Y. Supp. 470; 16 St. Rep. 692,- citing 18 N. Y. 542, and distinguishing 96 N. Y. 306. See also 53 Super. Ct. 527; 46 Hun, N. Y. 448; 15 St. Rep. 928; 48 Hun, N. Y. 383; 4 N. Y. Supp. 843; s. c. 22 St. Rep. 452 ; 5 N. Y. Supp. 641 ; 96 N. Y. 305, reversing 32 Hun, N. Y. 20; 105 N. Y. 617, reversing 38 Hun, N. Y. 100; 52 Hun, N. Y. hi; s. c. 23 St. Rep. 388; 4 N. Y. Supp. 848. In action for personal injury ap- pearance and language of plaintiff on morning after the accident was admitted. 37 Hun, N. Y. 282, citing 45 N. Y. 579; 11 Id. 416; 28 Id. 344; 30 Hun, N. Y. 437; 95 N. Y. 274; 60 Barb. N. Y. 125. DAMAGES— MORTUARY TABLES. Mortuary tables such as the American Table of Mor- tality, the Northampton, Carlisle, and other mortuary tables, in connection with evidence as to the age and general health of a person are admissible in evidence for the purpose of showing the expectancy of life. 55 N. Y. 592; 67 Cal. 13; I Wend. N. Y. 553; 66 N. Y. 50; 118 U. S. 545. In actions for neghgence in causing the death of another, mortuary tables are admissible in evidence for the purpose of showing the probable duration of the life of the deceased, because it is an element in estimating damages. 62 Ga. 306; 118 U. S. 545 ; 62 Iowa 486; 66 N. Y. 50; 74 Ga. 736. DAMAGES— JUDGE'S CHARGE. In cases where there is a fixed legal rule regulating the measure of damages, it must be stated to the jury by the presiding judge upon the trial. His failure to state it correctly is ground of exception; and if the jury dis- regard the instructions of the judge, their verdict may- be set aside. 71 THE TRIAL LAWYERS' ASSISTANT. Court should instruct jury as to rules by which they should be governed in fixing the amount of damages. Townshend, Lib. & S. 380; 36 Me. 466. A charge that compensatory damages are to be given, where the publication is without malice, in an action of libel, and that compensatory damages are such as will repay the costs and trouble of the suit and of disproving allega- tions of the defendant, was held right. Townshend, Lib. & S. 380. DAMAGES— PROSPECTIVE. In general prospective damages, and damages arising after suit brought are not to be taken into account. 3 Denio, N. Y. 346, but it has been held in some cases that the jury may consider the probable future, as well as the actual past. See Townshend, Lib. & S. 381. DOCUMENTS, PUBLIC, DEFINITION. A public document is an instrument of record contain- ing the business ot the people at large, preserved in, or emanating from, any department of government. Rice on Ev. 186. Public documents include state papers, maps, charts and like formal instruments, made under public auspices. A copy of such document, issued by public authority, is as valid as the original, as an officially published statute. Id. 186. Public documents, presumptively contain the records made by the public functionaries in the legislative, execu- tive, and judicial department of the government. They impart necessarily a high degree of credibility. Their recitals are supposed to contain authentic memoranda of what especially concerns the general public. And they are frequently the memorials and repositories of both vested and inchoate rights. It is contrary to public policy and the rules of effective government to allow them to be disturbed. In rare instances where clerical error can be 72 THE TRIAL LAWYERS' ASSISTANT. disclosed, or where fraudulent practices can be established, a public document can be assailed and its force and effec- tiveness utterly vitiated. But from a very early period these documents have been open to inspection at all rea- sonable hours, and frequently where written and other documents are in the official custody of some officer of the court, inspection may be had upon due application, and an order granted. Rice on Ev. 187, citing 6 Ad. & El. 99; 2 T. R. 610; 24 Pick Mass. 88. The statutes of the different states make provision for the introduction of public documents in evidence, and the procedure is pointed out. It is provided by the Con- gressional Act that " the records and judicial proceedings of the courts of any state shall be proved if admitted in any other state in the United States by the attestations of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief jus- tice or presiding justice, as the case may be, that the said attestation is in due form." (Act of May 26th, 1790; I Story, Laws U. S. 93.) See also Const. U. S. art. 4. § I. An examined copy, is a copy sworn to be a true copy by a witness who has compared it carefully with the original. This mode of proof avoids much inconvenience. There is an insuperable objection to the actual production of the original documents themselves. They are, com- paratively speaking, little liable to abstraction, alteration or misrepresentation. The entire community are in- terested in their preservation. With but few exceptions they are subject to daily inspection, and they are fre- quently required for evidentiary purposes, so frequently in fact, as to be demanded in several places at the same time. Obviously this constant handling and bandying would result in mutilation and loss, and the rule of " ex- amined copy " avoids much confusion, delay and hard- ship. This practice is much better than the old one of 73 THE TRIAL LAWYERS' ASSISTANT. introducing the original documents themselves. Rice on Ev. p. i88. We believe the following provisions of the New York Code Civ. Pro. § 921 have been generally adopted through- out the United States. Said section reads as follows : " Where the officer to whom the legal custody of a paper belongs, certifies under his hand and official seal, that he has made diligent examination in his office for the paper, and that it cannot be found, the certificate is presumptive evidence of the fact so certified, as if the officer testified to the same." The courts do not take judicial notice of the statutes of other states. They must be alleged in the pleadings and proved as other facts. 9 Cal. 325. To render public documents, when properly authenti- cated admissible in evidence, their contents must be rele- vant to the issue. It is also necessary that the document be made by the person whose duty it was to make it, and that the matter it contains be such as belonged to his province, or came within his official cognizance or ob- servation. Documents having these requisites are in gen- eral, admissible to prove, either prima facie or conclusively, the facts they recite. Greenlf. Ev. § 491 ; Rice on Ev. 192. The Act of May 26th 1790, c. 38, provides that copies of the statutes of the various states, authenticated by having the seal of the state affixed thereto, are conclusive evidence of such acts in the courts of other states of the United States. The annexation of the seal is the only formality required, and this will be presumed to have been done by an officer having custody thereof and com- petent authority to affix it. 4 Dall, 412; 11 Wheat. U. S. 392. The law presumes that a judgment of a court of gen- eral jurisdiction is valid. 4 Abb. App. Dec. 22; 68 Pa. 471. 74 THE TRIAL LAWYERS' ASSISTANT. The existence of a judgment is put in issue by the plea of nul tiel record (30 Vt. 200), and puts the plaintiff to the proof of a full record of judgment. 8 Ired. L. 511; 12 Vt. 431. This plea raises an issue to be tried by a jury. 9 Wall. U. S. 812. Payment may be always pleaded to a judgment. 13 N. J. L. 68; 5 Hill, N. Y. 306. But nul tiel record and pay- ment cannot both be pleaded. 20 N. J. L. 114. Rice on Ev. 199. A court of equity has power to grant relief against a judgment procured by fraud. 12 N. Y. 156; 60 Id. 92; 33 Id. 27; 107 Id. 73; 90 Ind. 350; 48 Mich. 378. But in the absence of fraud a duly authenticated copy of a judgment record of a court of a sister state, in a suit where it had jurisdiction of the parties and the sub- ject-matter, is conclusive evidence in a suit in the courts of this state between the parties or their privies concern- ing the same subject-matter, on all questions litigated and decided in the foreign court. 12 N. Y. 156; 45 Id. 545; 107 U. S. 12; 78 Me. 295. Unless the court rendering a judgment had jurisdic- tion of the parties and the subject-matter of the action or suit is void. 5 Wend. N. Y. 148, and such a judg- ment may be collaterally attacked. 25 N. H. 299; 36 Barb. N. Y. 242; 8 How. U. S. 495; i Smith's L. C. 824. But if the judgment be one of a court having superior jurisdiction, all the jurisdictional facts will be presumed in its favor. 28 N. Y. 656. But this presump- tion extends only to those matters in reference to which the record is silent. If facts are stated from which a want of jurisdiction can be shown, the judgment is void. Rice on Ev. 200 ; 47 111. 25 ; 34 Cal. 391. The constitution did not make the judgments of other states domestic judgments to all intents and purposes, but only gave a general validity, faith and credit to them as evidence. No execution can issue upon such judgment 75 THE TRIAL LAWYERS' ASSISTANT. without a new suit in the tribunals of other states. And they enjoy not the right of property or lien which they have in the state where they are pronounced, but that only which the lex fori gives to them by its own laws in their character of foreign judgments. The jurisdiction of the court by which judgment is rendered in any state may be questioned in a collateral pro- ceeding in another state, notwithstanding the provision of the 4th art. of the Constitution and the act of 1790, and notwithstanding the averments contained in the record of the judgment itself. 18 Wall. 457; 19 Id. 58. Fraud in obtaining judgment in another state is a good defence to such judgment, such as decoying defendant into state to obtain service upon him. 31 Iowa, 260; 47 Pa. 123; -I Johns. N. Y. 424; 15 Id. 421 ; 4 Munf. 241. A court will not enforce a judgment obtained in the courts of a sister state, where it was fraudulently ob- tained. 22 N. J. Eq. 115; Rice on Ev. 217. DUE PROCESS or LA'W. Law in its due and regular course of administration through courts of justice. 13 N. Y. 378; 18 How. 272; 3 Story Const. 264, 661. The phrase due process of law which occurs in the amendments to the Const. U. S., and in the constitutions of the several states is equivalent to the term law of the land, used in Magna Charta, c. 29. The term is defined by Ruffin, C. J. of North Carolina, one of the ablest of American jurists, to be that no statutes should be enacted which would deprive a citizen of the rights of person or property without a regular trial accord- ing to the course and usage of the common law. 4 Dev. N. C. 15. For various definitions given to similar provisions embodied in the constitutions of different states, see 19 Wend. N. Y. 659 ; 4 Hill, N. Y. 145 ; 34 App. Div. N. Y., and in 157 N. Y. 537; 156 Id. 547; 2 Spiers, S. C. 767; 76 THE TRIAL LAWYERS' ASSISTANT. 3 Humphr. Temi. 483. See also Sullivan Lect. 402 ; 2 Kent Com. 13; i Reeve Hist. Eng. Law, 249; 18 N. Y. 199. Due process of law includes notice, hearing and judgment. 34 App. Div. N. Y. Statute authorizing commitments to asylums upon ex parte affidavits unconsti- tutional. 30 How. Pr. N. Y. 446. DEPOSITION. A deposition is the written testimony of witness given in the course of a judicial proceeding, at law or in equity. 23 N. J. L. 54. Depositions are taken of witnesses beyond the juris- diction of the court, of aged, infirm or sick witnesses, or those going abroad, upon written interrogatories, care- fully prepared, the answers to be read in evidence in the event of their death or departure before trial, or of their inability to attend the trial. When filed a deposition becomes the property of the court. It has been held in some jurisdictions that it is as competent for one party to read a deposition filed by his adversary as to put a witness upon the stand who has been summoned to testify in his favor. 36 Kan. 470. See as to practice, 22 Cent. L. J. 581. As to procedure in New York as to depositions taken and to be used within the state, see New York Code Civ. Pro. §§ 870-886. As to procedure in New York as to depositions taken without the state, for use within the state, see Code Civ. Pro. §§ 887-913. As to mode of taking depositions within the state, for use without the state see Code Civ. Pro. §§ 914-920. Where the deposition of a witness since deceased, has been destroyed by fire, a witness to prove the contents of the deposition need not give its precise language, but only the. substance of what it contained, and he will be 17 THE TRIAL LAWYERS' ASSISTANT. permitted by the court to refresh his memory by referring to notes taken by him at the time. 97 U. S. 693. When deposition is defective , for causes which may be cured by re-examination, motion must be made to suppress before trial, but illegal evidence may be excluded at any time. 6 Enc. PI. & Pr. 588. Objections should be specific. Id. When the objection is based upon one ground, no other ground can be argued under it. 2 Bosw. N. Y. 267; 6 Enc. PL & Pr. 638, and cases cited. In some cases copies of originals may be annexed to depositions. Id. 606. In a matter between the same parties, the deposition of a witness, at a former trial, may be used in a subsequent trial, if the witness be dead, or if he be sought and can- not be found, or if he be subpoenaed and fall sick on the way. Powell on Evidence, 92. Where the ground of an objection to the reading of a deposition is an irregularity, or defect which could have been obviated by retaking it, the objection cannot be raised at the trial, unless noted when deposition is taken, or pre- sented by motion to suppress before the trial is begun. 70 N. Y. 54. DISCOVERY. Discovery in practice, means the disclosure of facts resting in the knowledge of the defendant, or the pro- duction of deeds, writings, or things in his possession or power, in order to maintain the right or title of the party asking it in aid of some suit or proceeding in the court from which relief is asked or some other court. The provisions of the New York Code Civ. Pro. are similar to those of most of the states of the Union. The provisions of the New York Code Civ. Pro. upon the subject are as follows: 78 THE TRIAL LAWYERS' ASSISTANT. Discovery of Books and Papers. 2 803. Court may direct discov. § 8:6, Order, when and by whom ery of books, etc. vacated. Roi. Rules to prescribe the 807. Proceedings upon the re- cases, etc. turn of the order. 805. Petition for discovery, and 8c8. Penalty for disobedience. order thereupon. 839. Effect of papers, etc., pro- duced. § 803. A court of record, other than a justices' court in a city has power to compel a party to an action pending therein, to produce and discover, or to give to the other party, an inspection and copy, or permission to take a copy, of a book, document or other paper, in his posses- sion or under his control, .relating to the merits of the action, or of the defence therein. § 804. The general rules of practice must prescribe the cases, in which a discovery or inspection may be so com- pelled, and the proceedings for that purpose, where the same are not prescribed in this act. § 805. To entitle a party to procure such a discovery or inspection, he must present a petition, praying there- for, and verified by affidavit, to the court, or to a judge authorized to make an order in the action; upon which an order may be made, directing the party, against whom the discovery or inspection is sought, to allow it, or, in default thereof, to show cause before the court, at a time and place, and upon a notice, therein specified, why the prayer of the petition should not be granted ; and, if neces- sary or proper, that his proceedings be stayed until the hearing of the application, although the stay exceeds twenty days. § 806. An order, made as prescribed in the last sec- tion, may be vacated, by the judge who granted it, or by the court, upon satisfactory proof, by affidavit : 79 THE TRIAL LAWYERS' ASSISTANT. 1. That it ought not to have been granted, or that it has been complied with; or, 2. That the party required to make the discovery, or permit the inspection, has not the possession or control of the book, document, or other paper, directed to be pro- duced or inspected. § 807. Upon the return of the order to show cause, the court may make such an order, with respect to the dis- covery or inspection prayed for, as justice requires. Where either is directed, a referee may be appointed by the order, to direct and superintend it; whose certificate, unless set aside by the court, is presumptive, and, except in pro- ceedings for contempt, conclusive evidence, of compliance or non-compliance with the terms of the order. A fixed sum, not exceeding twenty dollars, may be added to the costs of the motion, for the fees of the referee. § 808. Where an order, made as prescribed in the last section, directs a discovery or inspection, the party in whose behalf it was made, may, upon proof, by affidavit, that the adverse party has failed to obey it, and upon notice to him, apply to the court, for an order to punish him for the failure. Upon the hearing of the application, the court may, upon the payment of such a sum, for the expenses of the applicant, as the court fixes, and upon compliance with such other terms, as it deems just to impose, permit the party in default to comply with the order for a discovery and inspection; and, for that pur- pose, it may direct that the application to punish him stand over to a future time. Upon the final hearing of the application to punish the party in default, the court, in a proper case, may direct that his complaint be dis- missed, or his answer or reply be stricken out, and that judgment be rendered accordingly; or it may make an order, striking out one or more causes of action, defences, counterclaims, or replies, interposed by him; or that he be debarred from maintaining a particular claim or de- 80 THE TRIAL LAWYERS' ASSISTANT. fence, in relation to which the discovery or inspection was sought. Where the party has failed to obey an order, allowing an inspection by the adverse party, and requir- ing him to furnish a copy, or permit a copy to be taken, the court may also direct that the book, document or other paper, be excluded from being given in evidence ; or it may punish the party for a contempt; or both. § 809. A book, document or other paper, produced under an order, made as prescribed in this article, has the same effect, when used by the party requiring it, as if it was produced upon notice, according to the practice of the court. It is believed that the following rules of procedure relating to discovery and inspection of books and papers remain substantially in force in New York, and other jurisdictions : The supreme court shall have power, in such cases as shall be deemed proper, to compel any party to a suit pending therein to produce and discover books, papers and documents, in his possession or power, relating to the merits of any such suit, or of any defence therein. 9 Wend. N. Y. 458; i Kern. 575; 13 How. 425; 8 Id. 89. The court shall by general rules prescribe the cases in which such discovery may be compelled, and the proceed- ings for that purpose, where the same are not herein provided ; and therein the court shall be governed by the principles and practice of the court of chancery in com- pelling discovery, except that the costs of such proceed- ings shall always be awarded in the discretion of the court. I Kern. 575 ; 13 How. 425 ; 8 Id. 89. To entitle a party to any such discovery, he shall present a petition, verified by oath, to the court, or to any justice thereof, or to any circuit judge in vacation, upon which an order may be granted by the court of such officer, for the dis- covery sought, or that the party against whom the same is sought should show cause why the prayer of such 81 THE. TRIAL LAWYERS' ASSIS TANT. petition should not be granted, i Kern. 575; 13 How. 425; 8 Id. 89. Every such order may be vacated by the officer granting the same or by the court: i. Upon satis- factory evidence that it ought not to have been granted. 2. Upon the discovery sought being made. 3. Upon the party required to mal^e the discovery denying on oath tlie possession or control of the books, papers or docu- ments ordered to be produced. The court shall provide by general rules for the staying of the proceeding's of any party against whom such discovery shall have been ordered, either by the court or by an officer, until the same shall have been complied with or vacated. In case of the party refusing or neglecting to obey such order for a discovery, within such time as the court shall deem reasonable, the court may non-suit him, or may strike out any plea or notice he may have given, or may debar him from any particular defence in relation to which such discovery was sought; and the power of the court to compel such discovery shall be confined to the remedies herein provided, and shall not extend to authorize any other proceedings against the person or property of the party so refusing or neglecting. 1 Kern. N. Y. 575 ; 13 How. N. Y. 425 ; 8 Id. 89. It was not intended that the proceeding should be a substitute for a bill of discovery in aid of a party in a suit at law, which was then allowed. Bowne v. Cribb, 20 Wend. N. Y. 682. The party can now be examined in the same suit. And although it is provided that he shall be subject to the same rules of examination as other wit- nesses, there is no doubt the old rules in relation to dis- covery apply, and a mere discovery, properly so called, as to books, papers and documents, should be in no other way than on examination of the party. " There is a mighty difference between simply producing an instru- ment and producing it in answer to a bill of discovery, 82 THE TRIAL LAWYERS' ASSISTANT. where the defendant has an opportunity of accompanying the production with a statement of everything which is necessary to protect him from consequences." Lord Eldon in Princess of Wales v. Earl of Liverpool, i Swanst. 120. This proposition is self-evident. It is considered irregular to permit an adversary to call for an isolated fact. William v. Harden, i Barb. Ch. R. 298; Jewett v. Belden, 11 Paige, 618. There is no provision making the affidavit of the opposing party, on a motion to compel discovery under the Revised Statutes, or the discovery itself, evi- dence for him. The proceeding is only adapted to the production of specified documents, &c. Under the former equity system, by a bill of discovery a full discovery could have been required. And the court, it was said, might compel a disclosure of what the party had said respect- ing his case; and could even wring his conscience to disclose his belief — all he knows, believes and thinks, respecting his own case. Lord Brougham in Bolton v. Corp. of Liverpool, i My. & K. 88; and in Greenough v. Gaskell, Id. 103. But this inquisitorial power was always exercised according to certain rules for the protection of the party, as well as for the prosecution of truth, justice and right, and the party calling for the disclosure had first to make out a case on his part, and would not be indulged in a random, fishing inquiry. Lane v. Stebbins, 9 Paige, 622 ; Deas v. Harvie, 2 Barb. C. R. 448 ; Niewey V. O'Hara, i Barb. N. Y. 484. And if he asked for the production and inspection of papers, &c., it must have been upon the admission in answer sufficiently de- scribing them, and admitting the defendant had the sole possession and control ; i Barb. Ch. Pr. 229 ; Reynell v. Sprye, 8 Eng. L. and E. R. 35 ; Watson v. Renwick, 4 J. C. R. 383 ; 3 Dan. Ch. Pr. 2041 ; Eager v. Wiswell, 2 Paige, 359; Hambrook v. Smith, 9 Eng. L. and E. R. 226 ; and not by a motion upon affidavits. Id. ; Bamett v. 83 THE TRIAL LAWYERS' ASSISTANT. Noble, I J. & W. 227. The papers sought, as a general rule, must have been relevant to the case of the party call- ing for them to support his own title and he must have had an interest in them, and they must not have been privileged. Newkirk v. Willett, 2 J. Ca. 413 ; Deas v. Harvie, supra; Lane v. Stebbins, supra; Dias v. Merle, 2 Paige, 494; Van Kleek v. Ref. Dutch Church, 6 Paige, 600 ; s. c. 20 Wend. N. Y. 457 ; Bolton v. Corp. of Liver- pool, supra; Hunt v. Hewitt, supra; Combe v. Mayor, &c., London, i Y. & C, C. C. 631 ; Llewellin v. Badely, i Hare, 527; Greenlaw v. King, i Beav. 137; Nias v. North & E. R. Co., 3 My. and Cr. 355; Adams v. Fisher, Id. 526; and see Goodale v. Little, i Sim. N. S. 163 ; Whitbread V. Gurney, i Y. & C. 541 ; Beresford v. Driver, 7 Eng. L. & E. 25 ; Pritchett v. Smart, 7 C. B. 625 ; Goodliff v. Fuller, 14 M. & W. 41; I Hoff. Ch. Pr. 310; 2 Barb. Ch. Pr. 510; 3 Dan. Ch. Pr. chap. xh. ; 2 Fonb. 489; i Phil. Evi. 437-8; Stor. Eq. PI., § 858. Upon whatever statute the power to compel a discovery now rests, the same principles that governed its exercise before, remain in full force, and should prevail, except where there has been a change by express legislation. It has been decided that the former practice in rendering an account is not abrogated. Wiggins v. Gaus, 4 Sand. 646. And if it had been, the remedy by examination, under the strict rule in relation to charging and discharging a party by his own oath, is sufficient. Per Hand, J. Brevoort v. Warrter, 8 How. 321 ; see Holmes & Disbrow's Practice, 283 to 305. A statement in a petition for a discovery of books and papers, which, in all its material allegations, is capable of being condensed into a sentence like this : We believe your books and letters will help our defence, and if they do, it is material for us that you should show them ; is too vague and indefinite to grant an order of discovery upon. (The authorities on this question examined, and 84 THE TRIAL LAWYERS' ASSISTANT. the principles deducible therefrom stated.) Pegram v. Carson, i8 How. 519. When the discovery will he required by the testimony of witnesses on the trial. On an application by the plaintiffs for a discovery of books and papers belonging to the defendants, to sub- stantiate the questions at issue between the parties, ist. Whether Greene & Mather, as agents of the defendants, had authority to make the note upon which the action was brought? 2d. To prove that certain moneys received by one Olmsted, a former agent of the defendants, on the sale of certain boats, were paid over by him to the de- fendants. 3d. That the defendants had paid large sums of money in and about the defence of a certain suit be- tween one Jones and said Olmsted, as agent of the de- fendants — the note upon which this action was brought being given in settlement of that suit. 4th. That said Olmsted, while agent of the defendants, was in the habit of making notes, drafts, &c., as such agent with the au- thority of the defendants, and which notes, &c., were uni- formly paid by them; and, 5th. That Greene & Mather, after they succeeded Olmsted as agents, were also in the habit of making notes as such agents, which were paid by the defendants, and also that the note in question was entered in the books of the defendants. Held, that no testimony so competent to prove these facts, as that of Greene & Mather and Mr. Olmsted — it not being pre- tended that their testimony was not available. And be- sides, the defendants themselves were competent witnesses, and might be compelled, by subpoena duces tecum, to bring their books into court. The principles apphcable to pro- ceedings for a discovery of books and papers, stated in the case of Stalker v. Gaunt, 12 Leg. Obs. 124 fully ap- proved; also, see Brevoort v. Warner, 8 How. Pr. R. 321 85 THE TRIAL LAWYERS' ASSISTANT. Bonesteel v. Lynde, Id. 352, Hoyt v. American Ex. Bank, Id. 89, and Davis v. Dunham, 13 How. 425. It seems, that where the application is made for the inspection, and a copy of a particular paper, or document, or even specific entries in books, relating to the merits of the action, it should be granted. Commercial Bank of Albany v. Dun- ham, 13 How. 541. It would not be discreet ever to grant the motion where the production of the paper would help to deceive; and where there is a party in being who can be called upon to tell the whole truth, and then to produce the paper required. So held, where the defendant, who wished to prove a counterclaim, applied for the de- livery, by the plaintiff, of an account rendered by the de- fendant to the plaintiff, and which account the plaintiff claimed was objectionable — and the objections had been stated to the defendant alone, which statement the plaintiff was unable to prove, if the account, as it stood, was de- livered to the defendant as evidence of his counterclaim. Van Zandt v. Cobb, 13 How. 544. The particular facts necessary to he shown in the petition. In proceedings for the discovery of books and papers, (which is a summary, and in some respects an extraordin- ary remedy), the court is to be governed by the principles and practice of the (late) court of chancery, in compelling discovery. In this respect, there is no reason to believe that the legislature intended to introduce any new rule, when the provisions of the Code were enacted. The rules of the court contemplate the setting forth by petition of facts and circumstances, which show that the discovery is necessary, and that the party applying therefor is entitled to demand it of the adverse party. A mere statement that in the opinion of counsel the discovery sought is necessary, will not suffice. Such a statement is requisite, but it is cumulative. One of the first facts which should appear on an application for a discovery of books and papers, for 86 THE TRIAL LAWYERS' ASSISTANT. the purpose of preparing for trial, is, that the appUcant has not in his possession the same information, or if he has, that he has not the means of estabUshing by other available proof the contents of such books or papers. In this case, it in nowise appeared by the petition that the plaintiff was ignorant of any particular which was neces- sary to enable him to prepare for trial, or which was con- tained in the books and papers sought to be produced. There was a failure to show a want of the requisite in- formation to enable the plaintiff to prepare for trial. And it was not stated that the plaintiff had any need of the defendant's books and papers, for the purpose of estab- lishing the particulars of the accounts between the parties ; nor that he could not prove without the production sought, every fact which was material to his case. And besides, it appeared that the books of the defendants, of which discovery was Eought, had been freely offered to the plaintiff's attorney for examination and inspection, and he had omitted to avail himself of the opportunity. Motion denied. McAllister v. Pond, 15 How. 299. Where the complaint is not filed, and the nature of the relief sought by the action is not shown by afifidavit, the court should not compel a production of books and papers. Keeler v. Dusenbury, i Duer, N. Y. 660. The defendant must show how, or why it is necessary to have the discovery in order to prepare his answer. He must set forth the facts in his petition. Gelston v. Marshall, 6 How. N. Y. 398. A de- fendant is entitled to an inspection and copy of an assign- ment of plaintiff's bond, declared on and made under an order of court, and also to a copy of the order to enable him to prepare for trial. An application by petition, may be so framed as to embrace a discovery under the Code, and the production of papers, under the rules. Lowell v. Clark, 7 How. N. Y. 158. The petition for a discovery should set forth specifically the papers and documents re- quired. Jackling v. Edmonds, 3 E. D. Smith, N. Y. 539. 87 THE TRIAL LAWYERS' ASSISTANT. Orders to inspect books and papers not matter of right, but only granted in discretion of the court. 78 Hun, N. Y. 363. Manner of inspection in discretion of court. 85 N. Y. 649. As to power of surrogate to allow a litigant to inspect the books and papers of an estate, see Matter of Stokes, 28 Hun, N. Y. 564. For proper procedure to obtain in- spection in New York, see i Duer, N. Y. 652; N. Y. C. Civ. Pro., § 80s ; 41 Hun, N. Y. 603 ; 83 id. 342 ; 47 St. R. 283 ; I Duer. N. Y. 652. Upon petition of a stockholder, the Supreme Court has power to compel the corporation to exhibit its books for his inspection. 159 N. Y. 250, aff'g 31 App. Div. 70. Inspection will be allowed to enable plaintiff to frame his complaint. 69 St. R. 754, or to enable him to. amend his complaint. 19 App. Div. N. Y. 370. (1897.) The court will not grant an order for inspection where subpoena duces tecum will suffice. 5 Misc. Rep. N. Y. 593. (1893.) ; 2 Jones & Spencer, 28; 32 St. R. 44. As to when subpoena duces tecum will be deemed insufficient, see 33 St. Rep. 876. Appeal dismissed, see 126 N. Y. 724. See also, 14 Abb. N. Y. 443. The court will compel the production of any document relating to the issues involved, whether on the part of plaintiff or defendant. 9 Wend. N. Y. 458. See also 41 St. Rep. 672 ; 37 Id. 936. In an action for a foreclosure of a mortgage a defend- ant is entitled to inspect the mortgage and have photo- graphic copies made of it, where the defense of forgery is set up. Holmes v. Cornell, 7 Weekly Dig. N. Y. 375. See also 19 Abb. L. J. 242. The description of the document need only be suffi- ciently specific to enable party in possession of the docu- ment to know what is required. 14 Abb. N. Y. 443 ; 3 E. D. Smith, 539; 5 Robt. N. Y. 606; 6 Abb. N. Y. 177. 88 THE TRIAL LAWYERS' ASSISTANT. The materiality of the books and papers required must be shown. 6 Duer. N. Y. 695. As to when inspection will be granted, see generally, 69 N. Y. St. R. 754. (1895.) ; 19 App. Div. N. Y. 370. (1897.) ; I Id. 136: 75 Hun, N. Y. 21 ; 13 Misc. R. N. Y. 48; 24 How. Pr. N. Y. 257; 30 App. Div. N. Y. 304; 126 N. Y. 654. The rules do not provide for a discovery in all cases in which one may be had. 11 N. Y. 575. See, however, N. Y. Code Civ. Pro., § 804. Production of corporate books and papers may be re- quired by the court in order that the plaintiff may be enabled to prove his complaint against a corporation and its officers. 9 Civ. Pro. Rep. N. Y. 304. See also 159 N. Y. 250; 70 Id. 20; 2 Abb. N. S. 413 ; N. Y. Code Civ. Pro., § 86S. As to order for inspection of books and papers of a foreign corporation, see 22 Hun, N. Y. 566; 70 N. Y. 220; 42 St. R. 14. Sworn copies may be used if originals are in use in a distant state. Court may compel a disclosure of partnership books. 5 Page, N. Y. 548. Whether a subpoena duces tecum will be set aside, and whether a defendant shall be permitted to inspect and copy defendant's books rests in sound discretion of court. 87 N. Y. 625. DATE. The date of a writing is prima facie evidence of the time when it was written. 56 N. Y. 507. DECIiARATION. A declaration in the law of evidence is a statement made by a party to a transaction, or by a person having an interest in the existence of some fact in relation to the same. Declarations of this character are looked upon as 89 THE TRIAL LAWYERS' ASSISTANT. original evidence, arid admissible as such. First. When the' fact that the declaration was made is the point in question, ii Wend. N. Y. no; 9 Johns. N. Y. 45; 4 Mass. 702 ; i Phillips Ev. 188. Second. Declarations in- cluding expressions of bodily feeling, where the existence or nature of such feeling is the object of inquiry, as expressions of affection in actions for criminal conversa- tion. 2 Stark. 191; 8 Watts, Penn. 355, see 4 Esp. 39; 2 Carr. & P. 22; 7 Id. 198, representations by a sick person of the nature, symptoms- and effects of the disease under which he is laboring. 8 Watts, Penn., 355; 7 Cush. Mass. 581 ; 27 Mo. 279. In prosecutions for rape the declarations of the woman forced. Third. In cases of pedigree, including the declarations of deceased per- sons nearly related to the parties in question. Eisenlord V. Clum, 126 N. Y. 552; 2 Pet. U. S. 613; 22 Wend. N. Y. 277; 16 Gray, 171 ; 13 Ves. Ch. 140, 514; 18 Johns. N. Y. 37; 8 Id. 128; 3 Dev. & B. N. C. 91 ; i Penn. St. 381. Fourth. Declarations are admissible where they may be considered as a part of the res gestce. 41 Me. 149, 432; 36 N. H. 167, 353; 20 Ga. 452; 6 Fla. 13, in- cluding those made by persons in the possession of land. 6 Hill, N. Y. 405; 33 Pa. St. 411; 5 Mete. Mass. 223; 4 Serg. & R. Pa. 174; i Campb. 361, and entries made by those whose duty it was to make such entries, i Greenlf. Ev., §§ 11 5- 123; i Smith, Leading Cases (Hare and Wal. Ed.), 142. Regarded as hearsay or secondary evidence, declara- tions are yet admitted in some cases. Fiist, in matters of public and general interest, common reputation being ad- missible as to matters of public interest. 19 Conn. 250; I Maule & S. 686; 14 East. 329, but reputation amongst those only connected with the place or business in ques- tion, in regard to matters of general interest merely, i Crompt. M. & R. Exch. 929; 2 Barnew. & Ad. 245, and the matter must be of a quasi public nature. 14 East. 90 THE TRIAL LAWYERS' ASSISTANT. 329n. ; i Id. 357; 5 Term. 121; 10 Pet. U. S. 112; 16 La. 296; I Taunt. 261. Second. In cases of ancient possession where ancient documents are admitted, if found in a place in which, and under the care of persons with whom such papers might reasonably be expected to be found. 4 Wheat. U. S. 213; 5 Pet. U. S. 319; 5 Cow. N. Y. 221 ; 7 Wend. N. Y. 371, if they purport to be a part of the transaction to which they relate, i Greenlf. Ev., § 144. Third. In case of declarations and entries made against the interest of the party making them, whether made concurrently with the act, or subsequently. I Campb. 367; 3 Id. 457; 2 Term. 53; i Phil. Ev. 293; Gresley £q. Ev. 221, but such declarations and entries, to be so admitted must appear or be proven to be against the pecuniary interest of the party making them. 11 Clark & Fin. Hon. L. 85; 10 East. 109; 2 Jac. & W. Ch. 789; 3 Bingh. N. C. 308, 320. Fourth. Dying declara- tions which will not be considered here. To be admissible as original evidence, the declarations must have been made at the time of doing the act to which they relate. 9 Paige, Ch. N. Y. 611; 14 Serg. & R. Penn. 275. For cases of entries in books, see 8 Watts, Penn. 544; 4 Serg. & R. 3, 5 ; 13 Mass. 427. In order to admit declarations as secondary evidence, the declarant must be dead. 11 Price Exch. 162; i Carr. & K. 58; 12 Vt. 178, and the declaration must have been made before any controversy arose. 13 Ves. Ch. 514; 3 Campb. 444 ; 4 Id. 401 ; i Pet. U. S. 328. It must also appear that the declarant was in a condition or situation to know the facts, or that it was his duty to know them. 15 East. 32; 10 Id. 109; 2 Smith, Lead. Cases (Hare & Wal. Ed.), I93n. ; Powell on Evidence, 82. An agent's declarations regarding the subject-matter of his agency, and made within the scope of his authority, are admissible in evidence against his principal. 122 Pa. St. 500; 20 N H. 165; 6 Gray, Mass. 45°; Story Ag. 91 THE TRIAL LAWYERS' ASSISTANT. §§ 134-137; 3 Harr. N. J. 299; 4 E. D. Smith, N. Y. 165, and declarations of a similar character made by a partner are also admissible in evidence. Abbott v. Pearson, 130 Mass. 190; 73 N. C. 36; 21 Hun, N. Y. 31. By the act of association in the partnership, each partner becomes the agent of the other partner. Scull's App. 115 Pa. St. 141. In some cases it has been held that the admis- sions of a partner, made after a dissolution of the partner- ship, in regard to business of the firm previously trans- acted, were binding upon the partnership, i Russ. & M. 199, 191, 200; 2 Doug. 652; 2 Hawks, 209; i Taunt. 104; I McCord. 541; 17 Mass. 223; 16 Pick. 401; 14 Id. 55; II N. H. 246. In New York the contrary has been held. 15 Johns. N. Y. 409; 7 Cowen. N. Y. 650; 9 Id. 57, 420. So in Louisiana, 6 Rob. (La.), 127. EVIDENCE. Evidence includes all the means by which any alleged matter of fact, the truth of which is submitted to investi- gation, is established or disproved, i Greenl. Ev. 3. Proof is applied to the effect of evidence, and not to the medium by which truth is established. Id. 3. The question in trials of fact is not whether the testimony may be false, but whether there is sufficient probability of its truth. Id. 4. Competent evidence is that which the nature of the thing to be proved requires, as the fit proof in each case, such as the produc- tion of a writing, where its contents are the subject of inquiry. Id. 4. Satisfactory or sufficient evidence is that amount of proof which ordinarily satisfies an unprejudiced mind, beyond reasonable doubt. Id. 4. Cumulative evi- dence, is evidence of same kind to same point. Id. 4. Competency of evidence is for court, sufficiency for jury. Id. 4. Sufficiency of evidence may be tested when man would act upon the evidence in matters of the highest concern and importance to his own interest. Id. 4. 92 THE TRIAL LAWYERS' ASSISTANT. In the actual occurrences of life, nothing is inconsistent. Every event which actually transpires has its appropriate relation and place in the vast complication of circum- stances, of which the affairs of man consist. It owes its origin to those which preceded ii., it is instantly connected with all others that occur at the same time and place, and often with those of remote regions, and in turn it gives breath to a thousand others which succeed. Id. i6. i Stark. Ev. 496. In all this there is perfect harmony; so that it is hardly possible to invent a story which if closely compared with all the actual contemporaneous occur- rences may not be shown to be false. Men of experience, may with a rapidity and certainty approaching intuition, perceive the demerits of truth or falsehood in the face itself of the narrative, without regard to the narrator. Greenlf. Ev. 16. It is important to draw a distinction between hearsay evidence and that which is deemed original. For it does not follow, because the waiting or words in question are those of a third person, not under oath, that therefore they are to be considered as hearsay. On the contrary, it hap- pens in many cases, that the fact in controversy is, whether such things were written or spoken, and not whether they were true; and, in other cases, such language or state- ments, whether written or spoken, may be the natural or inseparable concomitants of the principal fact in contro- versy. 4 Mass. 708; 2 Campb. 511. In cases of this character it is plain that the writings or words are not within the meaning of hearsay, but are original and in- dependent facts, admissible in proof of the issue. For instance, where the question is, whether the party acted prudently, wisely, or in good faith, the information on which he acted, whether true or false, is original and material evidence. This is frequently illustrated in actions for malicious prosecution. Coleman v. Southwick, 9 Johns. N. Y. 45, and also in cases of agencies and of 93 THE TRIAL LAWYERS' ASSISTANT. trusts. Letters and conversation addressed to a person, whose sanity is the fact in question, being connected in evidence with some act done by him, are original to show whether he was insane or not. Wright v. Tatliam, i Ad. & El. 3; s. c. 7 Id. 313; 3 Hagg. Eccl. 574, 608; s. c. 4 Bing. N. C. 489. In the case last cited it was held that letters addressed to a party were not admissible in evi- dence, unless Connected, by proof, with some act of his own in regard to the letters themselves, or their contents. The replies given to inquiries made at the residence of an absent witness, or at the dwelling-house of a bank- rupt, denying that he was at home, i Taunt. 364, are also original evidence. In these and similar cases, it is not necessary to call the persons to whom the inquiries were addressed, because their evidence could add nothing to the creditability of the fact of the denial, which is the only fact that is material. This doctrine applies to all other communications, wherever the fact that such communica- tion was made, and not its truth or falsity is at issue, i Moo. & R. 29, 8; I Phil. Ev. 188. Upon the same prin- ciple, it is considered that evidence of general reputation, reputed ownership, public rumor, general notoriety and the like, though composed of the speech of third persons not under oath, is original evidence,' and not hearsay ; the subject of inquiry being the concurrence of many voices to the same fact. 2 Esp. 482; Buller N. P. 296, 297; Greenlf. Ev. loo, 102. EVIDENCE— PRIMARY. The best evidence of which the case is in its nature susceptible, must be produced. This rule does not demand the greatest amount of evidence which can possibly be given of any fact ; but its design is to prevent the intro- duction of any which, from the nature of the case, sup- poses that superior evidence is in the possession, or under the control of the party. The rule is adopted for the pre- 94 THE TRIAL LAWYERS' ASSISTANT. vention of fraud, for when it is known that better evi- dence is withheld, it will be presumed that the party had some improper motive in not producing it, and that if offered, his plan would be defeated. So long as the original evidence can be had, no other evidence can be substituted, unless the articles are immovable upon which the evidence may be written such as inscriptions on tomb- stones, monuments, walls and the like, so that it would be, if practicable, inconvenient to bring them into court. For instance when a written contract has been entered into, and the object is to prove what it was, it is requisite to produce the original writing, if it can be obtained, and in that case, no copy or other inferior evidence will be received. This rule relates not to the measure and quantity of evidence, but to its quality when compared with some other evidence of a higher degree. There are several ex- ceptions to this general rule. First. As it refers to the quality rather than to the quantity of evidence, it is ap- parent that the fullest proof that every case admits of is not requisite. For example, if there are several eye- witnesses to a fact, it may be sufficiently proven by one only. Second. It is not always requisite, when the matter to be proved has been reduced to writing, that the writ- ing should be produced, as if the narrative of a fact to be proved has been committed to writing, it may yet be proved by oral testimony. For instance a receipt for the payment of money will not exclude oral testimony of pay- ment. 4 Esp. 213; 7 Barnew. & C. 611 ; i Campb. 439; 3 Barnew. & Aid. 566. EVIDENCE, SECONDARY. This kind of evidence is admissible when the best evi- dence cannot be produced, and which becomes by that event the best evidence. 3 Yeates, Penn. 530. Before this species of evidence can be received, it rhust be made 95 THE TRIAL LAWYERS' ASSISTANT. to appear to the satisfaction of the court. The person who has it in possession must be applied to, whether he be a stranger or the adverse party. In the case of a stranger a subpoena duces tecum, and an attachment if subpoena is not obeyed, must be taken out and served. In the case of a party, notice to produce such primary evi- dence must be proved before the secondary evidence will be admitted. 7 Serg. & R. Penn. 116; 4 Binn. Penn. 295, note; 6 Id. 228, 478; 7 East. 66; 8 Id. 278. After proof of the execution of the original, the contents should be proved by a counterpart, if there be one, for this is the next best evidence. 6 Term. 236. If there be no counter- part a copy may be proved in evidence by any witness who knows that it is a copy, from having compared it with the original. Buller, Nisi Prius, 254; i Kebl. 117; 6 Binn. Penn. 234; 2 Taunt. 52; 8 Mass. 273; i Campb. 469. It has, however, been held in some cases that there be no degrees in secondary evidence, and when the party has laid the foundation for such evidence, he may prove the contents of a deed by oral testimony, although it appear that an attested copy is in existence. 6 Carr. & P. 206 ; 8 Id. 389. Prima facie evidence is that which appears to be suffi- cient proof concerning the matter in question, until some- thing appears to controvert it, but which may be contra- dicted or controlled. Conclusive evidence is that which establishes the fact, as in the instance of conclusive presumptions. EVIDENCE, ADMISSIBILITY OF. The terms incompetent evidence and inadmissible evi- dence, are frequently used to designate what is not to be heard as evidence, as witnesses are usually referred to as being competent or incompetent. The common law ex- cludes certain classes of persons from giving evidence in certain cases, because it deems their exclusion conducive 96 THE TRIAL LAWYERS' ASSISTANT. in general, to the discovery of the truth, so it excludes certain materials and statements from being introduced as evidence in a case for a similar reason. For example, as a general rule, it requires witnesses to speak to facts within their own knowledge, and excludes hearsay evidence. Hearsay is the evidence not of what the witness him- self knows, but of what he has heard from others. Such mere assertions or recitals cannot be received in evidence, for several reasons, but chiefly for the following: First, that the party making such declarations is not on oath; and, secondly, because the party against whom it operates has no opportunity of cross-examination, i Phillips Ev. 185. See for other reasons, i Starkie Ev. pt. i, p. 44; 3 Wait L. & Pr. (5th ed.), 430. The general rule exclud- ing hearsay evidence does not apply to those declarations to which the party is privy, or to admissions which he himself has made. Admissions are the declarations which a party himself, or those who act under his authority, make of the exist- ence of certain facts. As a rule the mere declaration, oral or written, of a third person, as to a fact, standing alone, is inadmissible. But where evidence of an act done by a party is admis- sible, his declarations made at the time, having a tendency to elucidate or give a character to the act, and which may derive a degree of credit from . the act itself, are also admissible as part of the res gestcz. 9 N. H. 271. And declarations of third persons, in the presence and hearing of a party, and which tend to affect his interest, may be proven, for the purpose of introducing his answer, or to show an admission by his silence. EVIDENCE, EXPERTS. The opinions of persons of skill and experience usually called experts, are also admissible in certain cases when, 97 THE TRIAL LAWYERS' ASSISTANT. in order to thoroughly understand the evidence, a certain skill and experience are required which are not usually possessed by jurors. In some instances proof of facts is excluded from public policy, as professional communications, proceedings of grand jurors, secrets of state, and communications be- tween husband and wife. From their very nature, many facts, either absolutely, or usually, exclude direct evidence to prove them, being such as are either necessarily or ordinarily imperceptible by the senses, and consequently incapable of the ordinary means of proof. Questions of pedigree or relationship, character, prescription, boundary, custom and the like are of this character, as also questions which depend upon the exercise of particular skill and judgment. Such facts, some from their nature, and others from their antiquity, do not admit of the ordinary and direct means of proof by living witnesses ; and, therefore, resort must be had to the best means of proof which the nature of the case affords. Evidence as to boundaries often becomes of great prac- tical importance. The order of marshalHng boundaries is as follows : First, The highest regard is had to natural boundaries ; Second, To lines actually run and comers marked at the time of the grant; Third, If the lines and courses of an adjoining tract are called for, the lines will be extended, if they are sufficiently established, and no other departure from the deed is required, preference be- ing given to marked lines; Fourth, To courses and dis- tances. I Greenlf. on Ev., § 30in. ; 6 Wheat. 582; 3 Murph. S. C. 82 ; 4 H. & M. Va. 125 ; 8 Me. 61 ; i McLean, C. C. 518; 3 Rob. La. 171. Parol evidence is frequently admissible to identify and ascertain the locality of monuments called for by a de- scription. 13 Pick. Mass. 267; 19 Id. 445, and where the description is ambiguous the practical constr.uction given 98 THE TRIAL LAWYERS' ASSISTANT. by the parties may be shown, i Mete. Mass. 378 ; 7 Pick. Mass. 274. Common reputation may be admitted, for the purpose of identifying monuments, especially if of a public or quasi public nature. 2 Wash Real Property, 636; I Greenlf. Ev., § 145; i Hawks, Tenn. 116; i McLean, C. C. 45, 518; 10 N. H. 43; 4 Id. 214; 2 A. K. Marsh. Ky. 1 58 ; g Dan. Ky. 322, 465 ; i Dev. N. C. 340 ; 6 Pet. 341 ; 8 Leigh, Va. 697 ; 3 Ohio 282 ; 10 Johns. N. Y. 377; 3 Dev. & B. N. C. 49; 10 Serg. & R. Penn. 281 ; 12 Pick. Mass. 532; 7 Gray, Mass. 174; 6 Litt. Ky. 9; 5EII. &B. 166. EVIDENCE, EFFECT OF. It is a general rule that a judgment rendered by a court of competent jurisdiction directly upon the issues in- volved is a bar between the same parties, i Phil. Ev. 242, and privies in blood as an heir, 3 Mod. 141, or privies in estate, i Ld. Raym. 730 ; Buller, N. P. 232, stand in the same situation as those they represent; the verdict and judgment may be used for or against them and is con- clusive. The doctrine of res judicata then applies, for according to the forcible language of the civilians, a de- cision makes white black; black white;- the crooked straight; the straight, crooked. The constitution of the United States, and the amend- ments to it declare that no fact once tried by a jury shall be otherwise re-examinable in any court of the United States than according to the rules of the common law. In order, however, to make a matter res judicata there must be a concurrence of the four conditions following, to wit: Identity in the thing sued for. 5 Mees. & W. Exch. 109; 3 East. 346; 7 Johns. N. Y. 20; i H. & M. Va. 449 ; I Dan. Ky. 434 ; identity of the cause of action ; if for example, I have claimed a right of way over Black- acre, and a final judgment has been rendered against one, and afterwards I purchase Blackacre, this first decision 99 THE TRIAL LAWYERS' ASSISTANT. shall not be a bar to my recovery when I sue as owner of the land, and not for an easement over it which I claimed as a right appurtenant to my land Whiteacre. 6 Wheat. 109; 2 Gall. C. C. 216; 17 Mass. 237; 16 Serg. & R. Penn. 282 ; identity of persons and parties to the action. 1 Wheat. 6; 7 Cranch, 271; 14 Serg. & R. Penn. 435; 4 Mass. 441 ; 4 Den. N. Y. 302 ; 23 Barb. N. Y. 464 ; iden- tity of the quality in the persons for or against whom the claim is made; for example, an action by Peter to recover a horse, and a final judgment against him, is no bar to an action by Peter, administrator of Paul, to recover the same horse. 5 Coke. 32b. ; 4 Term. 490 ; 6 Mann. & G. 164; 4 C. B. 884. It is provided by the Constitution of the United States, art. 4, § I, that " full faith and credit shall be given in each state to the public acts, records and judicial pro- ceedings of every other state. And Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. 7 Cranch. 408, 481 ; 9 Id. 192 ; 10 Wheat. 469 ; 17 Mass. 546 ; 2 Yeates, Penn. 532, 3 Bibb. Ky. 369 ; 2 Marsh. Ky. 293. EVIDENCE, FOREIGN LAWS. Foreign laws must be proven as facts. 64 N. Y. 639; 5 Id. 452; 59 Hun, N. Y. 454. The courts do not take judicial notice of them, except the law of nations, 14 Wall. 171-188, and the maritime law as far as it is recognized by law of nations. Id. State courts take judicial notice of Federal laws, and Federal courts of State laws. 12 Wall. 226; 56 Barb. N. Y. 362; Cowp. 144; 3 Camp. 166; 3 Esp. Cas. 163;, 2 Dow. & C. Hou. L. 171 ; I Cranch, 38; 2 Id. 187, 236, 237; 6 Id. 274; 2 Harr. & J. Md. 193; 4 Cow. N. Y. 515, 516, note; i Paige Ch. N. Y. 220; 10 Watts, Penn. 158; Story Conflict Laws, § 642; 77 Pa. 507; 4 Johns. Ch. N. Y. 520. The 100 THE TRIAL LAWYERS' ASSISTANT. manner of proof varies according to circumstances. As a rule the best testimony is required; for no proof will be received which presupposes better testimony attainable by the party who offers it. When the best evidence cannot be obtained, secondary evidence will be received. 2 Cranch, 237. Exemplified or sworn copies of written laws and other public documents must, as a general rule, be pro- duced when they can be procured, but if they should be refused by the competent authorities, then inferior proof may be admitted. Id. See also in support of the proposi- tion that the written law of another state or nation can only be proven by the production of the written law itself duly authenticated, 14 How. U. S. 400 ; 67 111. 545 ; 32 Md. 274; II Mich. 181; 19 Vt. 184; 17 Ark. 159; 33 Id. 645; I Tex. 434; 8 Foster, N. H. 473; 5 Blackf. Ind. 375; 10 Ala. 682; 2 La. Ann. 387. Contra. 77 Pa. St. 507; 8 Paige, N. Y. 446; 41 Md. 59; 48 N. H. 177; 5 Jones, N. C. 130; II Ark. 157; 9 R. J. 446, 453. Statutes have been passed in many of the states, that books purporting to contain the laws of a sister state, and to be published by authority of such state, may be received as prima facie evidence of the laws of such state. 31 Ind. 283; 8 Gray, Mass. 150; 67 111. 545; 30 Mich. 85. After hearing the testimony it is for the court to decide what the foreign law is and not the jury. Story on Confl. Laws 638; 5 N. Y. 447; 48 N. H. 179. Contra. 2 Hill, N. Y. 201 ; 3 Barb. N. Y. 20 ; 99 Mass. 254. When the United States government has promulgated a foreign law or ordinance of a public nature as authentic, that is held sufficient evidence of its existence. 12 Serg. & R. Penn. 203; i Cranch, 38; 6 Binn. Penn. 321; i Dall. Penn. 462. The usual mode of authenticating foreign laws are by an exemplification under the great seal of a state, or by a copy proved by oath to be a true copy, or by a certifi- cate of an officer authorized by law, which must itself be lOI THE TRIAL LAWYERS' ASSISTANT. authenticated. 2 Wend. N. Y. 411; 2 Cranch, 238; 6 Wend. N. Y. 475; 2 Wash. C. C. 175; 15 Serg. & R. 84; 5 Id. 523. Foreign unwritten laws, customs and usages may be proven, and usually are proven, by oral testimony, and when such testimony is objected to on the ground that the law in question is a written law, the party making the objection must show that fact. 15 Serg. & R. 87; 2 La. 154; 14 How. U. S. 400; 100 Mass. 79; 8 Paige, Ch. N. Y. 446; 8 Johns. N. Y. 190. Proof of such unwritten law is usually made by the testimony of expert witnesses, learned in the law, and com- petent to state it correctly under oath, 14 How. U. S. 400; 2 Cranch. 237; i Pet. C. C. 225; 15 Serg. & R. Penn. 84; 4 Johns. Ch. N. Y. 520; Cowp. 174; 2 Hagg. Adm. App. 15-144; I Cranch, 19; 11 CI. & F. 85 ; 3 Wend. N. Y. 173. The public seal of a foreign sovereign or state affixed to a writing purporting to be a written edict, or law, or judgment, is of itself the highest evidence, and no further proof is required of such public seal, as the court will take judicial notice of it. 9 Mod. 66; 6 Wend. N. Y. 475; 2 Cranch, 238; 4 Dall. Penn. 413, 416; i Wash. C. C. 363 ; 2 Conn. 85. But the seal of a foreign court is not, in general, evidence without further proof, and conse- quently must be established by competent evidence. 4 Cow. N. Y. 526, n; 3 Johns. N. Y. 310; 2 Harr. & J. Md. 193; 3 East. 221. It is provided by Act of Congress of May 26, 1790, " that the acts of the legislatures of the several states shall be authenticated by having the seal of their respective states affixed thereto." The rules prescribed by acts of congress, however, do not exclude every other mode of authentication, and the courts may admit proof of the acts of the legislatures of the various states, although not authenticated according to the acts of congress. And a 102 THE TRIAL LAWYERS' ASSISTANT. printed volume, purporting on its face to contain the laws of a sister state, is admissible as prima facie evidence to prove the statute law of that state. 12 Serg. & R. Penn. 203; 4 Cranch, 384; 5 Leigh, Va. 571 ; 6 Binn. Penn. 321. In the absence of evidence, as a rule, the law of another state will be presumed to be the same as that of the state where the court is sitting. 8 Mass. 99; 10 L. R. A. 367; 8 Minn. 13; 40 La. Ann. 766; 50 Iowa, 215. See also 20 Mo. App. 389; 44 N. Y. 298; 5 Id. 447; 3 Barb. N. Y. 20; 123 Mass. 36; 125 Pa. 204; 82 N. Y. 42; 120 Mass. 387; 56 Hun, N. Y. 108. Where a question of common law is involved, the pre- sumption is that the laws of other states are the same as those of the forum. 10 Wend. N. Y. 75; 19 Mo. 84; 15 111. 263; 86 Ind. 237; 90 Ala. 391; 44 N. Y. 298; 5 Id. 447. A foreign law proved by a governmental publication is presumed to continue in existence until the contrary is shown. 12 L. R. A. 612; 82 N. Y. 57; 17 Abb. Pr. 49; 4 Den. N. Y. 431; 44 N. Y. 172 and cases cited; 6 N. Y. 422; 8 Gray, 150; 28 N. H. 473. In New York, and many other states of the Union, pro- vision is made by statute for proof of foreign laws, both statutory dnd common. The following section (942) of New York Code of Civil Procedure, is substantially similar to that enacted in other states. It reads as follows : § 942. A printed copy of a statute, or other written law, of another State, or of a Territory, of a foreign country, or a printed copy of a proclamation, edict, decree, or ordi- nance, by the executive power thereof, contained in a book or publication, purporting or proved to have been published by the authority thereof, or proved to be com- monly admitted, as evidence of the existing law; in the judicial tribunals thereof, is presumptive evidence of the statute, law, proclamation, edict, decree, or ordinance. The unwritten or common law of another State, or of a 103 THE TRIAL LAWYERS' ASSISTANT. Territory, or of a foreign country, may be proved, as a fact, by oral evidence. The books of reports of cases, adjudged in the courts thereof, must also be admitted, as presumptive evidence of the unwritten or common law thereof. Statutory provision is also made in various states for the authentication of copies of records of courts of foreign countries. The New York statute is similar to many others and reads as follows : § 952. A copy of a record, or other judicial proceeding, of a court of a foreign country, is evidence, when authen- ticated as follows : 1. By the attestation of the clerk of the court, with the seal of the court affixed, or of the officer in whose custody the record is legally kept, under the seal of his office. 2. By a certificate of the chief- judge or presiding magis- trate of the court to the eflfect, that the person, so attesting the record, is the clerk of the court ; or that he is the officer, in whose custody the record is required by law to be kept ; and that his signature to the attestation is genuine. 3. By the certificate, under the great or principal seal of the government, under whose authority the court is held, of the Secretary of State, or other officer having the custody of that seal, to the effect, that the court is duly constituted, specifying generally the nature of its juris- diction; and that the signature of the chief-judge or pre- siding magistrate, to the certificate specified in the last subdivision is genuine. § 953- A copy of a record, or other judicial proceeding, of a court of a foreign country, attested by the seal of the court, in which it remains, must also be admitted in evidence, upon due proof of the following facts : I. That the copy offered has been compared by the wit- ness with the original, and is an exact transcript of the whole of the original. 104 THE TRIAL LAWYERS' ASSISTANT. 2. That the original was, when the copy was made, in the custody of the clerk of the court, or other officer legally having charge of it. 3. That the attestation is genuine. New York Code Civ. Pro. New York Code Civil Procedure, § 956 provides as follows for the authentication of documents from foreign countries : § 954. Nothing in this article is to be construed, as declaring the effect of a record or other judicial proceeding of a foreign country, authenticated, so as to be evidence. § 956. A copy of a patent, record or other document remaining of record in a public office of a foreign country, certified according to the form in use in that country, is evidence when authenticated as follows : 1. By the certificate under the hand and official seal of a commissioner appointed by the governor to take the proof or acknowledgment of deeds in that country, to the effect that the patent, record or document is of record in the public office, and that the copy thereof is correct and certified in due form. 2. By a certificate under the hand and official seal of the Secretary of State annexed to that of the commissioner, to the same effect as prescribed by law for the authentica- tion of the certificate of such a commissioner, upon a conveyance to be recorded within the State. The certifi- cate of the commissioner, thus authenticated, is presump- tive evidence that the copy of the patent, record or docu- ment is certified according to the form in use in the foreign country. The object of evidence is to ascertain the truth between the parties to an action at law or a suit in equity. Ex- perience has demonstrated that this is done by the adop- tion of the followina: rules, which are now binding as a portion of our legal system : I. The evidence must b^' confined to the point in issue. 10^ THE TRIAL LAWYERS' ASSISTANT. 2. The substance of the issue must be proved, but the substance only is required to be proved. 3. The affirmative of the issue must be proved. Both in civil and criminal cases it is a rule that the evidence shall be confined to the point of issue. EVIDENCE— MODES OF PROOF. Records are to be prjDven by an exemplificati'on, Tduly authenticated, in all cases where the issue is nul tiel record. An examined copy; duly proven, will as a rule be evidence in other cases. Private writings are usually proven by the evidence of the attesting witness. In case of his death, absence or other legal inability to testify, his handwriting may be proved. When the instrument is not witnessed, it may be proved by the evidence of the handwriting of the party, by a person who has seen him write or in a course of correspondence has become acquainted with his handwriting. 5 Binn. Penn. 349; 11 Serg. & R. Penn. 333, 347; 3 Wash. C. C. R. 31. A witness may state positively in the first instance that he knows the signature shown him to be that of defendant, and without stating in the first instance his means of knowledge. 8 Watts. Penn. 485. The adversary of the party examining, may ascertain upon cross-examination his means of knowledge. Id. A witness is qualified to testify as to the handwriting of another if it appear either : 1. That the witness had seen defendant write at least once ; or, 2. That he had seen writings which defendant either directly or indirectly, acknowledged to be in his hand- writing, as for example a note which the defendant paid; or, 3. That he had received letters and other documents, purporting to be written or signed by the defendant, in 106 THE TRIAL LAWYERS' ASSISTANT. answer to letters written by himself, or by his direction, and addressed to defendant, in answer to letters written by himself, and has acted on them as such; or, if the acts of the witness done pursuant to the letters purporting to come from defendant have been ratified by defendant, or, 4. That in the ordinary course of business, writings or signatures.. purporting to have. beea. written by defendant, have been habitually passed through his hands, and acted on by him as such; or 5. That as a public officer he has been called upon to pass upon what he believed to be the defendant's signature, and has done so. If it appear that the knowledge was acquired for the purposes of the trial, he is not qualified. I Whart. Ev. § 707; Abb. Tr. Ev. 395. After qualifying himself, the witness may swear to his belief or opinion as to genuineness, and this evidence is sufficient to go to the jury in proof of execution. The opinion of a witness as to the genuineness of other alleged signatures, not having been put in evidence, is in- admissible. 44 N. Y. 514. Nor can other papers signed by the party, the signatures to which are admitted to be genuine, but which are not in evidence, be submitted to the jury to enable them to compare the signatures. 48 N. Y. 456; 82 Id. 41 ; s. c. 7 Abb. N. C. 98. But where different signatures have been put in evidence in the cause the jury may compare them, where the question is whether one of them is genuine. 30 N. Y. 355. In many states statutes have been passed similar to that in force in New York. This statute, L. 1880, chapt. 36, is substantially as follows : Comparison of a disputed writing with any writing proved to the satisfaction of the court to be genu- ine, shall be permitted to be made by witnesses in all trials and proceedings, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury, as evidence of the genumeness, or other- wise, of the writing in dispute. 107 THE TRIAL LAWYERS' ASSISTANT. A witness cannot be compelled to answer as to a part of a signature before being allowed to see the whole. 22 Mich. 161. In the case of Hardy v. Norton, 66 Barb. N. Y. 527, the court held upon an issue as to the genuineness of the defendant's sirnature, several papers were shown to him in such manner that he could only see the signatures, and he was asked if the signatures were his. Then the whole of the papers were shown him, and he was asked the same questions, held that it lay in the discretion of the court to allow such a method of cross-examination. On the question of the genuineness of a signature mag- nified photographs of the writing in evidence were held admissible upon proof of their accuracy. 10 Abb. Pr. N. S. (N. Y.) 301 ; 16 Gray, 161. The photographer may be examined as an expert. 16 Gray, 161. EVIDEIfCE— BOOKS OF ORIGINAI. ENTRY, When duly proven, are prima facie evidence of goods sold and delivered, and of work and labor done. An original entry, is the first entry made by a trades- man or other person in his account-books, charging another with merchandise, materials, work or labor, or cash on a contract made between them. The entry must be made in the course of business, and with the intention of making a charge for goods sold or work done. They ought not to be made after the lapse of one day. I Nott & McC. S. C. 130; 4 Id. 77; 4 Serg. & R. 5 ; 9 Id. 285 ; 8 Watts, Penn. 545. A charge made in the gross as " 190 days' work," i Nott & McC. S. C. 130, or for " medicine and attendance on one of the general's daughters in curing the whooping-cough," 2 Cons. So. C. 476, were rejected. An entry of goods without carrying out any prices proves, at most, only a sale, and the jury cannot, without other evidence, fix any price, i South. 108 THE TRIAL LAWYERS' ASSISTANT. So. C. 370. The charges should be clear and specific, and denote the particular work or service qharged ^s it arises daily, and the quantity, number, weight, or other dis- tinct designation of the materials or articles sold or fur- nished, and attach the price and value to each item. 2 Bail. So. C. 449; I Nott & McC. S. C. 130; 2 Const. S. C. 745. The entry must have been made by one having authority to make it. 4 Rawle, Penn. 404, and with the purpose of charging the party. 8 Watts, Penn. 545. Proof of the entry must be made by the person who made it. 12 Johns. N. Y. 461 ; 5 Conn. 496; i Dall. Penn. 239. When the entries were made by a clerk, they must be proved by him if living, or if dead, or absent out of the state, by his handwriting. 2 Watts. & S. 137. The books and original entries, when proven by the oath of the party, is prima facie evidence of the sale and delivery of goods, or of work and labor done, i Yeates, Penn. 347 ; 3 Vt, 463 ; i Cooke, Tenn. 38. But they are not evidence of money lent or cash paid, i Day, Conn. 104; I Aik. Vt. 73, 74; Kirb. Conn. 289. These entries are evidence in suits between third parties. 20 Johns. N. Y. 168; 7 Wend. N. Y. 160; 15 Mass. 380; 8 Wheat. 326; 16 Serg. & R. 89. EVIDENCE— EXPERT, The principles upon which Expert Evidence is received in courts of justice were well stated by Earl, J., in Fer- guson V. Hubble, 97 N. Y. 513, as follows: "Witnesses who are skilled in any science, art, trade or occupation, may not only testify to facts, but are, sometimes permitted to give their opinions as experts. This is permitted be- cause such witnesses are supposed, from their experi- ence and study, to have peculiar knowledge upon the subject of inquiry which jurors generally have- riot, and „re thus supposed to be more capable of drawing con- clusions from facts, and base opinions upon them, than 109 THE TRIAL LAWYERS' ASSISTANT. jurors generally are presumed to be; opinions are also allowed in some cases where, from the nature of the matter under investigation, the facts cannot be adequately placed before the jury so as to impress their minds, as they im- press the mind of a competent, skilled observer, and where the facts cannot be stated or described in such language as will enable persons, not eye-witnesses, to form an ac- curate judgment in regard to them, and no better evidence than such opinion is attainable." See also 79 N. Y. 266; 68 Id. 551 ; 81 Id. 79; 109 Id. 301, 345; 90 Id. 640; 115 Id. 61 ; 118 Id. 424. Lawson's Expert and Opinion Evidence. It is not an objection to the admissibility of the opinion of an expert witness, that the question put to him involved the point to be decided by the jury. Littlejohn v. Shaw, 159 N. Y. 188. It was said by the court in this case that, " When the question concerns a matter, as to which it may be fairly supposed that jurors are competent to reach a judgment from the exercise of that common knowl- edge vvhich is attributable to man, the opinions of wit- nesses are not admissible. It is as to subjects, upon which jurors are not as well able to judge for themselves as is the witness, that an expert, as such, is permitted to testify. The established rule is that upon questions of science, or skill, or trade, persons experienced in those particular de- partments may be allowed to give their opinions in evi- dence. The rule is confined in its operation to cases in which, from the very nature of the subject, facts dis- connected from such opinions cannot be so presented to a jury as to enable them to pass upon the question with the requisite knowledge and judgment." 7 Wend. N. Y. 73; 97 N. Y. 507; 118 Id. 424; 95 U. S. 297. Id. The ground of objection to the reception of expert evi- dence should be specifically stated. To object because the questions were immaterial and incompetent is not suf- ficient. Wallace v. Vacuum Oil Co., 35 N. Y. St. R. 697, afl'd in 38-N. Y. St. R. 441, 128 N. Y. 579. IlOr THE TRIAL LAWYERS' ASSISTANT. EXCEPTIONS AND OBJECTIONS. A bill of exceptions is a written statement of objections to the decision of the court upon a point of law, made by a party to the cause, and properly certified by the judge or court who made the decision. The purpose of a bill of exceptions is to put the decision objected to upon record for the information of the court having cognizance of the cause in error. Bills of exceptions are authorized by statute. West. 2 (13 Edw. i.), c. 31, the principles of which have been embodied in the statutory laws of the various states. It provides for compelling the judges to sign such bills, and for securing the insertion of the ex- ceptions upon the record. They may be brought by either plaintiff or defendant. An objection presents to the court the question upon which its decision is asked, together with the grounds of the decision. An objection also presents to the appellate court the exact points which were at issue in the trial court, and the grounds on which the judge was requested to base his decision or ruling. The objection is oral and always precedes an exception. An exception, as the word is usually used, is an objection taken to the decision of the trial judge upon a question of law. An exception is the second step in the proceedings taken to obtain a review of error committed by the trial judge, and is the mode by which an objection is saved. If an exception is not taken an objection is lost, however meritorious it may have been. An exception, however, unlike an objection, does not give the exact grounds on which it is based, except where objections are unnecessary, as in the case of in- structions where exceptions take the place of objections. OBJECTION TO PLEADING, WHEN MADE. An objection to a pleading made for the first time in an appellate court, will not be available where the defect III THE TRIAL LAWYERS' ASSISTANT. could have been remedied by amendment if the objection had been made in the trial court. 125 N. Y. 651 ; 93 N. C. 252. An objection as to the form of the action cannot be raised for the first time in the appellate court. 130 N. Y. 152; 134 Ind. 547. Nor as a rule can an objection to the sufficiency of a complaint be raised for the first time on appeal. 134 N. Y. 97; 132 Id. 507; no Id. 170. An objection to a pleading upon the ground of am- biguity, uncertainty or inconsistency cannot be raised on appeal for the first time. 143 Ind. 574; 69 Hun, N. Y. 202. Nor as a rule for duplicity, (6 Tex. App. 181) ; multifariousness, (95 Mich. 534), or a misjoinder of causes of action. 112 N. C. 578; 86 Iowa, 594. Where an application to amend a pleading in the trial court is denied, an exception should be taken to the re- fusal of the court to allow an amendment. 128 111. 398; 90 Va. 696. EVIDENCE— OBJECTIONS TO, "WHEN MADE. Objections to evidence raised for the first time on ap- peal are not available. 151 Mass. 537; 132 N. Y. 483; 122 Id. 91 ; 117 Id. 606; 129 Id. 634; 108 N. C. 507; 165 Mass. 160. If an objection is not made at the time evidence is offered it will be deemed to have been waived as a gen- eral rule. 114 N. Y. 566; 130 Ind. 364. As a general rule an objection to the admission of evi- dence, which does not show the ground upon which it is made, will not raise any question on appeal. 117 Ind. 416; 109 N. Y. 621 ; 24 N. Y. St. Rep. 81 ; 100 N. C. 150. An objection to evidence as incompetent must state the reason which makes it incompetent. 97 Mo. 137; 8 Mont. 499. An exception to a deposition on -the ground that it does not appear to be in conformity with all the regulations 112 THE TRIAL LAWYERS' ASSISTANT. of the statute is too general to be available. Bulwinkle V. Cramer, (S. C.) 8 S. E. Rep. 689. An objection to a transcript of a judgment of another state that it does not contain a certificate of the presiding judge " that the attestation is in due form of law," must be specific. 25 Neb. 735. A general objection to the testimony of a witness, a portion of which is competent, is too general. 100 N. C. 161 ; 86 Ala. 617; y-j Ga. 192. A bill of exceptions to the exclusion of evidence should show what the answer asked for would have been, or what the party offered to prove thereby. 116 Ind. 511, 438; 70 Tex. 183; 74 Iowa, 733. The ground of an objection should always be stated by counsel making it, in order that opposing counsel may, if possible obviate it, and to enable the court to see the precise point raised. 109 N. Y. 621; 114 Id. 487; 109 id. 301; 133 Id. 425; 90 Id. 664; 12 Id. 442; 158 Mass. 381 ; 103 Mich. 173. But a general objection is good if the evidence is inadmissible for any purpose. 143 N. Y. 677; 59 Id. 336; 90 Id. 664; 105 Id. 659; 115 Mo. 409; 119 Id. 126. A repetition of objections and exceptions is unneces- sary when some kind of evidence is afterward offered. 79 Calif. 633; 18 Colo. 170. Contra. 25 Me. 414. The objection cannot be made for the first time in the appellate court that secondary evidence was admitted in the court below. 85 Hun, N. Y. 178; 157 111. 90, and the same is true of an objection that oral testimony was admitted for the purpose of varying the terms of a con- tract in writing. 83 Iowa. 756; 23 Cal. 58; 19 La. 482, and of hearsay evidence. 5 Nev. 349. and of incom- petent evidence. 148 N. Y. 112; 99 Id. 592; 102 Id. 228. When an exception is taken to illegal evidence, and it is admitted, if such evidence bears in the least degree on "3 THE TRIAL LAWYERS' ASSISTANT. the result, it is fatal. 47 N. Y. 188; i Comst. N. Y. 519; 43 N. Y. 20Q, but if it could hot possibly have injured the person against whom it was admitted, the error may be disregarded. 47 N. /. 188. To make an exception on account of the rejection of testimony available, the party should make his offer in such plain terms as to leave no room for doubt as to what was intended. If the offer is open to two constructions, he cannot in an appellate court insist upon that con- struction which is most favorable to himself, unless it appear that it was so understood by the court which re- jected the testimony. Daniels v. Patterson, 3 N. Y. 47. See, also 145 N. Y. 624. When a c[uestion asked a witness calls for nothing but evidence which is proper, but in the course of the answer improper matter is added or intermingled with it, the remedy of the opposite oarty is by motion to strike out whatever appears to be improoer or irresponsive to the inquiry. Holmes v. Roper, et al. 141 N. Y. 69; 37 N. Y. 166; 75 N. Y. 164; no N. Y. 562. And when in such a case the party against whom the testimony was given, omits at the trial to insist upon his right to have what is incompetent separated from what is competent, and the former excluded, he cannot, upon appeal, select such parts of the testimony as may appear to be im- proper, but was not necessarily called for by the question, and ask the court to reverse on such grounds. 141 N. Y. 69. EXCEPTIONS AND OBJECTIONS— OBJECTION THAT THERE IS A VARIANCE BETWEEN PI.EADING AND PROOF. An objection that there is a fatal variance between the allegations in a complaint, and the evidence should be made in the trial court, and the objection will not be con- sidered if rhade for the first time in the appellate court. Gillies V. Improvement Co. 147 N. Y. 420. And where "4 THE TRIAL LAWYERS' ASSISTANT. a case has been tried upon the theory that a plaintiff if entitled to recover at all, must recover under a contract, and not upon a quantum meruit, and no objection having been taken or made to the introduction of evidence show- ing amount due plaintiff under the contract, the court must treat the pleadings as amended so as to conform same to the proof introduced. Especially is this true where there was no motion to dismiss the plaintiff's com- plaint because of failure of proof; this objection is waived unless taken at the trial, and distinctly taken. 14 N. Y. 143; 53 Id. 483; 58 Id. 308; 7 Hun, N. Y. 583; 7 Abb. N. C. 258. Where a cause is tried by the court without an objec- tion that the case made by the proof varies from that stated in the complaint, a general exception to the de- cision on the facts and the law raises only the question whether the law is correctly decided on the facts proved, irrespective of the pleadings. Belknap v. Sealey, 14 N. Y. 144. An objection to evidence on the ground that there is a variance between the pleadings and the proof should be taken immediately when such evidence is offered. (36 Md. 236), or by a motion for a non-suit, or to exclude the evidence, or by request for instruction to find for party who would be injured by the evidence. 141 111. 442; 83 Va. 827. EXCEPTIONS TO INSTRUCTIONS, WHEN TAKEN, ETC. Exceptions to the instructions given by the court to the jury must be taken in the trial court as a rule, or they will not be considered in the appellate court. 151 Mass. 71, 295; 13 N. Y. Supp. 574. In some jurisdictions the rule has been changed by statute. The statutes are usually similar to Rev. Stat.of Texas, Art. 13 18, which provides in substance that no exceptions need be taken to an erroneous charge in order to bring it up on appeal. "5 THE TRIAL LAWYERS' ASSISTANT. The objectionable portions of a charge must in the ab- sence of statute, be pointed out specifically, and the judge's attention directed to the proposition or propositions complained of, in order that he may have an opportunity to remedy the omission, or correct his charge if erroneous. 132 N. Y. 464; 8 Id. 276; 114 Id. 6. A general exception to the entire charge is not avail- able on appeal if any portion of it is correct. 132 N. Y. 464; 116 Id. 606; 88 Id. 13, 668. A single exception to the refusal of the court to charge several propositions is not available in an appellate court. 114 N. Y. 6. In the case of Tousey v. Roberts, 114 N. Y. 316, the court said : " The case shows that the defendant requested the court to charge six propositions, which are set forth, but it does not show what answer the court made or how it disposed of them. But two exceptions were taken to the charge, one to the instruction as to the supervision of the building, which has been discussed, and the fol- lowing : " Defendant's counsel also excepts severally to each and every refusal of the court to charge each and every proposition requested by defendant's counsel." It is urged that the refusal to charge the first and second of the six propositions was error. It is sufficient to say that the case does not show that the court refused to charge any one of the requests. The exception above quoted did not point out wherein defendant's counsel con- ceived the court to have erred, and thus give an oppor- tunity for correction, for which reason it is unavailing. (40 N. Y. 556; 45 N. Y. 129; 4 Hun, N. Y. 389; s. c. 6 T. &C. 665; 93 U. S. 46.)" In the case of Beaver v. Taylor, 93 U. S. 46, the Su- preme Court of the United States, said : " The plaintiff excepted to the refusal of the court, and excepted, also, ' to so much of the charge of the court as given, as was 116 THE TRIAL LAWYERS' ASSISTANT. in conflict with and variant from the several propositions ' presented by him." " It is upon this presentation of the case that this court is asked to reverse the judgment entered upon the ver- dict." " I. The entire series of propositions was presented as one request ; and if any one proposition was unsound, an exception to refusal to charge the series cannot be maintained, ii N. Y. 416; 6 Id. 233; 7 Id. 266. All of these propositions were not sound; notably the fifth re- quest could not be complied with. " 2. If the entire charge of the court is excepted to, or a series of propositions contained in it is excepted to in gross, and any portion thus excepted to is sound, the exception cannot be sustained, i Wall. 644; 2 Wall. 328; 2 Denio. 213 ; 40 N. Y. 556. The charge before us was confessedly sound upon the most of its points. "3. An exception to such portions of a charge as are variant from the requests made by a party, not pointing out the variances cannot be sustained. 40 N. Y. 556; 45 Id. 129; 47 Id. 570. It is not the duty of a judge at the circuit court, or of an appellate court, to analyze and com.pare the requests and the charge, to discover what are the portions thus excepted to. One object of an excep- tion is to call the attention of the circuit judge to the precise point as to which it is supposed he has erred, that he may then and there consider it, and give new and dif- ferent instructions to the jury, if in his judgment it should be proper to do so. Ayrault v. Bk., 47 N. Y. 576. An exception in the form we are considering entirely defeats that object." " For these reasons, the bill of exceptions fails to pre- sent any point that we can consider." This case is cited in 95 U. S. 301; 98 Id. 284; loi Id. 149; 105 Id. 646; III Id. 338;32 0hioSt., 88, 89. 117 THE TRIAL LAWYERS' ASSISTANT. In the case of Walsh v. Kelly, 40 N. Y. 556, at the dose of the evidence, and before the judge charged the jury, the defendant's counsel submitted to the court a series of propositions, including thirteen requests to charge the jury. The judge charged the jury elaborately, submitting substantially all the issues in the case to them, and it is stated in the case at the close of the charge that the court, as to the requests to charge, made by the de- fendant's counsel, as to each and every of the said propo- sitions, refused to charge further, or otherwise, in re- spect thereto than as in the foregoing charge, and that " the defendant's counsel thereupon excepted to the charge as made by the court, and each and every part thereof." The court said : " This is quite too general." It was held in the case of Hart v. The Rensselaer and Saratoga Railroad Co., 4 Seld. R., N. Y. 37, that if the charge of the Court contain two propositions, and there is a general exception to the charge, a new trial will not be granted, if either of the propositions are correct. It was held in the case of Osgood v. Osgood, 2 Seld. R. N. Y. 233, that a general exception to the whole of the charge of the court, and each part of it, when the charge involves more than a single proposition of law, and is not in all respects erroneous, presents no question for review upon appeal. The rule is settled in this court, that a general exception to a charge containing distinct propositions is unavail- ing, unless the party excepting can show that each propo- sition is erroneous to his prejudice. Haggart et al. v. Morgans, i Seld. R. N. Y. 422. And the case is not differ- ent where the exception is to the whole, and each and every part of the charge. Jones v. Osgood, 2 Seld. R. N. Y. 233 ; Caldwell v. Murphy, i Kern. R. N. Y. 416. In the latter case, the exception taken at the conclusion of the charge was to each and every part of the charge, and it was held in this court to present no question for review, as some portions of the charge were unobjectionable. 118 THE TRIAL LAWYERS' ASSISTANT. The defendant's exceptions to the judge's refusal to charge are equally untenable. The defendant's counsel submitted thirteen distinct written propositions, .upon which he requested the judge to charge. These propo- sitions were submitted to the judge before his charge was made, and his charge substantially embraced them all, as I read it, and it is conceded that, as to most of the propo- sitions, the charge was unexceptionable; and where the propositions are so numerous and the judge's charge covers them generally, it is the duty of counsel to call his attention particularly to any one upon which more definite instructions are desired, to make an exception to his re- fusal available. Zabriskie and others v. Smith, 3 Kern. R. N. Y. 323. An exception to a refusal to adopt, in gross, a series of propositions in the form of a request to charge, is unavailing, if the judge's charge covers the proposition substantially. The attention of the court should be drawn to each, and each should be the subject of a specific ruling by the judge, and a specific exception by the party., Magee V. Badger and others, 34 N. Y. 247; Hunt v. Maybee, 3 Seld. R. N. Y. 273; Magie v. Baker, 14 N. Y. 434. .Here were thirteen distinct propositions submitted, and the judge charged, as he believed, embracing them all, and refused to charge further, and the defendant's counsel barely ex- cepted to the refusal, as to each proposition, without in any manner calling the judge's attention to the portions he was dissatisfied with, which is little more than a gen- eral exception to the whole. It was an exception ap- plying in terms to each and all of the thirteen proposi- tions, as well those which the defendant concedes were fully charged as those of which he complains the charge was not sufficiently explicit. When the judge had com- pleted his charge, it was the duty of counsel to call his attention to any portion where he desired more specfic instruction. Assuming however, that this, exception is sufficient to 119 THE TRIAL LAWYERS' ASSISTANT. bring under review in this court all of these thirteen prop- ositions, in connection with the whole charge, and that we are to review the whole charge, embracing thirty-two folios of the printed case, then I have to say that an attentive examination of these requests and the charge of the judge, has satisfied me that the charge has substantially covered them all and is substantially correct. The judge is not obliged, in his charge, to adopt the language of counsel, but is at liberty to employ his own, and is not guilty of the imputation of error if he charges the request made upon him substantially correct. If anything in these requests can be said to be omitted or not specifically noticed in the charge, they are of matters which the evidence in the case did not call for the charge, or else an excuse is found in the fact that the judge should not have.fassumed the facts which it belonged to the jury to say whether they were established by the evidence or not." In the case of Ayraull v. The Pacific Bank, 47 N. Y. 575, the court said : " The defendant's counsel presented sixteen requests to charge upon distinct points, presenting substantially the same question in divers forms and with nice distinctions. Whether they were all especially and succinctly noticed by the judge in his charge, is not im- portant. Doubtless all that were material were re- sponded to, but this can only be ascertained by a careful and critical study of the charge and the requests in con- nection. This court is not called upon to perform this task. It was for the counsel to do this and to take his exceptions, specifically, to any omission or refusal to charge as requested. An omission to charge any specific request may have been inadvertent, and had the attention of the judge been called to the omission, it would have been remedied. The exception is to " the refusal to charge each of the requests submitted, except so far as embraced in the charge de- livered ; " and the exception to the chiirge is. " to every 120 THE TRIAL LAWYERS' ASSISTANT. part of the charge which is inconsistent with such re- quests." This court has uniformly held that exceptions in that form present no question for review. The office of an exception is to point out some specific error in law, and the counsel should, by his exception, lay his finger upon the precise request refused, or error in the charge, not only that the court may, upon the error being pointed out, correct it, but also that the court of review may not be left to spell out and dig up errors, which after they are discovered, may be more apparent than real, and may have arisen from mere inadvertence or a misap- prehension upon the trial. Beaver v. Taylor, 93 U. S. 55- The rule requiring exceptions to be specific and to pre- sent the very point intended to be raised, is reasonable and well settled, and to it there is no exception. Kluender v. Lynch, 4 Keyes, N. Y. 364 ; Walsh v. Kelly, 40 N. Y. 556; Magee v. Badger, 34 N. Y. 247; Chamberlain v. Pratt, 33 N. Y. 47 ; Hunt v. Maybee, 3 Seld. 273. In the case of Smedis v. R. R. Co., 88 N. Y. 23, the court said : " The judge refused to charge the second, third and fourth requests. The questions raised by these requests were also involved in the motion to dismiss the complaint, and have been considered in our discussion of that motion. ***** g^j- jf ^jjg court erred in refusing to charge one or more of the propositions as re- quested, some charged in a modified form and others not charged, an exception taken in the form in which it ap- pears in this case cannot be sustained. The exception must be more specific, and point out the particular request to-which it is intended to apply." See, also 5 N. Y. 422; 5 Denio, N. Y. 213 ; 6 N. Y. 235 ; 7 Id. 266. In Kentucky, Iowa, Montana, and Washington, a party taking exceptions is not required to specify errors', or to state ground of exceptions to instructions given by the court. 121 > THE TRIAL LAWYERS' ASSISTANT. EXCEPTIONS, TIME OF TAKING. If exceptions are desired to instructions given they should be taken before the jury retire, at the close of the charge, or they will be too late. 125 Mass. 574; 83 Mo. 608; 102 U. S. 120. EXCEPTION— INSTRUCTIONS AS TO MATERIAL QUES- TIONS. It is a fatal error -for the judge to fail to call the atten- tion of the jury to material matter of evidence after being requested to do so. 2 Cow. N. Y. 479, and according to the weight of authority including a failure to charge the jury in a case proper for a charge. 4 Cranch. 60, 62; 2 Blatchf. C. C. i; 5 Gray, Mass. loi. Compare State V. Morris, 3 Hawks, N. C. 390. But not in- cluding a failure to charge the jury on points of law when not requested. 6 Wend. N. Y. 274; 2 Pet. U. S. 15; I Halst. N. J. 132; 4 Id. 153; 2 Blatchf. C. C. i ; II Cush. Mass, 123; 38 Me. 227. When requested the court should charge the jury upon any question of law pertinent to the issues, and if counsel neglects to make a request he cannot afterward take advantage of the judge's omission. 141 Mass. 407; 136 Id. 133; 145 Pa. St. 399, 586 ; 39 N. Y. St. Rep. 197 ; 61 Hun, N. Y. 272 ; 82 Tex. 222; 93 Ind. I. EXCEPTION TO CONDUCT OF TRIAL JUDGE. An exception lies to incidental remarks made by the judge in the nature of instructions, which are calculated to influence the jury, yy N. Y. 182, affirming 43 Super. Court (J. & S.) 261 ; 47 N. Y. 282. An exception also lies to either conduct or improper remarks made by the judge during the course of the trial, if taken at the time. 133 111. 234; 152 Pa. St. 615 ; 16 N. Y. Supp. 92; 75 Iowa, 742. It seems, however, that this rule does not apply to remarks addressed to counsel in the course of argument or ruling on application made during: the trial. In this class of cases it seems that the remedy is by motion for 122 THE TRIAL LAWYERS' ASSISTANT. new trial. Abbott's Trial Brief of Civil Issues before a Jury 6i. See, also 47 N. Y. 298; "jy Id. 191 ; 52 Id. 652; 65 Id. 78, nor to an alleged abuse of judicial discretion, " such as whether the jurors shall be allowed to separate, whether they shall be furnished Tefreshments, whether they may Tmn^ in a sealed verdict, and the length of time they may be kept together for -the purpose of agreement, and for any abuse in. the exercise of this discretion, re- dress is to be obtained not by a review upon a bill of ex- ceptions, but by a motion to set aside the verdict as for misconduct of the jury. Such was the mode pursued in II How. Pr. 260;" 47 N. Y. 298. EXCEPTIONS TO IMPROPER REMARKS OF COUNSEL. Exceptions to improper remarks of counsel must be taken at the time they are made, according to the weight of authoritv. 137 Mass. 92; 148 111. 440, and this is true although court commands counsel not to interrupt his adversary again. 76 Ind. 'X'kS- But in the case of Stone v. State, 22 Tex. App. 185, where the language of counsel was grossly improper the appellate coi:rt granted a new trial. EXCEPTION TO DENIAL OF MOTION FOR NEAV TRIAL. When a motion for a new trial is made the grounds upon which it is based should be clearly stated {jj Iowa, 600; 88 Ga. 321), and an exception must be taken to the refusal of the judge to grant a new trial. (125 Mo. 474; 137 111. 159), and the exception should be taken at the time the motion is denied. 137 Ind. 159. EXCEPTIONS, SUFFICIENCY OF BILL OF. The appellant must see that the errors complained of are clearly set forth in the bill of exceptions. (2 N. Y. 98; 3 N. Y. 322.) The objections, rulings, exceptions and the facts upon which the action of the trial court was based must all be set forth in due order. And in some jurisdictions the appellant must show that he was preju- 123 THE TRIAL LAWYERS' ASSISTANT. diced by such errors. 115 Mass. 438; 51 Tex. 112; 103 Ind. 90; 18 La. 597; 97 N. C. 94; 98 N. C. 154; 99 N. C. 148; 75 Iowa, 543; 70 Tex. 138; 8 Mont. 157, 291. But in some cases it has been held that all errors are presumed to work injury to the party against whom they are com- mitted, unless it is clearly shown that no injury could have resulted. 76 Cal. 240; 73 Iowa, 546. Where the paper book of the plaintiff in error does not contain the pleadings, the court will assume that they sustain the verdict. 17 Atl. R. 238. No prejudice will be presumed by an appellate court from the allowance of an amendment, where none is shown. 37 Minn. 507; 5 S. Rep. 628. It will be presumed in the appellate court, in the absence of a showing to the contrary, that instructions were based upon the testimony. 74 Iowa, 306 ; 98 N. C. 708 ; 76 Col. 404, 487:4 L. R. A. 458. Where all the evidence is not presented on appeal, an appellate court will presume that it was sufficient. 127 U. S. 63; no N. Y. 650; 39 Kan. 391 ; 74 Iowa, 628. It is the duty of the trial judge to sip-n a bill of ex- ceptions when presented to him. 129 111. 218; 10 Kan. 637; 22 Ga. 211. The remedy most usually adopted when the judge refuses to sign a bill of exceptions is by writ of mandamus. 128 U. S. 555 ; 80 Col. 483, 83. When a bill of exceptions is sealed it is conclusive evi- dence as to the facts therein stated as between the parties. 3 Burr. 1765 ; 3 Dall. Penn. 38; 6 Wend. N. Y. 276, in the suit to which it relates, but no further, 23 Miss. 156; see I T. B. Mour. Ky. 6, and all objections not appearing in the bill are excluded. 6 Watts. & S. Penn. 343 ; 14 Pick. Mass. 370; I Wend. N. Y. 418; 10 Id. 254; 25 Me. 79; 10 Conn; 11 Wheat. 199; 8 Miss. 671 ; 12 Gill. & J. Md. 64; 3 How. N. Y. 553 ; 17 Ala. 689; 2 Ark. 506; 10 Yerg. Tenn. 499; 30 Vt. 233. But see 4 Hen. & M. Va. 200. A bill of exceptions does not usually of itself operate as 124 THE TRIAL LAWYERS' ASSISTANT. a stay of proceedings. i8 Wend. N. Y. 509; 5 Hill, N. Y. 510; 19 Ga. 588. It is not within the scope of this work to give the pro- cedure concerning a " Case Made on Appeal," " State- ment of Facts," etc. FALSE IMPRISONMENT. False imprisonment is briefly defined as the illegal re- straint of one's person against his will. 81 N. C. 528. At common law the action for false imprisonment is an action for trespass, and can be maintained only when the arrest is without legal process. 65 Md. 341 ; 64 Wis. 316; 58 Wis. 276. The action will not lie where the plaintiff has not been arrested, and though his manual seizure is not to an arrest, there must be some sort of personal coercion. 50 Mich. 549; 8.' N. Y. 383. False imprison- ment, may, however, consist in preventing a person from going in any direction he sees proper, without detaining him in any particular spot. 6 Tex. App. 452. Neither mdice nor want of probable cause are neces- sary averments, and need not be proved to support an action for false imprisonment. 97 Mo. 390; 10 Am. St. Rep. 322; 33 Ark. 316; 97 Nt Y. 590. The gist of false imprisonment is the unlawful detention and malice will generally be inferred from the want of probable cause, so far at least as to sustain the action. 88 Pa. St. 63. Where the wrong person is arrested through mistake, all persons causing the arrest are liable. 60 Tex. 445; 92 Mich. 222; 31 St. Rep. 576. And the arrest of the right person, by the wrong name, through a misnomer in the process, without an allegation that the true name is unknown, is false imprisonment. 64 Wis. 319, 321. One who procures the arrest and imprisonment of an- other on a lawful warrant is not liable for false im- prisonment, although his object in making the complaint upon which the warrant was issued was to enforce the 12; THE TRIAL LAWYERS' ASSISTANT. payment of a debt, or to extort money. The proper remedy, if any, is by an action for false imprisonment. 138 Mass. 144. In false imprisonment the arresting officer, the party inducing the arrest, and the magistrate assuming to issue the unauthorized warrant, are all liable as joint tres- passers. 65 Md. 348; 35 111. App. 24; 145 Mass. 274; i Am. St. Rep. 455. Every private person is liable for a wrongful imprisonment directed or authorized by him. 15 R. 1. 302; 68 Ga. 359. A private person is so liable if he induces an officer to arrest another without a war- rant, and without an offense having been committed in view of the officer, unless he justified by showing that his charge was well founded. 118 Ind. 41 ; 10 Am. St. Rep. 100 ; 61 Mich. 445 ; i Am. St. Rep. 608. And although a private person has a right to make an arrest on sus- picion of felony, without a warrant, yet, if it appears that the wrong person is thus imprisoned he must be pre- pared to show in justification that a felony has been com- mitted, and that the circumstances under which he acted were such that any reasonable person, acting without passion or prejudice would have fairly suspected that the plaintiff committed the felony, or was implicated in it. 22 Mich. 222; 31 Am. SU. Rep. 576. But if one directs the attention of an officer to what he supposes to be a breach of the peace, and the officer without other direc- tion, arrests the offender on his own responsibility, for what he assumes to be an offense committed in his pres- ence, the person who did nothing more than communicate the fact to the officer is not liable for false imprisonment even though the arrest was unlawful. 11 Mo. App. 507; 4 Mo. App. 186. An attorney who causes void and iregular process to be issued which occasions loss or injury to a party against whom it is enforced is liable for the damages thereby occasioned. 103 N. Y. 84. An action for false imprison- 126 THE TRIAL LAWYERS' ASSISTANT. ment will lie against a corporation. 90 N. Y. J'j ; 43 Am. Rep. 141 ; 35 W. Va. 588. One who in criminal proceedings simply lays facts be- fore a magistrate leaving all further action to the un- biassed and unsolicited conduct of the latter is not liable in trespass in false imprisonment unless he takes some part in furthering the arrest or urging the detention. 34 Mich. 180. To justify an inferior magistrate in committing a person he must have jurisdiction both of the subject-matter of the complaint and of the person of the defendant, and where the justice of the peace without authority of law issues a warrant of arrest, both he, and the person, at whose instance he acts, are liable in an action for false im- prisonment, at the suit of the party illegally arrested by virtue of such warrant. 33 Ohio St. 186; 94 Calif. 665, and see 61 Miss. 312. But compare 16 S. C. 445 ; 42 Am. R. 641. A justice of the peace who commits a prisoner on a complaint showing on its face that the offense charged is barred by the statute of limitations, is liable in a civil action for the damages sustained by the party. 56 Vt. Ill ; 48 Am. Rep. 758. But it has been held that a magis- trate is not liable to an action in consequence of a decision made by him in a matter which was colorably, not really within his jurisdiction. 44 N. J. L. 654. It is a good defence to an action of false imprisonment, to show that the arrest was made under lawful and valid process issued by a competent tribunal having jurisdiction. 77 Tenn. 152; 22 Atl. Rep. 1008. And where an order of arrest is issued upon facts giving the judge jurisdic- tion, and the defendant appears, and by showing new facts, or denying those alleged against him, procures the order to be set aside, the process is neither void, voidable nor irregular, but simply erroneous, and protects the judge and the party who procures it from an action for 127 THE TRIAL LAWYERS' ASSISTANT. false imprisonment. 97 N. Y. 590, and see 103 N. Y. S4; 22 Ore. 164. An officer to whom a criminal warrant is delivered for service is not bound to look behind it, if regular on its face, and issued from a proper jurisdiction, and if he executes it he must not be held liable in a civil action for damages though it be invalid. 49 Mich. 348. But where one makes an arrest as a police officer and is sued for false imprisonment he must in justification prove his legal qualifications as such officer, or that he publicly acted and was recognized as such officer before or after the act brought in question. 150 Mass. 298; 15 Am. St. Rep. 209, and see 81 Mo. 559. An answer in an action for false imprisonment justifying under a warrant must show that the arrest was for the same trespass charged in the complaint. 94 Ind. 357. In an action for false imprisonment the plaintiff is en- titled to recover such general damages as are the common and ordinary result of the wrongful act. 13 Mich. 63. The sum paid to procure release from the unlawful de- tention is recoverable as part of the damages. 24 Atl. Rep. 656. Where no malice is' shown the measure of damages would ordinarily be the value of the lost time, the inter- ruption of business, and the bodily and mental suffering caused by the arrest. 60 Tex. 445. But where an arrest is made under circumstances that indicate a wanton dis- regard of the rights of the person arrested, the jury will be warranted in giving punitive damages, and it is proper for the jury to determine whether the circumstances of the arrest in the given case showed oppression or wan- tonness. 37 111. App. 90. See, also 97 N. Y. 590. And it has been held in some cases that for an unlaw- ful incarceration of the plaintiff in an insane asylum compensation may be had, not only for money expended in procuring release, but for consequent humiliation, 128 THE TRIAL LAWYERS' ASSISTANT. shame, disgrace and injury to reputation. 68 Miss. 703; 40 Mich. 90. In cases warranting punitive damages the amount thereof is a question for the jury, and unless it be so ex- cessive as to indicate passion or prejudice on the part of the jury, the courts will seldom interfere with their ver- dict. 37 111. App. 90; 35 111. App. 20; 13 Mich. 63; 2 Wils. 206 ; I A. K. Marsh. Ky. 345. Probable cause may go in mitigation of the damages, though not in bar of the action for false imprisonment. 59 Tex. 384. It must be borne in mind that false imprisonment is a tres- pass committed by one man against the person of another by unlawfully arresting him and detaining him without any legal authority. 10 Me. 325 ; 35 Ind. 285. To con- stitute the injury of false imprisonment two things are therefore requisite, i. The detention of the person. 2. The unlawfulness of such detention. Every confinement of the person is an imprisonment, whether it be in a com- mon prison, in a private house, in stocks, or even by forcibly detaining one in the public streets. 12 Ark. 43; 2 Broom & Had. Com. 117. False imprisonment may also arise from the arrest or detention of the person by an officer without a warrant, or by an illegal war- rant, or by a legal warrant executed at an unlawful time. Id. ; Addison on Torts, 575, and see, also 6 Allen, 58. The plaintiff must show that the defendant imprisoned him, or caused it to be done. 6 Q. B. 65 ; 40 L. J. Q. B. 55 ; 23 L. T. 612. If the imprisonment has been extra-judicial, without legal process, it is false imprisonment. A party who pro- cures an illegal arrest to be made, is liable in trespass for false imprisonment. An action for false imprisonment will likewise lie, where a warrant of arrest has been is- sued upon an insufficient affidavit. 129 THE TRIAL LAWYERS' ASSISTANT. All circumstances are admissible to show motive of defendant. 64 N. Y. 440. If no conflict in evidence, question of probable cause, or reasonable ground, is for court, not jury. 40 N. Y. 463 ; 94 Id. 90. For purposes of action discontinuance of prosecution is equivalent to discharge from accusation. 36 N. Y. 11. The employees of a railroad corporation cannot detain person of passenger for non-payment of fare. 90 N. Y. The warrant protects officer although the law is un- constitutional. 69 N. Y. 238. Agreement not to sue for false imprisonment, given as condition of release from arrest, is void for duress. 94 N. Y. 268. It seems that a cause of action for malicious prose- cution, and for false imprisonment may be united. 97 N. Y. 590. Plaintiff has burden of showing want of probable cause and malice on part of defendant. 116 N. Y. 336. Direction to consider plaintiff's humiliation in award- ing damages, though there was no proof of malice, re- versed, loi N. Y. 649. FOREIGN LA\SrS. Foreign laws must be pleaded and proven as other facts. A properly qualified person offered as an expert witness may state the substance of a foreign law, and he may produce the statutes or decisions of the foreign country, and refer to the same for the purpose of refreshing his memory as to the law. 9 R. I. 450; s. c. 11 Am. Rep. 286. It seems that in the United States a foreign law may be proven by any one familiar with it. A lawyer re- siding in another state, and of mature age is prima facie competent as an expert to prove the law of that state, 130 THE TRIAL LAWYERS' ASSISTANT. without further testimony as to qualification. See 41 Aid. 177; s. c. 66 Am. Dec. 234; 41 Me. 177; 48 N. H. 176; I Wall. Jr. 49. In the absence of evidence to the contrary, the law of a sister state will be presumed to be the common law. In the case of First National Bank v. Fourth National Bank, "jj N. Y. 320, it was held that in the absence of proof it would be presumed that the common law prevailing here also prevails in Pennsylvania. In the case of People against Brady, 56 N. Y. 191, the court said, in reference to the laws of Michigan : " The court cannot take judicial notice of the law of that state, and the presumption in the absence of proof is, that its courts agree with our own in declaring and interpreting the common law." See, also 91 Mass .311; 83 Pa. 316. In the case of Wright v. Delafield, 23 Barb. N. Y. 499, the court held, in substance, that in the absence of proof to the contrary, it is to be presumed that the. laws of an- other state are the same as those of New York, especially in relation to contracts regarding personal estate, and as to commercial matters particularly, and that when the com- mon law is known to prevail, it is construed there as it is in New York, whether relating to lands or personal property. See, also i Denio, N. Y. 374; 2 Hill, N. Y. 201 ; 8 John. N. Y. 189 ; I Paige, N. Y. 226 ; 4 Denio, 305. But if a change has been made in the common law by a statute, it would seem that no presumption would exist as to its adoption in another state. See 121 Mass. 6; 27 N. J. Eq. 360; 41 Vt. 561. When a state or condition has once been shown to exist respecting persons or things that state or condition is pre- sumed to exist until the contrary is shown. 41 N. H. 177 ; 60 Cal. 415; 27 Ala. 618, consequently when it is once shown that a certain law was in force in another state, it will be presumed to continue until the contrary is shown. An American court will not take judicial notice of the 131 THE TRIAL LAWYERS' ASSISTANT. law of a foreign nation. 91 U. S. 13, reversing judgment on demurrer for failure to plead such law. The court will not presume that a common law rule prevails on any subject in Louisiana, or in any other juris- diction not inheriting the common law. Nor will it pre- sume the law of any other state of jurisdiction is the same on any point as its own statutory law. 84 N. Y. 48. (Statute giving action for causing death). 34 Hun, N. Y. 262. (Civil damage act.) FRAUD. Fraud is usually divided into two kinds, actual and con- structive fraud. Actual fraud includes deceitful or de- ceptive words or acts, or tricks and artifices by which the right or interest of another is injured. Fraudulent ob- jects are accomplished usually by some stratagem adopted for the purpose of gaining some unfair advantage. Fraudulent conduct applies more particularly to deception in contracts, either by stating falsehoods or by suppress- ing truth. For example, the misrepresentation by act or word of material facts, by which one person exercising due care, is deceived, cheated or circumvented by another, whether the misrepresentation was known to be false, or only not known to be true, or even if made innocently; the suppression of material facts which one party is legally or equitably obliged to disclose to another, for the sup- pression of that which is true is equal to the expression of that which is false; all cases of unconscionable advan- tage in making contracts obtained by imposition, surprise, trick, artifice, circumvention or undue influence over per- sons in general, and particularly over those who are by reason of defect, or impairment, of understanding, or im- maturity of mind by reason of infancy, lunacy, idiocy, ex- treme old age, infirmity, drunkenness, coverture or other incapacity, unable to protect their interests ; unconscionable bargains which from their very nature show that an undue 132 THE TRIAL LAWYERS' ASSISTANT. advantage has been taken, naturally lead to the presump- tion of fraud, when the decree of the court will place the parties in the same situation they were in before the bargain was made; cases of surprise and sudden action, without time for proper deliberation, of which a party takes advan- tage; cases of the fraudulent suppression or destruc- tion of written instruments, in violation of the rights of others ; fraudulent awards made with the corrupt intent to injure one of the parties; fraudulent appointments and revocations under powers; fraudulently preventing acts from being done for the benefit of others, under false statements or false promises ; frauds in relation to trusts ; frauds in verdicts, judgments, decrees, and other judicial proceedings, and frauds upon creditors, are instances of actual or positive fraud. FRAUD, LEGAIi OR CONSTRUCTIVE. Constructive or legal fraud includes such acts or con- tracts as though not originating in a fraudulent design, or in any civil contrivance, yet by their tendency to mislead or deceive others, or to violate private or public confi- dence, are not permitted by law. For instance contracts against public policy or the policy of the law; cases aris- ing from some fiduciary or confidential relation between the parties, where that relation is improperly taken ad- vantage of by the person in whom the trust or confidence is reposed, or by third parties ; acts and contracts of parties which operate virtually to deceive, delay, hinder and defraud creditors ; buying property with notice of the equitable or legal title of other persons to the same property ; and voluntary conveyance of land as aflfecting the title of subsequent purchasers. It would be a difficult task indeed to say what constitutes a case of fraud in the view of courts of equity. In fact it is a portion of the doctrine of equity in relation to fraud, not to define it, not to lay down any rule or limitation as to the nature 133 THE TRIAL LAWYERS' ASSISTANT. of it, for fear that the cunning of men should devise ways of committing fraud which might not be embraced within the limits of the most skilfully drawn rule or definition. Fraud includes all acts, omissions or concealments which involve a breach of duty of a legal or equitable nature, trust or confidence justly reposed, and are prejudicial to another, or by which an unconscientious advantage is taken of another. Lord Hardwicke, 2 Ves. Ch. 155, gives the following classification of frauds as a head of equity jurisdiction. I. Fraud, or dolus malus, may be actual, arising from facts and circumstances of imposition. 2. It may be ap- parent from the intrinsic nature and subject of the bar- gain itself, such as no man in his senses, and not under delusion would make, on the one hand, and no honest or fair man would accept, on the other. 3. It may be in- ferred from the circumstances and condition of the par- ties; for it is as much against conscience to take advan- tage of a man's weakness or necessity as of his ignorance. 4. It may be collected from the nature and circumstances of the transaction, as being an imposition upon third persons FRAUD, EFFECT OF. When sufficiently established by the evidence, fraud both at law and in equity, avoids a contract ab initio, whether the fraud be intended to operate against one of the contracting parties, or against third parties, or against the public. 3 Burr. 1909; i Schoales & L. 209; 3 Ves. & B. Ch. 42. FRAUD, EVIDENCE. As a general rule fraud must be proven, and will not be presumed. 56 111. 254; 44 Ind. 209; 31 Cal. 180, and the party alleging fraud must assume the burden of prov- ing it. 75 Va. 390; 51 N. H. 167; 37 Me. 124. It is 134 THE TRIAL LAWYERS' ASSISTANT. not, however, always necessary for fraud to be proven by direct evidence, 93 Ind. 249; 9 Ves. 282. It is often proved by circumstantial evidence, 14 Johns. N. Y. 493; 44 Pa. St. 204; 17 Wall. (U. S.), 532; 71 Mo. 651. W^hen the facts are undisputed, fraud becomes a question of law. 40 Pa. 352 ; 42 Ala. 601 ; 91 U. S. 45 ; 3 Jones Law, N. C. 335. But it is ordinarily a question for the jury. 17 Pa. St. 353; 15 Mo. 416. Fraud need only be proven by a preponderance of evi- dence, but not beyond a reasonable doubt. 68 N. C. 76; 10 Am. L. Rev. 642; 68 Am. Dec. 187, note; no Ind. 59. FRAUD, MISCEIiIiANEOUS AUTHORITIES. Co-partners may be guilty of fraud. 99 N. Y. 131. Party seeking to establish cause of action based on fraud, must show affirmatively facts necessarily tending to es- tablish probability of guilt. 96 N. Y. 100. If evidence is equally consistent with innocence and guilt, former interpretation must be given it. 96 N. Y. 100. Offers to induce sale by fraud will not be admitted unless shown to be within scope of proved agency of person making them. 96 N. Y. 567. Party induced by fraud to enter into executed contract for purchase of property, may rescind and recover the consideration paid, or affirm and recover damages; he cannot have both remedies. 95 N. Y. 237. Party entitled to rescind contract for fraud loses that contract by bringing action to enforce the contract after knowledge of the fraud. 97 N. Y. 395. When party is entitled to rescission of contract for fraud or mistake. 95 N. Y. 423. The doctrine that any act in affirmance of contract, after discovery of fraud, defeats right of rescission, is not neces- sarily applicable to an action for damages for fraud. 118 N. Y. 252. 135 THE TRIAL LAWYERS' ASSISTANT. In action to rescind contract, evidence of inadequacy of price is competent on the question of fraud. 105 N. Y, 445- In an action to recover damages for fraud upon ex- change of property, plaintiff testifying that fixed price was agreed upon and defendant denying this, latter may give evidence that plaintiff's property was not worth the sum testified by him. 114 N. Y. 458. It is essential to the maintenance of an action for fraud, to show that damages resulted from it as the proximate cause. 118N. Y. 288. FAI.SE AND FRAUDULENT BEFRESENTATIONS. Party seeking to recover for, must show that he was influenced by them to his damage. 58 N. Y. 262. Action for damages for not maintainable if means of knowledge equally open to both parties, and nothing done to throw party off his guard. 68 N. Y. 426. False representations by vendee that he is solvent, he believing it, do not, it seems, invalidate sale. 83 N. Y. 133- Intent to defraud must be proved, if representations are false. 63 N. Y. 427; 87 Id. 129. But see 21 N. Y. 238. FEELINGS. The expression of mental or bodily feelings when ma- terial are admissible in evidence. 35 N. Y. 487. GOOD FAITH. When the good faith of a party is attacked, he may give evidence in support of it. 97 U. S. 272. The pre- sumption of law, however, will be sufficient in the ab- sence of evidence. 1 16 U. S. 609. So one whose owner- ship of negotiable paper is put in issue has a right to prove that he became owner in good faith. 105 U. S. 728. The information on which a person acted is original 136 THE TRIAL LAWYERS' ASSISTANT. evidence, whether true or false, where the question is whether he acted prudently, wisely, or in good faith. Abb. Brf. on Facts, 149; 80 Ky. 387; 45 N. Y. 175 (action for deceit) ; 8 Bosw. N. Y. 33, 50 (survey as showing good faith of master). So the fact of taking competent advice on a statement of all the facts may be shown. 7 Cow. N. Y. 301. When the want of good faith is imputed to a person, in a statement shown to have been made by him, he may be asked whether he then believed this statement to be correct. 27 N. Y. 282, affirming 36 Barb. N. Y. 357. GEOGRAFHICAIi FACTS, JUDICIAL NOTICE OF. Statutes prescribing the boundaries of the territory and its divisions into judicial districts, are public acts, which the courts are bound to know, and of which they will take judicial notice. The limits of such divisions are there- fore of judicial cognizance; and so with regard to lead- ing places, and the geographical features of the land within such limits; as also with regard to the location, and position of leading cities, villages and public places therein. United States v. Beebe, 2 Dak. 292. GOOD CHARACTER. In civil cases evidence of the general character of the parties is not admitted, unless the nature of the action involves the general character of the party, or goes directly to affect it. 6 Cowen, N. Y. 673, 675 ; 10 S. & R. 55. For instance, evidence impeaching the previous general character of the wife or daughter, in regard to chastity, is admissible in an action by the husband or father for seduction, and this, again, may be rebutted by the other side. 2 Esp. 562 ; 3 Campb. 519. But evidence referring to a time subsequent to the act complained of is inadmissible. 2 Esp. 562 ; 12 Mod. 232. The rule is 137 THE TRIAL LAWYERS' ASSISTANT. the same in an action by a woman for a breach of a promise of marriage. 3 Mass. 189 ; i Johns. Cases, N. Y. 116; 3 Camp. 519. In actions of tort, generally, wherever the defendant is charged with fraud upon presumptive or circumstantial evidence alone, evidence of his general good character is admissible to repel it. Ruan v. Perry, 3 Cains, N. Y. 120; (but see 4 N. Y. 493) ; 3 Esp. 284. In all cases where evidence is admitted of the general character of the party, it should bear reference to the nature of the charge against him. 2 Wend. N. Y. 352. As to the right to prove the admissions or declarations of a deceased attesting witness to a deed or will, in dis- paragement of the evidence afforded by his signature, see Stobart v. Dryden, i M. & W. 615, holding that such evidence is inadmissible, and Otterson v. Hoflford, 36 N. J. 129, and Ref. D. Church v. Ten Eyck, i Dutch. (N. J.) 40, holding that such evidence is admissible, and see also Losee v. Losee, 2 Hill, N. Y. 609, in which case it was held that the bad character of the attesting witness may be shown for the purpose of proving that the will or deed was never executed. In an action for personal injury caused by the negli- gence of a fellow-servant, the incompetence of the fellow- servant cannot be shown in New York, by general char- acter or reputation, but specific acts tending to show in- competency may be shown. 155 N. Y. 215. See also 13 App. Div. N. Y. 439; 59 N. Y. 356; 150 Mass. 439; 13 Allen, 433 ; 20 Mich.. 105. In an action for criminal conversation, plaintiff cannot give evidence of the good character of the wife before her adultery, unless her character is directly attacked by testimony, or by cross-examination of plaintiff's witnesses. 4 N. Y. 493. Cited in 123 N. Y. 235; 142 Id. 601; 156 Mass. 568; 169 Id. 31. As to evidence of character and reputation, see gener- ally, 143 N. Y. 455, 473; 147 Id. 59, 68; 42 Id. 270, 281; 138 THE TRIAL LAWYERS' ASSISTANT. 67 Id. 218, 224; 7 Id. 191, T921 79 Id. 593; 55 Id. 512; 43 Id. 6, 9 ; 142 Id. 598. £Tddence of good character of witness not permissible unless other side has given evidence tending to impeach his general character. 4 N. Y. 493 ; 7 Id. 378 ; 70 Id. 166. After impeaching witnesses are shown to be acquainted with general moral character of person assailed, question of his credit is for jury it seems. 3 N. Y. 581. Gen- eral character alone is in question in the impeachment of witnesses, and therefore specific acts of immorality on the part of a witness cannot be given in evidence to impair his credibility. 23 Tex. 675; 21 111. 180; 82 Id. 570; 23 Minn. 84; 6 Or. 212; 18 Wend. 146. As to proof of character in actions of slander and libel, see " Slander." GAMBLING CONTRACTS. Stock Terms, Puts, Calls, Straddles, Options, Differ- ences, etc. See A. & E. Enc. L. Vol. 8, 1004 (ist Ed.) HABEAS CORPUS. (Lat. That you have the body.) A writ of habeas corpus is a writ directed to the person or persons, detaining another, and commanding him, or them, to produce the body of the prisoner at a certain time or place, together with the day and cause of his caption and detention, to do, submit to and receive what- soever the court or judge awarding the writ shall con- sider in that behalf. This writ is the most famous one known to the law, and it has for centuries been employed to remove illegal restraint upon personal liberty. When in 1679 the celebrated Habeas Corpus Act of 31 Charles II was passed, (and which has substantially been adopted in the United States) it was made the theme of the high- est praise and congratulation by lovers of liberty every- where, for it was thought to have extinguished all the resources of corruption. The writ is used to cause an inquiry into the cause of 139 THE TRIAL LAWYERS' ASSISTANT. imprisonment, and to procure the release of the person unlawfully detained. If the imprisonment be claimed by virtue of some legal process, the validity and present force of such process are the only subjects of inquiry, accord- ing to some authorities, see 5 Hill, N. Y. 164; 4 Barb. N. Y. 31 ; 4 Harr. Del. 575 ; Hurd, Hab. Corp. 332. The defects, to entitle the prisoner's discharge, must be such as to render the process void, i Hill, N. Y. 154; 11 How. Pr. N. Y. 418; 3 Hawks, N. C. 25. The writ cannot be used to oust another competent and acting jurisdiction, or to divert or defeat the course of justice therein, i Edw. Ch. N. Y. 551; 2 Green, N. J. 312; 10 Pick. Mass. 434; 2 Wheat. 532; 16 Ohio, 405. The writ of habeas corpus is also frequently used for the purpose of recovering the custody of a person where the applicant has a legal right thereto, as the husband for his wife, the guardian for his ward, the parent for his child, and the master for his apprentice. The application for the writ of habeas corpus may be made by the prisoner, or by anyone in his behalf. The following are some of the most important provisions of the New York Code of Civil Procedure, in relation to the writ of habeas corpus, and it is believed they have been adopted in many other states of the Union : § 2015. A person imprisoned or restrained in his liberty, within the State, for any cause, or upon any pre- tence, is entitled, except in one of the cases specified in the next section, to a writ of habeas corpus, or a writ of certiorari, as prescribed in this article, for the purpose of inquiring into the cause of the imprisonment or restraint, and, in a case prescribed by law, of delivering him there- from. A writ of habeas corpus may be issued and served under this section, on the first day of the week, commonly called Sunday; but it cannot be made returnable on that day. § 2016. A person is not entitled to either of the writs 140 THE TRIAL LAWYERS' ASSISTANT. specified in the last section, in either of the following cases : 1. Where he has been committed, or is detained, by virtue of a mandate, issued by a court or a judge of the United States, in a case where such courts or judges have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by the commence- ment of legal proceedings in such a court. 2. Where he has been committed, or is detained, by virtue of the final judgment or decree, of a competent tribunal of civil or criminal jurisdiction; or the final order of such a tribunal, made in a special proceeding, insti- tuted for any cause, except to punish him for a contempt; or by virtue of an execution or other process, issued upon such a judgment, decree, or final order. § 2017. Application for the writ must be made, by a written petition, signed, either by the person for whose relief it is intended, or by some person in his behalf, to either of the following courts or ofiicers : 1. The supreme court, at a special or general term thereof, where the prisoner is detained within the judicial district within which the term is held. 2. A justice of the supreme court, in any part of the State. 3. An officer authorized to perform the duties of a justice of the supreme court at chambers, being or resid- ing within the city or county, where the prisoner is de- tained; or, if there is no such officer within that city or county, capable of acting, or, if all those who are capable of acting and authorized to grant the writ, are absent, or have refused to grant it, then to an officer, authorized to perform those duties, residing in an adjoining county. § 2018. Where application for either writ is made as prescribed in sub-division third of the last section, without the county where the prisoner is detained, the officer must require proof, by the oath of the person applying, or by 141 THE TRIAL LAWYERS' ASSISTANT. other sufficient evidence, of the facts which authorize him to act as therein prescribed ; and if a judge in that county, authorized to grant the writ, is said to be incapable of acting, the cause of the incapacity must be specially set forth. If such proof is not produced, the application must be denied. § 2019. The petition must be verified by the oath of the petitioner, to the effect that he believes it to be true; and must state, in substance: 1. That the person, in whose behalf the writ is applied for, is imprisoned, or restrained in his liberty; the place where, unless it is unknown, and the officer or person by whom, he is so imprisoned or restrained, naming both parties, if their names are known, and describing either party, whose name is unknown. 2. That he has not been committed, and is not de- tained, by virtue of any judgment, decree, final order, or process, specified in section two thousand and sixteen of this act. 3. The cause or pretense of the imprisonment or re- straint, according to the best knowledge and belief of the petitioner. 4. If the imprisonment or restraint is by virtue of a mandate, a copy thereof must be annexed to the petition ; ' unless the petitioner avers, either, that by reason of the i;emoval or concealment of the prisoner before the appli- cation, a demand of such a copy could not be made, or that such a demand was made, and the legal fees for the copy were tendered to the officer or other person having the prisoner in his custody, and that the copy was refused. 5. If the imprisonment is alleged to be illegal, the peti- tion cannot state in what the alleged illegality consists. 6. It must state whether the prisoner applies for the "writ of habeas corpus or for the writ of certiorari. § 2020. Provides that the judge must issue the writ 142 THE TRIAL LAWYERS' ASSISTANT. without delay when the appUcation is in proper form, under a penalty of $i,ooo for failure to do so. § 2024. The writ of habeas corpus or the writ of cer- tiorari shall not be disobeyed, for any defect of" form, and particularly in either of the following cases : 1. If the person having the custody of the prisoner, is designated, either by his name of office, if he has one, or by his own name; or, if both names are unknown or uncertain, by an assumed appellation. Any person, upon whom the writ is served, is deemed to be the person to whom it is directed, although it is directed to him by a wrong name or description, or to another person. 2. If the prisoner directed to be produced, is desig- nated by name, or otherwise described in any way, so as to be identified as the person intended. § 2025. Where a justice of the supreme court, in court or out of court, has evidence, in a judicial proceeding taken before him, that any person is illegally imprisoned or restrained in his liberty, within the State; or where any other judge, authorized by this article to grant the writs, has evidence, in like manner, that any person is thus imprisoned or restrained, within the county where the judge resides; he must issue a writ of habeas corpus or a writ of certiorari, for the relief of that person, al- though no application therefor has been made. § 2026. The person upon whom either writ has been duly served, must state, plainly and unequivocally, in his return : 1. Whether or not, at the time when the writ was served, or at any time theretofore or thereafter, he had in his custody, or under his power or restraint, the person for whose relief the writ was issued. 2. If he so had that person, when the writ was served, and still has him, the authority and true cause of the imprisonment or restraint, setting it forth at length. If 143 THE TRIAL LAWYERS' ASSISTANT. the prisoner is detained by virtue of a mandate, or other written authority, a copy thereof must be annexed to the return, and, upon the return of the writ, the original must be produced, and exhibited to the court or judge. 3. If he so had the prisoner at any time, but has trans- ferred the custody or restraint of him to another, the return must conform to the return required by the second subdivision of this section, except that the substance of the mandate or other written authority may be given, if the original is no longer in his hands; and that the re- turn must state particularly to whom, at what time, for what cause, and by what authority, the transfer was made. The return must be signed by the person making it, and, unless he is a sworn public officer, and makes his return in his official capacity, it must be verified by his oath. § 2027. The person, upon whom a writ of habeas corpus has been duly served, must also bring up the body of the prisoner in his custody, according to the command of the writ; unless he states, in his return, that the pris- oner is so sick and infirm, that the production of him would endanger his life or his health. The person to whom the writ is directed, is as before stated, required to produce the body of the prisoner forth- with before the court or officer therein named, and to show the cause of the caption and detention. 5 Term. 89 ; 2 South. N. J. 545 ; Hurd. Hab. Cor. 239-242. If the writ is returned without the body, the return must show that the prisoner is not in the possession, cus- tody, or power of the party making the return, or that the prisoner cannot without serious danger to his life, be produced, and any evasion on this point will be dealt with summarily by attachment. 10 Johns. N. Y. 328 ; 5 Term, 89 ; 5 Cranch, C. C. 622 ; i Dudl. Ga. 46 ; Hurd, Hab. Cor. 244. 144 THE TRIAL LAWYERS' ASSISTANT. Where the detention is claimed under legal process, a copy of it is attached to the return. Where the detention is under a claim of private custody, all the facts relied on to justify the restraint are set forth in the return. The questions arising at the hearing upon the return or otherwise in the proceeding, both of law and of fact, are decided usually by the court or judge, and not by a jury. Hurd, Hab. Corp. 299. The evidence on the hearing is such as is allowed in other summary proceedings, the practice sometimes per- mitting affidavits to be read when there has been no oppor- tunity for cross-examination, but the admission of such evidence is discretionary with the judge. Sandf. N. Y. 701; Coxe, N. J. 403; 20 How. St. Tr. 1376; i Burr's Trial, 97. Oral evidence is also admitted. 2 Wall. Jr. (U. S.), 546; I Coxe, N. J. 403. The court issuing the writ of habeas corpus will often issue a writ of certiorari as ancillary thereto, in order to ma.ke its jurisdiction effective, and bring up the record of proceedings of the lower court. 32 Pa. St. 520; 48 Ark. 283; 31 Minn. no. Pending the hearing the prisoner may be committed for safe keeping from day to day until the decision of the judge. 5 Mod. 22; 14 How. U. S. 134. If the court decides that the imprisonment is illegal, the prisoner will be discharged from the imprisonment, if, however, the judge or officer hearing the habeas corpus be invested with the powers of an examining and com- mitting magistrate in the particular case, and the evidence taken before the court, or properly certified to it in the habeas corpus proceeding, so far implicate the prisoner in the commission of crime as to justify his being held for trial, it is usual for the court, in default of bail, to com- mit him as upon an original examination. 5 Cow. N. Y. 12; 3 Penn. Law Jour. 459; 2 Parsons Eq. Cas. 317; 16 Pa. St. 575. 145 THE TRIAL LAWYERS' ASSISTANT. For form of writ of habeas corpus see New York Code Civil Procedure, § 2021. For form of certiorari. Id. § 2022. The truth of facts alleged in a return to a writ of habeas corpus may be examined. Kent's Com. p. 29, (13th Ed.). See also People v. McLeod, 3 Hill, N. Y. ; s. c. I Hill, N. Y. People v. Martin, 2 Edm. Rep. N. Y. In this case it was decided that the relator may traverse, or go behind the return and an important distinc- tion is drawn between habeas corpus after indictment and before indictment, and in other cases where there is no indictment. As to the right to traverse, or go behind the return see also People v. Liscomb, 60 N. Y. 559. Among the leading cases on habeas corpus are 4 Burr. 1991 ; 3 Mason, 482 ; 16 Pick. 203 ; 10 Johns. N. Y. 328 ; 20 State Trials, i ; 3 Wash. C. C. R. 224, and cases cited above. Among the important questions are, under what cir- cumstances the return may be contradicted; when a writ of error will lie, and whether one tribunal will inquire into a contempt committed by another, as to which see 6 Wheat. 104; 14 East. 152, 201; 6 Johns. N. Y. 519. The power of the federal courts depends upon the four- teenth section of the Act of Congress of 1789, i Stat, at Large, 73, and the seventh section of the Act of 1833, 4 Stat, at Large, 634. See 4 Cranch, 75; 3 Peters, 201 ; 9 Id. 704; 3 How. U. S. 105. When habeas corpus may issue, and when not, and from what courts and by what judges; what may be inquired into by writ of. United States V. Hamilton, i U. S. 490, and note; 27 U. S. 288, note (L. Ed.). See generally as to habeas corpus, 146 N. Y. 264; s. c. 66 St. Rep. 621; 81 Hun, N. Y. 336, affirmed in 144 N. Y. 699; 65 St. Rep. 734; 156 U. S. 218, 211; 169 Id. 39, 284; 155 Id. 89, 100. As to procedure see 160 U. S. 231, 293; 169 Id. 39; 168 Id. 124. As to suspension of writ of habeas corpus, see 12 U. S. 581. See also as to Scope of Writ, and what questions 146 THE TRIAL LAWYERS' ASSISTANT. reviewable on habeas corpus, i66 U. S. 548; 160 Id. 231; 169 Id. 284; 159 Id. 95; 156 Id. 272; 168 Id. 640; 169 Id. 39. HISTORIES. Court will take judicial notice of standard histories of a general nature, but not of local histories, but the line is hard to draw. 61 Me. 178; 21 N. Y. 246; Morris v. Harmer, 7 Pet. U. S. 554. The works of a living author who is within reach of the process of the court, can hardly be deemed of this nature, particularly if the facts which he relates are of a recent date. 7 Pet. U. S. 554. Testi- mony of this kind is confined in a great measure to ancient facts, which do not presuppose better evidence in existence. Id. See generally as to Histories as Evidence. 7 Pet. 554; 109 Mass. 24, 31; 2 Dane's Abridg. 334; 6 Pac. R. 869. HABIT. A witness who has had adequate opportunities of ob- servation may testify directly to the existence of habit. 120 111. 179. Habit may be proved by successive acts. 90 Mass. 51, 58, and a single instance is competent, 120 Pa. St. 256, (holding it error to exclude the question — did you ever see him under the influence of liquor? when the object was to prove intemperate habits) ; 83 Mass. 187. (The witness may be asked if he ever saw any indication of intemperance in appearance or conduct.) HEARSAY EVIDENCE. Is that kind of evidence which does not derive its value entirely from the credit to be given to the witness himself, but rests, in part, upon the truth and competency of some other person or persons. It has application to written as well as oral matter, but neither writing nor words are necessarily hearsay and therefore incompetent. 147 THE TRIAL LAWYERS' ASSISTANT. For instance information on which one has acted 9 Johns. N. Y. 45; the conversation of a person suspected of insanity, or whose insanity is in question, 3 Hagg. Eccl. 574; 2 Ad. & E. 3 ; 7 Id. 313 ; replies to inquiries, 11 Wend. N. Y. no; general reputation in the family in ques- tions of pedigree. 18 Johns. 37; entries made by third persons in the discharge of official duties, 6 Cow. N. Y. 162; 15 Mass. 380, or other books kept in the regular course of business, 20 Johns. N. Y. 168; 2 Wend. 369, 513, indorsements of partial payments, 17 Johns. N. Y. 182, have been held admissible as original evidence under the circumstances, and for particular purposes. Hearsay reports, as a general rule, of a transaction, whether oral or written, are not admissible as evidence. I Greenl. Ev. § 124; 16 N. Y. 381. The rule applies to evidence given under oath in a cause between, other liti- gating parties. 3 Term, yy; 7 Cranch. 296. Questions relating to public interest, as for example, a claim to a ferry or highway, may be proved by hearsay testimony. 19 Conn. 250, but the matter in controversy must be of public interest. 29 Barb. N. Y. 593, and the declarations must be those of persons supposed to be dead. 12 Vermont 178, and must have been made before controversy arose. 3 Camp. 444. The rule extends to deeds, leases and other private documents. 5 Esp. 60, and to verdicts, i East. 355. The term applies to written as well as oral matter, but the writing or words are not always regarded as hearsay because those of a person not under oath. Declarations as to Matters of Public and General Interest ; Declarations against interest by persons since deceased; Declarations as to pedigree; Endorsements of partial payments, 2 Strange, 827 ; 4 Pick. Mass. 1 10 ; Declarations as to ancient possessions; Dying declarations; Where the fact that the declaration was made is in issue ; Declarations which form 148 THE TRIAL LAWYERS' ASSISTANT. a part of the Res Gestw; Expressions of bodily feeling, general reputation; information on which one has acted; are admissible in evidence and form important exceptions to the general rule that hearsay evidence is inadmissible. And the testimony of a witness, since deceased, given between the same parties is admissible for the same pur- pose. 15 Johns. N. Y. 539; 8 Id. 446; 2 Id. 17; 12 Wend. N. Y. 41 ; 17 Johns. N. Y. 176; 6 Ired. N. C. 30. It must be proven that the witness is dead. 17 Johns. N. Y. 176; 12 Wend. N. Y. 41 ; 8 Barb. N. Y. 530. The old doctrine was that a witness called to prove what a deceased witness testified was required to state his exact words. 7 Serg. & R. 163; 2 T. R. 290; 7 Blackf. 10; 18 Pick. 434; U. S. V. Wood, 3 Wash. 440. It is now sufficient for the witness to state the substance of all that was said by the deceased witness on a former trial. 6 N. Y. 337; 25 Barb. N. Y. 449; 15 Wend. N. Y. 193; 14 'Id. 118; 17 Serg. & R. 409, 411; 73 Pa. St. 321; 52 Me. 231 ; 28 Tex. 371 ; 127 Mass. 354. The evidence of a witness given on a former trial when competent may be proven by any one who heard it. 102 111. 540; 97 U. S. 693 ; 15 Wend. N. Y. 193. And a person who took minutes on a former trial, and testifies to their accuracy, may state what a witness swore to on that trial, although he cannot testify from his memory, and without reference to his minutes. 14 Barb. N. Y. 118. In ascertaining facts relative to the possession and title of lands, which accrued at a remote period, beyond that of living witnesses, the courts receive as evidence, though with great caution, the statements of historians of acknowl- edged merit, recitals in public records, statutes and legis- lative journals; the proceedings in courts of justice, and their averments and results ; and the depositions and witnesses in suits or legal controversies. 4 Sandf. 633. The declarations of a deceased physician, as to the dis- 149 THE TRIAL LAWYERS' ASSISTANT. ease of which a patient died are admissible as having been made in the ordinary discharge of his professional duties. 13 Hun, N. Y. 144. HEARSAY. The statements of a party made in the absence of the other party are inadmissible in his favor, when they do not form a part of the Res Gestw. 30 Hun. N. Y. 304; 8 Barb. N. Y. 534; 19 N. Y. 299; 12 Wend. N. Y. 41 ; 8 Id. 671. A surgeon who has made a post mortem examination of a body will not be permitted to testify that it was identified by a certain person, for the reason that such testimony is hearsay and inadmissible, no U. S. 574. INJUNCTION. An injunction is a prohibitory writ issued by a court of equity, to restrain one or more of the defendants or parties, or quasi parties, to a suit or proceeding in equity, from doing, or from permitting his servants or others who are under his control to do an act which is deemed to be unjust or inequitable so far as regards the rights of some other party or parties to such suit or proceedings in equity. Story, Eq. Juris. § 861 ; Willard, Eq. Jur. 341 ; 2 Green, ch. N. J. 136; i Madd. ch. 126. The injunction is used in a multitude of cases, of which cases the following are some of the most common : To stay proceedings at law by the party enjoined. Story, Eq. Jur. § 51, 874-877; Jeremy, Eq. Jur. 338; 4 John ch. N. Y. 17; 23 How. 500; to restrain the transfer of stocks, notes, bills of exchange, and other evidences of debt. Story Eq. Jur. §§ 906, 907, 955 ; 2 Ves. ch. 445 ; 2 Vem. Ch. 122; 4 Jones Eq. N. C. 257; to restrain the transfer of the title to property. 6 Gray, 562, or the parting with the possession of such property. 4 Cow. N. Y. 440; to restrain the party enjoined from setting up an inequitable ISO THE TRIAL LAWYERS' ASSISTANT. defence in a suit at law. Story, Eq. Jur. § 903 ; to restrain the infringement of a patent. Phillips, Pat. 451 ; 9 Johns. N. Y. 507, or a copyright, or the printing of trade marks. Story Eq. Juris. 935-942 ; 2 Bosw. N. Y. i ; i Hill, N. Y. 119; to prevent the removal of property. 3 Jones, Eq. N. C. 253, or the evidences of the title to property, or the evidences of indebtedness, out of the jurisdiction of the court; to restrain the committing of waste, 2 Story, Eq. § 909; 2 Johns, ch. 148; 11 Paige, N. Y. 503, to prevent the creation or the continuance of a private nui- sance, 12 Cush. 454, or of a public nuisance particularly noxious to the party asking for the injunction. Story, Eq. §§ 874, 903; 28 Barb. N. Y. 228; 3 Paige, N. Y. 210, 213; 9 Id. 575; to restrain illegal acts of municipal officers. 12 Cush. 410; to prevent a purpresture. 12 Ind. 467. It is necessary to the obtaining of an injunction, as to other equitable relief, that there should be no plain, adequate and complete remedy at law. 30 Barb. N. Y. 549; 31 Penn. St. 387. An injunction will not be granted while the rights between the parties are undetermined, except in cases where material and irreparable injury will be done. 3 Bosw. N. Y. 607; 16 Tex. 410; 15 Md. 22, but where it is irreparable and of a nature which cannot be compensated, and where there will be no adequate remedy, an injunction will be granted which may be made perpetual. 39 N. H. 182; 12 Cush. 410; 27 Ga. 499. Court of equity will not restrain proprietor of a maga- zine from publishing false and malicious criticisms of the arms manufactured by a corporation, if the words are not actionable per se, although the plaintiff has no remedy at law, being unable to prove special damages. Merlin Fire Arms Co. v. Shields, (Court Appeals, N. Y. 1902). Re- ported in N. Y. Law Journal, June 23, 1902. As to the duty to obey an injunction see 81 Hun, N. Y. 579, afif'd in 144 N. Y. 700. (No op.). See also 138 N. Y. 244, modifying s. c. 46 St. R. N. Y. loi. 151 THE TRIAL LAWYERS' ASSISTANT. As to the Dissolution of an injunction, see ii Misc. N. Y. 446; s. c. 65 N. Y. St. R. 421 ; 84 Hun, N. Y. 296; 65 N. Y. St. R. 872. As to Punishment for Contempt. 65 Hun, N. Y. 179, afif'd 137 N. Y. 565. (No op.) ; Peo. v. McKane, 78 Hun, N. Y. 154; s. c. 60 St. R. N. Y. 196. ISSUE. In pleading, an Issue is a single, certain, and material point, deduced by the pleadings of the parties, which is affirmed on the one side and denied on the other. Bouv. L. Diet. An issue of fact is one in which the truth of some fact is affirmed by one side and denied by the other. Ordinarily it consists of a direct aifirmative allegation on one side and a direct negative on the other. Coke, Litt. 126a; 5 Pet. 149; 8 Term, 278. It is presumed that in all states which have adopted the Code system, provisions similar to those in the New York Code Civil Procedttre are in operation. In section 968 of this Code the issues of fact which are triable by jury are stated as follows : § 968. In each of the following actions, an issue of fact must be tried by a jury, unless a jury trial is waived, or a reference is directed : 1. An action, in which the complaint demands judg- ment for a sum of money only. 2. An action of ejectment; for dower; for waste; for a nuisance ; or to recover a chattel. In section 969 of the same Code are enumerated the issues which are triable by the court: § 969. An issue of law, in any action, and an issue of fact in an action not specified in the last section, or wherein provision for a trial by a jury is not expressly made by law, must be tried by the court, unless a reference or a jury trial is directed. 152 THE TRIAL LAWYERS' ASSISTANT. The New York Code Civil Procedure, § 980, provides that either party may bring issue to trial. It reads as follows : § 980. Either party, who has served the notice, may bring the issue to trial ; and, in the absence of the adverse party, unless the judge holding the term, for good cause, otherwise directs, may proceed with the cause, and take a dismissal of the complaint, or a verdict, decision, or judgment, as the case requires. An inquest, for want of an affidavit of merits, cannot be taken where the answer is verified. Section 981 of the same Code relates to what papers are to be furnished on trial and by whom, and reads as follows : § 981. Where the issue is brought to trial by the plain- tiff, he must furnish the court with copies of the sum- mons and pleadings, and of the offer, if any has been made. Where the issue is brought to trial by the de- fendant, and the plaintiff does not furnish those papers, they must be furnished by the defendant. IDENTITY. Identity is prima facie shown by identity of name. Hatcher v. Rochelau, 18 N. Y. 92. In this case it was held that a person sued in New York in 1857, is the same person who was sued by that name in Mississippi in 1841. See also 45 N. Y. 779; 4i N. Y. 404; 28 Cal. 202; 13 Johns. N. Y. 518; 5 Cow. N. Y. 237; 9 Id. 140. In cases of larceny, claim and delivery, and in other cases the things which are in question must be identified. This identification of individuals is sometimes difficult, as in the case of death of strangers, reappearance after long absence and the like. In this connection the celebrated Tichborne Case should be carefully studied. In that case an illiterate tramp so imposed upon people of great in- intelligence as to induce eighty-five witnesses including the 153 THE TRIAL LAWYERS' ASSISTANT. mother of the real heir to testify as to his identity. This shows an appalling defect in human sagacity. The able cross-examination of counsel was all that unmasked the im- postor. Mr. Rice says that the general rule is that non- expert testimony is admissible upon all questions of identity. 3 Rice on Ev. 481. See generally ch. 39 of 3 Rice on Evidence, and Harris on Identification. For cases of mistaken identity see 3 P. & F. 144; Sessions Papers 1824; Will's Cir. Ev. 91; Burrill, Cir. Ev. 645. IDENTIFICATION. When it became necessary to identify a person accused of crime during the progress of a trial- a witness may be asked if he sees the person in the court room, i Whart. Ev. (3d ed.) 502, but it is not error to allow district attorney to point out the prisoner, and ask if he is the person of whom he speaks. 32 How. St. Trials 74. IMPRESSION. A witness may testify to an impression if it be from memory, and not mere belief or inference. Abb. Tr. Bf. 93:3 Abb. N. C. (N. Y.) 235. INSANITY. Blackstone says that an insane person is one " who hath had understanding, but by disease, grief or other accident, hath lost the use of his reason." i Blackstone Com. 304. According to the overwhelming weight of modern authorities delusion in the mind of the subject is the best test of insanity. And this delusion must be an immovable one. 6 W. & S. Pa. 451, 463; 16 Barb. N. Y. 259; 54 Id. 274; 7 Met. Mass. 500; MacNaughten's Case, 10 CI. & Fin. 200. And see the well written opinion in Dew v. Clark, 3 Add. Ecc, 79; the doctrine of which has been adopted by the Court of Appeals in New York. See Evans v. Johnson, 23 L. R. A. 75, for an important case upon the law of insanity. 154 THE TRIAL LAWYERS' ASSISTANT. In New York, a non-expert may be asked : " From what you saw, and from what you heard him say at that time, in your opinion was he rational, or irrational ? " This question was held to be competent in People v. Packenham, 115 N. Y. 200. See also 97 N. Y. 62. In many of the states now non-experts or lay witnesses may express an opinion as to the sanity of a person as freely as expert witnesses. The best common sense test of sanity or insanity is that laid down by the Court of Appeals of New York. It is simple and reasonable. When it is alleged that a person is insane, it must be proven by the person alleging insanity that the alleged lunatic has said or done something inconsistent with sanity, and he must have some hallucination, some illusion or delusion, so firmly fixed in his mind that it cannot be dispelled by reason. A mere mistake of fact, defective judgment, or lack of argumentative powers, do not constitute insanity. Neither do a bad temper, or a suspicious disposition. This test is the one laid down by the best considered cases upon the subject. A law authorizing the commitment of a person to an asylum or anywhere else, upon ex parte affidavits alone is unconstitutional. In re Adrian Janes, 30 How. Pr. N. Y. 446. That invaluable provision of the common law and of constitutional law, which has been adopted by every state in the Union, that no man shall be deprived of life, liberty or property without due process of law can- not be too jealously guarded by all freemen. It has been held in an able opinion in 34 App. Div. N. Y. 363, that due process of law includes notice, hearing and judgment. In nearly all cases it should include trial by jury. This provision of constitutional law has also received very able consideration in the courts in many cases, and among the most valuable are: 12 N. Y. 212; 13 Id. 461 ; 35 Id. 302; 4 Hill, N. Y. 140; 27 St. Rep. 353; 48 N. Y. 313; 15 THE TRIAL LAWYERS' ASSISTANT. Wend. N. Y. 74; 112 N. Y. 61 ; 70 Id. 228. Under these cases the phrase " due process of law " must be held to mean, lawful judicial proceedings in a court of competent jurisdiction. In one case it was claimed that the pro- visions of the statute under consideration were unconsti- tutional because they did not provide for trial by jury. The provision inserted in many of the state constitutions is that trial by jury in all cases in which it has heretofore been used, shall remain inviolate forever, but that a jury trial may be waived by the parties in all civil cases, in the manner to be prescribed by law. The term due process of law has also been defined to be, " Law in its regular course of administration through courts of justice." 3 Story Const. 264, 661 ; 18 How. 272; 13 N. Y. 378. The term, " due process of law," which occurs in the Constitution of the United States, and in the con- stitutions of the various states, is considered by Coke as equivalent to the phrase "Jaw of the land" (used in Magna Charta, c. 29), and it is said by him to denote " indictment or presentment of good and lawful men." Coke, 2 Inst. 50. The full significance of the clause " law of the land " is said by Ruffin, C. J., to be that statute which would deprive a citizen of the rights of person or property without a regular trial according to the course and usage of the common law, would not be the law of the land. 4 Dev. N. C. 15. For different definitions given to similar provisions occurring in the various state constitutions, see 19 Wend. N. Y. 659; 4 Hill, N. Y. 145 ; 2 Speers, S. C. 767 ; 2 Yerg. Tenn. 554 ; 10 Id. 71 ; 3 Humphr. Tenn. 483. And see further on the subject. Sullivan Lect. 402; Comyns Dig. Imprison- ment (H. 4) ; 2 Kent Com. 13; i Reeves Hist. Eng. Law, 249; 12 N. Y. 202; 13 Id. 378; 18 Id. 199; R. M. Charlt. Ga. 302; I Curt. C. C. 311; 11 How. 437; 13 Id. 142. A distinguished judge in one case says : " I think no 156 THE TRIAL LAWYERS' ASSISTANT. person should be adjudged insane, or be confined as a lunatic, except perhaps, temporarily without having an opportunity of being heard on the question of his alleged insanity before a tribunal competent to decide it." In Matter of Adrian Janes, 30 How. Pr. N. Y. 453. But where there is any such improper confinement of a sane person upon the pretence that he is a lunatic, he may acquire his liberty by habeas corpus. Id. Citing 3 Hill, N. Y. 660 and note. See also 4 Hill, N. Y. 140; 18 How. 272 ; 3 Kernan, 393, as to meaning of " due process of law." Where a person has been duly adjudged insane and desires to have fact of restoration tested, it seems that the court, in New York, may determine the method of trial. Matter of Blewitt, 138 N. Y. 148. See also 116 N. Y. 67 as to power of third person to attack record collaterally. It was held in this case that a third person could show that an alleged lunatic was sane, notwithstanding finding of insanity upon commission issued. It seems that whenever, and under whatever circum- stances a person is alleged to be insane, that it is contrary to the genius of our institutions, and to the organic law of all the states to deny a jury trial. This is merely the same right that a person accused of a serious crime has. The taint of insanity being so harmful not only to a man himself, but to his relatives by blood, and judgments pro- nouncing persons insane should only be pronounced by the courts after the most careful inquiry, and upon the clearest possible evidence of insanity. The followmg cases upon the law of insanity in general will bear repeated readings. Sir John Nichols Opinion in Dew v. Clark, i Addams, 279; i Haggard, 384; 2 Id. 433; 2 Phillimore, 449; Lord Brougham's Opinion in Waring v. Waring, 6 Moore, P. C. Cases, 349. See also Buswell on Insanity. 157 THE TRIAL LAWYERS' ASSISTANT. INCOMPETENT PEBSONS. For procedure regulating appointment of committees upon estate and person of lunatics, idiots, habitual drunk- ards and other incompetent persons see sections 2320 to 2344 Code Civ. Pro. N. Y. For an important case on the subject see 2 Paige, N. Y. 422. See also 128 N. Y. 316; 116 Id. 73; 63 Id. 412; 51 Id. 38; SO Barb. N. Y. 658; 26 Id. 76; 15 Id. 523; 14 Id. 171; 13 Id. 428. INSOLVENCY. Insolvency has been defined to be the state of a person who is insolvent or unable from any cause to pay his debts. 2 Black. Com. 285, 471, or who is unable to pay his debts as they fall due in the course of trade. 2 Kent. Com. 389 ; I Camp. 492n ; 3 Gray, Mass. 600. Other authorities hold what seems to be a more reasonable doctrine, that an insolvent is one whose liabilities is greater than his assets. INSOLVENT PURCHASER. If no inquiry is made a buyer is not bound to disclose his pecuniary condition to seller, either at or before the sale, although he is insolvent, and knows that he is in- solvent. 2 Mason, 236; 96 N. Y. 100; 25 Vt. 686; 19 Mo. 36; 75 Pa. St. 232. Contra. See Talcott v. Hender- son, 31 Ohio St. See generally as to Sales, Benj. on Sales, Story on Sales; Kerr, on Frauds; 24 N. Y. 139; 18 Id. 188; 31 Penn. 234. See Johnson v. Monall, 2 Abb. Crt. App. Dec. 470. Goods bought with no intention on the part of the buyer to pay for them renders them subject to seizure as stolen goods and they can be seized wherever they are found. 40 Mich. 274 ; 2 Curt. 259 ; 85 Mass. 181 ; 41 111. 192; 46 Mo. 181; 18 B. Mon. 623; 2 Cin. Sup. Ct. 116; 96 N. Y. 100; 93 U. S. 631. 158 THE TRIAL LAWYERS' ASSISTANT. INSPECTION OF CHATTELS. " On the trial of an issue involving the quahty or condition of a chattel, the court may permit it to be exhibited to the jury with proper evidence as to its identity and condition at the time in question." Elliott's Gen. Prac. § 685 and cases cited. INSURANCE. Insurance is a contract whereby for an agreed premium one party undertakes to indemnify the other against loss on a specified subject by specified perils. Bouv. L. D. Oral evidence of experts as to whether a change in- creased the risk, is proper, and insurance officers are proper experts. 2 Met. Mass. 147; 40 Mo. 19. The occupation of insured premises for forbidden uses would render the policy void. 7 N. Y. 530; 6 Wend. N. Y. 488. In insurance cases the doctrine usually adopted is that where the company is not responsible if the assured " die by his own hand," is that there is no liability unless the assured was mentally so dis- ordered as not to understand that the act he com- mitted would cause his death, or committed it under the influence of some insane impulse which he could not resist, although knowing the consequences, it not being sufficient that his mind was so impaired that he was not conscious of the moral obliquity of the act. 55 N. Y. 169; 76 Id. 426; 46 Hun, N. Y. 364; s. c. 120 N. Y. 237. Sanity, however, is presumed even as to a person who takes his own life, and the burden was upon the plaintiff of establishing decedent's irresponsibility, and acts and incidents, which are as consistent with sanity as insanity, will not warrant the submission of the question to the jury. 4 Joyce on Insurance, §§ 2640, 3773 ; Biddle on 159 THE TRIAL LAWYERS' ASSISTANT. Ins. § 325; 35 Supt. Ct. 386; s. c. 4 Supt. Ct. 386; s. c. 70 N. Y. 561 ; 35 Supt Ct. 314. INSURANCE. METHODS OF PROVING DEATH. In addition to the proof of death by direct testimony to the fact, death may be proven by a church or other registry of burial properly Itept. 70 U. S. 153; 11 Barb. N. Y. 527; 30 U. S. 470- 'Death is presumed from absence of seven years. 18 Johns. N. Y. 141 ; i Post. 409 ; 26 N. J. L. 388 ; 6 East. 80. Death may also be proved by hearsay, by testimony of relatives, (i Talyl. Ev. 570; 45 Vt. 29), or by inscription on tombstone (Rose. N. P., 47; 16 Gray, 171); or by entry in family Bible ("Lewis v. Marshall, 30 U. S. 470; Berkeley Peerage Case, 4 Camp. 401 ) ; or by the fact of family wearing mourning (Succession of Jones, 12 La. Ann. 397) ; or by general repute among acquaintances where he left no relatives or in connection with family repute where he died abroad. 49 111. 470; 3 Bibb. 235. Letters of administration or letters testamentary are inadmissible to prove death as a substantive part of a cause of action or defense unless, perhaps, by lapse of time, they may become competent as hearsay. 3 Esp. 63 ; 26 Barb. N. Y. 383; 22 Wend. N. Y. 277; 60 N. Y. 123. ISSUE, SUBSTANCE OF It is enough if only the substance of the issue be proved. Pow. Ev. 117. ILLEGALITY Of contract can be shown under general denial. 103 U. S. 261. Compare 58 Hun, N. Y. 428; 18 N. Y. 448; 40 N. Y. 546; 66 Barb. N. Y. 539; 20 Abb. N. C. 333;, 58 N. Y. 376; 81 N. Y. 52; loi N. Y. 348. 160 THE TRIAL LAWYERS' ASSISTANT. ILLEGAI. EVIDENCE. The reception of illegal evidence is presumptively in- jurious to the party objecting to its admission. 78 N.' Y. 15s; 35 Id. 49; 68 Id. 547; 58 Id. 555; 76 Id. 170. INQUISITIONS. Inquisitions of a coroner are admissible in evidence. Starkie on Ev. (loth Am. ed.), 404, 405; i Greenl. Ev. § 556, and inquisitions of lunacy are also admissible in evidence. Banker v. Banker, 63 N. Y. 409. Wharton on Ev. §§ 812, 1254; 2 Phil. Ev. (5th ed.) 266. Inquisition of coroner is prima facie proof that an insured person committed suicide. 25 Bear. 605 ; 65 Cal. 417; Jervis on Coroners, 318, et seq; 2 Stevens on Nisi Prius, 1642. IBBEGULAKITY. An irregularity in its technical legal sense is the doing or not doing anything, in the conduct of an action at law or a suit in equity, which conformably with the practice of the court, ought or ought not to be done. A party prejudiced by an irregularity should except to it previously to taking any step. Taking any step is usually a waiver of any irregularity, i Bos. & P. 342; 5 Id. 509; I Taunt. 58; 2 Id. 243; 3 East. 547; 2 Wils. 380. IRREGULARITIES AND DEFECTS. Irregularities and defects in U. S. courts, how cured; how taken advantage of, and how waived. Book 16, U. S. Sup. Ct. 68, Law ed. Irregularities and defects cured by verdict what not. Book 23 U. S. Sup. Ct. 490, Law Ed. Irregularities and defects cured by verdict, etc.. and by judgment are enumerated in New York Code Civ. Pro. as follows: 161 THE TRIAL LAWYERS' ASSISTANT. § 721. In a court of record, where a verdict, report, or decision has been rendered, the judgment shall not be stayed, nor shall any judgment of a court of record be impaired, or affected, by reason of either of the following imperfections, omissions, defects, matters, or things, in the process, pleadings, or other proceedings : 1. For want of a summons, or other writ. 2. For any fault or defect in process ; or for miscon- ceiving a process, or awarding it to a wrong officer. 3. For an imperfect or insufficient return of a sheriff or other officer ; or because an officer has not subscribed a return, actually made by him. 4. For a variance between the summons and complaint. 5. For a mispleading, insufficient pleading, or jeofail. 6. For want of a warrant of attorney by either party. 7. For the appearance, by attorney of an infant party, if the verdict, report, or decision, or the judgment, is in his iavor. 8. For omitting to allege any matter, without proof of which the verdict, report, or decision ought not to have been rendered. 9. For a mistake in the name of a party or other person ; or in a sum of money ; or in the description of property; or in reciting or stating a day, month, or year; where the correct name, sum, description, or date has been once rightly stated, in any of the pleadings or other proceedings. 10. For a mistake in the name of a juror or officer. 11. For an informality in entering judgment, or making up the judgment-roll. 12. For an omission on the part of the referee to be sworn ; or for any other default or negligence of the clerk, or any other officer of the court, or of a party, his attorney or counsel, by which the adverse party has not been prej- udiced. § 722. Each of the omissions, imperfections, defects, 162 THE TRIAL LAWYERS' ASSISTANT. and variances, specified in the last section, and any other of like nature, not being against the 'right and justice of the matter, and not altering the issue between the parties, or the trial, must when necessary, be supplied, and the proceeding amended, by the court wherein the judgment is rendered, or by an appellate court. Where proceedings are irregular party prejudiced must move in due time to vacate, or he will be deemed to have waived his rights. 2 Robt. N. Y. 632; i Johns. Cases, N. Y. 248; 10 Paige, N. Y. 559. Unless court did not have jurisdiction. In that case the proceedings may be attacked collaterally, or otherwise. 59 N. Y. 216; 9 Cow. N. Y. 227; 19 Johns. N. Y. 7; 15 Id. 121. IT-LEGALITY. IllegaHty must be specially pleaded if set up as a de- fence. 13- Abb. N. C. 388 note. INTENT. A party may testify to his intent in doing an act. 44 N. Y. 22; 14 Id. 567; 50 Id. 437. See generally as to evidence of intent. 14 N. Y. 465; 96 Id. 340; 33 Id. 676; 88 Id. 318; 72 N. Y. 279; 43 Id. 231; 48 Id. 681; 17 Wall. 19, 29. JOINDER OF ACTIONS. As to what causes of action may be joined in the same complaint, see Bliss on Code Pleading. 125-134; see N. Y. Code Civ. Pro. § 484, which reads as follows : § 484. The plaintiff may unite in the same complaint, two or more causes of action, whether they are such as were formerly denominated legal or equitable, or both, where they are brought to recover as follows : 1. Upon contract, express or implied. 2. For personal injuries, except libel, slander, criminal conversation, or seduction. 3. For libel or slander. 163 THE TRIAL LAWYERS' ASSISTANT. 4. For injuries to real property. 5. Real property, in ejectment, with or without damages for the withholding thereof. 6. For injuries to personal property. 7. Chattels, with or without damages for the taking or detention thereof. 8. Upon claims against a trustee, by virtue of a con- tract, or by operation of law. 9. Upon claims arising out of the same transaction, or transactions connected with the same subject of action, and not included within one of the foregoing subdivisions of this section. 10. For penalties incurred under the games, fisheries and forest law. But it must appear, upon the face of the complaint, that all the causes of action, so united, belong to one of the foregoing subdivisions of this section; that they are consistent with each other; and, except as otherwise pre- scribed by law, that they affect all the parties to the action ; and it must appear upon the face of the complaint, that they do not require different places of trial. JUDGE. A judge is a civil officer clothed with power to hear and determine causes, civil or criminal, between litigants according to his commission. The first duty of a judge is impartiality. If he has the slightest interest in a cause he is disqualified from sitting as judge. 17 Barb. N. Y. 414; 5 N. Y. 389; i Spence N. J. 457; 21 Pick. Mass. loi ; 22 Conn. 178, and he ought to refuse to sit on the case when he is aware of such interest. It seems that it is discretionary with him whether he will sit in a cause in which he has been of counsel. 2 A. K. Marsh. Ky. 517; Coxe, N. J. 164. See 2 Binn. Penn. 454; 5 Ind. 230. The delicacy which 164 THE TRIAL LAWYERS' ASSISTANT. characterizes the judges throughout the various states of the Union usually forbids their sitting in such a cause. It is the duty of a judge to declare what the law is, not to make it. iq Ga. 190. A judge is not responsible for any error of judgment or mistake he may make as a judge while acting within the bounds of his jurisdiction. Coke, Litt. 294; 5 Johns. N. Y. 282; 2 Dall. Penn. 160; 11 Johns. N. Y. 150; 9 Id. 395; Cooley on Torts, (2nd ed.) 472-497; Brad- ley V. Fisher, 13 Wall. U. S. 348; 12 Coke, 25; but when he acts corruptly he may be impeached. 4 Dall. Penn. 225; 8 Cow. N. Y. 178; 5 Johns. N. Y. 282. A charge by a judge of an hypothesis wholly un- warranted by the evidence is error for which a new trial will be granted. 15 N. Y. 524. It has been held that a judge is not competent as a witness in a cause heard by him, for this among other reasons, that he can hardly be deemed capable of fairly and impartially deciding on the weight and admissibility of his own testimony. There is danger that he would permit it to outweigh that of other witnesses equally entitled to credit. 2 Mart. La. N. S. 312; 2 Gal. 258; I Kent, Gomm. 291. It seems that if the remarks of a trial judge are so adverse to one of the parties as to call for the inter- ference of a court of review, on the ground that the verdict was improperly influenced, the mode of review is not by exception, but the question should be brought up on a motion to set aside the verdict. 77 N. Y. 182. We cannot refrain from inserting what we consider the most complete picture of a wise and good judge to be found in the whole range of sacred or profane litera- ture. Just and competent judges are so essential to the administration of justice, and to the preservation of the lives, liberties and properties of our people, that too much 165 THE TRIAL LAWYERS' ASSISTANT. care cannot be exercised in their selection. The passage referred to is taken from the Bible, Job. ch. 29, verses 7-25, and reads as follows : " The young men saw me, and hid themselves ; and the aged arose and stood up. " The princes refrained talking, and laid their hand upon their mouth. " When the ear heard me then it blessed me, and when the eye saw me it gave witness to me. " Because I delivered the poor that cried, and the fatherless, and him that had none to help him. " The blessing of him that was ready to perish came upon me, and I caused the widow's heart to sing for joy. " I put on righteousness, and it clothed me. " My judgment was a robe and a diadem. " I was eyes to the blind, and feet was I to the lame. " I was a father to the poor, and the cause zvhich I knew notj I searched out. " And I brake the jaws of the wicked, and plucked the spoil out of his teeth." Rufus Choate, the most learned advocate since the days of Cicero, and one of the purest patriots America has ever had, or ever will have, quoted this passage in a speech which he delivered before the Massachusett's State Convention, July 14th, 1853, ^^'^ i" commenting upon it, he said: "Give to the commuhity such a judge, and I care little who makes the rest of the constitution, or what party administers it. It will be a free govern- ment I know. Let us repose, secure, under the shade of a learned, impartial, and trusted magistracy, and we need no more." If trial judge makes improper remarks during the trial the remedy of party prejudiced thereby, is, in New York, by motion to set aside verdict, yy N. Y. 182. A judge has no right to ask an improper question of a witness, and if he does so, counsel on either side may 166 THE TRIAL LAWYERS' ASSISTANT. object, and if the objection is well taken the Court of Appeals will correct the error. Peo. v. Lacoste, 37 N. Y. 192. A judge who is disqualified by relationship to one of -the parties to a cause, cannot sit even with consent of both parties. Oakley v. Aspinwall, 3 N. Y. 547. In the very learned and able opinion in this case, the court said : " It was suggested by the petition of the respondent, that the decision of this court by which the judgment of the superior court in his favor was reversed and a new trial ordered in this case was entered through inad- vertence, and he prays that both the judgment of this court, and the remittitur may be vacated, and that the appeal may be reargued. This application is based on several grounds, the most important of which is, that the appeal was argued before seven members of the court, one of whom, Judge Strong was related to the appel- lants Aspinwall within the seventh degree, and was there- fore disqualified to sit as a judge and to take part in the decision of this cause. That two members of the court voted to affirm the judgment of the court below, and five, including Judge Strong, voted for reversal ; and that without the vote of the latter the judgment would not have been reversed." (The New York Code of Civil Procedure § 46, provides that a judge shall not sit as such in, or take any part in the decision of a cause or matter . in which he would be excluded from being a juror, by reason of consanguinity or affinity to either of the parties. If a judge so related to one of the parties attempt to render a judgment, it is utterly void, and in- capable of being made good by any omission, waiver or consent. Chambers v. Clearwater, i Keyes, N. Y. 310; s. c. 41 Barb. N. Y. 200. A judge so disqualified cannot 167 THE TRIAL LAWYERS' ASSISTANT. grant an injunction in the cause. 28 How. Pr. N. Y. .187. But he may make an order of reference, in the cause, by consent, when it is called for trial. 18 Hun, N. Y. 125. And a county judge, though interested, may designate another judge to hold court in his place. 72 N. Y. I ; s. c. 10 Hun, N. Y. 92.) It appears that Judge Strong informed counsel for both parties of his relation to the Messrs. Aspinwall, but they consented that he should sit. The court said further : " The' first idea in the administration of justice is that a judge must neces- sarily be free from all bias and partiality, he cannot be both judge and party, arbiter and advocate in the same cause. Mankind are so agreed in this principle, that any departure from it shocks their common sense and senti- ment of justice. It was long ago reported on the- authority of Holt, that the Mayor of Hertford was laid by the heels for sitting in judgment in a cause when he, him- self was lessor of the plaintiff in ejectment, although he, by the charter, was sole judge of the court, (i Salk. 296.) No information has reached us at this day tending to show that the treatment which the mayor received on this occasion was deemed too severe by his contemporaries, although his apology, to wit — that he was sole judge of the court has been held by some modern judges to excuse them by determining upon matters and causes in which their relations were parties or were interested. But it seems to me far better, that causes as to which the sole judge of a court is presumed to be biased in favor of one of the parties should remain undetermined until the legis- lature should provide an appropriate tribunal for their decision, than that the principle which demands complete impartiality in a judge should ever be violated. The urgency of a partictilar case is not so much to be regarded as the elevation and honor of courts of justice, whose dignity and purity constitute a main pillar of the state. " Partiality and bias are presumed from the relationship 168 THE TRIAL LAWYERS' ASSISTANT. or consanguinity of the judge to a party. This presump- tion is conclusive and disqualifies the judge." (See 19 John. R. N. Y. 172, and i Hopkins ch. R. N. Y. i). * * * " But where no jurisdiction exists by law it cannot be conferred by consent — especially against the prohibitions of a law, which was not designed merely for the protec- tion of the party to a suit, but for the general interests of justice. 8 Johns. N. Y. 409; 13 Id. 218; 21 Wend. N. Y. 63; 21 Pick. Mass. loi. It is the design of the law to maintain the purity and impartiality of the courts, and to ensure for their decisions the respect and confi- dence of the community. " Their judgments become precedents which control the determination of subsequent cases, and it is- important, in that respect, that their decisions should be free from all bias. After securing vHsdom and impartiality in their judgments, it is of great importance that the courts should he free from the reproach or suspicion of unfairness. The party may be interested only that his particular suit should be justly determined; but the state, the community is concerned not only for that, but that the judiciary shall enjoy an elevated rank in the estimation of man- kind." The New York Code of Civil Procedure § 46, makes the following provisions in reference to the disqualifica- tion of a judge to act in a cause : § 46. A judge shall not sit as such in, or take any part in the decision of, a car.se or matter to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consan- guinity or affinity to any party to the controversy within the sixth degree. The degree shall be ascertained by ascending from the judge to the common ancestor; and descending to the party, counting a degree for each person in both lines, including the judge and party, and exclud- 169 THE TRIAL LAWYERS' ASSISTANT. ing the common ancestor. A judge other than a judge of the court of appeals shall not decide, or take part in the decision of a question which was argued orally in the court, when he was not present and sitting therein as 3 judge. The following amendment has been made to this sec- tion : " Kut a judge of the court of appeals shall not be disqualified from taking part in the decision of an action or special proceeding in which an insurance company is a party or is interested, by reason of his being a policy holder therein." Am'd by ch. 267 of 1895; ch. 268 of 1897. Many of the duties of judges and attornies are clearly set forth in Lord Bacon's admirable essay " Of Judica- ture." He says in this essay that judges ought to re- member that their office is to expound the law, and not to make the law; that judges ought to be more learned than witty, more reverend than plausible, and more ad- vised than confident ; that above all things integrity is their portion and virtue ; that " cursed is he that removeth the landmark ; " that the mislayer of a mere stone is to. blame, but it is the unjust judge that is the capital remover of landmarks, when he defineth amiss of lands and property, that one foul sentence doth more hurt than many foul examples, for those do but corrupt the stream, the other corrupteth the fountain ; that Solomon says that " A righteous man falling down before the wicked is as a troubled fountain and a corrupt spring." In reference to causes or parties that sue he says : " There, be saith the Scripture, that turn judgment into wormwood." (He here evidently alludes to Amos v. 7 — " Ye who turn judgment to wormwood, and leave off righteousness in the earth.") and surely there be that turneth it into vinegar; for injustice maketh it bitter, and delays make it sour. The principal duty of a judge is to suppress force and fraud; whereof force is the more 170 THE TRIAL LAWYERS' ASSISTANT. pernicious when it is open, and fraud when it is close and disguised. Add thereto contentious suits, which ought to be opened out, as the surfeit of courts. A judge ought to prepare his way to a just sentence, as God useth to prepare his way, by raising valleys and taking down hills; so when they appeareth on either side a high hand, violent prosecution, cunning advantages taken, combina- tion, power, great counsel, then is the inequality of a judge seen to make inequality equal ; that he may point his judgment as upon an even ground. " Qui fortiter emungit, elicit sanguinem ; " ^ and where the wine-press is hard wrought, it yields a harsh wine, that tastes of the grape stone. Judges must beware of hard constructions, and strained inferences ; for there is no worse torture than the torture of laws : especially in case of laws penal, they ought to have care that that which was meant for terror be not turned into rigor: and that they bring not upon the people that shower whereof the Scripture speaketh, " Pluet super eos laqueos ; " ^ for penal laws pressed,^ are a shower of snares upon the people : therefore let penal laws, if they have been sleepers of long, or if they be grown unfit for the present time, be by wise judges confined in the exe- cution : " Judicis officium est, ut res, ita tempora rerum," etc.* In cases of Hfe and death, judges ought (as far as the law permitteth) in justice to remember mercy, and to cast a severe eye upon the example, but a merciful eye upon the person. '"He who wrings the nose strongly brings blood." Proverbs XXX. 33 — " Surely the churning of milk bringeth forth butter, and the wringing of the nose bringeth forth blood: so that the forcing of wrath bringeth forth strife." " " He will rain snares upon them." Psalm xi. 6 — " Upon the wicked he shall rain snares, fire, and brimstone, and an horrible tempest." ' Strained. *" It is the duty of a judge to consider not only the facts but the circumstances of the case." 171 THE TRIAL LAWYERS' ASSISTANT. Secondly, for the advocates and counsel , that plead. Patience " and gravity of hearing is an essential part of justice; and an overspeaking judge is no well-tuned cym- bal. It is no grace for the judge first to find that which he might have heard in due time from the bar; or to show quickness of conceit in cutting off evidence or counsel too short, or to prevent information by questions, though pertinent. The parts of a judge in hearing are four: to direct the evidence; to moderate length, repetition, or impertinency of speech; to recapitulate, select, and collate the material points of that which hath been said; and to give the rule, or sentence. Whatsoever is above these is too much, and proceedeth either of glory, and willing- ness to speak, or of impatience to hear, or of shortness of memory, or of want of a staid and equal attention. It is a strange thing to see that the boldness of advocates should prevail with judges; whereas they should imitate God, in whose seat they sit, who represseth the presumptu- ous, and giveth grace to the modest : but it is more strange, that judges should have noted favorites, which cannot but cause multiplication of fees, and suspicion of by-ways. There is due from the judge to the advocates some com- mendation and gracing, where causes are well handled and fair pleaded, especially towards the side which ob- taineth not ; " for that upholds in the client the repu- tation of his counsel, and beats down in him the conceit '' of his cause. There is likewise due to the public a civil reprehension of advocates, where there appeareth cunning counsel, gross neglect, slight information, indiscreet press- ing, or an overbold defence ; and let not the counsel at the bar chop with the judge (Altercate or bandy words " Pliny the Younger, Ep. B. 6, E. 2, has the observation — " Patientiam . . . quae pars magna justitiae est;" — "Pa- tience, which is a great part of justice." ° Is not successful. ' Makes him to feel less confident of the goodness of his cause. 172 THE TRIAL LAWYERS' ASSISTANT. with' the judge), nor wmd himseH -into the handling of the cause anew after the judge hath declared hi« sentence, but, on the other side, let not the judge meet the cause half-way, nor give occasion to the party to say his coun- sel or proofs were not heard." JUDICIAI. NOTICE. The following are things judicially taken notice of, without proof. Civilized nations, being all members of the family of nations, recognize each other's existence, and general and public relations. The usual symbols of nation^ ality and sovereignty are the national flag and seal. Every sovereign therefore recognizes, and the public tribunals and functionaries of each nation take notice of the ex- istence and titles of all the other nations in the civilized world; their respective flags and their seals of state. Public acts, decrees and judgments, exemplified under this seal, are received as true and genuine, it being the highest evidence of their character. Greenleaf on Ev. " Jud. Notice; " 2 Cranch, 187, 238; 2 Conn. 85, 90; 4 Dall. 416; 9 Mod. 66; The Santissima Trinidad, 7 Wheat. 283, 335. But if upon a civil war in any country, one portion of the nation shall separate itself from the other, and organize a separate government, the newly formed nation cannot without evidence be recognized as such, by the judicial tribunals of other nations, until it has been acknowledged by the sovereign power under which those tribunals are constituted. 9 Ves. 347; 3 Wheat. 610, 634, the first act of recognition belonging to the executive department. Although the seal of the new power, before such acknowl- edgment, is not permitted to prove itself, yet it may be proved as a fact by other competent evidence. And the existence of such unacknowledged nation may, in the same manner be proved, the recognized rule being that if an assembly of persons meet together to protect themselves, and support their own independence, .make laws and have 173 THE TRIAL LAWYERS' ASSISTANT. courts of justice this is evidence of their being a state. Greenleaf on Ev. "Jud. Notice;" i Kent. Com. 189; Grotius, de Jur. Bel. b. 3, c. 3, § i. The courts will also take judicial notice without proof of the law of nations, and the general customs and usages of merchants as well as the general laws and public statutes, as well as the customs of their own country. 2 Ld. Raym. 1542; 2 Burr. 1226, 1228. The seal of a notary-public is also judicially taken notice of by the courts, he being an officer recognized by the entire com- mercial world. 5 Cranch. 335 ; 3 Wend. N. Y. 103 ; 12 Mod. 345. Foreign Admiralty and Maritime Courts being the courts of the civilized world, and of co-ordinate juris- diction, are judicially recognized everywhere, and their seals need not be proven. 9 Mod. 66; 2 Cranch. 187. Neither is it necessary to prove things which must have happened according to the course of nature, nor to prove the course of time, or of the heavenly bodies, nor the usual public fasts and festivals, nor the coincidence of days of the week with days of the month, i Str. 387; Cro. El. 227, nor the meanmg of words in the vernacular language. 2 Camp. 25 ; Greenl. Ev. " Jud. Notice ; " nor the legal weights and measures, 4 T. R. 314, nor any matters of public history affecting the entire people, i Stark Ev. (6th Am. ed), 211; 13 Pet. U. S. 519, 590. Greenl. Ev. " Jud. Notice." Courts also take notice of the territorial extent of the jurisdiction and sovereignty, exercised de facto by their own government, and of the local divisions of their coun- try into states, counties, cities and the like so far as political government is concerned, and of the relative posi- tions of such local divisions, but not of their exact boundaries farther than they may be described in ptiblic statutes. 5 Wend. N. Y. 530; 2 Inst. 557; 4 B. & Aid. 242. Courts will also judicially recognize the political constitution or system of their own government, its public 174 THE TRIAL LAWYERS' ASSISTANT. officers engaged in its regular administration, and its necessary and regular political powers and action. For example notice is taken by all courts of the accession of the Chief Executive of the nation or state, under whose authority they act. 2 Ld. Raym. 980, the genuineness of his signature, 2 W. Bl. 797; i Leach, Cr. Cases, 97, the heads of the various departments and chief officers of state, and the public seals. 29 How. St. Tr. 707; 2 Campb. 131, marshals and sheriffs, 2 Ld. Raym. 794, and the genuineness of their signatures, 8 Dowl. P. G. 615, but not of their deputies, courts of general jurisdiction, their judges, 3 Kerr. 559, their Seals, their rules and maxims in the administration of justice, and course of proceeding, 10 Pick. Mass. 470; Lane's Case, 2 Coke, also of public proclamations of war and peace, 11 Ves. 292; 2 Sim. 213, days of general political elections as fixed by statute, the sittings of the legislature, and its established and usual course of proceeding; the privileges of its members, but not the contents of its journals, i Ld. Raym. 10, 15; i Dougl. 97n 41; i Lev. 296. The United States Courts also take judicial notice of the ports and waters of the United States in which the tide ebbs and flows, of the boundaries of the several states and judicial districts. Story on Eq. Pleading, § 24; 10 Wheat. 428; 7 Pet. 342, and of the laws of the several states, and of the territories. 9 Pet. 607; 2 McLean, 579. A court of error will take notice of the nature and extent of the jurisdiction of an inferior court whose judgment it revises. 3 A. & El. 319. And, generally, courts will take judicial notice of whatever ought to be known within the limits of their jurisdiction. The judge of any court may resort to any documents of reference, or books of authority, in order to refresh his memory. Greenlf. on Ev. " Judicial Notice." Notorious facts of general history will be judicially noticed. 43 N. Y. 164. 175 THE -TRIAL LAWYERS' ASSISTANT. Courts will take judicial notice of the great lines of public travel and transportation, and their connection with each other, and the general course of transportation and trade through the country. 43 Barb. N. Y. 225 ; 45 N. Y. 514. Facts which are a part of the experience and common knowledge of the day, for example, the usual time required for steam passages across the Atlantic, are legitimate grounds for the judgment of the court. 3 Sandf. ch. 571 ; s. c. 4 New York Leg. Obs. 259. Court will not take judicial notice of the technical meaning of words. 3 Sandf. N. Y. 26. But compare 28 N. Y. 153; I Abb. Ct. App. Dec. 550; s. c. 2 Keyes, 57. Court cannot take judicial notice of corporate regulations. 17 Wend. I'^ Y. 199. That a man is an attorney is a fact of which judicial notice should be taken, i Hill, N. Y. 154. A court will take judicial notice of the fact that a river is navigable. 8 Barb. N. Y. 239. Court will take notice of public statutes. 8 Barb. N. Y. 239, and of divisions of the state. 7 Cow. N. Y. 429, and of Sundaj's, 7 Wend. N. Y. 460, of Election day, 22 How. Pr. N. Y. 445. That the moon rises and sets on a given day. 46 Hun, N. Y. 57, of the population of cities within the state, 33 Hun, N. Y. 374, s. c. 2 Crim. R. 346; that a large number of Germans reside in a certain part of the city, and that news- papers published in that language are published there. 50 Hun, N. Y. 428; of the business and office of mercantile agencies in reporting the credit and standing of business men. 49 Super Ct. 5, citing 83 New York 31 ; of the sys- tem of checking baggage, etc., by a railroad company. 94 N. Y. 278, reversing 25 Hun, N. Y. 350 ; that a sale at auc- tion is the best method of ascertaining market price. 52 Hun, N. Y. 535, s. c. 23 State Rep. 835 ; 5 N. Y. Supp. 696; that ale and beer are intoxicating. 13 St. R. 5; that certain books of general record giving the description and standing of all ships, known as " the American Lloyds," " The Green Book " and " The Record B9ok," are referred 176 THE TRIAL LAWYERS' ASSISTANT. -to by business men for the purpose of ascertaining the condition, capacity, age and value of ships. Slocovich et al. V. Orient Mut. Ins. Co., io8 N. Y. 56. In the case last mentioned the court said : " But there was evidence showing her age, tonnage, condition and char- acter. There was evidence also tending to show that those books and records contained a full and accurate descrip- tion of her character, condition, age, tonnage and the materials of which she was made; and that they were commonly referred to by underwriters, merchants and persons buying and selling ships for the purpose of ascer- taining the condition and description of the ships, and it is to be inferred that their standing in the market and among business men depend somewhat, if not largely, upon those records. They were regarded as sufficiently reliable for the guidance of underwriters, merchants and buyers and sellers of ships; and they have been so fre- quently before the courts that one may take judicial notice of the fact that they are referred to by business men for the purpose of ascertaining the condition, capacity, age and value of ships." Judicial notice excludes the necessity of proof. JURISDICTION. Jurisdiction is the power given by law to hear and determine a cause. 3 Ohio, 494; 6 Pet. U. S. 591. It is the authority by which judicial officers take cognizance of and decide causes. Id. It includes power to enforce the execution of what is decreed. 9 Johns. N. Y. 239; Thacher Crim. Cases, 202 ; 3 Met. Mass. 460. Jurisdiction cannot be conferred by consent of the parties, as a rule. 12 Miss. 549; 34 Me. 223; 23 Conn. 112; 4 Cush. Mass. 2^. While jurisdiction is given by the law. 11 Barb. N. Y. 309; 22 Id. 323; 3 Tex. 157, a privilege defeating juris- diction may be waived by a party if the court has juris- 177 THE TRIAL LAWYERS' ASSISTANT.. diction over the subject matter of the action.. 14 Ga. 589; I Barb. N. Y. 449; 4 Mass. 593; 8 Wheat. 699; 5 Cranch. 288. Where the jurisdiction of a court is general, it will be presumed to be acting within its jurisdiction until the reverse is shown. 10 Barb. N. Y. 97; 13 111. 432; 15 Vt. 46. The record must show jurisdiction if court has limited jurisdiction. 22 Barb. N. Y. 323 ; 28 Miss. 737. Where two courts have concurrent jurisdiction and one court has taken cognizance of a cause, the other will not entertain jurisdiction of the same cause. 25 Barb. N. Y. 513; I Grant Gas. Penn. 212; 16 Ohio, 373; 8 Ohio St. 599; 8 Md. 254; 2 Md. Ch. Dec. 42; 4 Tex. 242 ; I Fla. 198 ; 2 Murph. N. C. 195 ; 6 McLean, C. C. 355. Any judgment or act of a tribunal is void if beyond its jurisdiction. 21 Barb. N. Y. 9; 33 Me. 414; 26 N. H. 232, whether without its territorial jurisdiction, 21 How. 506; I Grant Cases, Penn. 218; 15 Ga. 457, or in excess of its powers, 22 Barb. N. Y. 271 ; 16 Vt. 246; 13 111. 432. Want of jurisdiction may be taken advantage of by a plea in abatement. 3 Johns. N. Y. 105; 18 111. 292; 20 How. 541, and should be taken advantage of usually by entering a special appearance before making any plea to the merits, if at all, when lack of jurisdiction arises from formal defects in the process, or where there is no jurisdiction over the person. 22 Barb. N. Y. 323 ; 6 Gush. Mass. 560; 20 How. 541; 13 Ga. 318. But where the court has no jurisdiction of the subject matter of the action, it will dismiss the action at any stage of the case. 22 Barb. N. Y. 271 ; 4 111. 133; 23 Conn. 172; 13 Vt. 175. The mode of taking an objection to the jurisdiction, or of presenting the question to the court, may be and has been different under different systems of practice. Before the Code of Civil Procedure was adopted, the defendant could plead to the jurisdiction sometimes in abatement and sometimes in bar. The plaintiff either replied or 178 THE TRIAL LAWYERS' A SSISTANT. demurred, and the issue thus formed resulted in a Judg- ment. In most cases, also, the want of jurisdiction might be taken advantage of under the general issue, at the trial. If the plaintiff failed to aver and prove a case within the jurisdiction of the court, in respect to the subject and the place where the cause of action arose, he would be nonsuited, as for any other failure of proof, and upon that a judgment would be entered. There were and there still are cases in which the question of jurisdiction is raised by a motion, and there is a class of cases relating to jurisdiction in appellate tribunals in which the forms of procedure were different. King v. Poole, 36 Barb. N. Y. 246. Where the Appellate Division affirms a judgment en- tered upon a verdict every fact found which has the support of any evidence is conclusive upon the Court of Appeals. 166 N. Y. 380; 168 Id. 354; 167 Id. 462. Courts of the U. S. have no jurisdiction where com- plainants and one of defendants reside in the same state. Consent in such a case does not confer jurisdiction, and a decree so entered will be set aside. 4 McLean i. As to last point compare 2 McLean 576; 4 Id. 6. A corporation in Indiana cannot sue in the Circuit Court of the State, a corporation in Michigan. 5 McLean 444. The federal courts cannot take cognizance of any suit which is not brought in the district of which the defendant is an inhabitant, or in which he shall be found at the time of serving the writ. 16 Pet. 89. When a joint interest is prosecuted, each individual mind as a party plaintiff must be entitled to invoke the jurisdiction of the court, i McLean 330; 2 Id. 126; 2 Paine 426; 25 Vt. 715. JURISDICTION— CIRCUIT AND DISTRICT COURTS, UNITED STATES. JSTo civil action shall be brought before either of said courts against any person by an original process or 179 THE TRIAL LAWYERS' ASSISTANT. proceeding in any other district than that whereof he is an inhabitant. But where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of other then plaintiff or the defendant. 134 U. S. 41. See Art. " U. S. Courts," in 27 Am. & E. E. L. p. 598 and cases cited. But this provision confers a mere personal privilege, which is evaded by entering a general answer and filing ■ a plea in bar. 96 U. S. 377; 27 Am. & Eng. E. L. 598. There are two kinds of jurisdiction, subject-matter and parts. Defect of former fatal letter may be waived. 2"] Am. & Eng. E. L. 599. Amount of jurisdiction of Circuit Court is now $2,000. See Supp. U. S. Rev. St. To give Circuit Court juris- diction in cases where there are several plaintiffs or defendants, each plaintiff or defendant must have the right to bring his suit in such court or be liable to be sued therein. 24 Vt. 715; 11 Law Rep. N. S. 208; 2 Paine 426; I McLean no; Id. 230; 2 Id. 126. As to jurisdiction of U. S. Circuit Court depending on parties and residence, see note to Emery v. Greenough, 3 Dall. 370, Book I, p. 640 U. S. Ct. L. Co-op. Ed. JURY. A jury is a body of men who are sworn to declare the facts of a case as they are delivered from the evidence placed before them. Bouv. L. Diet. The number of jurors must be twelve; and it has been held that the term jury in the constitution means, ex vi termini, twelve men. 12 N. Y. 190; 13 Id. 427; 6 Mete. Mass. 231 ; 4 Ohio St. 177; 2 Wise. 22; 3 Id. 219. Each party has a right to question the juror under oath as to his qualifications and impartiality. 7 Mo. App. 185, 189; 2 Disney, (Ohio), 147, 149. And a witness may be called to prove the ground of challenge. 95 U. S. 180; I Cow. N. Y. 432. 180 THE TRIAL LAWYERS' ASSISTANT. JURY, TRIAL BY. Trial by jury is highly favored by the courts. And the courts dislike to interfere with the verdict of a jury. In the case of Hart v. R. R. Co. 8 N. Y. 43,- the court said : " The law does not regard the judges as possessing any superior qualifications over jurors for judging of facts, or the weight and force of evidence of facts; it is a safe and favorite principle of our jurisprudence, that facts are to be tried by a jury (7 How. Pr. N. Y. 66.) When there is evidence on both sides, and the correctness of the verdict or finding on the facts is merely doubtful; in short when the only complaint against the finding of the facts is, that the triers did not correctly weigh or appreciate the evi- dence, the court have no authority to interfere with the result. Graham's Prac. 2d ed. 631-33 and the cases there cited. If the evidence will not authorize the jury to find a verdict for the plaintiff or if the court would set it aside, if so found, as contrary to evidence, it is the duty of the court, to non-suit the plaintiff, but the court should be extremely cautious on the subject of interfering with the province of the jury, who by the principles and plan of our jurisprudence, have "exclusive jurisdiction of the facts of a case. 4 N. Y. 456; 13 Johns. N. Y. 334; i Wend. N. Y. 376." JURORS, QUALIFICATIONS. Jurors must possess the qualifications which may be prescribed by statute, must be free from any bias caused by relationship to the parties or interest in the subject matter of the litigation. In order to be qualified to serve as a trial juror in the city and county of New York, a person must be: 1. A male citizen of the United States, and a resident of that city and county. 2. Not less than twenty-one, nor more than seventy years of age. 181 THE TRIAL LAWYERS' ASSISTANT. 3. The owner, in his own right, of real or personal property, of the valiae of two hundred and fifty dollars; or the husband of a woman who is the owner, in her own right, of real or personal property of that value. 4. In the possession of his natural faculties, and not infirm or decrepit. 5. Free from all legal exceptions ; intelligent ; of sound mind and good character; and able to read and write the English language understandingly. JUKOR. NUMBER OF PEREMPTORY CHALLENGES. The New York Code of Civil Procedure § 11 76, pro- vides that '■ upon the trial of an issue of fact, joined in a civil action in a court of record, each party may peremp- torily challenge not more than six, and in a court not of record, each party may peremptorily challenge not more than three of the persons drawn as jurors for the trial." JUROR. CHALLENGES, HOW TRIED. The New York Code of Civil Procedure, § 1180 pro- vides that : § 1 180. An objection to the qualifications of a juror is available only upon a challenge. A challenge of a juror, or a challenge to the panel or array of jurors^ must be tried and determined by the court only. Either party may except to the determination, and it may be reviewed, upon a question of fact, or a question of law, or both, as where an issue of fact presented by the pleadings is tried by the court; except that where one or more exceptions are taken, to the rulings of the court, made after the jury is empanelled, an exception to the determination of a chal- leng£ must be heard at the same time; and the case must contain the matters necessary to present it, upon the facts, or the law, or both. The fact that a juror is in the employ of a party to the action ; or, if a party to action is a corporation, that he is 182 THE TRIAL LAWYERS' ASSISTANT. an employe tkereof, or a shareholder or a stockholder therein, shall constitute a good ground for a challenge to the favor as to such juror." As amended by ch. 243 of 1901. In the case of Young against Johnson, 123 N. Y. 235, the court said : " A juror whose name was drawn, was chal- lenged by the defendant for cause. On the trial of this challenge by the court he said : " I have formed an opinion ; I don't know as I have an opinion now particularly ; what I heard said created an impression on my mind, and I have that impression now; it would require evidence to remove that impression." On his cross-examination by the plaintiff's counsel, the juror said : " I think I could sit and try this case fairly and impartially, and render an impartial verdict from the evidence without being biassed by my previously formed opinion, but it would take evi- dence to remove the opinion formed." The court sustained the challenge, excluded the juror, and the plaintiff ex- cepted. Whether the juror was in fact biased or had formed an opinion on the merits of the case was ; in view of his answers, a question of fact which the judge was empowered to try and determine. Code Civ. Pro. § 1180. The evidence was sufficient to warrant a finding that the juror had formed and entertained an opinion in regard to the merit of the case, and so this exception presents no question here for review." See also as to Impression and Opinion of Juror, as af- fecting his competency. So N. Y. 484; s. ,c. 19 HJun, N. Y. 424; 80 N. Y. 500; s. c. 19 Hun, N. Y. 430; 83 N.' Y. 436; 109 N. Y. 345; 4 Wend. N. Y. 229; 6 Cow. N. Y. 555 ; 14 Wend. N. Y. 131 ; i Johns. N. Y. 316. Where a juror has formed an opinion which it will require affirmative evidence to remove, he is incompetent. People V. Cancemi, 16 N. Y. 501. At common law if a juror was related by consanguinity or affinity to a party in the ninth degree he was disquali- 183 THE TRIAL LAWYERS' ASSISTANT. fied. 3 Black. Com. 363; 7 Cow. N. Y. 478; 97 Penn. St. 543> 552. Litigation between a juror and party usually disqualifies. It absolutely disqualifies if an action implying malice, such as slander, assault, etc., is pending. Peo. v. Bodine, S. C. 2 Edm. 305. JUKY, INTERFERENCE 'WITH. Any improper interference with the jury by either of the parties, will vitiate the verdict. 9 How. Pr. N. Y. 7; 9 Id. I. A motion for a new trial on the ground of the misbehavior of the jury, should be made before the judge who presided at the trial, or if before another judge, it should be made upon a case. 8 Abb. Pr. N. Y. 141. The affidavits of jurors are not receivable to impeach their verdict, for mistake or error as to the merits, or for any misconduct of a juror. Green v. Bliss, 12 How Pr. N. Y. 428, but the affidavit of a juror is receivable to show an interference with the jury by either party to the action.' 9 How. Pr. N. Y. 7. JURY, POI.LING THE JURY. The jury may be polled at the instance of either party and then any juror may dissent from it. 7 Johns. N. Y. 32; 3 Cow. N. Y. 23; in which case the jury may again be sent out. 2 Wend. N. Y. 352 ; 3 Johns. N. Y. 255. JURY— INSTRUCTIONS, CONTRADICTORY. Where the instructions of the court to a jury are con- tradictory, reversible error is committed. 56 Iowa, 166; 64 Iowa, 315 ; 50 Iowa, 465. Where instructions are given which would be erroneous when applied to any state of facts, prejudice will be pre- sumed, and it is for the appellee to show that none re- sulted. 75 Iowa, 471 ; 39 N. W. Rep. 714; 84 Iowa, 311; 70 Id. 126; 46 Id. 404; 53 Id. 504; 72 Id. 371. 184 THE TRIAL LAWYERS' ASSISTANT. The facts upon which a jury, should be asked to find specially, should be material facts, which if found would be controlling. R. R. v. Harrington, 192 111. 35 ; 129 Id. 540; 155 Id. 656. If the whole charge taking it altogether, presents the questions of law fairly to the jury, so as hot to mislead them, exceptions to separate propositions in it, or to de- tached portions of it, will not be upheld. 47 N. Y. 283; 51 N. Y. 476, 492, 493; 7 Id. 554; 55 Barb. N. Y. 585; 114 N. Y. 399, 405; 88 Id. 14, 23; 38 Id. 240; 51 Id. 431, 442. JURY, INSTRUCTIONS. The court may instruct the jury to presume a fact in certain cases, Hoyt v. Carter, 16 Barb. N. Y. 220; also as to the effect of the verdict on the question of costs, Nolton V. Moses, 3 Barb. N. Y. 31. If a party supposes the jury to be misled by any instruction from the judge he should suggest that fact to the judge, he cannot remedy it by excepting to the instruction, Stroud v. Frith, 11 Barb. N. Y. 300 ; and see Nolton v. Moses, 3 Barb. N. Y. 31 ; Crawford v. Wilson, 4 Barb. N. Y. 505 ; Lansing v. Russell, 13 Barb. N. Y. 510. The facts being undisputed the judge may direct the jury how they shall find their verdict. Porter v. Havens, 37 Barb. N. Y. 343 ; The People V. Cook, 4 Selden, N. Y. 6^; Holbrook v. Wilson, 4 Bosw. N. Y. 65. If a party desires the attention of the jury called to any particular fact or aspect of the case, he should, be- fore the judge commences to charge the jury, request to have it done. Parsons v. Brown, 15 Barb. N. Y. 590; Gracer v. Stellwagen, 25 N. Y. 316. The request should be in such form that the court may properly charge in the very terms of the request without qualification. Car- penter V. Stilwell, I Kernan, N. Y. 61 ; Booth v. Sweezey, 4 Selden, 276; Snell v. Snell, 3 Abb. 426; Vallance v. King, 3 Barb. N. Y. 548; McBurney v. Cutter, 18 Barb. I8S THE TRIAL LAWYERS' ASSISTANT. N. Y. 204 ; Elton v. Markham, 20 Barb. N. Y. 343 ; Rob- inson V. N. Y. & Erie R. R. Co., 27 Barb. 512. And if the charge is in substance such as requested, although not in the exact words, it is sufficient. Sherman v. Wake- man, II Barb. N. Y. 255; First Bapt. Church v. Brooklyn Fire Ins. Co., 23 How. N. Y. 448; Williams v. Birch, 6 Bosw. N. Y. 300; see Gale v. Wells, 12 Barb. N. Y. 85. It is not error to refuse to charge a proposition correct in law, where the evidence does not warrant a finding of facts to support such a proposition. Kiernan v. Roche- lean, 6 Bosw. N. Y. 148; and see Gurney v. Smithson, 7 Id. 396; Lyon v. Marshall, 11 Barb. N. Y. 244; Gardner v. Clark, 17 Barb. N. Y. 538; Rushmore v. Hall, 12 Abb. N. Y. 421 ; and see Walrod v. Ball, 9 Barb. N. Y. 271, nor is it error that the judge in his charge stated as law what had nothing to do with the case. Lyon v. Mar- shall, II Barb, N. Y. 241; Horner v. Wood, 16 Barb. N. Y. 386. An exception to the whole charge and to each and every part thereof, raises but a single exception and is unavail- ing if any part of the charge is correct. Dows v. Rush, 28 Barb. N. Y. 127; Vankirk v. Wilds, 11 Barb. N. Y. 520. A defendant's request to charge was refused on the ground that the previous charge covered the whole ground occupied by the evidence. To this refusal the defendant excepted but did not except to the judge's remark that the matter had been already charged, and without asking that it should be submitted to the jury whether the charge had covered the whole case embraced by the evidence, held that the proper exception had not been taken and the defendant was remediless. Hotchkins v. Hodge, 38 Barb. N. Y. 118. A statement of the evidence, or a comment upon it or its effect, an assumption of a fact in a cause, or a mere reference to what is established by the evidence, by a 186 THE TRIAL LAWYERS' ASSISTANT. judge in a charge to the jury, are not grounds of excep- tion to the charge. Dows v. Rush, 28 Barb. N. Y. 156. A party dissatisfied with the expression of an opinion by a judge upon a question of fact, or the conclusion at which he arrives in regard to it, must express that dissat- isfaction, not by excepting to the charge of the judge on that point, but by askiBg to have the question of fact sub- mitted to the jury for their determination. Id. An exception to the charge, on the ground that a partic- ular question should have been submitted to the jury as a question of fact is not a compliance with this rule ; where the judge has made no charge to the contrary, nor been re- quested to submit the question to the jury, and has not refused to do so. Id. It is error for the court to submit to the jury a question raised by neither side, and as to which there is no proof. 112 N. Y. 536; 98 Id. 56; 103 Id. 639. In an action by defendant's employee for injury by de- fective machinery, refusal to charge that if plaintiff, knowing the defect, exposed himself to the danger, he could not recover damages, was error. 120 N. Y. 323. The court will not be required to submit mere abstract propositions to jury. 96 N. Y. 96, 408; 114 Id. 350; i Silvernail, N. Y. 415. A reply to a request to charge that " it is unnecessary, I think, as my charge covers it," is a clear intimation to jury that request is proper, and if charge does not cover it, exception to response does not lie. i Silvernail, N. Y. 375- Instructions given by court in a matter finally left to the jury, and not expressly withdrawn in the final charge, held to have affected the verdict. 103 N. Y. "jy. Erroneous charge which could not have affected ver- dict is not ground for reversal, i Silvernail, N. Y. 9; loi N. Y. 277. Particular words or expressions, which taken alone, are 187 THE TRIAL LAWYERS' ASSISTANT. objectionable, not a ground for reversal, if when read with rest of charge, meaning is clear, and instruction as a whole, is not uncertain or erroneous. 125 N. Y. 214.; 122 Id. 91. If whole draft of a long charge on a particular subject is erroneous, this is not cured by expressions which, if standing alone, would free it from objection. 125 N. Y. 324- To a portion of a judge's charge, which embraces sev- eral propositions, some of which are unexceptionable, a general exception is not available. 120 N. Y. 420. Where the fair import of a charge taken as a whole is according to law, but language may possibly be consid- ered too broadly by jury, counsel must call attention to real error, and not simply to the general exception. Silver- nail, N. Y. 345. An instruction in a civil case after argument that a juror should agree with the rest unless convinced beyond all question, that he is necessarily right and the others necessarily wrong, held erroneous. 103 N. Y. 614. Where rule as to master's HabiHty for injury of servant by defective machinery was stated too broadly, but there was evidence of care in the selection of machinery, and the attention of the court was not called to the qualification of the rule, it was not error to omit allusion to it. 100 N. Y. 266. In an action against a railway company for an injury, defendant is not entitled to charge that if there is reason- able doubt on the whole evidence as to the negligence, the verdict should be for defendant. 95 N. Y. 562. Refusal to charge in a civil action that defendant is en- titled to any doubt the jury may have, is not error. 100 N. Y. 266. ' Duty of the court to instruct the jury as to facts upon which the evidence is, as a matter of law, sufficient or in- sufficient to establish them. 120 N. Y. 420. 188 THE TRIAL LAWYERS' ASSISTANT. JURY— EXCEPTIONS TO INSTRUCTIONS. Exceptions to judge's-' charge must be specific. 34 N. Y. 283 ; 40 N. Y. 557 ; 88 N. Y. 13 ; 99 N. Y. 61. An exception " to all that part of judge's charge," when general terms are correct, raises no question. 14 N. Y. 410 nor does one " to the several points charged wherein charge differs from requests 2 Abb. Ct. App. Dec. N. Y. 538, but a general exception to a charge " that defendant's testimony was sufficient to prevent recovery " is proper. Regna v. Holmes, 16 N. Y. 193. JURY AND JUDGE, FUNCTIONS OF. At common law whether there is any evidence is a question for the judge, but whether the evidence is suffi- cient is a question for the jury. Powell on Evidence, 19, citing Buller's Nisi Prius. 289; i Dough. 375. We think that any departure from this rule in the absence of statute is an unwarrantable innovation upon the common law, and an infringement upon the right of the jury. The question of probable cause is for the judge, and the jury can find only the facts, and the inferences from the facts, on which the theory of probability is founded. Powell on Ev. 22. The question as to what is, or is not, a reasonable time for the performance of an act is generally for the deci- sion of the judge. Reasonable skill, due diligence and gross negligence are questions for a jury. Powell on Evi- dence, 22. Bona fides, actual knowledge, express malice, or real in- tention are questions for a jury. Powell on Evidence, 22. In questions whether a communication is privileged, the jury must speak to the bona Mes; and if they affirm it, it is a question of law whether the occasion of publitation was such as to rebut the inference of malice. Id. 23. In all cases where the character of a fact depends on 189 THE TRIAL LAWYERS' ASSISTANT. an inference from circumstances, the jury must pronounce on the character of the fact, tut where the character of a fact depends on a latent scientific intention, then it is the duty of the jury to find the fact, and of the judge to declare its character, and meaning. Powell on Ev. 24. The construction of written documents is for the judge, but the construction of peculiar or technical phrases is for the jury. Powell on Ev. 24. JURY MUST BEGABS TESTIMONY Or WITNESS. It has been held in New York that where a witness has not been impeached or contradicted, and his testimony is positive and direct and not incredible upon its face, that it is the duty of the court and jury to give credit to his testimony ; that the positive testimony of an unimpeached, uncontradicted witness cannot be disregarded by court or jury arbitrarily or capriciously; that they are bound to believe for judicial purposes, such testimony, and it would, in an instance like this, be the clear duty of the court to set aside the verdict of a jury founded upon a disbelief of clear, uncontradicted and undisputed evidence. Lomer v. Meeker, 25 N. Y. 363. In some jurisdictions the reverse has been held. JURY— TAKING CASE FBOM JUBY. Where the facts of a case are not disputed the court in which an action is pending may render any judgment which the law requires, without the aid of a jury. 54 N. Y. 261, 66 N. Y. no; 87 Id. 78; 103 Id. 347; 103 U. S. 261 ; 14 Gray, 143. JUBY— TAKING PAPERS. In New York judge has power to permit the jury to take any papers with them which has been put in evidence, when they retire.. 9 N. Y. 170-; 55 Barb. N. Y. 497. 190 THE TRIAL LAWYERS' ASSISTANT. JURY— RIGHT TO OPENIDTG AND CI.OSING ADDRESS. The party upon whom the affirmative of an issue lies has the right to make the opening and closing address to the jury. 33 Barb. N. Y. 218. See also 31 N. Y. 611 ; 37 How. N. Y. 97. Denial of the right to open and close to the party entitled to it ground for reversal. 28 N. Y. 284. In all actions to recover unliquidated damages the plain- tiff has the right to open and close. 33 Barb. N. Y. 218. JURY. A mere scintilla of evidence does not entitle a party to go to the jury. 59 N. Y. 366; 71 N. Y. 153; 75 N. Y. 266; 94 U. S. 284. Where evidence has been given on both sides the court must non-suit or direct a verdict if the evidence is so slight upon one side that it would be the duty of the court to set aside a verdict based upon it. 34 N. Y. 13; 82 Id. 150; 109 U. S. 482. JUDGMENT. In practice, a judgment is the conclusion of law upon facts found, or admitted by the parties, or upon their de- fault in the course of the suit. Tidd, Pract. 930. In order that it may be valid a judgment must be ren- dered by a competent tribunal at a time and place ap- pointed by law, and in the form prescribed by law. A judgment would be null and void if the judge or court did not have jurisdiction of the subject matter of the ac- tion, or, having such jurisdiction, the judge exercises it when there was no court held, or out of his district, or if he pronounced judgment before the cause was prepared for a hearing. The judgment must be confined to the issue raised by the pleadings. Final judgments bind the parties. This rule does not apply to judgment for non-suit ^ as in case of non-suit by 191 THE TRIAL LAWYERS' ASSISTANT. nolle prosequi and the like. With this exception the effect of a judgment is as follows. The judgment of a court of concurrent jurisdiction directly upon the issue involved is, as a plea, a bar, or as evidence, conclusive between the same parties upon the same matter directly in question in another court. The judgment of a court of exclusive jur- isdiction is in like manner conclusive upon the same mat- ter between the same parties, coming incidentally in ques- tion in another court for a different purpose. But neither the judgment of a concurrent nor exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter in- cidentally cognizable, nor of any matter to be inferred by argument from the judgment. Dutchess of Kingston's Case, 20 How. St. Tr. 538; 2 Smith Lead. Cases. 424; 2 Gall. C. C. 229; 4 Watts, Penn. 183. The rule above stated related to the effect of a judgment upon proceedings in another court, if the court is the same of course the rule is still the same. All persons who are represented by the parties, and claim under them, or in privity with them are equally concluded by the proceedings. All privies whatever in estate, in blood, or in law are, therefore, estopped from litigating that which is conclusive upon him with whom they are in privity, i Greenlf. Ev. §§ 523, 536. A judgment cannot be collaterally attacked except for fraud if rendered by a court of competent jurisdiction. Of course this does not apply to a judgment from which an appeal is taken. And its validity may be impeached in other direct proceedings, as by motion to open, vacate or set it aside, and in contests between creditors in regard to the validity of their respective judgments. All matters of defence arising since the judgment may be taken advantage of by a writ of audita querela, or what is more usual in most states, the court may afford summary relief on motion. 192 THE TRIAL LAWYERS' ASSISTANT. As to form of judgment see i Jones, Penn. 399. Parol evidence admissible to explain a judgment by showing the issues litigated and decided and the grounds of decision. Miles v. Cauldwell, Book, 17 U. S. Sup. Ct. R. 755, Law, Ed. As to effect of a judgment obtained by an unauthorized appearance by an attorney. See 21 L. R. A. 848. As to what constitutes a fixed liability as evidenced by a judgment or an instrument in writing absolutely owing at the time of the filing of a petition in bankruptcy, see 54 L. R. A. 369. KNO'WXEDGE. Knowledge is acquired through our own perception and reflection, and through that of others. Greenlf. Ev. 12. In the investigation of truth we must not rely upon our own experience alone, but upon the experience of others. Greenlf. Ev. 13. The basis upon which evidence rests is, the necessities of mankind, etc. lead us to consider the disposition to believe, upon the evidence of extraneous testimony, as- a funda- mental principal of our moral nature. Greenlf. Ev. 15. In the second place evidence rests upon our faith in human testimony as sustained by experience ; that is upon the general experienced truth of the statements of men of integrity, having capacity and opportunity for observation, and without apparent influence from passion or interest to pervert the truth. This belief is strengthened by our pre- vious knowledge of the narrator's reputation for veracity; by the absence of conflicting testimony; and by the pres- ence of that which is corroborative and cumulative. A third basis of evidence is the relation of facts to each other. Abercrombie, in his admirable treatise on the Intellectual Powers, says, in substance, that every event which actually takes place has its appropriate relation and place in the vast complication of circumstances, of which 193 THE TRIAL LAWYERS' ASSISTANT. the aif airs of men consist ; that it owes its origin to those which have preceded it; that it is intimately connected with all others which occur at the same time and place, and often with those of remote regions, and in its turn it gives birth to a thousand others which succeed. An able writer in commenting upon this passage says, that in all this there is perfect harmony, so that it is hardly possible to invent a story which, if closely compared with all the actual contemporaneous occurrences, maj^ not be shown to be false ; that from these causes, minds deeply inbued with science, or enlarged by long and matured experience, and close observation of the conduct and affairs of men, may with a rapidity and certainty approaching to intuition, perceive the elements of truth or falsehood in the face itself of the narrative, without any regard to the narrator. liETTERS. Contracts may be, and often are made by letters. The general rule is that when a proposition is made by letter, the mailing of a letter containing an acceptance of the proposition completes the contract, ii N. Y. 441 ; 4 Paige, N. Y. 17; I B. & Aid. 681 ; 6 Hare, i ; i Hon. L. Cases, 381 ; 7 Mees. & W. Exch. 515 ; 21 N. H. 41 ; 4 Ga. i ; 12 Conn. 431 ; 7 Dan. Ky. 281 ; 9 Port. Ala. 605 ; 5 Penn St. 339 ; 9 How. 390 ; 4 Wheat. 228 ; Parsons, Mar. Law. 22n. Payments may be made by letter at the risk of the credi- tor, when the debtor is authorized, expressly or impliedly, from the usual course of business, and not in any other way. Peake, 67; i Exch. 477; Ry. & M. 149; 3 Mass. 249. Letters are admissible in evidence although unanswered. 10 Wall. 129. Letters frequently disclose facts that are well calculated to unfold the nature of a transaction, and they should be admitted as a part of the res gestae, although they contain declarations in a party's favor, i Wall. 637. 194 THE TRIAL LAWYERS' ASSISTANT. Although a letter contains a statement as to an alleged agreement, made after the date when the agreement was made, it is still admissible as part of the res gestae. 8 N. Y. 497; 4 N. Y. W. Dig 268; I How. 219; 14 Serg. & R. 275; 2 Bing. 99, 104; 9 Id. 349; I Q. B. 51 ; i Met. 242, 247; 5 Car. & P. 575. But see 97 N. Y. i. The Supreme Court of Illinois have held that an unan- swered letter is admissible in evidence against the person who received it, and to whom it was addressed if it appears to have been invited by him, and to have been written in response to some previous communication by him. Spies V. People, ID West. Rep. 701 ; 122 111. i, and was subse- quently considered in U. S. Supreme Court, Spies v. Illinois, 123 U. S. 131 ; 31 Law, Ed. 80. Original letters must be produced or foundation for sec- ondary evidence laid in ordinary way. Letter-press copies are not originals. 44 N. Y. 166; 35 Md. 123. It has been held in New York, that secondary evidence of the contents of a written instrument, when allowed, do not obviate the necessity of proving the genuineness of the instrument, but renders it more imperative. When secondary evidence of the contents of a writing is admissible, it is indispensable that the person by whom it is proposed to prove it, should have seen and read the writing, and can speak from personal knowledge. His having heard another person read it is not sufficient, and a party cannot be charged with notice of the contents of a letter written and sent to him without proof that it was properly mailed and forwarded to his address. Daines v. Allen, 14 Abb. Pr. N. S. N. Y. 363. The placing of a communication in a box used by the party for the deposit of letters, creates a presumption that it reached him, and his denial that he received it raises a conflict of evidence. 12 Pick, 112 ; 4 Camp. 192; 61 N. Y. 362, 19 An. R. 285. Letters written by a party are not evidence for him. ^195 THE TRIAL LAWYERS' ASSISTANT. I Johns. Cases, N. Y. no; 3 Day, 303, 306, unless part of res gestae, i Hawks, 24. The postmark on a letter is prima facie evidence that the letter was in the post office, at time and place specified. 6 Wheat. 102, 104; in U. S. 193; 16 Fed. Rep. 838, 842, 850 ; 6 Colo. 227, 235. It has been held that a party may put in evidence a letter containing admissions material to the case, without putting in the whole correspondence, i Esp. 326; 104 Mass. 319, Contra. 56 Md. 153. When a document is properly in evidence, the envelope in which it was delivered, and any other paper which ac- companied, and was delivered in the envelope, is com- petent as part of the res gestae, not as part of statements in it, but to show under what cover its contents reached the party. 9 Rep. 505 ; 54 Bart. N. Y. 149. Letters of an agent through whom business was tran- sacted may be received as part of the res gestce. i Wall. 637, 32 Md. 169; s. c. 3 Am. Rep. 125. Letter-press copies of letters are not original evidence, they must be proven as other secondary evidence. Foot V. Bentley, 44 N. Y. 166. A copy of a letter cannot be introduced in evidence, without notice to produce the original. 18 Barb. 530. A copy of a letter from plaintiff to defendant is admissi- ble for the plaintiff in connection with defendant's letter in reply thereto. 18 Weekly Dig. 114. Where a letter contained only a portion of a contract, it was held that oral testimony to prove what the entire contract was, was competent. 37 St. Rep. 547; aff'g s. c. 35 Id. 22. See s. c. 53 Hun, N. Y. 7; 24 St. Rep. 256. Court will compel production of letters when necessary. 4 Robt. N. Y. 12; 5 App. Div. 126 (1896). See generally as to letters as evidence. 104 Mass. 319; 56 Md. 153; i Esp. 326. A letter is presumed to have been mailed in the ordinary way, if writer testifies he sent it. 100 N. Y. 446. 196 THE TRIAL LAWYERS' ASSISTANT. - — ■ ■ — I ... . — . . . t jMmw ff. When it is sought to impeach a witness by the produc- tion of a letter written by him, the paper must be shown the witness and he must be asked if he wrote it. 52 Iowa, 46; 47 Ga. 99; 117 Mass. 451 ; The Queen's Case, 2 Brad & Bing. 287. If contents of a letter are stated in a deposition without being introduced, that part of deposition will be sup- pressed. 12 Minn. 255 ; 5 Wall. (U. S.) 318 ; 29 Calf. 664. Letter, as to effect of mailing, see 102 N. Y. i. LIBEL. The libeller and tne slanderer have been justly detested by the better portion of mankind in all ages, and in all civilized countries. King Alfred commanded that the forger of Slander should have his tongue cut out, unless he redeemed it at the price of his head. There is a law of Edgar to the same purpose, and Canutus the Dane, re- established the laws of Alfred and Edgar to the same pur- pose. Newell on Slander & Libel, 19. A libel is that which is written or printed, and published, calculated to injure the character of another by bringing him into ridicule, hatred or contempt. 15 Mees. & W. Exch. 344. Every thing, written or printed, which reflects on the character of another and is published without lawful jus- tification or excuse, is a libel, whatever the intention may have been. 15 Mees. & W. Exch. 437. A libel has also been defined to be a malicious defamation, expressed either in printing or writing, and tending, either to blacken the memory of one who is dead or the reputation of one who is alive, and expose him to public hatred, contempt or ridi- cule. 4 Mass. 168; I Hawkins, PI. Cr. b. i. c. 73 § i. 2 Pick Mass. 115; 9 Johns. N. Y. 214; i Denio. N. Y. 347; 24 Wend. N. Y. 434; 9 Barnew. & Co. 172; 4 Mann. & R. 127; 2 Kent. Com. 13. In the following decisions it is defined to be a censorious 197 THE TRIAL LAWYERS' ASSISTANT. or ridiculous writing, picture, or sign made with a ma- licious or mischievous intent towards government, magis- trates, or individuals. 3 Johns. Cases, N. Y. 354 ; 9 Johns. N. Y. 215. 5 Binn, Penn. 340; 48 N. Y. 472. Libels and slanders have been the subject of legislation since the book of Exodus was written, for we find there the com- mand. " Thou shalt not raise a false report." The law makes an important distinction between verbal and written slander, and this not only in reference to the consequences, as subjecting the wrongdoer to an indictment, but also as to the character of the accusations or imputations essen- tial to sustain a civil action to recover damages. To write and publish any thing, maliciously of another, which makes, or has a tendency to make him ridiculous, or holds him out as a dishonest man, is held to be actionable, or punishable criminally, when merely speaking the same words would not be so. i Saund. 6th Ed. 247a ; 4 Taunt. 355; 5 Binn. Penn. 219; Heard. Lib. & S. § 74; 6 Cush. 75- It has been held that the reduction of the slanderous matter to writing or printing is the most usual mode of conveying it. The exhibition of a picture intimating that which in print would be libellous is equally criminal. 2 Camp. 512: 5 Coke, 125; 2 Serg. & R. 91. Fixing a gallows at a man's door, burning him in effigy, or exhibit- ing him in any ignominious manner, is a libel. 11 East. 227; Hawkins, PL Cr. b. i. c. 73 § 2. In New York it nas been held (13 Abb. Pr. R. N. Y. 41 ; Root V. King, 7 Cow. N. Y. ; Townshend, Libel and Slander, 35in, 1322.) that newspapers have no more privileges than individuals, with the exception of the privileges given in New York Code Civil Procedure, §§ 1907, 1908, which read as follows : § 1907. An action, civil or criminal, cannot be main- tained against a reporter, editor, publisher, or proprietor 198 THE TRIAL LAWYERS' ASSISTANT. of a newspaper, for the publication therein of a fair and true report of any judicial, legislative, or other public and official proceedings, without proving actual malice in making the report. § 1908. The last section does not apply to a libel, con- tained in the heading of the report ; or in any other matter, added by any person concerned in the publication ; or in the report of any thing said or done, at the time and place of the public and official proceedings, which was not a part thereof. See also 44 App. Div. 302; 31 Misc. N. Y. 388. As to the extent of the right to criticise public officers and candidates, see 32 Am. Law. Reg, (n. s.) 669. It is libellous to impute incompetency to any person holding an official position. 7 Johns. N. Y. 264, 360; 17 Wend. N. Y. 426; 26 Id. 383 ; 3 N. Y. 177, 46 Hun, N. Y. 504, aff'd III N. Y. 685. To call a lawyer a dunce is actionable. Cro Car. 382, or to accuse an attorney of being guilty of " sharp practice," when it is averred to mean disreputable practice charges a libellous imputation. 4 Mees. & W. Exch. 446. It is libellous to impute habitual drunkness and neglect of his duties to a certified master mariner. 13 A. & Eng. Enc. Law. 310. To charge an editor with being intoxica- cated on several occasions is libellous. 33 Kan. 444. To say of a physician that he is " no scholar " is action- able. 6 Bacon's Abrdg. 215. A charge that a lawyer was dismissed as counsel be- cause of incompetency, is libellous per se. 71 App. Div. N. Y. 566. In this case Patterson, J. said : " In many cases where the words or language charged do not touch a person in his business, profession or calling, it is neces- sary to make allegations of special damage, but where the words do affect a person in that manner, they are libellous, per se as is illustrated in an action for slander 199 THE TRIAL LAWYERS' ASSISTANT. by Gideon v. Dwyer, 87 Hun, N. Y. 246, and in actions for libel by Moore v. Francis, 121 N. Y. 199. Mattice v. Wilcox, 147 N. Y. 624, and Krug v. Pitess, 162 N. Y. 154. Compare 58 How, N. Y. 471 ; 26 Hun, N. Y. 206. Words charging another with having committed a mis- demeanor are libellous per se. 91 N. Y. 84. Words are libellous if they affect a person in his pro- fession, trade or business, by imputing to him any kind of fraud, dishonesty, misconduct, incapacity, unfitness or want of any necessary qualification thereof. 3 Rice on Ev. 882; Starkie on Libel and Slander, § 188. Neither retraction nor apology is a defense, going only to mitigation of aamages. Rice on Ev. vol 3, p. 882. Where the publication is not privileged, nor capable of an innocent construction it is the duty of the judge to charge that it is libellous. The rule that in all prosecu- tions for libel, the jury have the right to determine the law and the fact, relates to criminal proceedings only. Hunt V. Bennett, 19 N. Y. 173. Publication of statements holding person up to scorn or ridicule and which degrade or disgrace him, libellous per se. 94 N. Y. 51. In construing libel, scope and object of whole article should be considered. 48 N. Y. 472. Test is, would the terms used, to an intelligent man, import a criminal or disgraceful charge. Id. 482. In general terms, any written or printed words, which directly tend to the prejudice or injury of any one in his office, profession, trade or business are libellous. 42 Minn. 393; 18 Am. St. Rep. 519; 127 Pa. St. 642; 14 Am. St. R. 874 ; 27 Ohio St. 292 ; 22 Am. R. 303 ; 92 Mich. 304 ; 94 Mich. 542. A written publication, though not charging a punishable offense, is libellous per se if it tends to subject the party to whom it refers to social disgrace, public distrust, hatred, ridicule, or contempt. 59 Wis. 309; 48 Am. R. 200 THE TRIAL LAWYERS' ASSISTANT. Sii ; 6 Houst. 52, 57; 69 Hun, N. Y. 354; 62 Wis. 419; 94 N. Y. 51; 46 Minn. 432; 28 Kan. 426; 42 Am. Rep. 169. Thus, a newspaper article, headed with the plaintiff's name and a picture of a jackass, and referring to the plaintiff as an egotistical and over-estimated, self-con- ceited jackass, is held libellous . ^^r se. j"] Wis. 43; and see III Pa. St. 145; 152 Pa. St. 187. Words importing official misconduct, are libellous. 36 Minn. 141. In this country as in England, the defense of privilege is confined to comment and criticism of the acts of public men, and does not extend to false assertions of fact. 55 Fed. R. 456; and see 49 N. J. L. 579; 60 Md. 158; 87 Pa. St. 385; 152. Pa. St. 406. Truth may be shown. 74 Tex. 89; 15 Am. St. 819. The. proprietor of a newspaper, though not privy to the publication, is answerable, both civilly andd criminally, for libels appearing in his paper. King v. Root, 4 Wendell, N. Y. 114, 136; 7 John, N. Y. 260. All language concerning a person or his affairs, which, as a necessary or natural and proximate consequence, oc- casions him pecuniary loss, is prima facie libellous. Townshend on Slander & Libel, § 146. Article charging insanity libellous. 10 Johns, N. Y. 443; 9 Id. 215; 3 Johns. N. Y. Cas. 337, 354; 3 Black. Com. ,125; 4 Id. 150; 5 Co. R. 125; 5 Salk. 226; i Stark, on SI. 153. When profit or emolument is attached to an office any words which directly impute an unfitness, either in respect of morals or inability to discharge the duty of the office, are actionable, i Salk, 695, 698; 2 Esp. 500; 5 Rep. 125; I Stra. 617; 2 Ld. Raym, 1,369; 4 Rep. i6a; Bull n. p. 4. But in an office only honorary to which no profit is attached, a verbal accusation of incapacity is not action- able. Blacks. Cooley's Ed. vol. i, p. I23n. 3. 201 THE TRIAL LAWYERS' ASSISTANT. I