QJnrupll 2Iauj irlinnl Hibrary Cornell University Library KFO 540.A59C97 Decisions on evidence : 3 1924 024 701 611 Cornell University Library The original of tiiis bool< 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/cu31924024701611 DECISIONS ON EVIDENCE A DIGEST OF THE OHIO DECISIONS ON SOME IMPORTANT TOPICS OF EVIDENCE BY SEYMOUR CUNNINGHAM CHiiyLicoTHE Ohio MoNFORT & Company Cincinnati 1902 PREFACE. This volume is a new edition of " Ohio Decisions on Some Important Topics of Evidence," issued by myself in 1893. I have added chapters on Judicial Notice, Presumptions, and Burden of Proof. I hope the Bar will find that I have omitted few cases that should be in any of the chapters of this book. I have omitted none intentionally. SEYMOUR CUNNINGHAM. Chillicothe, Ohio. TABLE OF CONTENTS. CHAPTER I. PAGE. Evidence; Must be Confined to the Allegations. ..1-5 CHAPTER II. The Best Evidence Must be Given 6-8 CHAPTER III. Res Gestae 9-21 CHAPTER IV. Declarations Showing Feeling 22-23 CHAPTER V. Declarations in Cases oe Rape 24-25 CHAPTER VI. Acts of Conspirators 26-32 CHAPTER VII. Similar Acts 33-44 CHAPTER VIII. Hearsay Irrelevant 45-48 VI TABLK OF CONTENTS. CHAPTER TX. PAGE. Details in Conduct of J3usiness 49 Hearsay as to Market Price 49 Declarations as to Pedigree 49-5° CHAPTER X. Declarations Against Interest 51-52 CHAPTER XI. Admission? 53-83 CHAPTER XII. Confessions 84-94 CHAPTER XIII. Dying Declarations 95-97 CHAPTER Xrv. Evidence Given in Former Trial 98-1.03 CHAPTER XV. Opinions When Relevant 104-127 CHAPTER XVI. Hand-writing 128-132 CHAPTER XVII. Character 133-141 CHAPTER XVIII. Judicial Notice 142-150 TABLE OF CONTENTS. VII CHAPTER XIX. PAGE. Presumptions 151-314 CHAPTER XX, Burden of Proof 315-364 CHAPTER XXI. Separation of Witnesses 365 CHAPTER XXII. Right to Face Witnesses 366 CHAPTER XXin. Order of Proof 367-373 CHAPTER XXIV. Leadjng Questions 374-375 CHAPTER XXV. Cross-examination 376-387 CHAPTER XXVI. Re-examination 388-389 CHAPTER XXVII. Rebuttat- 390-392 CHAPTER XXVIII. Impeachment of Witnesses 393-404 CHAPTER XXIX. Credibieity of Witnesses 405-408 \'1II TABLE OF CONTENTS. CHAPTER XXX. page. Weight of Negative Testimony 409-410 CHAPTER XXXI, Refreshing Memory 411 CHAPTER XXXir. Examination of Person 412 CHAPTER XXXIII. View and Inspection 413-417 CHAPTER XXXIV. Court May Give His Recollection of Testimony. .418 CHAPTER XXXV. Improper Admission of Evidence 419-434 CHAPTER XXXVI. Improper Rejection of Evidence 435-445 CHAPTER I. EVIDENCE MUST BE CONFFNED TO THE ALLEGATIONS. General Rule, i. Some Illustrations, 3-18. Evidence Confined to Bill of Particulars, 19. Immaterial Allegations and Surplusage. 20. Indefinite Allesration, 21. Inquiry Into Collateral Matters, 22. Facts Admitted Need Not be Proven, 23. When Variance Deemed Material. See R. S. S294. Variance Not Material, .'Vmendment Without Costs. See R. S. 5295. Failure of Proof Not a Variance. See R. S. 5296. What is a Variance in Criminal Causes. See R. S. 7216. General rule. I. The first rule governing in the production of evidence is "the evidence offered must correspond with the allegations and be confined to the point in issue." A party can not be presumed to be prepared to enter upon an investigation not involved in the issue. It is not necessary, however, that the evidence should bear directly upon the issue, (i) It is admissible if it tends to prove the issue, or constitutes a link in the chain of proof; although alone it might not justify a verdict in accordance with it. Rose vs. The State, 13 C. C. 344; (7 C. D. 226;) citing Greenleaf, p. 76, sec. 51; 18 C. C. 649; (6 C. D. 285). (i) Richardson vs. Hughes, W. 649. Proofs must substantially correspond with the issue. 18 O. S. 147; 10 O. 88; 2 O. 424; 14 O. 126; W. 210; 15 O. 500; T. 56; 64 O. S. 202. (2) 2 DECISIONS ON EVIDENCE. [CHAP. The matter to which evidence is to be adduced on the trial are the issues in the case. Graham vs. Stein, i8 C. C. 770; (4 C. D. 140). 2. The plaintiff cannot support his action by proof con- tradicting the averments in his declaration. Hough vs. Young, i O. 504. The omission of a material averment cannot be supplied by testimony at the trial. Waldsmith vs. Waldsmith, 2 O. 156. Statements volunteered by witness in regard to matter not in issue should be ruled out. Brandon vs. R'y Co., 17 C. C. 705 ; (8 C. D. 642). Defendant cannot set up one defense and upon final hear- ing rely upon another. Paine vs. French & Ford, 4 O. 318. Some illustrations. 3. Where the plaintiff does not allege as negligence the manner of propelling the cars of defendant (a street railway company), it is not error to exclude evidence tending to show that the cars were propelled in a safe and proper manner. Street R. R. Co. vs. Kelly, 6 C. C. 155; (3 C. D. 393)- 4. When the laws of a foreign state should have been pleaded and were not, they cannot be received in evidence. Iron Co. vs. Smead Co., 11 C. C. 286; (s CD. 460). 5. It is error on the part of the court to require proof of something not alleged in the indictment or not in issue. Corthell vs. The State, 11 C. C. 570; (5 C. D. 123). 6. The state is not allowed to prove other transactions than those set out in the indictment or information. Krowenstrot vs. The State, 15 C. C. 76; (8 C. D. 119). 7. In proceedings against an attorney for malpractice, the evidence must be confined to the specifications. Ohio vs. Chaprnan, 11 O. 430. I.] EVIDENCE CONFINED TO ALLEGATIONS. 3 8. Where an answer to a petition sets up a good defense and no reply is filed thereto, it is error for the court, at the trial, to admit evidence over the objection of the defendant, to prove that the allegations of such defense are untrue. Maxwell vs. Griftner, 11 C. C. 210; (5 C. D. 323). 9. Without averment of special damage in an action for slander, proof of special damage is inadmissible. Wilson vs. Runyon, W. 652. 10. Action for divorce on the ground of adultery — name of person with whom adultery is charged is not given — the court refused to hear evidence, holding that the complaint must be made with a certainty that it may be met. Bird vs. Bird, W. 98. 11. Where in an action for damages against a railroad company plaintifif alleges that his damages were from noises, smoke, dust and sparks of fire, he should not be permitted to prove the extent to which the laying of the tracks interfered with the ingress or egress to his property. Railroad Co. vs. Lersch, 58 O. S. 650. 12. Evidence of acts of negligence, having no relation to the negligence averred are not admissible. R. R. Co. vs. Nixon, Adm'r, 21 C. C. 736; (12 C. D. 79). 13. If the evidence is applicable to any one count in the declaration, it is to be received, though inapplicable to the others. Barney vs. Dimitt's Adm'r, W. 44. 14. In a suit upon a contract if a waiver of conditions is relied on, such waiver must be averred or it cannot be proven. Ins. Co. vs. Baldwin, 62 O. S. 368. Mehurin vs. Stone, 37 O. S. 49. 15. When a contract of settlement is pleaded in the answer and is inet by a general denial, when the execution of the contract is proved it cannot be further attacked. Solar Refining Co. vs. Elliott, Adm'x, 15 C. C. 582;(8C. D. 225). 4 DKCISIONS ON EVIDENCE. [CHAP. i6. If the plea of payment is a general one, any mode of payment may be shown ; but if the mode of payment is speci- fied in the plea, then no other mode can be shown. Brown vs. Ginn, 19 C. C. 660; (10 C. D. 538). 17. Where the charge is the commission of a crime, proot that the defendant had entered into a conspiracy to commit the crime will not of itself justify a conviction. Limerick vs. The State, 14 C. C. 207 ; (7 C. D. 664). 18. The plea of non est factum does not admit proof of delivery as escrow; (i) : Nor proof of payment; (2): Nor evidence that the note was duly executed ; (3). (i) Baker vs. Spangler, T. 210; (2) T. 179; (3) W. 449. Before a justice evidence confined to tlie bill of particulars. 19. R. S. 6526. In a case before a justice, the evidence on the trial shall be confined to the items set forth in the bills of particulars. On appeal from a justice, evidence confined to bill of par- ticulars filed before the justice. Nichols vs. Poulson, 6 O. 305, 388; 30 O. S. 372; W. 649, 679. Immaterial allegations and surplusage. 20. Immaterial allegations need not be proven. Price vs. Eckles, T. 242 ; 5 C. C. 283 ; (3 C. D. 141). Evidence of immaterial facts is not admissible. 6 N. P. 134 ; (8 Dec. 45 ;) 6 N. P. 439 ; (9 Dec. 441). Surplusage need not be proven, and the proof if offered, is to be rejected. But not every immaterial allegation is sur- plusage. Allen vs. Railway Co., 57 O. S. 79. See Greenleaf (art.) SI. Averment that a corporation has complied with the laws of Ohio when met by a general denial does not put the cor- poration on proof of its averment. Brady vs. Palmer, 19 C. C. 687; (10 C. D. 27;) 64 O. S. 267. I.] EVIDENCE CONFINED TO ALLEGATIONS. Indefinite allegation. 21. If there be any allegation of fact, Quaere, whether indefiniteness and uncertainty of the allegation can be suf- ficient to authorize rejection of evidence. Smith & Co. vs. Woodruff, I. H. 279. Inquiry into collateral matters not permitted. 22. Inquiry into collateral matters leads to controversy over matters extrinsic to the case and cannot be permitted. 32 O. S. 202; 5 C. C. 519; (5 C. D. 249;) 41 O. S. 305 ; 22 O. S. 138. Even for the purpose of corroborating a witness, inquiry into facts entirely collateral cannot be permitted. Henkle vs. McClure, 32 O. S. 202, 91 ; 58 O. S. 167. Any fact is admissible in evidence, though collateral to the main issues, which tends to prove or disprove the matter or fact in dispute. Brewing Co. vs. Bauer, 50 O. S. 560. Facts admitted need not be proven. 23. What is agreed to between the parties need not be proven. Wilkinson vs. Palmer, T. 65, 242. CHAPTER II. - THE BEST EVIDENCE MUST BE GIVEN. 1. The best evidence of which the nature of the thing admits and is capable of must always be given. Johnson vs. Stedman, 3 O. 97. Some illustrations. 2. Parol evidence cannot be given of the contents of a written instrument which for aught appears might have been produced. McDevitt vs. Powell, T. 54. 3. When the authority of an agent is in writing, the writing is the best evidence as to his authority. Searles vs. The State, 6 C. C. 337; (3 C. D. 478). 4. Proof of user to show that highway is lawfully estab- lished, may be incompetent if objected to. Baird vs. Clark, 12 O. S. 87. 5. Newspaper statements and understanding of a witness based thereon, are not evidence to prove who the directors of a bank are. State ex rel. VanMatre vs. Buchanan, W. 233. 6. Duplicate copies of newspapers are not secondary evidence. McLaughlin vs. Russell, 17 O. 475. 7. A canal commissioner cannot testify as to what appears of record in the books, as they are themselves better evidence of what they contain. State vs. Perry, W. 662. II.] BEST EVIDENCE MUST BE GIVEN. ^ 8. Where a written proposition is made by one party, which after a parol modification of some of its terms has been made, is accepted by the other party in parol, such written proposition is the best evidence of so much of the resulting contract as it contains. O. S. R. R. Co. vs. Morey, 47 O. S. 207. 9. Plaintiff gave parol evidence of a suit before a justice, without producing a transcript, held, that he could not object to the same kind of evidence on the part of the defendant. Price vs. Eckles, T. 242. 10. A witness may testify that he sold shares of stock and delivered the certificates thereof to a person named, without producing the certificates for inspection. Railway Co. vs. Rawson & Sons, 16 Bull. 423. 11. The best evidence that a patent has been obtained in England, is the letters patent, or a certified copy by the proper officer, or at least a sworn copy by a private person, or possibly published records. But certificates of private individuals, predicated upon a comparison of a model with specifications of a patent said by them to have been granted, are not sufficient. Atkins vs. Ballauf, i D. 387. 12. The fact of a judgment must be proved by the record or transcript. Seaton vs. Cordray et al., W. 102. 13. When the assignment of a judgment is attested by a ■witness who is out of the state, it is not necessary on the issue of the plaintiff's ownership of such judgment to prove it by the deposition of such witness, but other proof may be received in such case. Hutchins vs. Wick, i Clev. Rep. 89. 14. Where a contract is attested by a witness, such wit- ness must be called or his absence accounted tor, before the testimony of other witnesses can be received to prove that the maker's signature is genuine or was admitted by him to be genuine. Warner vs. R. R. Co., 31 O. S. 265. 8 DECISIONS ON EVIDENCE. 15. The reason of the rule requiring the execution of deeds and other instruments to be proved by the subscribing witness, is that they are presumed to be better acquainted with the circumstances that transpired at the time ; and that by selecting them as witnesses to their transactions the parties mutually agreed to resort to them for proof, and unless these channels are closed, by events not within the control of the parties, through them the evidence must be adduced. Simmons vs. The State, 7 O. Pt. I. 116. 16. Where the subscribing witness resides out of the jurisdiction of the court, proof of his handwriting is prima facie evidence of the execution of the instrument ; when he is dead or absent it is usual to admit proof of the handwriting of the obligor. But this is not necessarily, required in addition to proof of the handwriting of the subscribing witness. Under proper circumstances both modes of proof may be admissible, and either may be sufficient. Clark vs. Boyd, 2 O. 56. Richard vs. Skiff, 8 O. S. 586. 17. The execution of a deed or other written instrument other than a will, may be proved by either one or more of the subscribing witnesses, the officer before whom the instrument was acknowledged, or the party who signed and executed the same. Garrett vs. Hanshue et al., 53 O. S. 482. CHAPTER III. RES GESTAE. Declarations Res Gestae, Statement of the Rule, i-6. Declarations: — Explanatory of Acts, 7-18. Not Explanatory of Acts, 19-22, 53. Narrative of Past Occurrences, 23-29, 46. 35. Showing Intent and Knowledge, .30-40, 4. Sayings and Conduct Showing Working of the Mind in Homicide Cases, 41-43. Res Gestae Admissible if Not Sufficient Proof of the Fact, 44. Declaration's of Ofricers, Partners, Agents, 45-53. Words in Marriage Service, 54. Cries of a Mob, 55. Writings Part of the Res Gestae, 56-61. Acts Admis.sible as Res Gestae, 4, 62. Statement of the rule. 1. Declarations are res gestae only where some act is relevant and material and to which the declaration relates and which it tends to explain. Ins. Co. vs. Cheever, 36 O. S. 201 ; 23 Bull. 136. 2. The law of res gestae always applies to a state of afifairs where there is an act and cannot be predicated merely upon a statement. Where for the purpose of proving an admission of defendant, evidence of his conversation with plaintifif is given, this does not entitle the defendant to intro- duce evidence of his own subsequent declaration, unless a part of the same conversation. Wrede vs. Steinkamp, I. N. P. 192; (2 Dec. 198). lO DECISIONS ON eviDENCE. [CHAP. 3. Declarations accompanying an act serving to illustrate and give color to it are part of the res gestae. Meeks vs. Stillwell et al., 54 O. S. 548. / 4. What is done is as much a part of the res gestae as what is said, but res gestae are those circumstances which accompany, explain and illustrate an act. They are incidents and not the act itself. Watts vs. Shewell, 31 O. S. 331. 5. In a suit against a surety on an officer's bond, declara- tions of principal before or after the breach are inadmissible. The admissibility of declarations as part of the res gestae depends upon their being co-temporaneous with the main fact under consideration and so connected with it as to illus- trate its character, motive or object. In such cases they are regarded as verbal acts indicating -a present purpose and intention, and are, therefore, admitted in proof like any other material facts. It is entirely immaterial whether they consist of mere verbal statements or assume the more certain form of written entries. But where they are merely narration of a past occurrence, they cannot be received as proof of the exist- ence of such occurrence. Stetson vs. The City Bank of N. O., 2 O. S. 176. 6. Where an act of a party is admissible, his declarations at the time, explanatory of that act, are admissible. Where A.'s promise to marry B. is shown, evidence that B. had received A.'s attention for four years and prepared for marriage by procuring bedding, etc., and of B.'s statements to her sister at the time explanatory of such acts of prepara- tion, is competent to show her acceptance of such promise ; declarations after suit brought or after a rupture between the parties would be inadmissible. Wetmore vs. Mell, i O. S. 26; 8 C. C. 571 ; (4 C. D. 520). Declarations explanatory of acts. 7. Declarations while contracting for land or at the time of purchase, admissible. Derush et al. vs. Brown, 8 O. 412. III.] RES GESTAE. II 8. The statements of a steamboat captain, made in the discharge of his duty as commander of the vessel, while she is in a sinking condition, and he is in the act of seeking aid of another to relieve her from present peril of loss, as to her perilous condition, how and where she was leaking, and his statements accompanying his acts and explanatory of them are res gestae and admissible. Ins. Co. vs. Tobin, 32 O. S. JJ. g. Question whether money belonged to the depositor, or his son in whose name it was deposited. Udd, on cross- examination the declarations of the depositor at the time of depositing the money in bank are admissible as part of the res gestae. ' Martin vs. Elder, 32 O. S. 282. 10. For tlie purpose of proving a bargain and sale, the declarations of the parties thereto, at the time a part of the res gestae, are competent evidence for the accused to rebut the inference of guilt arising from the possession of stolen property. Leggett vs. The State, 15 O. 283. 11. Where in an action for damages against a R. R. Co. it becomes material to establish that the plaintiff was at the station to take passage on one of the defendant's trains, a declaration made by him as he left his house on the way to the station, that he was going to another station on the same railroad, is competent evidence to establish his character as a passenger. R. R. Co. vs. Herrick, 49 O. S. 25. 12. Every declaration accompanying the act of pos- session, whether in disparagement of claimant's title or other- wise qualifying his possession, if made in good faith, is part of the res gestae.- Kyle's Adm'rs vs. Kyle, 15 O. S. 19. 13. In an action against defendants for boycotting plaintiiif by frightening away his customers, the declarations of the customers to him, at the time of withdrawing, of their 12 I DECISIONS ON EVIDENCE. [CHAP. reasons for so doing, though in the absence of defendants, are admissible as part of the res gestae. Moores vs. Bricklayers' Union, 23 Bull. 48. 14. Where it is shown that property in the possession of the deceased, shortly before the murder, was soon thereafter found concealed on the premises of a third person about the time in the company of the defendant, it is competent for the state to prove the acts and declarations of such third persons, accompanying the discovery of the property, tending to show his custody thereof, as a circumstance for the consideration of the jury, in connection with other proof, in determining whether he was made such custodian by the defendant. Mimms vs. State, 16 O. S. 221. 15. The sale book of the proprietors of Cincinnati is evidence of early conveyance by them. William's Lessee vs. Burnet, W. 54. 16. Declaration of the grantor in a deed as to her inten- tion made when making the deed, are competent. Meeks vs. Stillwell et al., 54 .0. S. 548. 17. Declarations, written or verbal, are sometimes re- ceived in connection with acts done as explanation of such acts, and on questions of residence or domicile as evidence of intention. Ins. Co. vs. Packet Co., 6 N. P. 173; (7 Dec. 571). 18. The facts that a party claiming to have been robbed of property entrusted to him complained, gave notices, insti- tuted search and commenced a prosecution, are admissible in his favor as well as against him, as part of the res gestae. Anderson vs. Forseman, W. 598. Declarations not explanatory of acts. ig. It is not competent for plaintiff to testify to conversa- tions with third persons, defendant not being present and the remarks not being explanatory of any act. Stribley vs. Welz, 8 C. C. 571 ; (4 C. D. 520). 20. A person holding bank notes, which he alleges have III.] RES GESTAE. 13 been burnt, cannot prove his declarations at the time of the fire, to estabHsh the loss. Burridge vs. The Geauga Bank, W. 688. 21. A statement by a physician as to the condition of a patient, not made in connection with an act of treatment, is not a part of the res gestae. Village of Monroeville vs. Weihl, 13 C. C. 689; (6 C. D. 188). 22. The statement of a physician, who was in the habit of getting intoxicated, made at the time of his purchase of liquor, that he wanted it for a patient and for medicinal pur- poses, does not, in the absence of proof to the contrary, raise the presumption that it is a sale to the patient. Boyd vs. Watt, 27 O. S. 259. Narrative of past occurrence. 23. A narrative of a past occurrence is not admissible as part of the res gestae. Circleville vs. Throne, i C. C. 361 ; (i C. D. 200) ;. 2 O. S. 176. 24. In an action against a railroad company for injuries sustained by falling or being precipitated into a ditch when in the act of landing from a car, it is not competent for the plaintifif to prove what the party said immediately afterwards, and while being helped out of the ditch, as to the cause of the accident, it being no part of the res gestae, but a mere account of a past transaction. R. R. Co. vs. Mara, 26 O. S. 185. 25. Expressions of defendant to plaintifif just after the accident, not a part of res gestae. Schaal vs. Heck, 17 C. C. 38; (8 C. D. 596). 26. Statements of deceased after the accident as to the circumstances of the accident. Atkinson Adm'x vs. Village of Bond Hill, i N. P.. 166; (2 Dec. 348). 27. Declarations of an assured made to his fellow work- 14 DECISIONS ON EVIDENCE. [CHAP. men after absence from work, as to illness causing his absence, are too remote to be part of the res gestae. Life Ins. Co. vs. Reif, i Bull. 290. 28. Father and son jointly indicted for murder, declara- tions of the son after returning home as. to who fired the fatal shot, are not admissible against the father. Donald vs. The State, 21 C. C. 124; (11 C. D. 183). 20. It is not competent for a defendant on a trial for murder, to prove declarations made by himself immediately after the homicide in regard to the fact of the homicide and the circumstances attending it. Such declarations are a nar- rative of a past transaction. Forest vs. The State, 21 O. S. 641. Showing intent and knowledge. [See Declarations Showing Feeling, Chapter IV., p. 22.] 30. Parol evidence of declarations of intention made at the time of signing before delivery of the note are part of the res gestae, admissible to establish an agreement where they do not contradict the written contract or vary the rights of the prior parties. Oldham vs. Broom, 28 O. S. 41. 31. An admission of defendant in a breach of promise case that he proposed to marry plaintifif, though made before entering into the alleged contract, is competent to show con- dition of mind. Cooper vs. West, 3 Bull. 431. 32. When a legacy is given in bar of claims against a testator and the claims are subsequently paid by the testator, his declarations made at the time of payment are competent to show his intention in making payment. Cory vs. Lentner, 10 W. L. J. 246. 33. H., by an instrument absolute on its face, transferred to his sons all his "rights and title" in certain lands, the legal title of which was in another. The declarations of H. at the time of the transfer, were admissible for the purpose III.] RES GESTAB. 15 of proving that such transfer was made to his sons in trust for the use and benefit of their respective wives. Harvey vs. Gardner, 41 O. S. 642. 34. In an action by an endorsee against an endorser, the question whether a blank endorsement was made in the usual course of trade, for the purpose of transferring title, and as evidence of a contract of endorsement, is issuable, and under such issue, the endorser may prove that his name was written on the back of the instrument at a different time and for a different purpose ; also, he may prove, as part of the res gestae, the declarations and conversation of the parties at the time of the transfer. Hudson vs. Wolcot, 39 O. S. 618. Lenhart vs. Ramey, 3 C. C. 141 ; (2 C. D. jj). 35. Declarations of intent made subsequent to an act are not admissible to impeach it, though if made at the time they would be. Stftt vs. Wilson, W. 505. 36. Declarations explanatory of acts are received as evi- dence of intentions on questions of residence or domicile. Ins. Co. vs. Packet Co., 6 N. P. 173; (3 Dec. 571). 37. Where a conspiracy between a debtor and others to put his property out of the reach of an attaching creditor had been proven in an action of replevin, brought by a vendee of the debtor's property to recover it from the sheriff holding it under attachment, lidd, that evidence as to the attempt of the debtor to put part of his property out of the reach of his creditors and as to his declarations of hostile feelings and intention toward the attaching creditor, was admissible. Dodge vs. Goodel, I. C. S. C. R. i. 38. Indictment for subornation of perjury. Statements of the principal, in the absence of the prisoner immediately prior to the perjury, tending to show the former's disbelief in the facts falsely sworn to, are admissible to show the state of his mind and belief concerning the subject of his testimony. Dilcher vs. The State, 42 O. S. 173. l6 DECISIONS ON EVIDENCE. [CHAP. 39. On an indictment for forging a will, proof of the efforts of the beneficiary under the will to have it admitted to probate, and that he afterwards made a claim under the will to certain property, is competent against his co-conspir- ator and accomplice in the forge;ry, though not present, as a part of the res gestae, and as an essential part of the execu- tion of the object and purpose for which they had combined. Corbett vs. The State, 5 C. C. 155 ; (3 C. -D. 79). 40. On the trial of an aider and abettor, under Sec. 6831 R. S. the application of the principal to the insurance com- pany under the policy was admissible as part of the res gestae, a part of the working out of the scheme which must have been contemplated by the principal and the defendant. Searles vs. The State, 6 C. C. 339; (3 C. D. 478). Sayings and conduct showing the worlvife, made shortly prior to the alleged seduction, in order to show the state of her affections toward him up to the time of the injury complained of ; and this whether such such declarations were made prior or subsequent to her marriage with the plaintiff. Preston vs. Bowers, 13 O. S. i. 2. In an action by the husband for loss of services of the wife, her letters may be received to show her state of mind. Holtz vs. Dick, 42 O. S. 23. 3. A person on trial for procuring an abortion on M. on June I2th, offered in order to show that he did not procure an abortion on that date, to prove that M. on July 2nd, said to witness that she was still pregnant and said. Put your hand on me there and you will see that I am still in the family way. Held, not an expression showing bodily or mental feeling, but her opinion as to her condition, and therefore, properly excluded. Benedict vs. State, 44 O. S. 687. 4. In an action for loss under a policy against death by accident, a statement made by deceased to his physician, upon which the physician forms his opinion, and makes a pre- scription, is competent to prove the cause of his injury and death, though the symptoms are such as might be produced by disease or by accident. Dabbert vs. Ins. Co., 2 C. S. C. R. 98. IV.] DBCLARATIONS SHOWING FEELING. ' 23 5. A physician called to treat- a patient may testify as to what plaintiff said as to her physical condition, symptoms, sensations and seat of disease, but not to the patient's recital of how the injury was caused. Testimony of non-experts giving declarations of the plaintiff in the case as to his or her condition are not competent unless they are exclamations, screams, groans or something of that nature which are the natural accompaniment of bodily suffering, and the rule ex- cludes statements in answer to questions or by way of impart- ing information. Railway Co. vs. Yokes, 12 C. C. 512 ; (5 C. D. 599). 6. If, however, the witness be an expert, appointed by the court at the request of defendant, he may testify as to plaintiff's statements of symptoms. lb. 7. Action to recover for personal injuries. Witness for plaintiff asked, "Where else was he hurt?" answered, "He complained of his back and his limb." Held, not admissible, error to refuse to take the answer from the jury. Railway Co. vs. Roebuck, 22 C. C. 99. 8. Declarations of deceased after an accident showing her condition and bodily feeling admissible. Village of Bond Hill vs. Atkinson, Adm'r.. 16 C. C.477;(9C. D. 185). 9. An admission of defendant in a breach of promise case, that he proposed to marry plaintiff, though made before entering into the alleged contract, is competent to show con- dition of mind. Cooper vs. West, 3 Bull. 431. 10. Prosecution for forging a will. Declarations of tes- tatrix admissible to show her feeling. Breck vs. State, 4 C. C. 160; (2 C. D. 477). Corbett vs. State, 5 C. C. 155 ; (3 C. D. 79). CHAPTER V. DECLARATIONS OF PERSONS INJURED IN CASES OF RAPE. 1. In a prosecution for rape or for assault with intent, etc., "the substance of what the prosecutrix said" or the "dec- larations" made by her immediately after the ofifense was committed, may be given in evidence in the first instance to corroborate her testimony. McCombs vs. State, 8 O. S. 643. Johnson vs. State, 17 O. 593. Laughlin vs. State, 18 O. 99. Burt vs. State, 23 O. S. 394. 2. Such declarations are not admissible as evidence in chief to prove the commission of the ofifense, but only to corroborate the testimony of the injured person given in court. A detailed statement not made until ten days after the commission of the offense, and when the delay was not explained by sufficient cause therefor, is not admissible. Dunn vs. State, 45 O. S. 249; i C. C. 468; (i C. D. 261). 3. The rule does not extend to prosecutions for sodomy. Where the declarations as to the manner and by whom the act was done were received "for the purpose of further main- taining the issues on the part of the state and to prove the allegations in said indictment contained," and the bill of exceptions does not show that the person injured was examined as a witness in the case, it was error to receive v.] DECLARATIONS IN CASES OE RAPE. 25 such evidence at all, or if such person had been examined as a witness to receive it for such purpose. Foster vs. State, i C. C. 468; (i C. D. 261). 4. The acts and declarations of the husband of a woman on whom the ofifense is alleged to have been committed are not admissible to discredit the wife examined as a witness. McCombs vs. State, 8 O. S. 643. 5. Where by reason of being an imbecile the woman was incompetent to be sworn as a witness, her declarations made shortly after the assault are incompetent to prove the com- mission of the ofifense. Where without such declarations, the evidence is insufficient to convict, the error in admitting them cannot be cured by the court in its instructions to the jury, as to the purpose for which such declarations were ad- mitted. Evidence of the manner in which such female was conducting herself, her physical condition as to injuries, and the condition of her wearing apparel, when found shortly after the alleged commission of the ofifense, is admissible. Hornbeck vs. State, 35 O. S. 277. "I ' '1 I' I I 6. When the prosecuting witness has testified to the commission of the alleged crime, and a witness is called who testifies in corroboration, that soon after the ofifense the prosecutrix made complaint in his presence, held, that it was error to exclude, on the cross-examination of the last named witness, evidence tending to show that between the time the offense was alleged to have been committed and the time such complaint was made, the prosecutrix had been informfid that the act of sexual intercourse had been witnessed by other persons. McFarland vs. The State, 24 O. S. 329. CHAPTER VI. ACTS OF CONSPIRATORS. Prooi of Conspiracy, 1-15. Acts and Declarations of Conspirators, 16-23. Declaration of Personal Intention, 24. Declarations, Narrative of Past Act, 25. Motive of Co-Conspirator May be Shown, 26. Credibility of Accomplice, (See Confessions), 27-29, 15. Declaration of Principal Oii'ender Under R. S. 6804, 30. Proof of conspiracy. 1. Conspiracy is seldom, if ever, established by direct evidence. It is shown ordinarily by circumstances. In the matter of C. A. Palmer, 9 C. C. 69 ; (6 C. D. i7Q). 2. There must be a prima facie case of conspiracy made to the court before the admission of one will be received against another alleged conspirator. Roberts vs. Briscoe, i C. C. 577; 21 C. C. 124; (II C. D. 483). 3. It is a general rule that there should be prima facie proof of the conspiracy before the declarations and acts of conspirators are admitted; yet, if part of the proof is after the declaration and acts are admitted, it will not be ground for reversal, if there is sufficient evidence in the case to estab- lish the fact of conspiracy. Umberhauer vs. State, 4 C. C. 378; (6 C. D. 773). 4. On the trial of a party charged with crime, evidence of the declarations of a conspirator with the accused for the VI.] ACTS OF CONSPIRATORS. 27 commission of such crime, when made in the absence of the accused, is not admissible against him to prove either the body of the crime, or the existence of the alleged conspiracy, unless they either, first, so accompany the execution of the common criminal intent as to become part of the res gestae, or, second, in themselves tend to further the execution of the common criminal intent. Clawson vs. The State, 14 O. S. 234. 5. Much latitude is left to the trial court in determining whether there is sufficient proof of conspiracy to admit dec- larations of alleged co-conspirators. Donald vs. The State, 21 C. C. 124; (11 C. D. 483). 6. When there is evidence of the conspiracy the books of the co-conspirator are admissible, though the defendant had no knowledge of such books, but if the evidence does not sustain the claim of conspiracy, the books and declarations made in the absence of defendant are not admissible. Davis et. al. vs. The State, 20 C. C. 431 ; (11 C. D. 738). 7. To convict one charged with crime by the act and declaration of another person jointly indicted, conspiracy must be proved beyond a reasonable doubt, but it may be proved after the admission of the declarations, and the charge of the court that the declarations were to receive no consider- ation, unless the conspiracy was proven, protected the rights of the defendant. Ditzler vs. The State, 4 C. C. 551 ; (2 C. D. 702). 8. Where evidence has been given of a combination of persons in passing counterfeit money, though the combina- tion has not been conclusively proved, evidence of the acts of one are admissible against the others, as,' when persons are associated together for one common end, whatever one does with respect to that end, is a fact to be received against all of them. Ohio vs. Cook, T. 53. 9. An agreement to engage in a prize fight is a con- spiracy to commit a crime, and the declarations of either 28 DECISIONS ON EVIDENCE. [CHAP. party with reference to the common object, or in furtherance of the criminal design, while engaged in its prosecution, are competent evidence against the other, though the agreement was made by, or through, backers or other representatives of the principals, and the latter were unknown to each other. Letters written by one of the principals, while in training for the fight, describing what the fight is to be, stating when and where it is to occur, and requesting the presence of his friends and others thereat, in furtherance of the unlawful enterprise, are admissible in evidence against the other. Seville vs. State, 49 O. S. 118. 10. Where in a trial upon an indictment it becomes material to prove, upon the part of the state, that a conspiracy exists between persons jointly indicted, evidence that the same persons were, shortly prior to the time of the alleged crime, engaged in a conspiracy to commit crimes of a like character is competent. Tarbox vs. The State, 38 O. S. 581 ; 7 N. P. 261 : (5 Dec. 252). 11. The same reasons that render evidence of acts com- mitted shortly prior to the time of the ofifense charged, com- petent for the purpose of showing conspiracy, apply with equal force to acts committed shortly thereafter. The test is, that the acts should appear. to be so connected as to authorize the inference that they were all part and parcel of a single conspiracy to commit several crimes. Jackson vs. The State, 38 O. S. 585. Subsequent confederation to steal horses not admissible on a prosecution for stealing a specified horse. Cheney vs. The State, 7 O. Pt. i, 222. 12. Proof tending to connect another party with the defendant as particeps criminis will not justify the introduc- tion in evidence of counterfeit bills found upon such other party fifty days after the sale charged, though such bill be of the same manufacture with those proven to have been sold by the defendant, there being no evidence of any intercourse or association between the defendant and such other party during the intervening time. Griffin vs. The State, 14 O. S. 55. VI.] ACTS OF CONSPIRATORS. 29 13. Evidence showing a joint burglary, a threat to kill, the 'firing of the shot by one, while all were near, and the flight of all, tends to show and authorize the jury to find that there was a common purpose to commit the murder. Huling vs. State, 17 O. S. 590. 14. Evidence of the acts or declarations of persons alleged to be co-conspirators with the defendant on trial, can- not properly be received against him until the judge is satis- fied, that apart from them, there are prima facie grounds for believing in the existence of the conspiracy. Limerick vs. The State, 14 C. C. 207 ; (7 C. D. 664). 15. When parties are engaged in a conspiracy, what one says and does in carrying out the common purpose, becomes the act and conduct of every other co-conspirator. R. R. Co. vs. Wenger et al., 17 Bull. 306-313. Acts and declarations of a conspirator. 16. The declarations of a conspirator are admissible against other members of ithe conspiracy — (i) If the fact of the conspiracy be proven to the satisfaction of the jury, (court), and (2) such declarations are in furtherance of the objects of the conspiracv- Preston vs. Bowers, 13 O. S. i; 21 C. C. 124; (II C. D. 483). 17. Petition alleges that several persons — some defend- ants, others not — have conspired together to entice away the wife of plaintiff, the declarations of any one of such alleged conspirators are admissible to show him or her to be a mem- ber of such conspiracy. Preston vs. Bowers, 13 O. S. i. 18. Conversation by telephone between the prosecuting witness and his agent, in the absence of defendant, are incom- petent. Limerick vs. The State, 14 S. C. 207 ; (7 C. D. 664). 19. On the trial of one of several defendants jointly indicted for an oflfense, the declarations of a co-defendant, made in the absence of the defendant on trial, in furtherance 30 DRCISIONS ON EVIDENCE. [CHAP. of the common purpose, are admissible when a prima facie case of conspiracy has been made. To authorize the admis- sion of such evidence, an express averment in the indictment of the fact of a conspiracy is not necessary, nor need the con- spiracy be one to commit the identical offense charged in the indictment, or even a similar one, it being enough that the ofifense charged in the indictment was one which might have been contemplated as a result of the conspiracy. Coins vs. State, 46 O. S. 457. 20. The acts and declarations of a conspirator may, after sufificient proof of conspiracy, be given in evidence to charge his fellow conspirator, but subject always to the limitation that the acts and declarations admitted be those only which were made and done during the pendency of the criminal enterprise and in furtherance of the common object. Where the declarations are merely a narrative of a past occurrence, they cannot be received as evidence of such occurrence. They must be concomitant with the principal act and connected with it so as to constitute part of the res gestae. Patton vs. The State, 6 O. S. 467. Roberts vs. Briscoe, i C. C. 586; (i C. D. 323). Kent vs. State, 42 O. S. 430. Foutz vs. State, 7 O. S. 471. Corbett vs. State, 5 C. C. 156; (3 C. D. 79); 21 Bull. 225. 21. Where two persons are proved to be associated to- gether for the purpose of a criminal enterprise, the act of one, in furtherance of the common object, is the act of both, and may be given in evidence against the one on trial. May vs. The State, 14 O. 468. 22. In malicious prosecution, the defendant, to show probable cause, is not confined to the transactions of plaintiff alone, but proof of the acts of associates of the plaintiff tend- ing to give defendant a belief of the plaintiff's guilt, is rele- vant. Johnson vs. Carrington, 3 Bull. 11 39. VI.] ACTS OF CONSPIRATORS. 3 1 Declarations of personal intentions. 24. The declarations and admissions of a party made in his own behalf, and detailing what he personally intends to do, but not in furtherance of any concerted action with others, are not adhiissible as evidence against an associate in crime, although he and such associate may afterwards engage in and be indicted for the same criminal act to which the dec- larations and admissions related ; and although it may also be proved that, before the making of the declarations, the two had jointly arranged to commit the identical act. Foutz vs. State, 7 O. S. 471. Declarations narrative of past act. 25. On the trial of a person indicted under the 36th Sec- tion of the Crimes Act, [S. & S. 266,] for procuring another to commit an offense, it is not competent to prove the dec- larations of the principal offender, made after the completion of the offense, for the purpose of showing the guilt of the pro- curer. Sharp vs. The State, 29 O. S: 263. Motive of co-conspirator may be shown. 26. Where it is shown that two or more persons acted in concert in the commission of an alleged murder it is com- petent for the state, by proper testimony, to show, upon the separate trial of one, the motives which actuated the others in the alleged homicide ; but ill feeling toward the deceased, on the part of those not on trial, cannot be proved for the purpose of showing a conspiracy between them and the de- fendant to commit the homicide, nor can the declarations of those not on trial be proved in such case to show their motives or malice on their parts toward the deceased, unless such declarations were made during the pendency of the con- spiracy and in the furtherance of the common design. Rufer & Egner vs. The State, 25 O. S. 464. Credibility of accomplice. 27. Evidence of an accomplice should be cautiously received and closely scrutinized. Whiting vs. The State, 48 O. S. 221. [See Credibility of Witnesses.] 32 DECISIONS ON EVIDENCE. 28. Where two persons are jointly indicted for a felony, and one is on trial, declarations of the other, tending to estab- lish the guilt of the one who is being tried, are not competent to be submitted to the jury unless it appears with reasonable certainty that such declarations were heard by the one on trial. Aidt vs. The State, 2 C. C. 18. 29. Where separate trials are awarded parties jointly indicted, each is a competent witness against the other ; the fact that he is charged as an accomplice goes to his credi- bility. Mitchell vs. The State, 21 C. C. 24; (11 C. D. 446). Declaration of principal under R. S. 6804. 30. R. S. 6804, providing that, "Whoever aids, abets or procures another to commit any offense may be prosecuted and punished as if he were the principal offender," was not intended to introduce into our criminal practice any new rule of evidence. On the trial of one indicted for subornation of perjury, the statements of the principal offender, made in the absence of the prisoner, that the latter had been attempt- ing to hire, or had hired, him to commit the perjury, are inad- missible, although they tend to prove the principal's guilt of the perjury charged, and are made immediately prior to the commission of the perjury. Dilcher vs. The State, 42 O. S. 173. [See Cross-examination of Witness.] [See Confessions.] CHAPTER VII. SIMILAR ACTS. Similar Acts, Facts or Occurrences Generally Inadmissible, 1-12. Previous Like Offenses Incompetent, 13-20. Similar Acts Admissible to Show Knowledge, Intent or Animifs, In Criminal Cases, 21-35, 13. In Civil Cases, 36-52, 13. Competent Evidence is Not Rendered Incompetent Because it Tends to Prove a Distinct Offense, 23. Nuisances in Highways or Streets, 47. Defects or Dangerous Places in Thoroughfares, 47, 49-51. Fire from Sparks from Engine, 47, 52, 10. Existence of Coal on Land, 53. Similar acts, facts or occurrences inadmissible. 1. Subsequent similar acts of a party are competent to show the intention or animus with which he committed the act charged, but cannot be given in evidence to prove the act itself. Where in an action for the price of milk the defense was that the milk was diluted, and under the contract it was to be pure, evidence to. show that after the delivery of the milk in question the plaintiff was seen diluting other milk, which he was preparing to deliver under the same contract, was properly excluded. Phelps vs. Smith, 22 O. S. 189. 2. In an action by the owners of a steamboat against an insurance company, on a policy against perils in the naviga- tion of specified privileged waters, for the loss of the vessel, occasioned by encountering an unknown cause of peril from which she suddenly sprang a leak and sank, while navigating a privileged water, it is not competent in chief to give in (4) 34 DECISIONS ON EVIDENCE. [CHAP. evidence, for any purpose, specific cases of other steamboats that have been lost, while navigating the same and other western rivers occasioned by some unknown injury causing them to suddenly leak and sink. Ins. Co. vs. Tobin, 32 O. S. "jy. 3. Evidence of former negligence at a crossing by in- jured party is not admissible to show habitual negligence. R. R. Co. vs. Van Horn, Adm'x, 21 C. C. 337. 4. Where the question is whether barrels leaked because of defective material and poor workmanship, evidence that barrels made by the same cooper, by the same process, during the same season, out of timber cut from the same forest, were tight is not admissible. The Samuel Wymond Cooper Co. vs. Thompson, 8 N. P. 347- 5. One cannot prove the terms of a contract by proving the terms of another contract made at some other time be- tween the same parties in regard to the same subject matter. Blymyer vs. Header, Trustee, i N. P. 355 ; (3 Dec. 52). 6. Action on a written contract for the sale of a book ; defense fraud. Evidence is not admissible to show other transactions of a similar nature when they are not connected with the one in suit and there is no proof that the persons claiming to be agents of the plaintiff therein were his agents. Beers & Co. vs. Gurney, 14 C. C. 82; (7 C. D. 411). 7. Proof that other parties had allowed half for the col- lection of similar desperate claims is not admissible to prove the value of attorney's services. He should show what serv- ices were rendered and what others in like business usually charge. Christy vs. Douglass, W. 485. 8. Where the question is, whether the plaintiff was acting in the employment of the defendants in the purchase of hogs, and he has introduced telegrams to himself from the defend- ants, instructing him to buy divers lots of hogs for them at various times, and the defendants offered to introduce other VII.] SIMILAR ACTS. 35 telegrams of like tenor and effect from themselves to other persons, not in their employ, but in the employ of another, of which plaintiff had no knowledge, held, they were rightly excluded. Jennings, Ford & Co. vs. Haynes, i C. C. 22; (I C. D. 13). 9. The claim of defendant was that deceased put his hand in his pistol pocket as if to draw a pistol therefrom, and that the killing was in self-defense. Held, evidence that on other occasions the deceased, when excited, had put his hand to his pistol pocket without offer to prove that the accused knew of it, is irrelevant. It could lead to as many separate issues as there were occasions testified to by witnesses. Thurman vs. State, 4 C. C. 141 ; (2 C. D. 466). 10. In an action against a railroad company for damages by fire emitted from the smoke stack of an engine, it is not competent for the company to show that on another railroad using the same kind of spark arresters, fire occurred at the same time from sparks emitted from the smoke stack. The company claimed that a high wind causing a greater draft was the cause of the sparks escaping. C. L. & W. R'y. Co. vs. Fredenbur, 3 C. C. 23; (2 C. D. IS). 11. Testimony that another bridge near by was not dam- aged is not competent as it would bring in a collateral issue. R. R. vs. Ellis, 13 C. C. 704; (6 C. D. 304). 12. In an action against a railroad company to recover for injuries received in a collision at the crossing of a highway by its tracks, it is error to permit the plaintiff to prove that other persons have been injured by passing trains at the same crossing, before the injury to plaintiff. [3 C. C. 644, distinguished.] R. R. Co. vs. Gaffney, 9 C. C. 32; (6 C. D. 94). Previous like offenses incompetent. 13. It is fundamental that proof of one offense is not competent in order to prove that the party committed another distinct unrelated offense, but such evidence is admitted — 36 DECISIONS ON EVIDENCE. [CHAP. (i). When proof of scienter is necessary. (2). When the occurrence charged and the one sought to be proven were parts of a single crime, connected by unity of plot and design, and thus in effect one transaction. (3). Such testimony is sometimes admitted in order to show motive in the mind of accused. Knight et al. vs. The State, 54 O. S. 379. 14. Subsequent confederation to steal horses is not ad- missible to prove the stealing of a specified horse. Cheney vs. The State, 7 O. Pt. I. 222. 15. On an indictment charging the prisoner with poison- ing A. in December, 1851, it is error to permit evidence in chief to show that she poisoned B. in month of August pre- vious, nor is such evidence admissible to show the prisoner's knowledge of the deadly character of the drug. In the use of poisons and firearms scienter is presumed in the absence of contrary proof, unlike cases of passing counterfeit money where presumption of guilty knowledge does not arise. Farrer vs. The State, 2 O. S. 54. 16. On the trial of a person charged with an assault with intent to rob it is error to admit testimony on the part of the state tending to prove the defendant guilty of other assaults about the same time. Coble vs. The State, 31 O. S. 100. 17. On the trial of a person for larceny it is error to per- init evidence to go to the jury for the purpose of proving that just before the defendant committed the act for which he is on trial, he committed another larceny. Barton vs. The State, 18 O. 221. 18. On a trial of a criminal case it is error to permit the state to prove by cross-examination of a witness called bv the defendant, that the accused stands indicted for other offenses. Hamilton vs. State, 34 O. S. 82. 19. On a trial for rape by defendant on his daughter, the state having offered evidence of the commission of the offense on a certain day, cannot offer evidence of another commis- sion of it on a different day. Snurr vs. The State, 4 C. C. 393 ; (2 C. D. 614). VII.] SIMILAR ACTS. 37 20. On an indictment charging two persons with the commission of a joint ofifense, both cannot be convicted upon proof that each one committed an act constituting an offense similar to the act charged in the indictment. Stephens & Everett vs. The State, 14 O. 386. Similar acts admissible to siiow knowledge, intent or animus. — In criminal cases. 21. Proof of a previous like offense is not competent evi- dence save in a small class of cases where guilty knowledge is a necessary element to be shown by the state. Myers vs. The State, 46 O. S. 492. 22. On the trial of an indictment for knowingly deliver- ing skimmed milk to a factory, to be manufactured into cheese, with intent to defraud, evidence of transactions of the same kind other than that relied upon for a conviction, near the same time, is admissible for the purpose of showing guilty knowledge, on the part of the accused, that the milk, for de- livering which a conviction was sought, was skimmed. Bainbridge vs. The State, 30 O. S. 264. 23. The commission of distinct offenses may be proven when it clearly appears that a connection in the mind of the defendant must have existed between the offense charged in the indictment and others of a similar nature. The evidence is admissible for the purpose of showing a motive or purpose prompting the commission of the crime charged in the indict- ment. Competent testimony is not rendered incompetent because it tends to prove a distinct offense. Brown vs. State, 26 O. S. 181. 24. On a trial of a person accused of uttering and pub- lishing a forged deed for the conveyance of real estate with intent to defraud, other forged deeds for the conveyance of real estate, including deeds of trust, made to a trustee to secure the payment of promissory notes or bonds, found in his possession, or proved to have been uttered and published by him, are competent testimony to show the guilty knowl- edge of the accused. Lindsey vs. The State, 38 O. S. 507. 38 DECISIONS ON EVIDENCE. [CHAP. 25. On the trial of an indictment for forgery, proof of the possession by the defendant of other forged notes about the time of the making and uttering of the note in question, is admissible as bearing upon the question of guilty knowledge or intent, whether such possession be before of after the alleged forgery ; and such proof is admissible though several months intervene between the time of the alleged commission of the forgery charged in the indictment, and the possession by the defendant of such other forged notes, in a case where the evidence clearly tends to prove that her possession of and dealing with the several notes were related parts of the exe- cution of a connected scheme or plan of fraud and forgery. On the trial of an indictment for forgery by uttering forged paper, testimony of transactions by the defendant with the notes and papers, and which tend to prove her to have been carrying on one connected plan of forgery, whereof the forg- ery charged in the indictment was a part, and which testi- mony tends to connect her with the uttering of the note charged in the indictment, is admissible, although no direct proof is given that such other notes were forged. Devere vs. The State, 5 C. C. 510; (3 C. D. 249;. 26. Upon trial on an indictment for receiving and buying certain stolen goods, knowing them to have been stolen, evi- dence that other goods, known to have been stolen, were pre- viously received and bought by the defendant of the same thief, is admissible for the purpose of showing guilty knowl- edge, on the part of the accused, that the goods, for receiving which he is charged, were stolen. Shriedley vs. The State, 23 O. S. 130. 27. On a trial for obtaining property by false pretenses. the state may show similar fraudulent representations made to third persons by the defendant, in order to show fraudu- lent intent. State vs. Finney, i Bull. 30. 28. Evidence of other unlawful propositions by commis- sioners admissible to show corrupt motive in making con- tract. Stahl et al. vs. State, s C. C. 23 ; (3 C. D. 12). VII.] SIMILAR ACTS. 39 29. On the trial of a person charged with passing coun- terfeit bank notes, it is competent for the purpose of showing knowledge that the bills were counterfeit, to prove that he has passed other counterfeit paper, without producing it, if it be out of the jurisdiction of the court. Reed vs. State, 15 O. 217. 30. In a prosecution for having counterfeit notes in pos- session, proof that other counterfeits were found secreted in a log of a house within a few feet of the prisoner's, which had formerly been occupied by prisoner, and that other counter- feits were found in possession of his wife, is admissible. Wife's declaration that the counterfeits belonged to her little boy not material. Hess vs. State, 5 O. i. 31. On the trial of a person charged with passing coun- terfeit notes, it is competent to prove that he had. when arrested, other counterfeit bills of the same kind, only for the purpose of showing knowledge of the counterfeit character of the bills. Grififin vs. State, 14 O. S. 62. 32. On a trial of an indictment for having possession of spurious bank notes with guilty intent, it is not competent for the state to prove that appliances and material for the manufacture of spurious coin were found in possession of accused in order to show his knowledge of the "counterfeit character" of the notes, his "control and use" of the same, or his "criminal intent as to their use." The extent of the rule in such case is to admit in evidence, for the above purposes, the fact of possession by the accused of other counterfeits similar in kind to those mentioned in the indictment. Bluff vs. State, 10 O. S. 547. 33. Evidence of possession of other burglarious tools not named in the indictment at another time and place is admis- sible to show character and intent of possession of those men- tioned. State vs. Hahn, 21 C. C. loi. 34. In a trial for murder caused by obstructing a rail- road track former acts of hostility to the railroad cannot be 40 DECISIONS ON EVIDENCE. [CHAP. considered as evidence that the defendant put the obstruction laid in the indictment; but the fact being proved otherwise, such acts are admissible to determine the degree of the offense, that is the malice with which it was committed. State vs. Brooks, 9 W. L. J. 109. 35. Where on a trial upon an indictment it becomes material to prove, upon the part of the state, that a con- spiracy existed between persons jointly indicted, evidence that the same persons were, shortly prior to (i) or after (2) the time of the alleged crime, engaged in a conspiracy to com- mit crimes of a like character, is competent. (i). Tarbox vs. State, 38 O. S. 581. (2). Jackson vs. State, 38 O. S. 585. — Injcivil cases. 36. In an action by an employee against his employer for damages resulting from an injury received in operating a machine, caused by its defective construction, the defect being charged to the negligence of the employer, it is competent to prove that, on former occasions, while it was being operated by another, the machine worked in a manner similar to when the plaintifif was injured. But such evidence is only compe- tent to prove the defective character of the machine and the employer's knowledge of the fact; it is not competent to prove actionable negligence on the part of the employer at the time the plaintifif was injured; and the jury should be so instructed at the time it is received. Brewing Co. vs. Bauer, 50 O. S. 560. 37. In an action brought against a street railway com- pany to recover damages by its car leaving the track, it being admitted that the track was in the same condition it was at the time of the happening of the accident, it is proper to show that other cars had left defendant's track at about the place where the accident complained of occurred, for the purpose of showing notice to defendant of the liability of cars to leave the track at that point, and, also, of showing the dangerous condition of the track at that point; and, for the latter pur- pose, it is proper to show that the car left the track after the happening of the accident complained of, if the track was VII.] SIMILAR ACTS. 41 in the same condition it was at the time of the happening of the accident. Brooklyn St. R'y Co. vs. Kelly, 6 C. C. 155; (3 C. D. 393) ; 3 C. C. 640; (2 C. D. 372). 38. Where a recovery is sought on the ground of fraudu- lent representations made to the party aggrieved, similar rep- resentations made by the same person to others are admis- sible in evidence only for the purpose of showing that they were known to be false by the person making them, there- fore, where there is no evidence tending to show such knowl- edge, they should be excluded. Ins. Co. vs. Wright, 33 O. S. 533. 39. If it be sought to charge a person with fraud and deceit in representing another as worthy of credit, he may, for the purpose of repelling the imputation of fraud, prove what he has said he thought such person worth, prior to the time of making the statement charged to be false. McCracken vs. West et. al., 17 O. 16. 40. Proof of general representations, made at the same time to others, by which they were defrauded, may be given in evidence to show the intention of the debtor in making the representations complained of. Edwards vs. Owen, 15 O. 500. 41. False representations made in the purchase of other goods admissible to show fraudulent intent. Wilmot vs. Lyon & Co., 11 C. C. 240. 42. In an action for slander, the plaintiff may give evi- dence of the speaking of other words to prove the malicious intent of the defendant. Such evidence is admissible, al- though the words charged are actionable per se. Sterns vs. Cox, 17 O. 590. 43. In a suit for defamation, evidence of actionable words, or distinct libels not declared on, is competent to show the quo animo, but they can not be made the foundation for the recovery of damages for any injury done by such words or libels ; and so far as they can affect the damages, it is 42 DECISIONS ON EVIDENCE. [CHAP. solely by showing the degree of malice in the publication of the words or libel declared on. Van Deveer vs. Sutphin, 5 O. S. 293. 44. Slanderous words spoken since the commencement of the suit admissible only to show the sense in which the words relied on were spoken, and for no other purpose. Carter vs. McDowell, W. 100. 45. The rule which makes evidence of former accidents competent to show knowledge of the dangerous character of a machine, renders competent evidence that, although it had been operated many years, no accident had occurred. (Evi- dence of the employment of children of like age in other fac- tories to work at similar machines, under similar circum- stances, is admissible as tending to show ordinary care.) Hoppe vs. Parmalee et. al., 20 C. C. 303. 46. On the trial of an action brought by a wife, under the provisions of Section 7 of the "Act to provide against evils, etc.," [67 O. L. 102] to recover damages to her alleged means of support, in consequence of the intoxication of her husband, sales by defendant to her husband made after rhe commencement of the action may be given in evidence and considered by the jury, but only in assessing exemplary dam- ages. Bean vs. Green, 33 O. S. 444. 47. Action against a village to recover for injuries sus- tained by reason of its negligence in allowing a fence erected by it, on the side, of the street, to be down. Evidence of prior accidents admissible to show notice of the defects to the cor- poration is not incompetent because there was other evidence in the case which would prove the same fact, if not rebutted by the defendant. Evidence of previous similar accidents there, when the fence was in the same condition, is admissible to prove the dangerous character of the place for want of such barrier and knowledge thereof by the defendant, but not to show that the barrier was then out of order, nor to show negligence by the defendants or care by the plaintiff. Cases where evidence was admitted of similar accidents at other and VII.] SIMILAR ACTS. 43 different times, suffered by other persons at the same point, group themselves generally into three classes : (i) Cases of fire communicated by sparks from railroad engine ; (2) Cases of nuisance in highways, or streets, and acts done near thereto calculated to frighten horses ; (3) Cases of defects and dangerous places in public thor- oughfares held open for passage to all who have occasion law- fully to enter and use them, without notice given of the danger, or proper guards or lights placed about the same. Ashtabula vs. Bertram, 3 C. C. 644; 20 C. C. 368. 48. Evidence that other persons had caught their feet or their horses' feet in a railroad crossing alleged to be defective is admissible to show the defective condition of the crossing. The remoteness of the occurrence goes to the weight of the evidence. R. R. Co. vs. Beall, 13 C. C. 605 ; (6 C. D. 250). 49. Plaintiff sues for damages for injuries sustained by a fall caused by ice on sidewalk. Evidence that others fell there from same cause within a reasonable time preceding the acci- dent, is admissible. It tended to show the dangerous charac- ter of the sidewalk. Russell vs. City of Toledo, 19 C. C. 418; (10 C. D. 367). 50. In ati action for injury caused by a defective side- walk, proof of a like defective sidewalk on the other side of the street is not admissible. Root vs. Village of Monroeville, 16 C. C. 617; (4 C. D. S3). 51. Action to recover damages for injuries received in alighting from a train because of negligence in not providing reasonably safe accommodations. When the danger was not obvious and the same accommodations had been in use for a long time, evidence is admissible to show that no similar accident had happened. Railroad Co. vs. Anderson, 21 C. C. 288). 44 DECISIONS ON EVIDENCE. 52. Action for damages by fire set by locomotive ; it is competent to show that other fires occurred immediately after the passage of the locomotive. Railway Co. vs. Kelly, 10 C. C. 322 ; (6 C. D. 555). Existence of coal on land. 53. To show the probable existence of coal on a tract of land it is competent to show that coal exists on other land in the immediate vicinity similarly attached. Stambaugh vs. Smith, 23 O. S. 584. CHAPTER VIII. HEARSAY IRRELEVANT. General Rule, i, 2. Hearsay Distinguished, 3, 4. < Some Examples of the Rule, 5-15. Common Report or Reputation, 16-18 General rule. 1. One may not testify as to what another had told him in the absence of plaintiff. Gobrecht vs. Sicking, 18 C. C. 881 ; (9 C. D. 851). 2. What a third person said in regard to a matter is inadmissible. Meyers et al. vs. Jenkins, Adm'r, 63 O. S. 117. Hearsay distinguished. 3. Hearsay must be distinguished from the case in which the conversation is the thing to be proved. An agreement to do anything or go anywhere is a fact, and the conversation by which that agreement is made is the legitimate evidence of that fact, and is not hearsay. Stewart vs. State, 19 O. 302. 4. Where the thing to be proved is a conversation between the accused and another person, the evidence of any person who heard it is primary evidence. Mimms vs. State, 16 O. S. 231. Some examples of the rule. 5. In an action by a creditor of a firm to charge the defendant as a member of such firm, neither the reports from 46 DECISIONS ON EVIDENCE. [CHAP. a mercantile agency, nor the declarations of other third parties, are competent evidence to establish such liability. Cook vs. Penrhyn Slate Co., 36 O. S. 135. 6. In an action by a husband to recover damages for enticing his wife to leave his bed and board, the statements of the wife relating to the words and acts of a party defendant and tending to prove the allegations of the petition against him are hearsay Preston et al. vs. Bowers, 13 O. S. i. 7. In an action by a wife for the loss of the society and companionship of her husband, the declarations of the hus- band, made in the absence of the defendant, as to the cause of his abandoning or putting his wife away, are inadmissible. Westlake vs. Westlake, 34 O. S. 621. 8. A certificate of the commissioner of patents of the correctness of a copy or translation from a French volume in the library of the patent office is inadmissible to prove the existence of an invention prior to plaintiff's. Such evidence is merely hearsay. The book itself or a duly proved transla- tion is the only way its contents can be shown. Gaylord vs. Case, i Bull. 382. 9. The memorandum of a tax inquisitor of the credits belonging to an estate is hearsay. Treas. Erie Co. vs. Walker's Ex'r, 22 Bull. 106. 10. Declarations of the chief engineer of a state canal as to costs made subsequent to the subscription cannot be proven. The party himself should be called. One cannot forbear to call a witness and give evidence of what he told others. State vs. Perry, W. 667. 11. It is not competent to prove the declarations of parties in the same relation to land as the plaintiff's grantor. Richardson vs. Hughes, W. 648. 12. Suit against an insurance company on a life policy. The company put in evidencce the proofs of death submitted to it prior to the suit by the plaintiff, on forms supplied by the company, and required the claimant to furnish said VIII.] HEARSAY IRRELEVANT. 47 answers to the insurer. The physician made statements based entirely upon hearsay, which were readily separable from his other statement. The jury could not consider such hearsay statements. Ins. Co. vs. Schmidt, 40 O. S. 112. 13. On cross-examination a question asked of the wit- ness by the defendant,. as to what a third person told him, will not authorize the other party, upon a re-examination, to inquire what the third person in the same conversation said the defendant himself had told him, such evidence being hearsay. McCracken vs. West et al., 17 O. 16. 14. Written statements of B., made after he had parted with a note, in regard to the consideration, are not admissible, though B. was dead. Andrews vs. Campbell, 36 O. S. 362. 15. Statements of driver of a wagon as to who owned the wagon held to be hearsay when repeated in court by the officers. Cordes vs. The State, 4 N. P. 14; (6 Dec. 5). Common report or reputation. 16. Evidence of common report of the neighborhood unconnected with acts and admissions of the parties sought to be charged as partners is not admissible to prove partner- ship. Inglebright vs. Hammond, 19 O. 337. 17. Hearsay or neighborhood reputation not admissible in determining the extent of a farm devised as the "home farm," but the situation of the land, the manner in which it had been used and treated is competent. Taylor et al. vs. Boggs et al., 20 O. S. 516. 18. Parol evidence is admissible to prove the existence of a soldiers' home, its occupation by disabled soldiers and the boundary line of its lands. On questions of public right, respecting the existence of a boundary between counties, 48 DECISIONS ON EVIDENCE. parishes or manors, the limits of a town or street, common reputation is admissible in evidence. And where it is a question of private right, parol evidence is competent to prove possession within certain designated boundaries, and the person so proved to be in possession will prima facie be pre- sumed to be seized in fee. Driggs vs. The State, 52 O. S. 37-55. CHAPTER IX. HEARSAY IRRELEVANT. Exception: Details in Conduct of Business, i. Hearsay as to Market Price, 2. Declarations as to Pedigree, 3-9. Details in the conduct of business. r. A miller may state whether he knows whether certain ■ apparatus was in use in Ohio and Indiana in a certain kind of mill, at a certain time, and even whether he knows such facts from general reputation. The knowledge of many important details in the conduct of any business, consists in reputation only, and the course of trade furnishes reliable information to which a merchant in that trade may testify. Ins. Co. vs. Ins. Co., i H. 428. Hearsay as to market price. 2. To ascertain the market value of railroad bonds, where no sale has been made for some time, the declarations of an officer of the said railroad are competent. Hearsay from those in a position to know or give market value is admissible. Mowry vs. Kirk, 5 Rec. 587. Declarations as to pedigree. 3. The law of evidence, ex necessitate, permits hearsay as to pedigree. The weight to be given to hearsay evidence in pedigree cases varies with the circumstances of each case. General reputation that a man and woman lived together as man and (5) 50 DECISIONS ON EVIDENCE. wife has been held sufficient to establish the fact of marriage. [Under the circumstances of this case it was insufficient.] Stewart vs. Welsh, 41 O. S. 497. 4. The rule permitting a resort to hearsay evidence in cases of pedigree extends only to the admissions of declara- tions by deceased persons who were related by blood or marriage to the person in question, and not to declarations by servants, friends or neighbors. The rule is also limited to cases of legitimate relationship, and such evidence cannot be introduced to establish an unlawful relationship per se where a lawful relationship is not claimed. Flora vs. Anderson, 36 Bull. 250. 5. The declarations of a deceased testator concerning his personal history and family are admissible for the purpose of establishing identity. Sperry vs. Tibbs, 20 Bull. 181. 6. A will over sixty years old, competent pedigree proof to show identity of persons. Barr vs. Chapman, 30 Bull. 267. 7. Insanity in a family cannot be proven by tradition. State vs. Britton, Ross Co. Com. Pleas, 1891. 8. The rule admitting reputation as to family history does not extend to allow hearsay as to specific facts of sick- ness or peculiarities of individuals of the family. State vs. Leuth, 5 C. C. 94; (3 C. D. 48). 9. Marriage may be proven by reputation. R. S. 5698; 5 O. 539; 3 N. P. 196; (4 Dec. 243) •• 8 W. L. J. 372 ; 39 O. S. 478 ; T. 69 ; 35 O. S. 94 ; I Bull. i6a. CHAPTER X. HEARSAY IRRELEVANT. Exception: Declarations Against Interest. Rule as to Knowledge of Declarant, I. Declarant Must be Deceased, 2. Declaration Must be Against Interest, S, 7-9. Declarations of Intention of Payee to Explain Possession of Payor, 4. Declaration as to Terms of Contract to Convey, 9. 1. To authorize the admission of the declaration of a deceased person against third persons not claiming under him, on the ground that they were made against his interest, it should appear that he had peculiar means of knowledge of the .subject matter of the declarations. There should be a presumption of actual knowledge arising from his immediate connection with the transaction or from a duty to know the fact. A mere inference from evidence that he might have known, or very probably would have known, will not sufifice. Bird vs. Hueston, 10 O. S. 418. 2. The rule which allows declarations against interest of the person making them to be given in evidence requires that the declarant is deceased. Webster and Hubbard vs. Paul, 10 O. S. 531. 3. Where two persons were partners, one of them being dead, his declarations are admissible against the survivor. Goodenow vs. Duffield, W. 455. 4. Where the maker of a note, when sued upon it by the administrator of the payee, sets up as a defense that the note was surrendered to him by the payee as a gift, declarations 52 DECISIONS ON EVIDENCE. of the payee, while in possession of the note, of an intention to make such gift, may be given in evidence by the defendant as tending to explain his possession of the note. Larimore vs. Wells, 29 O. S. 13. 5. A written statement of B., since deceased, made after he had parted with the note, and contained in a contract with W. concerning the same and affecting B.'s liability, is not admissible against C, wfio was not a party to and had no notice of the contract between B. and W. Andrews vs. Campbell, 36 O. S. 362. 6. Declarations of a grantor, made in the absence of the grantee, are not competent evidence in an action between the latter and the heirs of the grantor to prove that undue influence or fraud were used in procuring the deed of con- veyance. It makes no difference whether the declarations were made before or after the execution of the deed. Gay et al. vs. Gay et al., 26 O. S. 402. 7. Where an entry in the handwriting of a deceased per.son is prima facie against interest, it is admissible for all purposes irrespective of its effect or value when received. Watts vs. Shewell, 31 O. S. 335. 8. Real estate was conveyed to a trustee to sell and apply the proceeds to the payment of a judgment and to other pur- poses. The trustee sold part of the land and died. In a suit to enforce the judgment against the residue of the real estate, the declarations of the trustee and memoranda made by him in the margin of a check book are incompetent as evidence against the owner of the judgment to show its payment. Watts vs. Shewell, 31 O. S. 331. 9. While evidence consisting alone of the declarations of a deceased person, made to third persons, of the terms of a parol contract to convey land, sought to be specifically enforced against his heirs and representatives, should receive careful scrutiny; nevertheless, if sufficiently definite, it may authorize the trial court to determine what the terms of the contract are. Shehan, Ex'r, vs. Swan, 25 Bull. 69; see 48 O.S. 25. CHAPTER XI. HEARSAY IRRELEVANT. Exception: Admissions. Admissions — Rule, 1-3. Some Illustrations, 4-25. By Silence, ■54-.?/. By Failure to Contest Claims, 58-61. Admissions in Deeds, Books, Etc., 31-42, 2, 6, 9, 17, 21. Interest Requisite to Make Admission, 62-76, 89. Admissions — Of Agents, 85-88. Of Corporations, 105-121. Of Partners, 89-104. Of -Administrators, 125-128. Of Wife as Agent, 122. Of Husband Affecting Wife's Property, 123. Of Wife as Interpreter, 124. Of Party Referred to, 129. Offer to Confess Judgment, 132, 133. Offer to Compromise, 130-131. Admission by Counsel, 7S-84. Admission in Pleading, 135-163, 2, 116. Admissions of Marriage or Divorce, 43, 44. Admissions in Divorce Cases, 45. Admissions as Estoppels, 165-186. Admission of Liability for Debt of Another, 42. Evidence to Explain Admissions, 49-53. Inadvertent Admissions, 46. To be Received with Caution, 56. Admissions Made Under Mistake, 47, 48. Admission of Existence of a Corporation by Recital in Legisla- tive Act, 164. Report to M ercantile Agency, 187. Repairs After an Accident, 27-30. Declarations of Ward After Coming of Age Not Admissible to Show Guardianship, 188. 54 DECISIONS ON EVIDENCE. [CHAP. Rule. 1. The declarations of a party, when they operate against his interest, are admitted on the presumption that he is best acquainted with his own rights, and, judging from the known influence which interest exercises over the mind, it is a fair inference that he would not make such a declaration unless it was true. [Quoted.] Dunn vs. Cronise, 9 O. 82. 2. The admission of a fact, however made, is always evidence of the fact against the party making the admission, but the effect depends upon the manner and purpose for which it is made. It may be presumptive evidence only and liable to be denied or disproved, but, if made for the purpose of influencing the conduct or deriving a benefit from another, so that it cannot be denied without a breach of good faith, the law precludes the party from denying the truth of his admission. An admission of record, or made for the purpose of superseding proof, or deliberately made under the seal of the party, is of such binding efficacy that, under no circum- stances, is the party permitted to disprove it. A deed is such an admission as prevents the maker and his privies from dis- puting the truth of any fact it states. Douglas vs. Scott, 5 O. 198; 7 O. Pt. I. 228. 3. A declaration of a party that he had admitted what was necessary to sustain the case, or that he would admit what was necessary, is not an admission of any particular facts, and does not dispense with their proof. State ex rel. Van Matre vs. Buchanan, W. 233. Some illustrations. 4. Where the question is whether services rendered by an attorney in organizing a building association were gratui- tous or not, his statement made after the work had been done "that he did the work for nothing" is an admission. Building Association vs. Lotze, 9 Bull. 285. 5. In the trial of an action brought by an administrator to recover damages under sections 6134 and 6135 R. S., it is competent for the defendant to introduce as evidence, what XI.] ADMISSIONS. 55 the deceased said while in his right mind after the injury, tending to show that the injury was caused by his own fault, negligence or carelessness. Helman vs. Railway Co., 58 O. S. 400; 16 C. C. 477; (9 CD. 185). 6. Whether the consignor reserved the jus disponendi when assigning goods to a consignee is a question of inten- tion, and the terms of a bill of lading are to be taken as the admissions of the consignor, and are entitled to great weight, but are not conclusive. Emery Sons vs. Irv'g Nat'l Bk, 25 O. S. 360. 7. The admission of a party is evidence against him, but the testimony of a witness that he told plaintiff that defendant said that A. (plaintiff's grantor) owned the property and that he (defendant) had no title to it, is not admissible. Benster vs. Powell, 11 C. C. 491 ; (5 C. D. 206). 8. Admission of ancestor that he had made a deed is admissible as evidence of the existence of a deed. Lessee of Allen vs. Parish, 3 O. no. 9. Upon a question whether a parol agreement had been made between M. and R. for an exchange of tracts of land, the deed from M. to R. for one of the tracts was offered as an item of proof to show the agreement of R. to convey the other tract. This deed recited that the consideration was $2,000, in hand paid. R. then offered to prove that, in fact, the consideration was natural love and affection. Held, that, in view of the purposes for which the deed had been offered, it should be regarded as an admission of R. not conclusive, but open to explanation or contradiction. Harrison vs. Castner, 11 O. S. 339. 10. The declarations of a vendor at and before sale, are evidence against his title, and the declarations of the intestate are evidence as to title derived through the administrators, if personal. The declaration of one who is the common source of title to the litigants, is competent evidence affecting their title to personal property. Ritchy vs. Martin, W. 442. 56 DSCISIONS ON EVIDENCE. [CHAP. 11. The declarations of a grantor, made after the date and supposed delivery of the deed, are good evidence to prove the delivery when offered against the grantor or his heirs. Tipton vs. Ross, lo O. 273; 35 O. S. 124. 12. Admission of agreement as to valuation of leased premises by paying rent for ten years. Hepworth vs. Pendleton, 4 Bull. 120. 13. Unexplained acceptance of a conveyance in fee an admission of ownership of fee by vendor. Ward vs. Mcintosh, 12 O. S. 238. 14. In an action to correct a mistake of an officer in not certifying in an acknowledgment of a deed, the separate examination of the wife, the acts and declarations of the wife, at the time of and after the execution of the deed are admis- sible. Kilburn vs. Fury,- 26 O. S. 153. 15. Evidence of the declarations of the defendant in ejectment, that he held under the grantee of the plaintiff's lessee, conduce to prove the plaintiff's title and must go to the jury. Wood's Lessee vs. Pindal, W. 507. 16. Proceeding to vacate street by one in possession is not an admission against petitioner's title. Stevens vs. Shannon et al., 6 C. C. 146; (3 C. D. 386). 17. A description of a lot as bounding on an alley is com- petent as an admission of the existence of an alley in favor of third persons who are seeking to remove an obstruction from the alley. Hoyt vs. Heister, 2 Bull. 5 ; 4 O. S. 452. 18. Conveyance by owner in accordance with a plat executed by an agent ; held, proof of agent's authority to make the plat. Brown vs. Manning, 6 O. 298. 19. Payment of assessments by member of a secret society after a change in its laws, as an admission. Steuve vs. Lodge of A. O. U. W., 4 C. C. 472; (2 C. D. 656). XI.] ADMISSIONS. 57 20. Proofs of death furnished to an insurance company under the requirement of the policy, are admissions only so far as the affiant's statements are within their personal knowledge. Life Ins. Co. vs. Schmidt, 40 O. S. 112. 21. Where a written instrument, not the foundation of the action, is ofifered in evidence by a person not a party to the instrument, as an admission of the adverse party, touching a matter in issue, the fact that it is not stamped as required by the act of congress, is no ground of objection to its admis- sion. Reis vs. Hellman, 25 O. S. 180. 22. The indorsement of a note made by husband and wife jointly, is as against the indorser an admission of the sig- nature of the maker and of the capacity of the wife to contract, and as against the indorser the note is to be regarded as the valid joint note of both of the makers. McClelland vs. Bishop, 42 O. S. 122. 23. A debtor by giving an undertaking for the delivery of goods admits a levy. Pugh vs. Calloway, 10 O. S. 488. 24. The amount of insurance placed on the stock by the plaintiff is admissible against him as an admission as to its value. On the same ground, conversations previous to the issuing of a policy are competent. Dougherty vs. Schlotman, i C. S. C. R. 298. 25. Subsequent declarations of a party admissible against him to show his intention in doing an act. C. H. & D. R'y Co. vs. Cole, 29 O. S. 127. 26. The fact that an employer holds a policy of insurance indemnifying him against liability on account of injuries to employees is not an admission of negligence. Rupp vs. Shafifer, Adm'r, 21 C. C. 643. Repairs after an accident. 27. In an action against a city to recover for injuries, the issue involved the dangerous character of the place for want of a suitable barrier, the duty of the defendant to erect and 58 DECISIONS ON EVIDENCE. [CHAP. maintain such barrier, and its condition. Evidence that the defendant repaired such barrier at the point in question soon after the accident to the plaintifif, is competent as tending to prove an admission by the defendant that it was its duty to keep and maintain a barrier at that place. Village of Ashtabula vs. Bartram, 3 C. C. 640; (2 C. D. 372). 28. Evidence that a city repaired a sidewalk after an accident is not admissible where there is no question of the duty of the city to keep the sidewalk in repair. (Distinguishes 3 C. C. 640). Root vs. Village of Monroeville, 16 C. C. 621 ; (4 C. D. 53). 29. Action for damages for personal injuries caused by negligence of defendant, repairs or changes made by defend- ant after the accident are not to be construed as an admission of prior negligence, and testimony as to such repairs or changes is incompetent to prove prior negligence. The Cleveland Provision Co. vs. Limmermaier, 8 C. C. 701 ; (4 C. D. 240 ;) 20 C. C. 681 ; (II C. D. 406). 30. Plaintiff, for the purpose of showing negligence of the village in permitting the sidewalk to be out of repair, could not offer evidence that the village had shortly after the accident repaired the sidewalk ; but where a witness testified that he examined it after the accident and found it in good condition, it is competent to ask him whether he did not a few days later repair it. Village of Bond Hill vs. Atkinson, Adm'r, 16 C. C. 470; (9 C. D. 18s). Admissions in deeds, books, etc. 31. Admissions in affidavit to chattel mortgage regard- ing knowledge of affiant as to purpose of parties making the mortgage. Churchill vs. Russell, 18 C. C. 837; (9 C. D. 145). XI.] ADMISSIONS. 59 32. Stubs on a party's note book are not competent to prove the purpose and effect of notes given. 20 C. C. 287; (II C. D. 54). 34. Circular of an insurance company containing state- ments as to dividends, held, not an admission that dividends had been declared. Ins. Co. vs. Hamilton, 41 O. S. 274. 35. Insurance policy containing a list of extra hazardous risks, which does not include a night auction, as an admission of the company that such auction is not such a risk. Harris vs. The Protection Ins. Co., W. 549. 36. The coroner's evidence and finding as to death and cause of death of the insured voluntarily furnished the insur- ance company by the beneficiary in compliance with the con- ditions of the policy as to preliminary proof of death and cause of death are admissible as prima facie evidence of the facts stated therein, and would stand until the contrary were shown. Ins. Co. vs. Maguire, 19 C. C. 502; (10 C. D. 562). 37. Acceptance of an order an admission of funds in acceptor's hands. Ives vs. Strickland, 4 Bull. 852. 38. When it becomes material to prove the contents of a book of accounts, which the accused had admitted to be cor- rect and true, the book may go to the jury as evidence of the extent and nature of the admission. Halleck vs. The State, 11 O. 400. 39. A father before his death determined how much of his estate was due to each of his children, and entered the amount on his account book. The entry is not conclusive on the children. Williams vs. Pope, W. 406. 40. The whole of a written entry containing an admission is to be received. Stillwater Turnpike Co. vs. Coover, 25 O. S. 564. 41. Written admissions introduced in evidence are to be 6o DECISIONS ON EVIDENCE. [CHAP. read and understood in connection with the other admitted facts in the case. Wisby vs. Boute, 19 O. S. 247. 42. Written memorandum that plaintiff will allow defend- ant credit for a debt due defendant from a third person is an admission of a pre-existing liability to pay said debt, and is competent evidence, though the consideration is not ex- pressed in it. Hoover vs. Morris, 3 O. 56. Of marriage or divorce. 43. On the trial of a party indicted for bigamy, admis- sions made by the accused prior to the alleged second marriage, and while he was cohabiting with the alleged first wife, are competent evidence to go to the jury in support of the averment of the former marriage. Wolverton vs. State, 16 O. 173, fol. and app'd in Stanglein vs. State, 17 O. S. 453. 44. A wife deserted her husband and remained away about three years and said that she had obtained a divorce, but declined to tell where she had been. On her return to the neighborhood her husband, wishing to marry again, sent to inquire of her as to whether she had obtained a divorce. She replied that she had. This information was communi- cated to the defendant, and a marriage resulted. The first wife sells the property of the former husband, claiming to be his heir. Her vendee seeks to dispossess the second wife. On the trial the first wife testified that she never was divorced. Held, that the admission of the first wife, that she had obtained a divorce, though relating to a matter of record, was, as against a party claiming under her, admissible in evidence. [The place where the record could be obtained was con- cealed.] Edgar vs. Richardson, 33 O. S. 581. In divorce cases. 45. "Section 5697 R. S. Divorces shall not be granted upon the testimony or admission of a party unsupported by XI.] ADMISSIONS. 6l other testimony; nor shall any admission be received in evi- dence which the court has reason to believe has been obtained by fraud, connivance, coercion or other improper means." Inadvertent admissions. 46. A party is not concluded by inadvertent admissions as to his position in regard to a promissory note. Williams vs. Bossen & Bro., 11 O. 65. Admission by mistake. 47. An admission by the president of a railroad company as to the validity of stock, if made in ignorance of facts, is not binding on the company. Penn. vs. R. R. Co., 17 Bull. 265. 48. An admission under a mistake as to legal rights does not work an estoppel, if plea of bona fide buyer does not intervene. Williams vs. Champion, 6 O. 169. Evidence to explain admissions. 49. In an action for the refusal to accept a lot of ice sold to defendant, the defense being that the ice was not merchant- able, a letter by the seller was offered in evidence to show a request to the purchaser to examine the ice. The letter con- tained a statement that the ice was not merchantable, which statement was corrected in a subsequent letter of the seller, also properly in evidence. Held, that the reception of evi- dence offered by the seller to show on what information the first letter was written afforded no ground for the reversal of the judgment. Cullen vs. Bimm, 37 O. S. 236. 50. When a party has as a witness made a statement, the fact may be shown by him to be different. Bennett et al. vs. Kesarty, W. 697. 51. Admission of defendants that an account presented is correct, does not foreclose inquiry as to its correctness. Kerr vs. Bellefontaine et al., 59 O. S. 461. 62 DECISIONS ON EVIDENCE. [CHAP. 52. The presentation of a claim for legal services, though prima facie evidence, limiting the amount, does not exclude evidence explaining the circumstances, or showing the reasonable value of such services. Kittredge vs. Armstrong, Rec'r, 28 Bull. 249. 53. In judging the conduct of one, the circumstances, as that he was harassed by litigation, is to be considered. Ins. Co. vs. Carnahan, 19 C. C. 114; (10 C. D. 186). By silence. 54. Where statements of facts are made in the presence and hearing of a party who may have had no previous knowl- edge of the truth or falsity of such statements, his silence is not an admission that he previously had knowledge of the existence of the facts thus stated. Griffith vs. Zipperwick & Lodge, 28 O. S. 388. 55. Where A. sees charges against himself in the account book of B. and makes no objection thereto, his failure to object is an admission of the justice of the charges. Bogart, Adm'r, vs. Cox, 4 C. C. 292 ; (2 C. D. 551). 56. Admissions inferred from acquiescence in the verbal statement of others should be received with caution. Rose vs. The State, 13 C. C. 347; (7 C. D. 226), citing Greenleaf, sec. 199. 57. Reasons for silence competent. 21 C. C. 54; (11 C. D. 526). By failure to contest. 58. A judgment entered without objection, in the name of the plaintifif, as commissioner of insolvents, is, between the parties, evidence that the plaintiff was such officer. Job vs. Collier, 11 O. 422. 59. Where the defendants are sued as partners, and liable only as such, and where they had, before that time, been sued as such partners, and suffered judgment to pass against them by default as such by other persons, the record of such judg- XI. J ADMISSIONS. 63 ment may be given in evidence against them, as tending to prove the partnership. Marks vs. Sigler, 3 O. S. 358. 60. Malicious prosecution. Quaere, whether defendant might not prove, as tending to show probable cause, though not conclusive, that the plaintiff made no effort to procure the discharge of the attachment; such fact unexplained tending strongly to show acquiescence, might be an admission of the existence of probable cause. Fortman vs. Rottier, 8 O. S. 552. 61. In a contest between material men and sub-con- tractors for the fruits of the contract, the failure of the head contractor to dispute the claims of which statutory notice has been filed with the owner, and by him with the head con- tractor, is not prima facie evidence of the correctness of those claims as valid liens. Bender vs. Trustees, 19 Bull. 163. Interest requisite to make admission. 62. In an action by a holder of a bill of exchange against the other parties thereon, it is competent to prove declara- tions made by a prior holder, before the transfer and after the dishonor of the bill, showing that the parties were dis- charged from liability. Hollister & Smith vs. Reznor, 9 O. S. i. 63. In a suit brought by A. against the administrator of B., in which the question in issue is whether B. holds pos- session of personal property as the bailee or as the vendee of A., the declaration of B. that he was the owner is not admissible in evidence in favor of the administrator, although said declaration was made while B. was in possession of the property, and was accompanied by the act of offering to sell the same. [The declaration, to be admissible, must be in disparagement of title.] Kyle's Adm'r vs. Kyle, 15 O. S. 15. 64. Where an entry in the handwriting of a deceased 64 DECISIONS ON EVIDENCE. [CHAP. person is prima facie against interest, it is admissible, irre- spective of its efifect or value when received. Watts vs. Shewell, 31 O. S. 335. 65. The acts and admissions of the grantor of lands, respecting a disputed boundary line, done or made by him, after he has parted with his title, are not admissible against his grantee ; and the rule is not changed, although he retains the ownership of other lands affected by the same disputed boundary linCj and his acts and admissions relate to his own lands. Hills vs. Ludwig, 46 O. S. 373 ; 44 O. S. 417. 66. Declarations made before title is obtained by partv making the declarations are not evidence. Wallace's Lessee vs. Minor, 6 O. 366. 67. The grantor of a deed cannot by subsequent parol statements affect the title thereby conveyed. Williams vs. Means, 2 D. 604. 68. Oral statements of an alleged donor are not admis- sible to discredit a title theretofore conveyed by him. Hall vs. Geyer, 14 C. C. 229 ; (7 C. D. 436). 69. A creditor of an alleged fraudulent vendor cannot prove the acts or declarations of such vendor, made after the sale and delivery of the property, against the purchaser for the purpose of impeaching his title. Coal Co. vs. Davenport, 37 O. S. 194. 70. B. borrowed money of A., giving a mortgage on property that C. was in possession of, under a written con- tract from B. to convey on payment of the purchase money in installments. The assignee of A. asserted by action his right against B., C. and the assignee of C. to the unpaid install- ments of the purchase money. Held, that a deed from B. to the assignee of C. reciting the payment of the purchase money, is not as against the assignee of A. evidence of such payment. Ranney vs. Hardy, 43 O. S. 157. 71. On a trial of an issue in a proceeding under the statute to contest the validity of a will, declarations, in refer- XI.] ADMISSIONS. 65 ence to the mental capacity of the testator, of a legatee or devisee, who is a party defendant to the proceeding, are not admissible in evidence to impeach the will, where there are other devisees or legatees whose interest may be injuriously affected by the admission of such evidence. Thompson vs. Thompson, 13 O. S. 356. 72. Declarations of an indorser of a note, made before he acquired title, showing knowledge of the fraudulent character of the note, are not competent on behalf of the maker against the indorser. Such declarations must be made while he is owner. Roberts vs. Briscoe, i C. C. 577; (i C. D. 323); •44O. 5.598. 73. The interest of the beneficiary is so distinct from that of the person procuring the insurance, that the acts and declarations of the latter are not evidence against the bene- ficiary. Insurance Co. vs. Buxer, 62 O. S. 400 ; 7 O. S. 292 ; 36 O. S. 201. 74. In an action against an executor to recover for goods sold to the testator, the defense was that the testator's wife owned a stock of goods and carried on business on her own account, and that the goods in controversy were sold to her on her sole credit. Held, that it was not competent for the executor, as against the plaintiff, to prove that the widow took what was left of the stock at the death of the testator and appropriated the same to her own use. Johnson vs. Hawkins & Co., 31 O. S. 137. 75. Declarations of husband as affecting widow's claim for dower.- 8 O. 412. 76. Declarations of parties in the same relation to land as plaintiff's grantor inadmissible. W. 648. By counsel. yy. When an admission is made by counsel for a party, the meaning and effect of such admission is to be determined from the language used in connection with all the circum- (6) 66 DECISIONS ON EVIDENCE. [CHAP. Stances under which it is made, including the other evidence adduced by that party. Pierce vs. White, 22 Bull. 98. 78. Admissions of counsel openly made in the progress of the cause are binding, and can only be retracted by leave of court on good cause shown. Seely vs. Cole, W. 681. 80. Power given the court by oral admissions on the trial. Miller vs. Southworth et al, 10 C. C. 572 ; (5 C. D. lOl). 81. An attorney of record has power to waive objections to eyidence and enter into stipulations for the admission of facts on the trial. The attorneys of record placed upon an abstract of title, over their signatures, the following agree- ment : "It is hereby agreed that the within abstract shows the true condition of the title to the lands therein abstracted." Held, that this is sufficient to authorize such abstract to be introduced in evidence on the trial. Garrett vs. Hanshue et al., 53 O. S. 482. 82. Agreement of counsel as to facts to be used on the hearing of a rule to show cause in quo warranto is not an admission of the party which may be used in evidence against him for any other purpose. It is of no avail except on the particular question when it was used. Unless by consent, the paper cannot be read in evidence. State ex rel. Van Matre vs. Buchanan, W. 233. 83. Refusal to allow withdrawal of agreed state of facts. Ish vs. Crane, 13 O. S. 574. 84. When a judgment in a former action exists against a party to another action in the same court, and upon the trial of such other action reference is made to such former judg- ment, admissions are made as evidence on the trial by counsel on both sides that such judgment shows certain facts, and witnesses testify as to facts said to be shown by such judg- ment, all without objection by either side, it is not error for the court hearing the case, to regard such judgment as in XI.] ADMISSIONS. 67 evidence, although not formally offered or read by either party. Zeiverink et al. vs. Kemper, Rec'r, 50 O. S. 208. Of agents. 85. The declarations and admissions of an agent in order to be binding on his principal, must have been made within the scope of the agent's authority, during the agency, and in regard to a transaction depending at the very time, so as to constitute a part of the very act, and not narrative of a past act; the rule is the same as to the declarations and admissions of officers when ofifered to be proved against the corporations of which they were members. Dixon vs. Sub. Dist. ISTo. 5, 3 C. C. 517; (2 C. D. 298); 63 O. S. 117; 3 C. C. 134; (2 C. D. 74); S3O. S. 32;38Bull. 163. 86. Statements of mere employees, charged with specific duties, are not admissible to bind defendant company. Ohio Oil Co. vs. McCrory, 14 C. C. 304; (7 C. D. 344)- [See Holmes vs. Holland, 29 Bull. 115.] 87. Where an agent, acting under instructions from his principal, answers orally and under oath a garnishee process served on such principal, his statements so made may be given in evidence against the principal in another action involving the property about which the agent had so testified, and about which he alone had knowledge. Berdan & Co. vs. The J. M. Bour. Co., 10 C. C. 127; (6 C. D. 154). 88. Where A., acting as agent for his wife, takes out in her name and for her sole use, a policy of insurance on his life, from a company whose charter makes such policy the exclusive property of the wife, and exempts its proceeds from liability for the husband's debts, the wife is, as to such policy, to be regarded as a femme sole. Where in such case repre- sentations in regard to the condition of his health are made by the husband in his application for the policy, which by the terms of the policy are made part thereof, the subsequent 68 DECISIONS ON EVIDENCE. [CHAP. declarations of the husband made pending his unauthorized negotiations for the surrender of the policy, and tending to show the false or fraudulent character of the representations upon which the policy issued, are not competent evidence in a suit brought by the wife upon the policy after the husband's death. Ins. Co. vs. Applegate, 7 O. S. 292. Where an agent is in possession of goods and they are taken from the agent's possession in a suit in replevin and he is defending such suit in his own name, admissions of the agent as to facts material to the issue are competent, although they were not made in the execution of the purposes of the agency. Wilmot vs. Lyon & Co., 11 C. C. 240; (7 C. D. 394). Of partners. 89. One, who is a member of two firms, makes a promis- sory note in the name of one firm payable to a person who is a member of the other firm. The admissions of the common member of both firms cannot be given in evidence to defeat a recovery on the instrument. A party cannot be permitted by his parol admission to contradict or defeat his written instrument. Moore vs. Gano and Thoms, 12 O. 301. 90. When the act of the partner is within the scope of the partnership, a declaration made by him at the time of the transaction, is competent to show that the act was done in behalf of the partnership. Benninger vs. Hess, 41 O. S. 64; 36 Bull. 264. 91. On an issue denying partnership, the declarations of one charged with being a partner are competent against him ; but such declarations, made when the other alleged partner is not present, are incompetent to charge the absent partner with that relation. Cowan vs. Kinney, 33 O. S. 422. 92. The evidence of one defendant, who denies the exist- ence of a partnership, given in another suit against the same parties, where he admitted that there was a partnership XI.] ADMISSIONS. 69 during the time of the transaction now sued on, and that he was a member thereof, is admissible. Baker et al. vs. Brennan & Co., 22 C. C. 241 ; 93. In an action against A., as a survivor of B., partners in the late firm of A. & B., it having been shown that certain dealings between the plaintifif and the firm were unsettled at the date of its dissolution, it is competent for the plaintifif to prove, as against the defendant, that the deceased partner of B., after the dissolution, upon adjustment with the plaintiff of such unsettled business, admitted that there was due the plaintifif, on account thereof, the amount claimed in the action. Feigley vs. Whitaker, 22 O. S. 606. 94. The facts that the books and accounts of a firm com- posed of a father and his sons tended to show that real estate, in the name of the father, was intended by him to be con- tributed to the firm as assets, and not merely the use of it given, is not alone sufificient evidence of the fact as against the father, when it does not appear that he knew of or con- sented to, the books being so kept. Goepper vs. Kinsinger, 39 O. S. 442. 95. If there be a special partnership between A. & B. and the principal clerk and book-keeper of A. state an account between the parties showing the transaction closed and a balance of profit in favor of B., it will be held as prima facie evidence of the adjustment of the partnership accounts. Goodin vs. Armstrong, 19 O. 44. 96. Partners, who after dissolution, by a failure to give notice to those with whom they have previous dealings, or have entered into previous engagements, hold out each other as competent to make negotiations and arrangements in the same manner as if the partnership existed may well be bound by declarations and admissions made by one partner in the course of the negotiations or arrangement of a subject matter originating during the existence of the partnership. Meyers et al. vs. Standart et al., 11 O. S. 29. 97. The declarations of a co-partner upon a partnership transaction, are admissible in evidence against his partner. Somerby vs. Tappin, W. 570. 70 DECISIONS ON EVIDENCE. [CHAP. 98. Where two persons were partners, one of them being- dead, his declarations are admissible against the survivor. Goodenow vs. Duffield, W. 455. 99. Where a firm has executed a mortgage to secure a creditor, a declaration by one of the members in the absence of the mortgagee, affecting the firm's title to the property, and its indebtedness to the creditor, is not competent against the mortgagee. Voss et al. vs. Murray et al., 50 O. S. 19. 100. The declarations of a partner are only evidence against another of a firm in suits based on partnership transactions, not where the basis of the suit is the fraudulent representations of the individual defendant. Wilkinson vs. Root, W. 686. loi. Statements of one partner after dissolution of part- nership are not competent to bind the other partner unless authorized by him. Crosier vs. McNeal, 17 C. C. 648; (6 C. D. 748). 102. Course of dealing, conduct and declarations may estop one from denying partnership. Reber & Katz vs. Col. M. M. Co., 12 O. S. 178. Speer vs. Bishop, 24 O. S. 598. 103. To prove the existence of a partnership and the firm name, a deed or mortgage signed by the party in the firm name in a different transaction, is admissible. Crowell vs. West'n Reserve Bank, 3 O. S. 406. 104. Joint relationship such as would make the letter of one admissible against other defendants. Blymer ys. Header, i N. P. 355 ; (3 Dec. 52). Of officers and corporations. 105. The declarations of an agent or public officer are not evidence against the principal except made in the execu- tion of the agency and of the res gestae. State vs. Perry, W. 663. 107. Evidence of a rule of a railroad company as to the stopping of both trains at passing points having been in XI.] ADMISSIONS. 71 existence, but abrogated, is admissible to show that the pro- priety of such rule had been recognized. R'y Co. vs. Starkey, 18 C. C. 700; (6 C. D. 5). 108. The records of a corporation are the best evidence of its officers, but it is competent to prove that such officers exist by admissions. State ex rel. Van Matre vs. Buchanan, W. 233. 109. Admissions made by an officer of a corporation, after a transaction, when the corporation is not called upon to speak, will not bind the corporation. Sloss Marblehead Lime Co. vs. Smith, 11 C. C. 213; (5 C. D. 79). no. Statements of councilmen after an accident not admissions by the city. Root vs. Village of Monroeville, 16 C C. 617; (4 C. D. S3). 111. In an action by a foreign corporation on a note, an answer admitting the execution of the note is a prima facie admission of the plaintifif corporation's capacity to contract and to sue. The Elektron Mfg. Co. vs. The Jones Bro. Electric Co., 8C. C. 3ii;(4C. D. 555). 112. The confessions, admissions, or acknowledgments of directors or stockholders while not engaged in the precise business intrusted to them cannot afifect the corporation. Loomis vs. Eagle Bank of Rochester, i D. 285. 113. Conversation between the president of a turnpike company and city officers with reference to the sale to a street railway company of that part of the pike lying within the city limits, are not competent as evidence of value of the pike in a subsequent suit to recover damages from the city for the part of the pike subsequently appropriated by the city. Turnpike Co. vs. Cincinnati, 19 C. C. 607; (10 C. D. 288). 114. The declarations and admissions of directors of a corporation made when not acting as a board cannot be given 72 DECISIONS ON EVIDENCE. [CHAP. in evidence to establish against the corporation an agreement alleged to have been made by such board. Dixon vs. Sub-Dist. No. 5, 3 C. C. 517. 115. Admission of directors incompetent until it is shown by competent evidence that they were authorized by the cor- poration to make admissions. Stillwater Turnpike Co. vs. Coover, 25 O. S. 566. 116. Where the auditor has not power to fix the amount for which the county is to be chargeable, he cannot bind the county by an admission in a mandamus proceeding as to the amount of liability. Putnam Co. vs. Auditor Allen Co., i O. S. 322. 117. Conversations with individual • stockholders not agents or officers not admissible against the company. Hogg vs. Mfg. Co., W. 139. 118. The declarations of a brakeman, not made while in the discharge of a particular duty and with respect thereto, is hearsay, unless it be shown that he was authorized to speak by the company. R. R. Co. vs. McLean, i C. C. 116. iig. Admission of the baggage master that he could not find the baggage, admissible against the company in action for loss of baggage. R. R. Co. vs. Campbell, 36 O. S. 647. 120. Bids for public contract. Trustees cannot bind themselves officially, nor the state, by admissions in answer in mandamus of a mistake in the proposals. The proposals are to be in writing and sealed. Beaver & Butt vs. Trustees Blind Asylum, 19 O. S. 108. 121. In an action for the death of a person, occasioned by the negligence of an agent of the defendant, the declarations of the agent, made at a subsequent time, are not competent for the purpose of showing knowledge on the part of the defendant of the dangerous condition of the work the deceased was doing at the time of the accident. Circleville vs. Thorn, Adm'r, i C. C. 359. XI.] ADMISSIONS. 73 Of wife. 122. The declarations of a married woman not made in her husband's presence are not evidence against him unless her agency is shown ; this may be done by circumstances only or positive proof. Evidence merely that when there was money in the house the wife kept it locked up and would not let her husband have it when he wanted it, is not sufficient to constitute her his general agent in money matters. Thomas vs. Hargrave's Adm'r, W. 595. Of husband. 123. It cannot be claimed from the mere relation of hus- band and wife, that the wife is bound in respect to her separate property by the admissions or declarations of her husband. Ins. Co. vs. Applegate, 7 O. S. 293; i C. S. C. R. 522. Of wife as interpreter. 124. When the plaintiff cannot speak English and the defendant cannot speak German, and the plaintiff's wife, understanding both languages, acts as interpreter between them, the wife's statements, while acting as such interpreter, may be given in evidence as admissions of the husband. Schutter vs. Williams, i W. L. J. 319. Of administrator. 125. The admission of an administrator is prima facie evidence of the indebtedness of the estate he represents. Matoon vs. Clapp et al., 8 O. 248. 126. The allowance of a claim by an administrator is not conclusive of its validity, but it may afterwards be disputed and contested by the administrator who allowed it, or by an administrator de bonis non. Thomas vs. Chamberlin, 39 O. S. 112. 127. Admissions respecting a claim against an estate, made by the administrators, when not in the act of accepting or rejecting the claim, but when in conversation with others 74 DECISIONS ON EVIDENCE. [CHAP. than the claimant, relating to the claim, are not admissible in evidence in a suit brought to trial after the persons making the admissions have ceased to be administrators, one having been divested of his official character before suit was brought, and the other after its commencement. That one of the administrators was one of the heirs does not alter the char- acter of the testimony so as to make it proper evidence. [In order for the admission of one heir to bind the other there must be not only a common but a joint interest. A com- munity of interest is not sufficient.] Adm'r of Hueston vs. Hueston, 2 O. S. 488. 128. The inventory of an estate sworn to and filed by executors or administrators in the probate court, is in the nature of an admission by them of the property described therein and its value, and is competent evidence before the auditor for the purpose of correcting the tax return for the estate made by the executors, and placing omissions therein on the tax duplicate. Treas'r Erie Co. vs. Walker, 22 Bull. 106. Declaration of party referred to. 129. There being evidence tending to show that defend- ant expressly referred the plaintiff to a third party for information as to a claim, which plaintiff was asserting against defendant and which they were disputing, and agreed to pay it, if such third person said it was right and would not pay it himself, held, that what such third person said in answer to inquiry as to the matter so referred to him was admissible as evidence against defendant. When the question was put as to what the party referred to said in answer to such inquiry, and was objected to before it was answered, the court prop- erly overruled the objection. If the answer made was incornpetent the defendant should have moved to exclude the incompetent part, and on failure to do so cannot afterwards ■claim it to be incompetent. Jennings, Ford & Co. vs. Haynes, i C. C. 22: (i C. D. 13) ; see 15, O. S. 299. XI.] ADMISSIONS. 75 Offer in compromise. 130. The fact that an offer to compromise the matters in dispute between the parties was made, is incompetent, either as evidence of a fact from which the liability of the party making the offer may be inferred, or as an admission of such liability. Sherer vs. Piper, and Yenney, 26 O. S. 476. Stillwater Turnpike Co. vs. Coover, 25 O. S. 565. 131. In a suit for legal services, where the question was the value of the services, a former bill for a less amount than that sued for, if found by the jury to have been rendered and intended as an offer of compromise, must be disregarded by them. If the jury find that such bill was not an offer of com- promise, the most that can be said of it is that it contained an admission and as such is prima facie evidence limiting plaintiff's claim to the amount therein agreed to be accepted ; but such admission does not preclude plaintiffs from explain- ing the circumstances under which it was rendered, or from showing what they should reasonably be paid for their services. Kittridge vs. Armstrong, Rec'r, 28 Bull. 249. Offer to confess judgment. 132. An offer to confess judgment under the code shall not be given in evidence or mentioned on the trial. R. S. 5142. See also R. S. 6581. 133. The code provision that an offer to confess judg- ment shall not be an admission of the amount due, etc., is applicable to justices. Coui-tright vs. Staggers, 15 O. S. 511. 134. No admission can take from a judgment the charac- ter which, on its face, it has. Railway Co. vs. Burk et al., 54 O. S. 146. In pleading. 135. When a case is tried on an agreed state of facts a party cannot object that an admitted fact is not proved by record. State vs. Heathman, W 691 ; 13 O. S. 574. 76 DECISIONS ON EVIDENCE. [CHAP. 136. The allegations of a party in his pleading are to be taken as conclusive against him. Fisher vs. Tryon et al., 15 C. C. 552 ; (8 C. D. 556). 137. R. S. 5110. "A pleading, verified as herein required, shall not be used against a party in any criminal prosecution, or action or proceedings for a penalty or forfeiture, as proof of a fact admitted or alleged in such pleading; and such verification shall not make other or greater proof necessary on the side of the adverse party." 138. The fact that a defense was not made may be regarded as an admission that there was no foundation for it. Ins. Co. vs. Hull, 51 O. S. 282. 139. What is agreed to between the parties need not be proven. T. 66, 242. 140. What is admitted in a pleading need not be proved. A party will be estopped from proving anything inconsistent with his plea, but this applies only to the admissions of the particular plea upon which the issue on trial is joined. The admission in one of several pleas cannot be used to disprove the allegation in another. This rule applies still more strongly to a notice attached to a plea which is merely intended to apprise the opposite party of the matters and things to be relied upon in the defense. A plaintiff cannot use the whole or any part of defendant's notice as evidence against him. Sutlifif et al. vs. Gilbert, 8 O. 411. 141. When a fact is admitted by the pleadings, and no evidence ofifered to disprove it, it is error for the court, when special findings are requested under Section 280 of the Code, to state the fact contrary to the admission. Oliver vs. Moore and wife, 23 O. S. 473. 142. An admission contained in the pleadings of a party to an action does not estop him from asserting the truth in a subsequent action, if such admission was not material to the matters adjudicated in the former suit. Crofton vs. Board of Education, Cincinnati, 26 O. S. 571- XI.] ADMISSIONS. 77 143. A reply to an answer in another case offered in the present case as an admission by plaintiff was properly excluded when the admission merely consisted in the omission to plead a fact. Ins. Co. vs. Frick, 2 Bull. 16. 144. As to whether an admission in a defense can be used by plaintiff without offering the answer in evidence. Whelen vs. Kinsley, 26 O. S. 137. 145. Neither a plea of guilty in a criminal prosecution, nor the judgment founded upon it, are conclusive evidence against the defendant in a civil action. Clark et al. vs. Irwin, 9 O. 131. 146. The answer of a party in a former suit, relating to the same land and deed in controversy in this case, signed by him, is admissible to prove that the deed was a deed of trust. Broadrup et al. vs. Woodman et al., 27 O. S. 553. 147. A judgment creditor seeks, by action, to subject to the payment of his judgment, a claim for purchase money due to the judgment debtor as vendor. An averment in the petition, that the vendee and her husband are indebted to the vendor for the purchase money, is not such an admission that the vendor's lien has been waived, as will preclude the court from finding, on an issue denying that the husband was so indebted, that the Hen of the vendor had not been waived. Edwards vs. Edwards et al., 24 O. S. 402. 148. Mandamus to compel judge to sign a bill of excep- tions. A material allegation in a petition in mandamus that a certain bill filed with it is a true bill, and the alternative writ commands him to sign the same, -or show cause why he does not, and by his answer he does not deny this material allegation, his failure is to be treated as an admission of the fact, the same as if admitted in express terms. State ex rel. Otenberger vs. Hawes, 43 O. S. 16. 149. On a motion to discharge an attachment, the answer of garnishees, not objected to within a reasonable time, and apparently drawn by or with the concurrence of the plaintiff, 78 DECISIONS ON EVIDENCE. [CHAP. will be deemed conclusive, and, if it shows there was no debt, the motion can be granted and the garnishee discharged. Buchanan vs. Mitchell, 8 Bull. 8. 150. Admission in pleading. See 33 O. S. 475. 151. Admission of possession under R. S. 5782. Middleton vs. Westerney, 7 C. C. 395 ; (4 C. D. 650). 152. Plaintifif is not concluded by the answer of a gar- nishee in attachment. Myers vs. Smith et al., 29 O. S. 120. 153. An admission in the answer of an officer to an appli- cation for mandamus does not bind the officer as an officer, nor the state. Beaver & Butt vs. Trus. Blind Asylum, 19 O. S. 108. 154. The date annexed to items in the copy of an account pleaded as a set-off, filed with the answer, does not conclude the party as to the time when his claim accrued. McEwing vs. James, 36 O. S. 152. 155. In an action by an incorporated company, the duly verified answer to the first cause of action in the petition, containing among other things an admission of the company's corporate existence, was, on motion of the plaintiff, stricken out by order of the court as redundant and irrelevant, and the defendant excepted. The entry granting the plaintiff's motion was afterward set aside. A verified amended answer to the same cause of action was then filed, and a portion thereof, embracing among other things the same admission of the incorporation of the company, was, on motion, stricken out by order of the court as redundant and irrelevant, and both parties excepted, leaving in the remainder of the amended answer a denial "of every allegation in said first cause of action not herein admitted." This denial was included in the motion to strike out. Held, it was not error to permit the plaintiff to read in evidence to the jury that portion of the original answer which contained an admission of the com- pany's corporate existence. Peckham Iron Co. vs. Harper, 41 O. S. 100, XI.] ADMISSIONS. 79 156. The plea of non est factum without affidavit dis- penses with proof, and consequently admits the execution of a deed. Baker vs. Spangler & Cryder, T. 210. 157. Corporate capacity and rights to sue, not admitted by pleading over. Commissioners vs. Perry, 5 O. 56. 158. The city commissioner's certificate conclusive, as to the amount and value of work done. Ridenour vs. Saffin, i H. 465 ; i C. S. C. R. 263. 159. Action for libel. Not contradicting by testimony a part of the publication, not in proof, containing a charge of crime, is not an admission of its truth. Fisher vs. Patterson, 14 O. 418. 160. Proof required, notwithstanding admission of guardian ad litem. Long vs. Mulford, 17 O. S. 503; 8 O. S. 377. 161. An admission by parties of a want of notice and absence of the judges not signing an order is inadmissible- evidence to invalidate the journal entry. Merchant vs. North et al., 10 O. S. 251. 162. The lien of a seller who is in possession of mer- chandise sold, it being in the hands of a warehouseman, and the seller retaining the warehouse receipt, which was to be delivered by him only on the payment of the price, is not lost by his having brought suit and recovered judgment for the full contract price, nor by his having averred in his petition that such action was for goods sold and delivered instead of sold and tendered. Such averment, though an admission, is not an estoppel, nor is the seller estopped by having voted at an election of trustee of the buyer in insolvency as an unsecured creditor. Rhodes vs. Mooney, 43 O. S. 421. 163. A bill of recovery, with the responsive answer, are evidence for the defendant to the bill ; but the answer to such bill, so far as it regards other than responsive matter, is not evidence for him. Methodist Church vs. Wood, W. 12. 8o DECISIONS ON EVIDENCE. [CHAL'. 164. A legislative act, reciting that a corporation trustee had lost its right and authorizing a purchase for the state of its property, is a recognition of its existence as a corporation capable of contracting. Mclntire Poor School vs. Zanesville Co., 9 O. 203. As estoppel. 165. Though admissions and declarations in pais may be strong evidence against the party making them, yet they will operate as an estoppel in favor only of those whose conduct it may be fairly supposed they were intended to influence. Strangers casually hearing such declarations cannot, by act- ing on them, preclude the party from showing the truth. 'Morgan et al. vs. Spangler, 14 O. S. 102. 166. In order to estop an owner from asserting title to his property, by his declarations or conduct, it must appear that he was, at the time, apprised of the true state of his title : that he knew, or had reasons to believe, his declarations or conduct would be acted upon by another ; that they were acted upon by such other person in ignorance of the title, and that such person will be injured by allowing the truth of the admission by the declaration or conduct so acted upon by him, to be disproved. Pennsylvania Co. vs. Piatt et al., 47 O. S. 366. 167. A party will be precluded from denying his own acts or declarations which were expressly designed to influence the conduct of another, and did so influence it, and when such denial will operate to the injury of the latter. Baine vs. Bickett, i C. S. C. R. 163. 168. Admissions in pais, though made in good faith, may yet be made under such circumstances as to operate by way of estoppel, and preclude the party from afterward gainsaying them. Beardsley vs. Foot, 14 O. S. 414. 169. A declaration which constitutes an estoppel in favor of the purchaser of a judgment, may be given in evidence with the same efifect in favor of his assignee. Wilcox vs. Rowley, 18 Bull. 426. XI. I ADMISSIONS. 8 1 170. A tenant cannot dispute his landlord's title, [i] but he may show that it has lapsed, or that the landlord has aban- doned the lease, [2] or that it has been transferred by sale on execution or operation of law. Rooker vs. Demerit, i C. C. 156; (i C. D. 89); 2 C. S. C. R. 69. [i] Goodhue vs. Jackson, 7 Bull. 175 ; 3 O. 57. [2] II C. C. 210; (5 C. D. 323). 171. That plaintiff proved his claim in bankruptcy, as if a debt against a bankrupt corporation, is no estoppel to his bringing suit against individuals, but it is pertinent as an admission. Ridenour vs. Mayo, 29 O. S. 143. 172. Recitals in deeds are not estoppels when the deeds containing them, from a defect in their execution, are not operative to pass title. Wallace's Lessee vs. Minor, 6 O. 366. 173. Recitals in a deed to the mortgagor estops his grantees. McChesney's Lessee vs. Wainwright, 5 O. 452 : 22 O. S. 580. Estoppels as to boundary by prior deed. Brachman vs. Smith, i C. S. C. R. 342. Effect of recital in mortgage that it was given for purchase money when mortgagor is a married woman. Evans vs. Beaver et al., 3 C. C. 47; (2 C. D. 28). 174. A deed calling for an alley at seventy feet, more or less, from a street, doe"? not estop the grantee to deny the existence of an alley at the distance of sixty feet. Satchell vs. Doram, 4 O. S. 543. 175. Quaere, whether when a policy on its face admits the receipt of the premium the company is not estopped to deny the receipt in a suit on the policy. If not estopped, they must prove such non-payment by clear and satisfactory proof, especially where notice has not been given to the assured before the loss happens, that such non-payment will avoid the policy. The fact that the books of the agent contain no (7) 82 DECISIONS ON EVIDENCE. [CHAP. credit for the premiums, does not prove that they were not paid. Lee vs. Ins. Co., i H. 225. 176. Recitals of payment conclusive to put the policy in force. Fellows vs. Ins. Co., 2 D. 134. 177. Not conclusive when there is a subsequent provision for avoiding the policy on non-payment of notes given on the policy. Robert vs. Ins. Co., i D. 360. 178. Where an insurance company has for eight years- after C.'s death treated A. as the beneficiary of the policy, it is estopped to deny his right to sue in his own name as such beneficiary. Ins. Co. vs. Flamilton, 41 O. S. 275. 179. Where one person indorses a note to another in an assumed name, as Clark, but, supposing it to be his real name and intending thereby to pass title to the person to whom it is indorsed and delivered, this is an affirmation to all the world that there is such a person as Clark, and that the per- son to whom it is delivered is that person, and he will be estopped as against an innocent holder for value, and, be- fore dishonor, to aver and prove the contrary. Forbes & King vs. Espy & Co., 21 O. S. 474. 180. Declarations of the maker of a note that the note would be paid at maturity, made before discovery of thf fraud, is not an estoppel. Sackett vs. Kellar, 22 O. S. 554. ]8i. The principle which estops the acceptor from deny- ing the drawer's signature, does not extend to indorsements. Lampson vs. Pfafif, i H. 449; i H. 98. 182. The vendor of a promissory note, who transfers it by indorsement, impliedly warrants that the signatures of the prior parties, whose names appear thereon, are genuine, not- withstanding the indorsement is expressed to be without recourse upon him. Dumont vs. Williamson, 18 O. S. 515. XI. 1 ADMISSIONS. .83, 183. Surety does not warrant, but he does afifirm the genuineness of the previous signatures. Selser vs. Brock, 3 O. S. 302. 184. The drawer of a note to A., B. & Co. shall not be permitted to deny the existence of such company. Rice & Reed vs. Goodenow, T. 126. 185. Estoppel by recital in guardian's bond. Shroyer vs. Richmond, 16 O. S. 455. 186. When the officer of a body claiming to be a corpora- tion estopped from denying its corporate existence. Bank vs. Lone et al., 2 C. S. C. R. 397. Report to mercantile agency. 187. Admissibility and efifect of declarations made to a reporter for a mercantile agency as to membership and stand- ing of firm. Sohn vs. Freiberg, 9 Bull. 290. Declaration of v^ard as to guardianship. 188. Declarations of a child after coming of age that she dealt with her former guardian as guardian, are not admis- sible ; such declarations cannot affect her legal rights. Campbell vs. English, W. 119. CHAPTER XII. HEARSAY IRRELEVANT. Exception : Confessions. Rule as to Admissibility, i. Whether Voluntary a Question for the Court, i, 2, 3. May be Submitted to the Jury, 4. Burden of Proving Confession Not Voltuitarj, S, 6. When Voluntary, 7-14, i. Extrajudicial Confession Not Sufficient to Prove the Crime, iS-17, 14. Oral Confession Not Merged in Written, 14. Silence as a Confession, 18-22, 33. Flight, 23. Threats, 24. Plea of Guilty, 26-29. Admissible Only Against Party Confessing, 25. Declarations Admitting Nothing, Not a Confession, 30. Attempt to Prove an Alibi, 31. Evidence of Attempt to Compromise Prosecution, 32. Declaration of Accomplice, 33-37. All That Party Said is Admissible, 38-40. Confession May be Controverted, 26. Weight Given to Confessions, 7, 41, 42, 22. Rule as to admissibility. I. No confession can be received in evidence in a criminal case unless it was voluntary. A confession induced by hope or fear excited in the mind of the prisoner by the representa- tions or threats of any one, is not to be considered voluntary. The question in every case, where a confession has followed representations or threats of any one is, was it produced by them. This question is to be decided by the judge, if proof XII.] CONIfESSTONS. 85 of the confession, when offered, is objected to. (i) In deciding it he is to have regard to the following rules : If the representations or threats were made by or in the presence of a person having authority or control over the prosecution of the accused, it is to be presumed that the confession was produced by such representations or threats, unless it appear that their influence was totally done away before the con- fession was made. If on the other hand the representations or threats were made by a person having no such authority or control, and not in such presence, it is not necessarily to be presumed that they induced the confession. In the latter case the judge is to determine how the confession was produced, by looking at the circumstances, among which are the strength or weakness of the prisoner's intellect, his knowledge or ignorance. If satisfied, however, that the confession was pro- duced by the representation or threats, the court cannot receive it in evidence, because the prisoner had sufificient mind or knowledge to detect the groundlessness of the representa- tions or threats, for the strongest mind is liable to be unhinged, and the question is not, what the prisoner ought to have believed, but what he did believe. (i^ The defendant has a right to question the witness and prove his objection before the confession is received. Spears vs. State, 2 O. S. 584. Rufer vs. State, 25 O. S. 464. Whether voluntary, a question for the court. 2. Whether a confession is voluntary is a question for the court. 6 N. P. 368. 3. Where, on the trial of a criminal cause, a confession of the defendant is offered in evidence against him, nnd he objects to its admission on the ground that he had been induced to make it by threats or promises, and that therefore it was involuntary, it becomes the duty of the judge to deter- mine this question; and upon the preliminary inquiry had before the judge to determine this question, the defendant may introduce pertinent evidence, in addition to that which results from the preliminary examination and cross-examina- 86 DECISIONS o^f evidence. [chap. tion of the witness produced to testify to the confession. Whether such preliminary inquiry shall be conducted in the presence and hearing of the jury or not, rests in the sound discretion of the trial judge. Lefevre vs. The State, 50 O. S. 584. See No. i above. Question whether voluntary may be submitted to jury. 4. Where confessions of the defendant are offered in evidence on a criminal prosecution, and it is claimed that they were not voluntary ; the preliminary proof as to whether they Avere obtained by the influence of hope or fear, may, if the evidence is conflicting, be submitted by the court to the jury, under instructions, to disregard the evidence, if satisfied that the confessions were involuntary. Burdge vs. The State, 53 O. S. 512. Burden of proving confession not voluntary. 5. The burden of showing that a confession of guilt was obtained by improper inducements rests with the defendant, and he has a right to cross-examine the witness for this purpose. Rufer vs. The State, 25 O. S. 464; 50 O. S. 588. 6. The burden of proving that the defendant was not of sound mind when he made the confession, is on the defendant. He need establish the fact by a preponderance only of the evidence. State vs. Morris, 5 N. P. 232; (7 Dec. 84). When voluntary. 7. In order to exclude evidence of confessions by the defendant in a criminal case, it is not enough to show that they were made to an officer having him in custody and were induced by a false assurance that an accomplice had given information of the crime, if it also appears that nothing was said or done calculated to induce a hope of advantage from confession or fear of harm from its refusal. (Should be received with caution and distrust. 8 O. S. 108.) Price vs. The State, 18 O. S. 418. See No. i above. XII.] CONFESSIONS. 87 8. Testimony of the confession of the accused in a criminal prosecution is not incompetent because the con- fession is made under advice that if he was guilty the con- fession could not put him in any worse condition and that he had better tell the truth at all times. Fonts vs. The State, 8 O. S. 98. 9. An agent is sent by the prosecuting attorney to a person whom he contemplates causing to be indicted for a crime, for the purpose of obtaining admissions of such person as to his part in the commission of the crime, and as to who his accomplices were, and such agent goes to the person and states to him that he had been sent by the prosecuting attor- ney of the county to find out from him who were concerned in the commission of the crime, and that it would be for his own interest and would save him a heavy fine if he would "own up who the parties were." Admissions thus obtained are not competent against such person on his trial under an indictment for said offense shortly thereafter returned against him, unless it be first made to appear affirmatively that such representations had no influence in inducing the accused to make such alleged admissions. But where expressions of the accused obtained as above stated, have been by the trial court allowed to be given in evidence over the objections of the accused, a reviewing court may determine whether or not such ruling resulted prejudicially to him. Searles vs. The State, 6 C. C. 331 ; (3 C. D. 487). 10. A confession of murder made by accused while in custody of an officer before a warrant had been issued for his arrest, is voluntary and admissible, where no promise or iidvantage was made to induce it, but merely a pressure to tell the truth because that would be best, and where the prosecuting attorney had explicitly told the accused that he could not hope for clemency in consideration of a confession, and that if innocent he ought to assert his innocence to the last. Sharkey vs. State, 4 C. C. loi ; (2 C. D. 443). 11. The test of incompetency appears to be the existence •of reasonable ground for presuming under the circumstances 88 DECISIONS ON EVIDENCE. [CHAP. that the disclosure was made under the influence of some promise or threat of a temporal nature. Fouts vs. The State, 8 O. S. 109. 12. When evidence of a confession is excluded because induced by promises made by an officer having custody of the prisoner, but the prisoner on a subsequent day, voluntarily goes on the stand and is sworn and examined as a witness in his own behalf, under R. S. 7286, on his examination before a magistrate on such charge, and he is cautioned by the magistrate before testifying that he need not say anything to criminate himself, and that what he may say may be used against him, a confession made in such testimony may be proved by the state on the subsequent trial of such person charged with the crime. Jackson vs. The State, 39 O. S. 37. 13. When a prisoner confesses to a larceny on the repre- sentation that it would be better for him and might prevent a prosecution, and shortly afterward repeats the confession before a magistrate without further solicitation, both con- fessions are to be rejected, the second being caused by the representation as much as the first. Nichols vs. State, i W. L. J. 394. 14. A confession of crime is not excluded as evidence because it was made to a police officer, or to a coroner engaged in an inquest on the deceased victim, nor because the accused is told "he had better tell the truth," nor because it is accompanied with emotion or distress, nor because accused is with his own consent placed under oath by the coroner, being cautioned that he need make no statements tending to injure or criminate himself. Parol confessions are not merged in the confessions reduced to writing, and are also admissible. This confession before the coroner was not a judicial confession, and it was necessary that there should be other proof of the corpus delicti; but it is not necessary that the agency of the accused should be proved by other evidence which alone would prove the guilt of the accused beyond a reasonable doubt. Where the defendant was indicted and convicted under a count for murder in the XII.] CONFESSIONS. 89 attempt to perpetrate a rape, there are not two corpora delicti, but only one corpus delicti — the murder requiring proof outside the confession. State vs. Leuth, 5 C. C. 94; (3 C. D. 48). Proof of corpus delicti. 15. The rule that the corpus delicti must be shown by testimony extrinsic to a confession is not the law in Ohio. State vs. Wehr, 6 N. P. 345 ; (9 Dec. 478). 16. Although extrajudicial confessions are not alone sufficient to prove the body of the crime in cases of homicide, they may be taken and used for that purpose in connection with other evidence. Blackburn vs. The State, 23 O. S. 146; 3 C. C. 630; (2 C. D. 366). 17. Proof of the corpus delicti cannot be established by the confession of the accused alone, but a confession, made by defendant when of sound mind and capable of understand- ing the nature, extent and efifect of such confession, when corroborated in material and important parts, with other evidence, either positive or circumstantial, constitutes the proof required by law of the body of the crime. The State vs. Morris, 7 Dec. 84. Confession by silence. 18. Admissions may be implied from the acquiescence of the party. But acquiescence, to have the efifect of an admission, must exhibit some act of the mind and amount to the voluntary demeanor or conduct of the party. Nothing can be more dangerous than this kind of evidence. It should always be received with caution; and never ought to be received at all unless the evidence is of direct declarations of that kind which naturally call for contradiction. Rose vs. The State, 13 C. C. 347; (7 C. D. 226). 19. Silence is not an admission unless the circumstances naturally call for a denial or explanation. State vs. Iden, 7 N. P. 339; (5 Dec. 627). 90 DECISIONS ON EVIDENCE. [CHAP. 20. Where two persons charged with larceny, having the stolen property in their possession, were taken into custody by a police officer, the declarations of one of them, assuming to speak for and implicating both, made to the officer in the presence and hearing of the other person charged, who remained silent, are competent evidence for the state on the trial of the latter. Murphy vs. The State, 36 O. S. 628. 21. Prejudicial statements communicated to a prisoner are not admissible against him in the absence of any admis- sion of their truth or of conduct imdicating guilt in con- nection with such communication or as a result thereof. [Distinguished from Murphy vs. The State. In that case Murphy acquiesced in a statement made on behalf of both and for their joint benefit; p. 347.] Rose vs. The State, 13 C. C. 342; (7 C. D. 226). 22. A statement or expression alleged to have been made by the accused at a time when several persons were present, but heard by one only, is competent. Its weight is for the jury. Morran vs. The State, 11 C. C. 464; (5 C. D. 234). Flight. 23. It is competent for the state to prove that soon after the commission or the discovery of the crime with which he is charged, the defendant fled from the place where it was committed, or to prove other acts or statements by him, which he probably would not have done or made if innocent. Grillo vs. The State, 9 C. C. 394; (6 C. D. 90). Threats. 24. Threats made by the defendant against the prose- cuting attorney are not admissible unless made under such circumstances and are of such character as to manifest a consciousness of guilt. Gawn vs. The State, 13 C. C. 116; (7 C. D. 19). Admissible only against party confessing. 25. In a prosecution for concealing a horse thief, it is not competent for the prosecutor to prove the confessions of the XI r.] CONf^ESSTONS. 91 alleged thief, in the presence of the defendant, to establish the fact that a horse was stolen. Confessions are only evidence against the person who confesses, not against other persons though they may have been proven to have been his accom- plices. Morrison vs. The State, 5 O. 439. Plea of guilty. 26. A plea of guilty before the examining magistrate is not conclusive on the accused when on trial before the court. Hanaghan vs. The State, 51 O. S. 28. 27. A plea of guilty admits every fact well pleaded in the indictment. Craig vs. State, 49 O. S. 415. 28. Neither a plea of guilty in a criminal prosecution nor the judgment founded upon it is conclusive against a defend- ant in a civil action. Such a plea stands like any other confession of a party, and may be controverted. Clark vs. Irvin, 9 O. 131 ; 16 C. C. 597; (9 C. D. 209). 29. Where a person is arrested before a magistrate upon an afifidavit charging him with a crime, and he enters a plea of guilty to the charge, and thereafter a civil action is brought against him to recover damages for the same wrong, to entitle the plaintiff to introduce the plea of guilty as evidence in the trial of the civil action, the afifidavit, or a copy thereof, should be first introduced; then it should be shown that the affidavit was read to the defendant, or that he was correctly informed of its contents, and that he entered a plea of guilty to the charge. To permit the magistrate to testify that the defendant was arrested and brought before him and that he entered a plea of guilty, without showing the charge to which he so pleaded, is error. Heeney vs. Kilbane, 59 O. S. 499. Declaration admitting nothing not a confession. 30. Declarations of accused after homicide are not a con- fession when admitting nothing connected therewith. Moore vs. State, 2 O. S. 500. 92 DECISIONS ON EVIDENCE. [CHAP. Attempt to prove an alibi. 31. Attempt to prove an alibi is no admission of the body of the crime charged, nor does his failure to prove it neces- sarily afford any presumption that he was present at the time and place when and where the crime is alleged to have been committed. Toler vs. The State, 16 O. S. 583. Attempt to compromise. 32. In a prosecution for rape, evidence that the defend- ant's brother made ofifers to compromise the crime, is not competent on the part of the state, unless in connection with evidence of authority to make the ofifer, or of some knowl- edge thereof by the defendant. Pratt vs. State, 19 O. S. 277. Declarations of accomplice. 33. When two persons are jointly indicted for a felony and one is on trial, declarations of the other tending to estab- lish the guilt of the one being tried, are not competent to be submitted to the jury unless it appears with reasonable cer- tainty that such declarations were heard by the one on trial. Aidt vs. State, 2 C. C. 18; (i C. D. 337). 34. On the trial of a person indicted for procuring another to commit an offense it is not competent to prove the declarations of the principal offender made after the com- pletion of the offense for the purpose of showing the guilt of the procurer. Sharpe vs. State, 29 O. S. 263. 35. Admissions of the aider and abettor that the principal was guilty of the act charged, is not of itself sufficient proof of the actual guilt of the principal to warrant a conviction of the aider and abettor. Indictment under R. S. 6832. Statements of the owner after the fire, that he had hired the accused to burn the property, not made in connection with any effort of the prin- cipal to obtain the insurance, are inadmissible as against the accused. Searles vs The State, 6 C. C. 332 ; ("3 C. D. 478). XII.] CONFESSIONS. 93 37. On the trial of one indicted for subornation of per- jury, the statements of the principal offender, made in the absence of the prisoner, that the latter had been attempting to hire or had hired him to commit the perjury, are inadmis- sible, although they tend to prove the principal's guilt of the perjury charged, and are made immediately prior to the commission of the perjury. In such case, however, state- ments of the principal, in the absence of the prisoner, immediately prior to the perjury, tending to show the former's disbelief in the facts falsely sworn to, are admissible to show the state of his mind and belief concerning the subject of his testimony. Dilcher vs. The State, 42 O. S. 173. All of the declaration is admissible. 38. While it is law when the confessions- and admissions of a defendant in a criminal case are offered in evidence against him, that all he said at the time should be taken and considered by the jury and have its just weight, it does not follow that ail of it is entitled to equal credit. For good reasons one part of it may be received as true, and another part rejected as false. Schneider vs. The State, 2 C. C. 420 ; (i C. D. 565) ; W. 293; 6 C. C. 171 ; (3 C. D. 397). 39. When statements of a prisoner are given in evidence against him, the exculpatory parts, as well as those which import guilt, are to be received and the jury is to decide upon the truth or falsity of the exculpatory parts. Blackburn vs. State, 23 O. S. 146. 40. In a criminal prosecution where the state offers in evidence against the accused a part of a declaration or con- versation, the defendant is entitled to have the whole of such declaration or conversation given to the jury. But there is no rule of law which requires the jury to reconcile the whole, if possible, with the fact of innocence. Moorehead vs. The State, 34 O. S. 212. 94 DECISIONS ON EVIDENCE. Weight given confessions. 41. The declarations of a prisoner are to be cautiously received and carefully scrutinized, lest the language of the witness be substituted for that of the accused. State vs. Gardiner, W. 392 ; 2 N. P 60. 42. If the jury believe from the evidence that the defend- ant made the confessions, such confessions should be treated and considered as any other evidence in the case and judged of in view of all the circumstances. State vs. Manix, 16 Bull. 214; 5 X. P 232; (7 Dec. 84). [See also 6 N. P. 368 and Nos. 7 and 22 above.] CHAPTER XIII. HEARSAY IRRELEVANT. Exception: Dying Declarations. When Admissible, i-8. Not Admissible Where the Indictment was for Abortion Produc- ing Death, i. Not Admissible in an Action for Causing Death by Shooting, 2. Former Statements May Be Made a Part of the Dying Declara- tion, Q. Evidence of. Not Excluded by the Constitution, lo. Statements Made at Another Time to Impeach the Declaration, ii. 1. Dying declarations are admissible only where the death of the declarant is the subject of the charge, and the circumstances of the death are the subject of the dying declaration. [The indictment was for using an instrument for producing abortion, from the efifect of which the woman died. Declaration inadmissible.] State vs. Harper, 35 O. S. 78. 2. Dying declarations are not admissible in an action imder the statute for causing death by shooting although the defendant admits the killing and the evidence tends to show facts which would justify a charge of homicide. The admis- sion of such declarations is an exception to the rules of evidence, as the witness is not sworn, nor is there an oppor- tunity for cross-examination, and is not justified on principle, but on grounds of public policy in criminal cases. Cosgrove vs. Schafer, 15 Bull. 8. 3. The competency of testimony as to dying declarations in cases of honu'cide is well settled. Summons vs. State, 5 O. S. 342. 96 DECISIONS ON EVIDENCE. [CHAP. 4. It is error to admit evidence of dying declarations without first finding that the deceased was conscious of his condition when making them. It is this consciousness coupled with the condition of the party that supplies the place of an oath and distinguishes dying declarations from hearsay. The witness may state the substance of the dying declaration, though he may not be able to give the precise words. Montgomery vs. State, 11 O. 424. 5. It is essential to the admissibility of a dying declara- tion that it should be made to appear to the court by preliminary evidence not only that it was made in articulo mortis, but also that it was made under a sense of impending death which excluded from the mind of the dying person all hope or expectation of recovery. [The jury finally passes on these questions. 17 C. C. 406; (9 C. D. 621).] Robbins vs. State, 8 O. S. 131. 6. When the deceased was told by his physician that he would die, but did not believe the physician, his declaration is not admissible. State vs. Moore, 34 Bull. 276. 7. The statement may be admissible although the de- ceased lived a long time after making it. In the case Martin vs. The State, 17 C. C. 406, McMilland lived three months. After the court has determined that a statement is admissible as a dying declaration, all the circumstances connected there- with should be submitted to the jury. Martin vs. State, 17 C. C. 406; (9 C. D. 621). 8. Upon a trial for murder, after proper preliminary proof has been given, it is not error to admit in evidence and permit to be read in evidence to the jury a written statement of the injured person, made in extremis, while conscious of his condition and under a sense of impending dissolution, where such declaration was at the time reduced to writing by a competent person at the instance of the declarant or with his consent, was approved and signed by him, and containing statements of the circumstances of the unlawful act which is the subject of the charge. State vs. Kindle, 47 O. S. 358. XIII.] DYING DBCI^ARATIONS. 97 9. Declarant by alluding to former statements and re- affirming them, may make them a part of his dying declara- tion. Montgomery vs. State, ii O. 424. 10. Evidence of dying declarations is not excluded by the constitutional provision that the accused shall be allowed to meet the witnesses face to face. The objection to such evi- dence going to the competency of the evidence and not to the competency of the witness. Robbins vs. State, 8 O. S. 131; 5 O. S. 343; 11 O. 424. 11. In making a dying declaration, the declarant, in speaking of the fatal wound, said it was done without any provocation on his part. Held, this declaration was not incom- petent as being mere matter of opinion. When dying decla- rations are proved in a case, a statement of the deceased made at another time which is neither a dying declaration nor a part of the res gestae is not admissible to impeach such declara- tion. Wi^oe vs. State, 20 O. S. 460. 12. Defendant is upon trial charged with murder while perpetrating a robbery. The deceased, while traveling alone in the night, was. attacked and beaten until disabled and unconscious, but lived several days after the assault. The accused oifers to prove a statement of the deceased, made several hours after the assault and tending to exculpate him. Held, not a dying declaration ; not a declaration against inter- est ; not part of the res gestae ; not an admission, and inadmissible. State vs. Grayson, 18 Bull. 221. (8) CHAPTER XIV. HEARSAY IRREIet no such presumption arises in the case of such note before due; but on the contrary in such case it is a matter of legal presumption that the note is unsatisfied, and is endorsed and placed in the hands of the maker for his accommodation. Ervine and Lane vs. Shafifer & Curtis, 9 O. S. 44. 35. An endorsement on a note of a certain sum is prima facie for a payment of so much in cash and the burden of proof is on the party claiming otherwise to show it. Without proof the prima facie case must govern. Kline vs. Pringle, W. 414. 36. Whether the giving a second note is evidence of the payment of the first, is a question of effect, not of the com- petency of the testimony. Hamilton vs. Phelps, W. 689. 37. The giving of a new note in renewal of an old one is XIX.] BILLS, NOTES AND BONDS. 173 equivalent to the payment of the latter, unless the presump- tion of payment is controlled by evidence of a contrary intent. Little vs. Quinn & Co., i C. S. C. R. 381. 38. A note given for a precedent debt of the maker will not be regarded as a payment unless the creditor agreed so to receive it. Merrick vs. Boury, 4 O. S. 60. 39. A time certificate of deposit issued after the dissolu- tion of a banking co-partnership, by a member who had become the owner and was carrying on the business of the bank, in the place of a like certificate of the firm, is not a payment of the firm debt unless the creditor agrees to so receive it. Chase vs. Brundage, 58 O. S. 517. 40. Presumption of liability is overcome by a presump- tion of payment. Root vs. Kilberth & Root, 18 Bull. 58. 41. The receipt and endorsement of a greater sum of money than the interest on a past due note does not raise a presumption of an extension of time of payment. Vore vs. Woodford, 29 O. S. 245. 42. Payments on a note are but evidence from which a promise for an extension of time may be inferred. Kerper vs. Wood, 48 O. S. 620. 43. The mere payment of interest in advance does not imply an agreement to extend the time for payment of the principal as matter of law. The inquiry is always one of fact, and such payment may or may not be in evidence of such agreement according to the circumstances. Penterman vs. Dorman, 7 Bull. 281 ; 8 Bull. 306. 44. The payment of interest in advance on a promissory note is of itself conclusive evidence of a contract to extend the time of payment of the note for the time for which interest may have been thus paid. Card vs. Nefif, 39 O. S. 607. 46. When a holder of a note gives time to the maker and 174 DECISIONS ON EVIDENCE. [CHAP. an indorser afterwards promises to pay, knowledge of the facts on the part of the endorser will be presumed. Raught vs. Black, 2 D. 477. 47. An agreement to forbear suit on a pre-existing debt is a sufficient consideration for a note given therefor ; and an agreement so to forbear until the maturity of the note will be presumed, in the absence of proof to the contrary. Holzworth vs. Koch et al., 26 O. S. 33; 11 C. C. 604. 48. The burden of providing a valid modification of the terms of the note, by which the debtor became liable for higher rate of interest under the statute, was upon the plaintifif. The mere fact that in pursuance of his promise, C. had for several years annually paid interest at ten per cent, and had not been pressed for the payment of the principal, does not raise the presumption of such a pre-existing modi- fication of the original contract, as the statute requires. Andrews vs. Campbell, 36 O. S. 361. 49. A note of a surviving member of a firm, given by him to the creditor of the firm on an adjustment of such creditor's claim against the firm, will not be regarded as given and received in satisfaction of the firm debt unless the testimony affirmatively and clearly shows such to have been the agree- ment of the parties. Leach vs. Church, 15 O. S. 169. 50. Plaintifif takes a note of one member of a firm after dissolution of the firm. An agreement to release the other partner may be implied from the acts of the parties. Bank vs. Green, 40 O. S. 431. 51. If it appear that the defendant was a stockholder in an unincorporated bank, and the notes offered in evidence were issued by the bank, he is prima facie liable. Goodenow vs. Duffield, W. 456. 52. M. K. conveyed to M. K. jr. and G. W. S. certain of his lands, part of the consideration being an agreement by the grantees to pay the debts due by the grantor upon the prop- erty conveyed. To secure performance of this agreement they reconveyed by way of recorded mortgage, in which some XIX.] BILLS, NOTES AND BONDS. 1 75 debts were named and others referred to, without description, as specified in a certain schedule, which last was never recorded nor delivered for record. Suit was brought to impeach certain conveyances of M. K. as in fraud of creditors. Prior to the commencement of the suit some of the schedule creditors surrendered the evidence of their claims on M. K. and in lieu thereof took the notes of M. K. jr. and C. W. S. which remain unpaid. Held, had the creditors retained the evidence of their claims on M. K. the presumption would be that the notes of his grantee were collateral securities, but as they surrendered these evidences of his indebtedness when they took the notes of third persons the presumption is just the contrary. [2] It is fairly presumable that the surrender was made with an understanding that they were to have the benefit of the mortgage to M. K. Crumbaugh vs. Kugler, 3 O. S. 544. 53. Dififerent persons hold notes to secure the balance of purchase money ([2] or notes secured by the same mortgage). The note first falling due is prima facie entitled to be first paid and if any fact or circumstance exists which in equity would change this presumption, the burden of proving such fact or circumstance rests on the holder of the note last falling due. Kyle et al. vs. Thompson's Adm'r et al., 11 O. S. 616. [2] Winters vs. Bank, 33 O. S. 250. Bank of U. S. vs. Covert, 13 O. 250. 54. Presumptions of waiver of demand and notice of the non-payment of a note. Hudson vs. Wolcott, 39 O. S. 618. 55. A subsequent promise to pay, when made with full knowledge of the facts, has been held to be evidence of a demand and notice, or to imply a previous waiver thereof. Bank vs. Bank, 49 O. S. 360; 11 O. S. 29. 56. Where a debtor tenders a bank check in payment of a debt it seems that mere silence on the part of the creditor as to the medium of payment is not conclusive evidence of a waiver of objection to the medium of payment. Jennings vs. Mendenhall et al., 7 O. S. 257. 57. The circumstance that a draft for money, otherwise 176 DECISIONS ON EVIDENCE. [CHAP. in the usual form of a check, is payable on a future specified day is prima facie, but not conclusive evidence that the instru- ment is a bill of exchange and as such entitled to days of grace. Andrews & Wilson vs. Blachly & Simpson, 11 O. S. 89. 58. A depositor is not bound on the return of his checks, to look at once for forged signatures, and he will not from such delay be presumed to have acquiesced so as to make a stated account. Cincinnati Nat. Bank vs. Creasy, 18 Bull. 410. Bona Fides. Reports of mercantile agency that refer to assets and state of business must be proved by plaintiff to be false, while those that reflect on his character, credit, ability and conduct are presumed to be false. There is no presumption of bad faith arising from the falsity of the report and the burden is on plaintiff to show such bad faith. The preceding and subse- quent conduct and relations of the parties may be looked to in determining motives. Crist vs. Bradstreet Co., 15 Bull. 334. When a municipal corporation has advertised for pro- posals to construct a street railway, and has prescribed the form in which bids must be made, a bid made in accordance with the prescribed form, is presumed to be in good faith. Gallagher vs. Johnston, 31 Bull. 24. The presumption is that the reporter of the supreme court acted in good faith in placing manuscript opinions in the hands of the contractors for printing supreme court reports. Banks vs. Dewitt, 42 O. S. 263. When proceedings in extradition are in due form good faith is presumed. In the matter of Hampton, Fugitive, i N. P. 181 ; (2 Dec. 579). [See regularity of acts of officers.] Capacity or consent of infant in cases of rape or carnal knowledge. In the absence of evidence on the subject, a child, or youth, XIX.] PRESUMPTIONS CHARACTER. 1 77 of any given age should be held to that degree of intelligence common to persons of his age. Cin. St. Railway Co. vs. Wright, Adm'r, 54 O. S. 181; 46 O. 3.283. The presumption is that every one charged by law with the performance of a duty, is capable of performing the same. Leyman vs. Leyman, 19 C. C. 654; (10 C. D. 800). At the common law a child under seven years is con- clusively presumed incapable of crime. Between seven and fourteen the law also deems the child incapable, but only prima facie so, and evidence may be received to show criminal capacity. Railroad Co. vs. Mackey, 53 O. S. 383. The presumption of law is, that a female child under ten years of age is incapable of giving consent to an act of carnal knowledge, or of assault with intent to commit the act ; but the presumption may be rebutted by proof that she under- stood the nature of the act committed or intended.' A pre- ponderance of evidence is sufficient to rebut such presumption. O'Meara vs. The State, 17 O. S. 515; 5 C. C. 108; (3 C. D. 148). The law presumes an infant under fourteen years old incapable of committing a rape or of the crime of attempting to commit a rape. This presumption proceeds on the ground of impotency and may be rebutted. Williams vs. The State, 14 O. 222 ; 35 O. S. 52. Impotency is not presumed from extreme age. But age is to be considered. Corbit vs. Corbit, 4 Bull. loii. Because one is of advanced age and a widower the court will not presume the possibility of issue is extinct. Hatch vs. Hatch, 31 Bull., 59. Character. The presumption in a libel suit is that the plaintiff's char- acter is good. Blakeslee vs. Hughes et al., 50 O. S. 490. (13) 178 DECISIONS ON EVIDENCE. [CHAP. Coercion of wife by liusband. The presumption that a married woman who commits a criminal act in the presence of her husband, acts under his coercion, is only prima facie ; and when it is shown that she acted voluntarily and not by coercion she is liable to a prose- cution. Tabler vs. The State, 34 O. S. 127. If a wife join with her husband in the commission of a crime less than murder, she is presumed to act under his coercion, and in law is not guilty; but the fact of coverture must be clearly made out by proof. Davis vs. The State, 15 O. 72. Confession. The presumption is that a confession was voluntary. The State vs. Leuth, 5 C. C. 100; (3 C. D. 48). [See Confessions, p. 84.] Consent. 1. A party is presumed to consent to the rescission of a contract if after the time for completion of the contract and tender of performance and notice of rescission of the adverse party, he unreasonably delays performance. Lewis vs. White, 16 O. S. 445. 2. The delinquency of the vendee in failing to tender pay- ment for a week after the contract for the purchase of stocks and bonds was made, gave rise to the conclusive presumption, as against him, of his consent to the rescission of the contract. Mowry vs. Kirk & Cheever, 19 O. S. 375. 3. An acquiescence, in order to raise the presumption of a license to use a stream of water, must be with a knowledge of the owner's rights. Buckingham vs. Smith, 10 O. 288. 4. The assent of a shipper to an agreement limiting the common law liability of a common carrier cannot be pre- sumed, contrary to the facts, when the acts of the shipper do not operate as an estoppel. Gaines vs. Ins. Co., 28 O. S. 418; (2 C. D. 22); 3 C. C. 37- [See Burden of Proof — Negligence.] XIX.] PRESUMPTIONS — CONSENT. 179 5. This assent will not be implied or presumed from facts and circumstances which do not clearly show an assent to such conditions in the contract. The presumption is that the shipper intends to insist on his common law rights. Railroad Co. vs. Barrett, 36 O. S. 440. 6. Presumption that one assented to a change in a bill of lading when he did not dissent within a reasonable time. Muller vs. R. R. Co., 2 C. S. C. R. 281. 7. The recital of one's name in the body of a bond, as one of the obligors, implies that the other obligors expect him to sign it, and the signing after the delivery by the other obHgors will in the absence of proof be presumed to have been done with tlieir consent. Kelley et al. vs. The State, 25 O. S. 567. 8. Consent of person holding fund to order to pay note out of fund presumed from holding possession of note and order. Robbins et al. vs. Klein, Lichtenstader & Co. et al., 60 O. S. 199. 9. Where parties interested in the business of a firm have for a series of years received annual statements of its business charging them with a certain proportion of the losses and made no objection thereto, they will be presumed to have acquiesced in the accounts stated. Keys vs. Baldwin, 19 Bull., 376. 10. A depositor in a bank is not bound to look for forged signatures among his checks when his book is balanced and his checks returned to him and will not be presumed to have acquiesced in the account charging him with the payment of such checks, where he has failed for more than a reasonable time to examine the checks and discover the forgery. Cin. Nat. Bank vs. Creasy & Sons, 18 Bull. 410. 11. Presumption that deed was recorded with assent of grantee and for his benefit. Hammell vs. Hammell et al., 19 O. 20. 12. The assent of a party to an act done for his benefit, or which may even injuriously afifect him, may always be pre- l8o DECISIONS ON EVIDENCE. [CHAP. sumed, if, with a full knowledge of the thing done, he permits it to be applied for his benefit, or does not disclaim it. McGregor vs. Ellis, 2 D. 286. 13. Consent of other stockholders to an action brought by one where the action is for the benefit of all. Kuln et al. vs. The Woolson Spice Co. et al., 13 C. C. 547; (7C. D. 289). 14. The assent of a lessor to the assignment of a lessee, whose only obligation to pay rent arises from his occupation, may be implied, where nothing to the contrary appears, from his charging the rent to the new tenant and accepting payment thereof from him. Lodge vs. White, 30 O. S. 569. 15. Failure to issue execution for seven years is evidence of the consent of a creditor to a settlement made by his debtor with the sheriff. Runyan vs. Vandykert et al., 3 Bull. 96. 16. Creditors presumed to have consented to assignment. O'Connell vs. Cruise, i H. 168. 17. The assent of a non-resident partner to an assign- ment, for the benefit of creditors, made by a resident man- aging partner may be presumed. The Clafflin Co. vs Evans et al., 55 O. S. 183 ; 57 O. S. 552. 18. When the record is silent the prisoner will be pre- sumed to have consented to a continuance. Ex parte McGehan, 22 O. S. 442. 19. Where compensation was to be increased from an uncertain time, and the employee failed to demand the increase, it might well be assumed that he assented to the con- tinuance of the former monthly stipend. Manufacturing Co. vs. Colgate. 12 O. S. 352. 20. Acquiescence to jurisdiction of a state court pre- sumed from failure to assign as error refusal to allow removal to U. S. court. Pollock vs. Cohen, 32 O. S. 518. XIX.] PRESUMPTIONS — CONSIDERATION. l8l 21. Consent of parties to appropriation of property by corporation presumed from silence. Hatch vs. R. R., i8 O. S. 92, 169; 47 O. S. 366; 48 O. S. 642. 22. It is the duty of councilmen to vote and when present and keeping silent they are presumed to acquiesce in the vote taken. Ohio ex rel. vs. Green, 6 Bull. 646. 23. Acquiescence of daughters to advancement made by her father to her husband. 22 O. S. 436. Consideration. Where both parties have dealt with equal means of knowl- edge, and with their eyes open, the court will not presume the consideration to be inadequate. Galloway vs. Barr & Finley, 12 O. 355. Presumption of consideration for a specialty. Williams vs. Means, 2 D. 608. A note is presumed to be given for value. 60 O. S. 108; 10 O. S. 144; 18 O. S. 516. Presumption of consideration for a pledge. Robinson vs. Boyd, 60 O. S. 57. [See Real Estate.] [See Acceptance, p. 155.] Continuance. 1. When a steamboat is shown to have been seaworthy at the time she was insured, and no intervening circumstance occurs to render her unseaworthy, her seaworthiness is pre- sumed to continue ; but when during the life of the policy she springs a dangerous leak, without apparent cause, a new pre- sumption arises — that of unseaworthiness. Yet, as this new presumption is not a conclusive one, the owners are not required, to entitle them to recover for the loss, to show the identical cause of her loss, but may show a probable cause. Ins. Co, vs. Tobin, 32 O. S. 78. 2. The disqualification of an ex-convict to vote will be presumed to continue, unless a pardon be affirmatively shown. Esker vs. McCoy, 6 Rec. 694. l82 DECISIONS ON EVIDENCE. [CHAP, 3. Reputation as to truth and veracity may be presumed to continue the same while one is in the penitentiary. Hamilton vs. State, 34 O. S. 85. 4. Evidence of the existence of a partnership three months before the date of the note sued on is admissible, zs there is a presumption of its continuance. Marks vs. Sigler, 3 O. S. 358. 5. Presumption that case has not been overruled, although it was decided without reason, and upon .1 citation of authorities that are not applicable. Kepner vs. Pierce, S C. C. 490; (3 C. D. 239). 6. The general rule is that when a condition of affairs is proved to exist (as that class to which insured belonged is full), it is presumed to continue until a different state of facts is shown, and it devolves upon the party who is interested to make that proof. Hall vs. The Scottish Rite Knight Templar Aid Ass'n, 6 C. C. 141 ; 8 C. C. 278; (4 C. D. 465). 7. Presumption of continuance of membership in life association. Odd Fellows Protective Ass'n vs. Hook, 10 BulL 392. 8. Insanity shown to exist, presumed to continue. Wheeler vs. The State, 34 O. S. 396 ; 3 Bull. 187. 9. Domicile once acquired, presumed to continue. 6N. P. 80; (8 Dec. 47). 10. Presumption of continuance of knowledge once pos- sessed, may be rebutted. Morris vs. Daniels, 35 O. S. 416. 11. Where one is insolvent there is no presumption that he will become solvent ; if there is" any presumption it is that he will continue insolvent. Diem vs. Koblitz, 49 O. S. 58. 12. Trial for bigamy : Marriage with first wife proven, and she being present in court, presumption of continuance of the relation. Whalen vs. State of Ohio, 12 C. C. 584; C5 C. D. 488). XIX.] PRESUMPTIONS CONTINUANCE. 183 13. The presumption that a cohabitation, illicit in its inception, remains such in character during- its continuance is one of fact for the jury and not one of law. Swartz vs.The State, 13 C. C. 66; (7 C. D. 43). 14. A charge "that if within a reasonable time after the accident the machine was found to be broken and defective, then the presumption arises that such defect existed at the time of the accident, and at this point the burden of proof shifts from the plaintiflf to the defendants to satisfy you by a preponderance of the evidence that such defects did not exist at the time of the happening of the injury complained of," states the law too strongly against the defendants, and is error. Henkel vs. Stahl, 18 C. C. 831 ; (9 C. D. 371). 15. Prior possession of a note is not presumed from present possession. A presumption is sometimes founded on continuance, permanency, and duration of a thing, state of mind or the like, but the possession of to-day furnishes no presumption of its existence a single hour before. Hutchinson vs. Canal Bank, 3 O. S. 493. 16. The presumption is that those signing a first petition for the improvement of a street continued to be petitioners. Campbell vs. Park, 32 O. S. 545. 17. Where a car was shown to be fastened on the after- noon before the burglary this condition is presumed to con- tinue. State vs. Long, 7 N. P. 449; (5 Dec. 617). 17a. Parties admit salary was $650; burden is on party claiming change to less sum to show it. Dayton, 76. 18. To an information in the nature of a quo warranto, where the averment is a continued usurpation of office, the answer must set out expressly the continuance of every quali- fication necessary to the enjoyment of the office. It is not sufficient to state the qualifications necessary to the appoint- ment and rely on the presumption of their continuance. State ex rel. Kemper vs. Beecher, 15 O. 723. 19. In doubtful cases the presumption is against the con- l84 DECISIONS ON EVIDENCE. [CHAP. struction that the guarantee of the payment of a debt is continuing. Morgan vs. Boyer, 39 O. S. 326. Courts. Jurisdiction:- Jurisdiction may be presumed, where the want of it does not appear, in cases within the general jurisdiction of the court. But where the jurisdiction is created by statute and limited to particular cases, of which the court could not take jurisdiction without the statute, the jurisdiction cannot be presumed. Edmiston vs. Edmiston, 2 O. 253; 12 O. S. 635; 22 O. S. 585; II Bull. 160. 3 O. S. 494- 12 O. 272; Beebe vs. Scheidt, 13 O. S. 415. See discussion in this case. Heirs of Ludlow vs. Johnston, 3 O. 561. The presumption in support of the jurisdiction of courts of general jurisdiction, only applies in respect to jurisdictional facts about which the record is silent. Railroad Co. vs. Goodman, 38 Bull. 237. The presumption in regard to courts of general jurisdiction is that the court has acted within the scope of its jurisdiction, while no such presumption in regard to courts of limited jurisdiction is indulged. Truman vs. Walton, 59 O. S. 529. When it does not otherwise afifirm.atively appear in the record, it will be conclusively presumed, whenever a domestic judgment of a court of general jurisdiction is drawn in ques- tion in any collateral way, that the court regularly acquired and lawfully exercised its jurisdiction over the parties ; and the record of an inferior court imports absolute verity when it shows on its face that such jurisdiction was obtained; and neither the presumption, noi- recitals of the record, can be contradicted in such a proceeding by extrinsic evidence. Kingsborough vs. Tousley, 56 O. S. 455. In favor of the judgment or proceedings of a court of XIX.] COURTS JURISDICTION. 185 general jurisdiction it will be presumed that the court had jurisdiction of the person of the defendant. Reynolds vs. Stansbury & Burch, 20 O. 344. Morgan et al. vs. Burnet, 18 O. 546; 17 Bull. 155. There is no such presumption as to the jurisdiction of a justice of the peace, nor that his commission was to fill an unexpired term. [2] Robbins vs. Clemens, 41 O. S. 285 ; [2] Dayton, 318. 3 O. 229. Jurisdiction of justice must appear from his record. McCurdy vs. Baughman, 43 O. S. 81 ; T. 44. The maxim "omnia praesumunter rite esse acta'' does not apply to give jurisdiction to magistrates or other inferior tribunals. Com'rs of Franklin Co. vs. Rauck, 9 C. C. 303-308 ; (6 C. D. 133), In favor of courts of limited and inferior jurisdiction there is no presumption of the existence of facts necessary to authorize jurisdiction. Jones vs. R'y Co., 20 C. C. 63 ; (10 C. D. 789). Presumption that a complete record would show all the necessary jurisdictional facts. Allyn vs. Depew et al, 28 O. S. 619; 42 Bull. 245. In a collateral proceeding jurisdiction presumed. Hamilton vs. Merrill, 25 O. S. 12; 13 O. S. 439: 18 O. 535; 21 C. C. 60; (11 C. D. 400). When the judgment of a circuit court of the U. S. is col- laterally called in question, the existence of its jurisdiction over the subject matter will be conclusively presumed. Kobel vs. Hannaford, 4 Rec. 372. If the record is silent on the subject of service of process it will be presumed in favor of the judgment that the court had jurisdiction. Moore vs. Starks, 1 O. S. 369; i C. S. C. R. 394. When an affidavit was necessary to support a finding and complete the jurisdiction, it will in a collateral proceeding be presumed to have been made. Winemiller vs. Laughlin et al., 51 O. S. 431 ; 2 O. S. 27i,25i;8 0. S. 586. 1 86 DECISIONS ON EVIDENCE. [CHAP. Presumptions sustaining a judgment do not arise, unless it affirmatively appears upon the record that the court has jurisdiction of the subject matter and of the parties. But when the record shows jurisdiction and does not disclose some prejudicial error, presumptions of law arise and sustain the judgment or order. Smith vs. Frenger et al., 12 C. C. 250; (5 C. D. 658). As to foreign courts and judgments: No presumption is raised here that a justice court in Michigan is or is not a court of record ; if material to the issue the laws of Michigan must be proved. Pelton vs. Platner, 13 O. 209. It is presumed that the proceedings that resulted in a judgment in a sister state were in conformity to the laws of that state. Evans vs. Instine, 7 O. Pt. i, 274. It will be presumed that a decree for the payment of money rendered by a court of chancery in Kentucky has in the state where rendered the force and effect of a judgment at law. Moore vs. Adie's Adm'r, 18 O. 440. • Court of a sister state assumed to act under authority con- ferred by legislature — there is no presumption that it exercised powers within the scope of its statutory jurisdiction. Jurisdiction of subject matter conferred by statute is not presumed. In an action on its judgment there is a presump- tion that a superior court of a sister state has jurisdiction over persons within its territorial limits. Wilhelm & Son vs. Parker, 17 C. C. 234; (9 C. D. 724)- When the allegation of jurisdiction and a judgment of another court of another state are controverted, the facts con- ferring jurisdiction must be established at the trial. The attestation of the record of a judgment or order of a court of another state must contain a certificate that said attestation is in due form in order to be admitted in the courts of this state. Dodd vs. Groll et al., 19 C. C. 718 ; (8 C. D. 334). [See Judicial Notice.] XIX.] COURTS REGULARITY. 187 Regularity of proceedings of courts. Time court met. Presence of judges, 1,2. Appointment of attorney, j, 4. Contents of petition, S. Continuance of case, 6, j. Grand jvry, 8. Indictment, presumption as to different counts in. Inpqneling jury, p. Notice or service, 10-20. As to grounds of dismissal of suit, 21, 22. As to charge and rulings of court during trial, 2^-43. Of regularity of procedure, 4.4.-6^. That persons jointly indicted were tried separately , 65. That matters that should have been were adjudicated, 66-6g. Motion for new trial, jo-ji. Order vacating, made on sufficient grounds, J2. Disa-etion of court properly exercised, 73-76. Error will not be presumed, 77-Sg. That there was evidence to justify finding, go-ioi. That uncontradicted witnesses testified truthfully , 102. Findings of facts, joj-iop. No presumption as to the facts on which verdict was found, no. In proceedings before justices of the peace, 111-120. fudgment by confession, I2J-I2§. As to time court met: Presumption is that court met at lo a. m. on the first day of the term, that being the hour fixed by statute for the return of the venires for juries. Parol evidence to show the time of convening is inadmissible. Hemminway vs. Davis et al., 24 O. S. 150. Presumption that the court met at the time appointed by the judge is conclusive when the record shows that the court convened on the day fixed by the judges. Davis vs. Messenger, 17 O. S. 231. The presumption is that the court met at the time and place fixed by law. State vs. Shanks, T. 16. 1 88 DECISIONS ON EVIDENCE. Presence of Judges: 1. When the statute required the presence of the judges of the district to appoint special terms of court, the pre- sumption that the judges were present is conclusive. Admis- sion by parties of the absence of the judges is inadmissible to invalidate the journal entry. Merchant vs. North et al., lo O. S. 251. 2. An order confirming a sale on execution appears on the journal, which recites that the president judge was present that day. The minutes were signed by the associate judge. [It was the duty of the president judge to sign them, if pres- ent.] It will be presumed that the president judge was not present when the minutes were read and approved. Shehan et al. vs. Davis, 17 O. S. 571. Appointment of attorney: 3. The entry of an allowance to an attorney by the court of common pleas for assisting in a prosecution, is conclusive evidence, both of the appointment which was not entered, and of the amount of compensation allowed, while it stands unvacated by the court making it. State ex rel. Constable vs. Moore, 10 W. L. J. 219. 4. Presumption that the appointment of an attorney to assist the prosecutor in a case was properly made, and that the prosecution was conducted in a proper manner. Price vs. State, 35 O. S. 602. Contents of petition: 5. Where the plaintiff obtained leave to amend a petition so as to state therein that the cause came by appeal from a justice and the record shows that the original petition contains that allegation, the court on error will presume, in the absence of any express statement of facts to the contrary, that the petition contained, when filed, all that it purports on its face and in the record to contain. Hill vs. Supervisor of Road District, lo O. S. 621. XIX. COURTS — RKGULARITY. 189 Continuance of case: 6. Presumption that the continuance of a case was upon sufficient ground. Johnston vs. State, 42 O. S. 207; 5 C. C. 164; (3 C. D. 79). 7. When the record is silent prisoner will be presumed to have consented to a continuance. Ex parte McGehan, 22 O. S. 442. Grand jury: 8. When the record states that the "Grand Jury" pre- sented the bill, or was sworn, it is presumed to have been a legal grand jury. Young vs. State, 6 O. 436, 437 ; 3 O. S. 362 ; W. 42. Presumption that grand jurors were selected and drawn Ijy proper officers. State vs. Thomas, 61 O. S. 444. fndidiiient, pcesn nipt ion tin to couiU^ in: The presumption is that different counts in the same indictment are merely modes of charging the same offense in different ways to meet the proof that may be offered upon the trial. Meyers vs. State, 4 C. C. 570; (2 C. D. 712). Impnnetinf] a jury: 9. Presumption of the regularity of the action of the court in impaneling a jury. Wareham vs. The State, 25 O. S. 601, 604 ; 28 O. S. 668 ; 34 O. S. 212 ; 19 Bull. 258 ; 5 O. C. 59. Order of commitment: Presumption that order of commitment was in due form. Newberry vs. The State, 15 C. C. 217; (7 C. D. 622). Of notice, or service: Presumption that service was made in time. 62 O. S. 40 igo DECISIONS ON EVIDENCE. [CHAP. 10. It will, when the record is silent, be presumed that infants were properly served. Moore vs. Starks, i O. S. 369; 15 O. 689. 11. Process served upon infants — ages not shown — pre- sumption will not help service. 6 Bull. 821. 12. Where a final judgment in a case has been rendered by the court of common pleas it is error for the same court to vacate such judgment at a subsequent term on the motion of one of the parties without notice to the other partv or his attorney. Where the record is wholly silent in regard to such notice, and no waiver is shown by an appearance, no pre- sumption of notice can be admitted to prevent the direct impeachment of the order vacating the prior judgment. However far the court might presume in favor of the validity of a judgment, where the parties are shown to have been before the court, and where they could therefore have made the error complained of appear affirmatively, by excep- tion or otherwise, yet no such presumption can be admitted to prevent the direct impeachment of a judgment, where the subject of complaint is that the party had had no day in court, and so had no opportunity of placing anything upon the record. Hetrick vs. Wilson, 12 O. S. 136. 13. Where only a part of a record is given in evidence, that part of it which relates to process and appearance being by agreement of parties withheld, the court will presume that all parties who are named as such in the petition and decree were properly before the court. Welsh vs. Childs et al., 17 O. S. 319. 14. A return of summons for minors showed that a co_py was handed to each minor and also one to their mother, with whom they were living, but did not affirmatively state that a copy was left at the usual place of residence of their father. The decree found that all of the defendants had been legally served and the court held that after such formal finding the presumption is that the fact that the mother was at her hus- band's home at the time of service was properlv proved and XIX.] COURTS REGUI.ARITY. 19I that such fact does not contradict the return, and therefore prevails. Bierce vs. Bierce, 41 O. S. 256. 15. The court having ordered service by publication it must be presumed that the fact of non-residence was pre- viously ascertained. Newman's Lessee vs. Cincinnati, 18 O. 331 ; 32 Bull. 263:2 0,5.271. 16. When the court in a chancery proceeding found that notice had been given to the defendant by publication in due form of law, it must be presumed in the absence of any proof to the contrary, that this notJce stated the pendency, objects and prayer of the bill and described the persons named as defendants as they were described in the bill. Buchanan vs. Roy's Lessee, 2 O. S. 232. 17. It being shown by the record how the infants were served, there is no room for a presumption that they were otherwise served. Benson et al. vs. Cilley et al., 8 O. S. 613. 18. The finding of the court, that the person assuming to act as guardian of an infant was in fact such, is suflScient prima facie to show that the court had obtained jurisdiction over the ward. Lessee of Merrit vs. Home, 5 O. S. 308. 19. Finding that all defendants have been duly served with notice according to law, though not conclusive, raises a presumption of due service. English et al. vs. Monypenny, 6 C. C. 555 ; (3 C. D. 582). 20. A return of "served" on a summons in a case pend- ing in a court of general jurisdiction parries a presumption that the writ contained the necessary indorsements. This presumption does not arise in case of service by a constable in a J. P. court. The record in a court of limited jurisdiction must affirmatively show jurisdiction. Vandement vs. Trisler, 4 N. P 37 ; (4 Dec. 447). 192 DECISIONS ON EVIDENCE. [CHAP. An to yniiind of dismissal of suit: 21. Where the record does not state the grounds of dis- missal of an action, or anything from which it may be inferred, there is no presumption either that it was dismis.sed on its merits or for want of prosecution. .Vnd where the dismissal is pleaded in bar, it must be established that the dismissal of the former action was on its merits. But where it appears that a dismissal was upon hearing of the case, it is to be presumed that it was upon the merits. Loudenback vs. Collins, 4 < ). S. 251. 22. The dismissal of a bill for divorce by the court is only evidence that the suit existed, and of the decree of dismissal ;, what occasioned it, is the subject of aliunde proof. Dorsey vs. Goodenow, W. 120. .I.S- lo chanjr and raJing^ of roiirl: 23. Presumption that evidence did not extend beyond the allegations of the petition. Becroft vs. Dorsman, 2 Bull. 114. 24. Presumption that charge is responsive to the evi- dence. Railway Co. vs. Marsh, 17 C. C. 379 ; (9 C. D. 548). The modification of a written charge by parol presumed prejudicial. 8 N. P. 244, 436. If matter is admitted in evidence it is presumed competent and material. 21 C. C. 488. 25. When a bill of exceptions shows an isolated item of evidence, without showing the state of the case on which the item was ofifered, a court of error will not presume the court below erred in admittgig it. Wood and Pomerov vs. Perry, W 240. 26. Declaration of accomplice having l^cen admitted, the presumption is that proof of conspirac)' was first given. Preston vs. Bowers, 13 O. S. t. 27. Presumption is that no exception was taken to a. XIX.] COURTS — REGULARITY. 1 93 ruling on the admissibility of evidence unless the record shows it. Geauga Iron Co. vs. Street, 19 O. 301. 28. It is the duty of the judge to state to the jury, as to contradictory declarations of a witness used to impeach him, that the only purpose for which such evidence can be regarded is with reference to the credit of the witness, and the record being silent it will be presumed that he did his duty. Kent vs. State, 42 O. S. 434. 29. The record must show affirmatively that accused was present at the view of the premises by the jury. Hotelling vs. The State, 3 C. C. 630. 30. The presumption is that a banking corporation existed in this state when otherwise there would be error in the charge. Brown vs. The State, 11 O. 281. 31. Where only part of the charge is set forth and it appears susceptible of two interpretations, one of which would make it erroneous and the other not, the jury will be presumed to have understood it in the latter sense. Davis vs. The State, 25 O. S. 369. 32. Where a record shows that the court refused to give "in the language and form" requested, a true and pertinent proposition of law in its charge to the jury, it will be presumed in the absence of anything appearing in the record to the contrary, that the same charge was substantially given, though in other language and form. Bolen vs. The State, 26 O. S. 371. 33. When the record does not set forth the whole charge it will be presumed that the charge was correct. Kitchen vs. Loudenback, 3 C. C. 231 ; (2 C. D. 129). Kane vs. Stone Co., 2 Clev. Rep. 290. 34. It is not error in the court, while charging the jury, to repeat to them the statement of a witness, and to inform them, when such is the fact, that counsel on both sides admit the truth of the statement ; the fact that such admission was (14) 194 DECISIONS ON EVIDENCE. [CHAP. made by counsel will be presumed when the contrary is not shown by the record. Bond vs. The State, 23 O. S. 349. 35. Charge to the jury in the enforced absence of the accused presumed prejudicial. Jones vs. The State, 26 O. S. 208. 36. When the court erred in ruling as to a material fact in the defense, and the bill of exceptions does not profess to show all the evidence, a judgment against the defendants will be reversed. Baldwin vs. Bank of Massillon, i O. S. 141. 37. When the record discloses no evidence tending to show that an erroneous instruction was material it will not be presumed that it was, and judgment reversed. Laudenback vs. Collins, 4 O. S. 251 ; 4 O. S. 542. 38. Misleading charge presumed prejudicial. 38 O. S. 639; 14 C. C. 67; 40 O. S. 139; 5 O. S. 450; 15 O. S. 179. 39. The presumption is that the charge was a correct statement of the law. Bean vs. Green, 33 O. S. 444; 2 C. S. C. R. 247. 40. Presumption that the jury understood the general rules of law in the charge as having reference to the state of facts involved in the case before them. Holtenhoff vs. Ins. Co., 3 Rec. 272. 41. Where the record shows that a special charge proper to be given is asked and refused, but the general charge is not set out, it will be presumed that the general charge included a proper charge on the point. Woodward vs. Stein, 3 Rec. 352. 42. Presumption that the court instructed the jury on the state of facts in the case. Railroad vs. Fleming, 30 O. S. 485. 43. Where a record shows that improper remarks were made in his argument to the jury by the attorney of the pre- vailing party, but does not show whether the court reproved XIX.] COURTS — RgCULARITY. 195 the attorney or directed the jury to disregard the remarks ; nor is the evidence presented to the court for review, in such case a reviewing court is not warranted in reversing the judgment entered upon the verdict, however improper the remarks may have been. The presumption in such case is that the court performed its duty and that the evidence sus- tained the verdict. [2] But where the whole record is before the reviewing court, there may be no room for such a pre- sumption. The Warder, Bushnell & Glessner Co. vs. Jacobs, 58 O. S. yj; [2] Hayes vs. Smith, 62 O. S. 188. Of regularity of procedure: 44. The correctness of judicial proceedings will be pre- sumed unless the errors appear on their face. Johnson vs. Mullen, 12 O. 10. 45. Where it appears by the record that the bill was in proper time presented to the court, and the same having been examined, allowed and signed, is filed and made a part of the record, but the record is silent as to its submission to opposite counsel, the court will presume that such submission was duly made. The Findlay Brewing Co. vs. Brown, 62 O. S. 202. 46. The rule that when any judicial or official act is shown to have been done in a manner substantially regular, it will be presumed that formal requisites for its validity were com- plied with, applies to the action of the trial judges in the allowance and signing of a bill of exceptions, and to similar action when shown to have been done by the court, and its further action in ordering the same to be made a part of the record. Presumed that the bill of exceptions was presented to the trial judges not less than five days before the expiration of the fifty days. Felch, Assignee, vs. Hodgman et al., 62 O. S. 312. 47. Presumption that bill of exceptions was filed as of previous term. Norton et al. vs. Parker, 17 C. C. 715 ; (8 CD. 572). 196 DECISIONS ON EVIDENCE. [CHAP. 48. The principle of presuming a regularity of procedure ought not to be carried too far ; it is not desirable to rest upon a mere presumption when the nature of the case will admit of positive evidence of the fact if it really exists. And whether it has been adjudged that there is a valid defense to the action before setting aside a judgment rendered at a former term of court should not be left to mere presumption. Bradden vs. Hoffman, 46 O. S. 639. 49. Where an act is done which can be done legally only after the performance of some prior act, proof of the latter carries with it a presumption of the due performance of the prior act. Heddleson vs. Hendricks, 49 O. S. 297. 50. It is presumed that one was present and had a fair trial before being found insane and committed to an asylum. In re Gunning, 14 C. C. 509; (7 C. D. 443). 51. Order of probate court appointing a guardian ([2] or administrator) conclusively presumed in all collateral proceed- ings, to have been made on full proof of all facts necessary to authorize the proceedings. Shroyer vs. Richmond, 16 O. S. 455. [2] Astram vs. Teneck, 28 Bull. 265. 52. Where a guardian's sale has been approved, and the journal entry of his appointment shows that he gave bond, it will be presumed that the bond was given. Ohio vs. Sloan, 20 O. S. 372, note. 53. Where a guardian sale has been examined and con- firmed by the court, and the journal entry shows that a bond has been directed and securities approved, it will be presumed that the bond was executed. Lessee of Maxson vs. Sawyer, 12 O. 195. In making an order of sale the court is presumed to have adjudged every question necessary to justify the order, or decree. 20 C. C. 426; di C. D. 32). 54. Presumption that the court had proof that the peti- tioner in partition was of age, as otherwise the court must have acted without authority. Glover's heirs, Lessee, vs. Ruffin, 6 O. 255. » XIX.] COURTS REGULARITY. 197 55. If the fi. fa. et lev. fa. were lost, the judgment, vendi, and deed would induce the presumption that it had existed and was regular; but where it is produced, and shows upon its face that it is defective, no such presumption can be raised. Lessee of Boal et al. vs. King et al., 6 O. 13. 56. From an execution and levy a mandate to carry into efifect a judgment of the supreme court may be presumed. Earl's Lessee vs. Shoulder, 6 O. 409. 57. Nunc pro tunic entry sustained in presumption of validity of the proceedings of the court. Huber M'f't'v Co. vs. Sweeney et al., 11 C. C. 193; (5 C. D. 331). 58. Action under the code for partition and equitable relief. Journal entries show that the demurrer to petition was sustained and petition dismissed. Presumption is that the dismissal was by the court. Rush vs. Rush et al., 29 O. S. 440. 59. It may be presumed from circumstances that an order of court was made upon the motion of a particular person, where the record of the court does not show who was the mover. Creps vs. Baird, 3 O. S. 277. 60. No presumption is made in favor of the authority to sell land for taxes. Proof of the regularity of the proceedings must be made by him who rests his title upon them except so far as the statute makes the deed prima facie evidence of the facts. Lafiferty's Lessee vs. Byers, 5 O. 459. 61. Disallowance of a claim presumed from sustaining a demurrer to a petition under R. S. 1075. Stewart vs. Logan Co., 2 C. C. 135 ; (i C. D. 404). 62. Presumption that criminal was informed of the verdict before sentence. Bartlett et al. vs. State, 28 O. S. 670. 63. When the record does not show that after a plea of guilty and before sentence, the court asked the defendant if he had anything to say why sentence should not be pro- igS DECISIONS ON EVIDENCE. [CHAP. iiounced against him as required by section 169 of the criminal code, this court, in the absence of a bill of exceptions showing the contrary, will presume that such question was asked. Carper vs. State, 27 O. S. 573 ; 23 O. S. 349. 64. Until the contrary is shown by the record every court is presumed to have acted and decided correctly. 17 O. 439; 47 O. S. 549; 4 O. 148; 8 O. 36; 28 O. S. 534. 65. Hess and Hoyt were jointly indicted for having in their possession for the purpose of sale, and with selling, counterfeit bank notes. They were arraigned and pleaded jointly, and Hess being tried separately without other plea or order of court, was found guilty, but Hoyt was not noticed in the verdict. It appeared in the record that immediately after the arraignment Hess filed an affidavit for the purpose of obtaining a separate trial, on the ground that the wife of Hoyt was a material witness, but incompetent to testify while Hoyt was on trial. Held, that it might be fairly presumed that Hess was not only tried separately at his own request, but that the jury was sworn to try him alone. Hess vs. State,. 5 O. 5. That matters that ehould have ieen, were adjudicated: 66. Presumption is that matters that should have been adjudicated in a former case were adjudicated. Hites vs. Irvine's Adm'r, 13 O. S. 283. 6y. The circuit court must pass on all errors assigned; it is therefore presumed that the court found no errors except those specified. Gamble, Adm'r, vs. Railroad Co., 63 O. S. 360. 68. The presumption is that the circuit court passed on all the errors assigned in this case, the record affirmatively showed that it did not, and the presumption cannot prevail. Kramer vs. Railroad Co., 53 O. S. 445. 69. When the record is silent on the subject, no pre- sumption arises that the matter of building and maintaining fences along the line of the railroad was considered and compensation to the owner therefor awarded in the verdict. Railroad Co. vs. Hoffines, 46 O. S. 643. XIX.] COURTS — REGULARITY. 199 Motion for new trial: 70. Presumption that lower court would have granted a new trial, if asked for, and the party was entitled to it. If proper exceptions to the overruling of the motion are not taken the party is presumed to have been satisfied with the decision, or at least to have waived objections. Wheat vs. Croper, 3 Bull. 383; 6 C. C. 447; (3 C. D. 532). 71. Presumption that motion for a new trial was abandoned before judgment was pronounced. Blackburn vs. The State, 25 O. S. 555 ; 6 O. 435 ; 48 O. S. 544. Order vacating: 72. An order vacating for irregularity an order entered at a previous term dismissing an appeal will be presumed, in the absence of a showing to the contrary, to have been made on sufficient grounds. Brundage vs. Biggs, 25 O. S. 652. Discretion of court properly exercised: 73. Discretion of the court as to the length of time allowed for redemption after foreclosure sale presumed duly exercised. West vs. Morris, 2 D. 415. 74. Presumption that leave to amend was properly refused. Ferguson vs. The Miami Powder Co., 9 C. C. 445 ; (6 C. D. 408). 75. Judges are presumed to do nothing causelessly or maliciously. Alliance vs. Joyce, 49 O. S. 22. 76. When a court orders a sale subject to certain leases, it will not be presumed that the court in special term, with all the evidence before it, directed a sale to take place which would injure the legal rights of any party to the action. 25 Bull. 375. 200 DECISIONS ON EVIDENCE. [CHAP. Error will not be presumed: yy. Error will not be presumed. 12 O. S. 381; 19 Bull. 258; 6 O. S. 182; 32 O. S. 113; 18 O. 28; 6 O. 299; 2 Clev. Rep. 204; 26 O. S. 131; 16 O. S. 60; 18 O. S. 328; 2 O. S. 319; 2 H. -jj; 17 O. 498; 19 O. S. 438; 19 .0. 426;2 W. L. M. 543190. S. 388; 2 O. S. 8; 17 O. S. 323; 12 O. 15; W. 340; 14 O. 461; 12 C. C. 765; 2 Bull. 233; 13 O. S. 210; 17 O. S. 425; 6 C. C. 217; 55 O. S. 576. 78. In a proceeding to reverse a judgment in either a civil or criminal case the court regards the record as free from error until the contrary clearly appears. McHugh vs. State, 42 O. S. 154; i O. S. 253; 11 O. S. 393; 12 O. 14; IS O. S. 514; 13 O. S. 217. 79. The presumptions in favor of a judgment attach as well when the judgment is assailed in equity as in any other way. Hildebrand vs. Windisch, Muhlhauser & Co., 4 Bull. 289. 80. When the law is not correctly stated in the charge error is presumed, but must appear to be prejudicial or there is no ground for reversal. 10 C. C. 411 ;(6 C. D. 731). 81. The presumption is that where error has intervened in a criminal case it is prejudicial. 10 C. C. 84; (4 C. D. 129). 82. When the record does not show the whole case or make it appear that the court below erred the court cannot presume error. Mathis vs. McCord, W. 647 ; 6 C. C. 449. 83. Every reasonable presumption and fair constructive intendment will be made to sustain the pleading after verdict. Nott & Beldon vs. Johnson, 7 O. S. 270. 84. Presumption in favor of general verdict. 16 C. C. 162 ; (8 C. D. 220). MX.] COURTS — REGULARITY. 20I 85. The parol evidence submitted on the trial not being before the supreme court the presumption is that the circuit court correctly held that it afforded no support to the verdict. Jashenoseky vs. Volrath, 59 O. S. 545. 86. All presumptions are in favor of the judgment. 44 O. S. 66; 47 O. S. 430; 18 O. 224; 6 C. C. 343; 7 Bull. Ill; 4 Bull 513; 16 C. C. 525; (19 C. C. 25. When the supreme court finds no error in law, presump- tion that circuit court reversed the finding of the common pleas because it was against the weight of the evidence. Blair vs. Burroughs, 23 Bull. 223. 87. To sustain a verdict it will be presumed that slander- ous words were understood by those to whom they were ad- dressed. The words were spoken in the German language. Bechtell vs. Shatler, W. 107. 88. After a verdict and judgment for damages in favor of a party to a fraudulent contract there is a presumption that he elected to proceed for damages alone and abandon his prayer for rescission. Trimble vs. Doty, 16 O. S. 129. 89. In an action where several defenses are pleaded, to some of which demurrers are interposed, and issue is taken on others by reply, and final judgment is rendered for the defend- ant upon overruling the demurrers, it must be assumed, unless it otherwise appear in the record, that the final judgment was rendered on the uncontroverted defenses, and not upon the finding of the issue of fact. Hydraulic Co. vs. Railroad Co., 29 O. S. 341. That there was evidence to justify finding: 90. Presumption that there was evidence before the court sufficient to sustain its findings. 12 O. S. 169; W. 485; II O. S. 303; 2 O. 348; 37 O. S. 532; 5 C. C. 192; 8 Rec. 431 ; 2 Clev. Rep. 204 ; 40 O. S. 342 ; W. 758 ; 24 O. S. 622 ; 8 O. 294; 25 O. S."638; 6 C. C. 297; 57 O. S. 385; 17 C. C. 206; 62 O. S. 113. 202 DECISIONS ON EVIDENCE. [CHAP. 91. In support of a judgment it will be presumed that the evidence was of an agreement in writing when that is necessary. Shields vs. Titus, 46 O. S. 528. 92. If, in the absence of a bill of exceptions setting out the evidence, any state of the evidence, consistent with the pleadings, would justify the verdict and the judgment of the court rendered thereon, a reviewing court will presume, in support of the judgment, that such evidence was given. Kitchen vs. Loudenback, 48 O. S. 177; 14 O. S. 372 ; 14 O. S. 396. 93. The rejection of declarations of a prior indorsee of notes sued on, being letters, by him to the payee proposing to buy notes of the- latter and showing that he knew the maker's signature had been fraudulently obtained, will not be held error unless it affirmatively appears on the bill of exceptions that the notes referred to in the letters are the same as those sued on. It will be presumed in favor of the judgment that they were not. Roberts vs. Briscoe, i C. C. 577; (i C. D. 323). 94. Where an affidavit was necessary to authorize a find- ing it should be presumed in a collateral proceeding that it was made. Winemiller vs. Laughlin et al., 51 O. S. 430; 8 ■ O. S. 586. 95. In the absence of a special finding or a bill of excep- tions setting out the evidence, the presumption of law is that the testimony was sufficient to sustain the general finding. Sealing vs. Lawrence et al., 27 O. S. 441. 96. The statement of the record not necessarily excluding the presumption that testimony was heard by the court ; it will be presumed, if necessary to sustain the judgment, that such evidence was heard and considered. Dallas vs. Ferneau, 25 O. S. 635. 97. Where the fact omitted to be alleged, or defectively set forth, must have been proven on the trial as a necessary part of the plaintifif's case, it will be presumed that such proof XIX.] COURTS REGULARITY. 203 was given. But it cannot be presumed that the court had evidence of a contract both in its terms and legal effect alto- gether different from the one relied on by the pleading. Gittings vs. Baker, 2 O. S. 21 ; 50 O. S. 546; 23 O. S. 473- On error it will be presumed that facts necessary to sus- tain the judgment were found. 20 C. C. 591 ; (10 C. D. 754); 7 N. P. 45; (9 Dec. 638). 98. Where the guardian of an infant admits some of the •facts stated in the plaintiff's petition instead of denying them all as required by the code, and the case is heard, "upon the petition, answer, and exhibit," and the court found all the averments in the petition to be true, it will be presumed that the court has sufficient evidence in the exhibits or otherwise to justify the finding. Rankin vs. Kemp, 21 O. S. 651. 99. Where on a general verdict the court sentenced as to each count it will be presumed in the absence of any show- ing to the contrary that several offenses were proved. Eldridge vs. The State, 37 O. S. 194. 100. In a proceeding to recover from a stockholder on his statutory liability the petition should aver that the defend- ant was a stockholder while the debt for which judgment against the corporation had been obtained was incurred, this "being a fact constituent of the cause of action. Such aver- ment being omitted, and it appearing by other pleadings that this defendant was not such stockholder, a judgment against him by default must be set aside, for such fact cannot be pre- sumed to have been proved when there was no trial and no proof shown. Hooker vs. Kilgore, 2 C. S. C. R. 350. lOi. Where the petition sets forth the recovery of a cer- tain sum without stating the rate of interest it is entitled to •draw; but the plaintiff in his petition demanded judgment for the amount of the recovery with interest thereon at 10 per cent, from the day therein stated, the record showing a sub- mission of the cause to the court by the parties, and rendition 204 DECISIONS ON EVIDENCE. [CHAP. of a judgment for the original judgment with lo per cent, interest without exception. Held, that the demand of lo per cent, interest would authorize the introduction of proof of that rate, and the production of such proof is to be presumed. Haskins et al. vs. Alcott & Horton, 13 O. S. 210. That uncontradicted witnesses testified truthfully: 102. When two witnesses are uncontradicted and no attempt is made to discredit them or impeach the correctness of books kept by one of them, it cannot be presumed even to support a judgment that the court of common pleas found the evidence false. Bank vs. Bank, 49 O. S. 358. Findings of facts: 103. The rule that a fact not found is presumed not to exist may be applied to sustain a judgment on the findings, but will not authorize a reviewing court on reversing a judg- ment to enter one for the opposite party. Greenless Rancover Co. vs. Berne, 12 Bull. 100. 104. The presumption is that the court found all the facts which the proof warranted, and facts not found by the court are presumed not to exist. Chapman vs. National Bank, 56 O. S. 323. Jones vs. Brown, 11 O. S. 606. Springer vs. Avondale, 35 O. S. 624. 105. The findings of a court upon an issue of fact, like a special verdict by a jury, if incomplete, cannot be helped by presumption to insert findings which are omitted. Bullock vs. Mitchell, 16 Bull. 255. 106. Where there are several issues, one of which is made by a demurrer to a reply, and the case is submitted to the court generally, with a request by defendant for special find- ings on one of the issues of fact, and the record shows a special finding and judgment on that issue with an exception thereto; and also a general finding and judgment thereon without exception, but it nowhere affirmatively appears what disposition was made of the demurrer. Held, in such case, in the absence of all showing to the contrary, the general finding XIX.] COURTS REGULARITY. 205 and judgment will be presumed to include all issues made in the case not specially passed on. Kilgore vs. Emmitt, 33 O. S. 410. 107. In a proceeding in error where the facts are set out in the record and none of the evidence, the facts found in the record must be taken to be true. But in a direct proceeding to determine the legality of the detention, the record could only be regarded a prima facie evidence of the facts found. Prescott vs. The State, 19 O. S. 184. 108. Presumption that the circuit court did its duty and that the record correctly states the grounds on which the judgment of reversal was based. Wetzell vs. Richcreek, 53 O. S. 76. 109. Presumption that court found necessary facts. 21 C. C. 61 ; (11 C. D. 400). No presumption as to the facts on which verdict was found: no. When an ordinance against the sale of intoxicating liquors provides that certain facts shall be prima facie evidence of guilt, there is on error no presumption that a conviction was had upon proof of those facts alone. Piqua vs. Zimmerlin, 35 O. S. 512. Proceedings lefore justicss of the peace: 111. The judgment of a justice of the peace must be held to have been rendered on the day of trial when there was no continuance entered. Hoagland vs. Schnoor, 17 O. S. 31. 112. Presumption that justice acted properly in excusing two struck jurors. McGarvey vs. Puckett, 27 O. S. 672. 113. The approval by a justice of an undertaking for appeal and the entering of such undertaking on his docket do not preclude the parties purporting to have signed it from denying its execution. Ford vs. Albright, 31 O. S. 33. 114. Every reasonable intendment is to be made in favor of proceedings before justices of the peace. Ohio vs. Smith, T. 177. 2o6 DECISIONS ON EVIDENCE. [CHAP. 115. The fact of an affidavit appearing to have been issued at the commencement of the attachment proceedings before- the justice of the peace although denominated an "affidavit for proceedings against S. as garnishee," may be presumed to have contained a legal cause of attachment. Under such affi- davit, in the absence of any mention of an undertaking, and a return of the summons "not found," the non-residence of the defendant will be presumed to have been stated in the affidavit. Carper vs. Richards, 13 O. S. 219. 116. On a petition in error to a transcript of a justice of the peace, no statement of evidence except such as authorized to be inserted therein will be considered, but every fact neces- sary to authorize the judgment will be presumed to have been proved. Niven vs. Smith, 2 W. L. M. 465. 117. When it appears that a justice of the peace had taken and approved bail for the stay of execution, on a judg- ment on his docket, by which execution was stayed from the time provided by the statute, it will be presumed on proceed- ings in error by the judgment debtor to reverse said judgment, that the judgment was stayed at his instance. Shafer vs. Hockheimer, 36 O. S. 215. it8. Presumption that justice rendered judgment before he ordered constable to turn over money held in attachment proceedings. Monhan vs. Artificial Limb Co., 6 C. C. 151 ; (3 C. D. 390). 119 A justice can render a judgment against a married woman on an ante-nuptial debt, and as a husband was liable for the debt under the law as it existed at the date of the marriage in certain cases, and as in view of the presumption to sustain a judgment this will be presumed to be one of those cases, a joint judgment against the husband and wife is not '■rroneous. Bruder vs. Biehl, i C. C. 85; (i C. D. 5i\ 120. Suit in replevin Trial by the justice. In the absence of any showing to the contrary by way of exception or other- XIX.] PRESUMPTIONS CREDIT. 207 wise on the record, it will be presumed that a jury was not demanded. Lattimer vs. Motter, 26 O. S. 480. Judgment hy confession: 121. A court of error is bound to presume that an inferior court or judge has complied with the requirements of the law under which it or he acts. When a justice is required by law to enter on his docket the fact that certain things were done, in the progress of a case pending before him, in the absence of this entry the court is bound to presume that they were not done. McCarty vs. Blake, i W. L. M. 589. 122. When justice record shows jurisdiction of the sub- ject matter and of the parties, it imports absolute verity as to the facts and evidence authorizing judgment, and the justice is presumed to have done his duty and rendered judgment on the application of the creditor. Wilson vs. Wickcrsham, 3 W. L. M. 621. 123. The transcript must show that creditors applied in person for the judgment, and the personal appearance of the defendant. Murdock vs. Cooper, 2 W. L. M. 381. 124. When jurisdiction of the parties and subject matter affirmatively appear, every other matter necessary to support the judgment will on error be presumed unless it- is required by statute to appear of record, or unless it be preliminary and necessary to jurisdiction. Howell vs. Jenkins, 3 W. L. M. 631. 125. In a review on error of the proceedings of an inferior tribunal acting within their proper jurisdiction "everything is presumed to be rightly and duly performed, until the con- trary is shown." Scovern vs. The State, 6 O. S. 293. Credit. When principal is known and note of agent accepted credit is presumed given to agent. Harper et al. vs. Bank, 54 O. S. 434. 2o8 DECISIONS ON EVIDENCE. [CHAP. When credit for premium on insurance policy may be implied. Machine Co. vs. Ins. Co., 50 O. S. 550. Presumed to have been given by a banker on the faith of all securities in his hands. Cornwall et al. vs. Kinney, Espy et al., i H. 507. Supplies furnished a boat at her home port presumed furnished on the personal credit of owners. Dowell vs. Steamboat Melnotte, i C. S. C. R. 60. [See Payment, p. 213.] Damage. Action for obstruction to surface water. When the act is an invasion of plaintiff's right the law presumes damages. Tootle vs. Clifton, 22 O. S. 247. When a public road is transferred to a plank road com- pany, there is no presumption that the proprietors of the land are injuriously affected. Plank Road Company vs. Carre et al., 2 O. S. 421. In actions for the benefit of widow or children, for causing death by wrongful act, damage will be presumed. Dunhene vs. Ohio Life Ins. & Trust Co., i D. 257; 50 O. S. 141. In an action for libel, when the natural tendency of false words is to injure, the law presumes damages. Watson vs. Trask, 6 O. 533 ; 31 Bull. iii. Action for subscription to stock. Defense that there was a change in the route of the road. When it does not appear it will not be presumed that the change was material. Milford & Chillicothe Turnpike Co. vs. Brush, 10 O. III. The party objecting to the validity of an assessment on the ground of informality or variance, must show that he was damaged by it. The presumption is in favor of the acts of public officers, and that there was no damage. Ridenour vs. Saffin, i H. 477. Date. Where the docket of a justice of the peace shows a trial and then proceeds "therefore it is considered," etc., without XIX.] PRESUMPTIONS — DEATH. 209 noting any continuance, the presumption is that the date of judgment is the date of the trial, though the appeal bond recites differently. Hoagland vs. Schnoor, 17 O. S. 30. When the testimony as to the time of executing an appeal bond is balanced the court will be governed by its date. Allen vs. Rodebaugh's Adm'r, W. 322. There is a presumption as between parties, but not strangers, that the date of a paper is the true date. Adm'x of Pugh vs. HoUiday et al., 3 O. S. 289. As to time of default of county treasurer. Kelly et al. vs. State, 25 O. S. 568. Presumption whether a guardian's bond was new or addi- tional. Where a defalcation is discovered on final settlement it is presumed to have occurred during the term of the last bond. Pummill, Guardian, vs. Baumgartner et al., 3 N. P. 40; (4 Dec. 69). Death. When a man leaves his home or usual place of residence, and goes to parts unknown, and is not heard of or known to be living for the period of seven years, the legal presumption arises that he is dead. 10 O. S. 596; I O. S. 107; 52 O. S. 362; 33 O. S. 155 ; I C. S. C. R. 492 ; 41 O. S. 436. The presumption is but prima facie evidence of the fact and may be rebutted by counter proof. Youngs vs. Heffner, 36 O. S. 232. As to survivorship. 13 Bull. 410. The wife is at liberty to marry after the seven years. The fact that she procured a divorce during the seven years is not an admission that the husband was alive. The Supreme Commandery vs. Everding, 20 C. C. 689; (11 C. D. 419). Dedication. A plat recorded without acknowledgment and sales under it evidence of an intention to dedicate streets. Doren vs. Horton, i D. 401, 151. (IS) 2IO DF.CISIONS ON EVIDENCE. [CHAP. Presumption of dedication of street from the fact that one surveyed and platted his land with streets and alleys. 6N. P. 54; (9 Dec. 89). Acquiescence in use of public road for less than twenty- one years is not conclusive of dedication. But acquiescence for nine years, with other circumstances, may warrant the jury in finding a dedication; but does not, in and of itself, justif)' the court in assuming the fact of a dedication. Penquite vs. Lawrence, 11 O. S. 274; 62 O. S. 255. An act of dedication, by the record of a town plat, of lots as "public ground," is presumed in the absence of explanatory evidence, to be for a public square for the use of a town. Lebanon vs. Warren County, 9 O. 80. That the owner of a wharf, using it for his own profit, leaves it free to the public is not evidence of a dedication. Boeres vs. Strader, i C. S. C. R. 57. Long continued use of ground as a public common could lay no foundation for any presumption against the right of the village to improve the ground. The village authorities as mere trustees had no authority to convert the land into a highway in derogation of the dedication and no presumption can arise of their having done so from its long use as such. Nor does the fact of its being uninclosed and traveled over by the public raise any presumption of its dedication as a high- way. Langley vs. Gallipolis, 2 O. S. 107. The dedication of a water course through private lands, for a public highway, will be presumed merely from its fre- quent use by the public without objection by the owner, during the period of more than twenty-one years, for the passage of row boats and other small crafts. The dedication for a highway cannot be presumed when the stream is not fit for the purpose. As to presumption of owner's knowledge of user of the stream. Jeremy et al. vs. Elwell, 5 C. C. 379; (3 C. D. 186). Delivery. There is no presumption of delivery from an agreement XIX.] PRESUMPTIONS DEPOSIT. 211 between the parties for the transfer of the assets of the firm to one of them. Question was between creditors. Kreis vs. Gorton & Merrill, Exr's, 23 O. S. 468. Record of a deed of gift raises a presumption of its deliv- ery. Lessee of Mitchell vs. Ryan, 3 O. S. 377. [See Acceptance, p. 155-] Deposit. Deposit in bank presumed to be general unless there is something from which it may be inferred to be special. Bank vs. Brewing Co., 50 O. S. 159. Destination. Where goods are marked with the name and place of resi- dence of the owner, and are so described in the bill of lading, and nothing further appears to indicate their destination, it will be presumed to be the place of residence of the owner. Brown & Co. vs. Mott & Bro., 22 O. S. 149. Duty, performance of. 1. All persons are presumed to have duly discharged any obligation imposed on them by written or unwritten law. Calvert vs. Newberger & Brother, 20 C. C. 357; (II C. D. 184). [See 19 C. C. 539.] 2. When the attorney-general refuses to bring mandamus it is presumed that his refusal is based on sufficient cause. Thompson vs. Watson, Att'y-General, 48 O. S. 558. 3. It is presumed that a city council gave facts due con- sideration and rendered a candid decision. Railroad Company vs. Defiance, 52 O. S. 312. 4. An assessment made by a board of directors as pro- vided by contract or by the court as its successor is until directly attacked conclusive of the necessity of the assessment. Parker, Receiver of Ins. Co., vs. Paper Co., 3 N. P. 208; (4 Dec. 250). 5. That mavor of a city will not proceed under an ordinance after finding that it is invalid. Ampt vs. Citv of Cincinnati, 3 N. P. 223; (4 Dec. 176). 212 DECISIONS ON SVIDENCg. [CHAP. 6. That party makes tax returns truthfully and properly. Hitchcock vs. Kelley et al., i8 C. C. 8io; (4 C. D. 180). 7. Presumption that every one did their duty under the law Cand this includes not only the common law, but statutes or city ordinances) and has a right to assume that the railroad company has obeyed the law with respect to blocking frogs. R'y Co. vs. Borroughs, 6 N. P. 37; (9 Dec. 324). 8. The gateman at a railway crossing is presumed to be attending to his duty, and if the gate is open one may presume it safe to cross. Railway Co. vs. Schneider, 45 O. S. 678. 9. Presumption that railroad employees did their duty. R. R. vs. Ellis, 13 C. C. 704 ; (6 C. D. 304). That railroad company would manage its trains according to the law and ordinances of a city. R. R. Co. vs. Van Horn, Adm'x, 21 C. C. 338. 10. The presumption is that every one charged by law with the performance of a duty, is capable of performing the same [i], and did perform it. [2] [i] Leyman vs. Leyman, 19 C. C. 654; (10 C. D. 800) ; [2] Dayton, 28 ; 7 N. P. 529. 11. One having no knowledge to the contrary has a right to assume that a sidewalk is in reasonable repair. Ohliger vs. City of Toledo, 20 C. C. 14. 12. Master and crew of vessel presumed to have acted honestly. Gazzam vs. Ohio Ins. Co.^ W. 202. 13. Presumption that a man contributed to the support of his family when it was his duty to do so. (Action against railway company for negligence causing death.) Railway Co. vs. Murphy, Adm'r, 50 O. S. 141 ; i D. 257- 14. Presumption that place provided by father for his minor children to live is a proper one. Quigley vs. Murphy, 4 N. P. i ; (5 Dec. 680). [See Regularity of Acts of Officers, p. 285.] XIX.] PRESUMPTIONS — ELECTION. 2 13 Election. Where a husband devised real estate to his wife during her life, or while she remains unmarried, under which she takes possession and occupies the land with the knowledge of the heirs at law for a series of years after the time limited in which she may make her election, in the absence of a showing to the contrary she will be presurned to have made her election in fact. Mimmons vs. Westfall, 33 O. S. 213. There is no presumption of law that a judgment debtor has selected or will claim to hold any particular item of personal property as exempt from execution in lieu of a homestead, although he may not own any other property from which selection might be made. Carpenter vs. Warner, 38 O. S. 416. Where an officer may be holding, either by appointment or election, filing of a bond conclusive evidence of his intent to hold under the election tenure. State vs. Corey, 4 W. L. M. 563. Emancipation. Emancipation of child may be inferred where the children contract for and collect and use their own wages. Geringer vs. Heinlein et al., 29 Bull. 339. Embezzlement. "R. S. 7299. What is prima facie evidence of embezzle- ment by public officer." Emission. Emission in cases of incest will be presumed from neces- sary acts preceding it and must be found to exist unless the contrary is shown by the evidence. Noble vs. The State, 22 O. S. 544. Evidence not produced presumed adverse. Failure of one to produce evidence in his power raises the presumption that the evidence is adverse to him. Christy vs. Douglas, W. 485. 2 14 DECISIONS ON EVIDENCE. [CHAP. The refusal of an instruction that the refusal of the plaintiff in an action for damages to permit defendant's experts to examine his bodily injuries "at any time after the close of the testimony on his behalf" raises a presumption against the claim of the plaintiff as to the character and extent of the injury, is not error. Turnpike Co. vs. Baily, 37 O. S. 104. The ordinary presumption where a party fails to offer proof of what he ought to prove, is that the question was not asked because the answer would have been unfavorable. Mitchell's Lessee vs. Ryan, 3 O. S. 385. See 3 C. C. 551 ; (2 C. D. 318) ; 10 C. C. 363 ; (6 C. D. S16). Where disinterested witnesses testify to the speaking of words and the other party is present, hears the testimony and does not deny it, is a circumstance tending to prove an admis- sion. Sinclair vs. Fear, 2 N. P. 373 ; (4 Dec. 26). Failure to produce a receipt raises a presumption that its terms were adverse to defendant in whose possession it was. Merrick vs. Boury & Sons, 4 O. S. 67. Were the plaintiff in possession of facts material and advantageous to himself it is presumed he would have stated them. Reece vs. Kyle, 49 O. S. 479 ; 9 C. C. 653 ; (4 C. D. 4Si)- Where a guardian had an opportunity to show his inability to invest the money of his ward, but omits to do so, the court will not presume inability to invest to excuse him from liability for interest. Armstrong vs. Miller, W. 562. Neglect or refusal of defendant to testify in criminal cases raises no presumption against him. R. S. 7286. Exemption. In attachment proceedings the garnishee is not presumed to be exempt from a liability to pay interest upon his indebt- edness to the defendant in attachment. Candee & Scribner vs. Webster, 9 O. S. 452; 9 Bull. 219. XIX. J PRESUMI'TIONS FRAUD. 215 There is no presumption of law that a judgment debtor has selected or will claim to hold any particular item of per- sonal property as exempt from execution in lieu of a homestead although he may not own any other property from which selections might be made. Carpenter vs. Warner, 38 O. S. 416. Fraud and illegality. 1. Fraud is never presumed, but must be proved. But in making proof greater latitude must be given than in ordinary cases, [i] The proof need not be positive, but must from the nature of things, often be circumstantial. [2] A pre- ponderance of evidence is sufficient. [3] [i] Lake vs. Doud, 10 O. 415 ; 3 O. 290. [2] Stitt vs. Wilson, W. 505. S O. S. 12417 O. Pt. I, 69. • [3] Strader vs. Mullane & Johnson, 17 O. S. 625 ; 7 Bull. 9. 2. As to some circumstances tending to show that the transaction was improper. Brooks vs. Todd, i H. 172, 168; i O. 328. 3. When the instrument is ambiguous and admits of two constructions, one of which renders it void and the other valid the latter is to be preferred. Hoiifman vs. Mackall, 5 O. S. 132. 4. As to presumption of fraud from alteration of written contract, see "Alterations," p. 159. 5. Presumption of illegality in contracts in restraint of trade. Lufkin Rule Co. vs. Fringeli et al., 57 O. S. 603. 6. The fact that three are jointly charged with a con- spiracy to defraud plaintiff and one is found guilty, does not raise even a presumption of guilt as to the other two. A charge of actual fraud must be established by facts and cir- cumstances that make out a subsisting fraud substantially as charged, and cannot be established by presumption alone. Landis vs. Kelley, 27 O. S. 569; W. 505. 2l6 DECISIONS ON EVIDENCE. [CHAP. 7. Conduct of the party who has taken assignment of the property as evidence of intent and agreement under which it was taken. Justice vs. Uhl, 10 O. S. 170. Circumstances of the parties may show that an unfair advantage was obtained. Watkins vs. Collins, 11 O. 31. 8. It is not sufficient evidence of fraud to vitiate a con- tract, that a great bargain was obtained in the purchase of litigated property from an embarrassed debtor. Douglas vs. Huston, 6 O. 156. 9. Mere inadequacy of price may lead courts to abstain from executing, but not to rescind contracts unless it be so gross as to show fraud. Knobh vs. Lindsay, 5 O. 472 ; 11 O. 31. 10. Inadequacy of price is a circumstance to be consid- ered in determining whether a contract is tainted with fraud. Hammill vs. Wright, Adm'r, 5 N. P. 9; (8 Dec. .467). 11. To justify an inference of fraud from the inadequacy of the price alone, the consideration must be so clearly below the market value as to strike the understanding at once with the conviction that such a sale never could have been made in good faith. Bank vs. Wehsle et al., 18 C. C. 535 ; (9 C. D. 330). 12. The fact that no money passed is not necessarily a badge of fraud. 18 C. C. 535 ; (9 C. D. 330). 13. Nor is the informality of a transaction a badge of fraud. 18 C. C. 535 ; (9 C. D. 330). 14. Disparity of price, where no reason is shown for sell- ing at a sacrifice, is a circumstance which will induce chancery to leave parties to their legal remedies. Wingart vs. Fry, W. 105. 15. As a general rule fraud and undue influence must be proven by him who alleges them, but in a suit to cancel a deed upon the ground of their intervention they may be inferred from the mental infirmity of the grantor, and his being under XIX.] PRESUMPTIONS FRAUD. 217 the influence of the grantee and the grantee having acquired an advantage, as where the consideration is inadequate, unless the grantee affirmatively shows the absence of artifice and undue influence and that the grantor understood the transac- tion and voluntarily executed the deed. Baugh vs. Buckels, 2 C. C. 489; (i C. D. 602). 16. An appropriation of partnership assets by one partner without the assent of his co-partners, in satisfaction or security of his private debt, in the absence of proof to the contrary is presumed to be fraudulent as against the other members of the firm, and may by them be set aside. This pre- sumption may be rebutted. Corwin vs. Suydam, 24 O. S. 209. 17. To the extent that a conveyance works a fraud, to that extent is fraud presumed to have been intended. Jamison vs. McNally, 21 O. S. 305; 6 Bull. 67; 5 C. C. 224; 55 O. S. 572. 18. There is no conclusive presumption of fraud arising from intention on insolvent's part to convert his realty into personalty. It is competent to ask him whether he intended to put his property beyond the ireach of creditors. Pierce vs. White, 22 Bull. 98. 19. A transfer of property, made by a debtor upon a secret trust, is prima facie fraudulent as against creditors. The secret trust being proven the burden is on those claiming under the transfer. The mere production of the transfer showing no consideration on its face is not sufficient to shift the burden of proof. Ferguson vs. Gilbert and Rush, 16 O. S. 88 20. In an action by a creditor for the purpose of subject- ing property in the hands of a donee to the payment of his claim, it being made to appear that the debt was contracted by the donor prior to the making of the gift, the burden of show- ing the insolvency of the debtor at the time of making the gift rests upon the defendant. Oliver vs. Moore, 23 O. S. 474. 21. That the debtor at the time of conveyance is largely 2l8 DECISIONS ON EVIDENCE. [CHAP. indebted, and a suit is pending against him ready for judg- ment, furnishes evidence of fraud. But when the sale is made to a creditor, in payment of a debt, admitted to be justly due, and for a full and fair price, and the debt discharged, all pre- sumption of fraud arising from the pendency of a suit by another creditor is removed. That the conveyance was all of the estate of the debtor liable to execution, is a mark or sign of fraud, which, if unexplained, will warrant the presumption that the sale was for the use of the vendor, and to conceal the property from creditors. But when all the circumstances attending the sale show that the intent of the parties was legal and honest, that the property sold was not of greater value than the debt discharged, the presumption is repelled. The retaining of possession by grantor is a circumstance tending to raise a presumption of fraud; to rebut such pre- sumption, a parol agreement to pay rent may be shown. Barr vs. Hatch, 3 O. 527; 5 O. S. 124. 22. A party may testify that he relied on the information given by adverse party as to his being free from debt. Green & Sons vs. Taylor et al., 53 O. S. 626. 23. Presumption of fraud in a gift from one largely in- debted. Crumbaugh vs. Kugler, 2 O. S. 373; 5 O. 121 ; 7 C. C. 448. 24. Payments on an insurance policy will not be pre- sumed in fraud of existing creditors from the fact that during the time of the payment of premiums, the insured made an assignment for the benefit of creditors, it appearing farther, that he thereafter settled with all his creditors, and continued business until his decease, twelve years after the assignment and seven years after the payment of the last premium, and the existing debts were all incurred a few weeks before his decease. Loper & Co. vs. Paxton, 48 O. S. 266 ; 25 Bull. 216. 25. A conveyance by an insolvent to members of his family is suspicious, and the burden is upon him to show an adequate consideration and good faith. Walker & Ireland, Assignees, vs. Walker et al., 4N. P. 324; (6 Dec. 355). XIX.] PRESUMPTIONS FRAUD. 219 26. That the conveyance of land to a child was in con- sideration of love and affection and that the parent was indebted at the time he made the conveyance, is evidence of fraud as to creditors ; but it may be repelled by showing that the debts were small, and that the parent retained sufficient property to pay them, and that the gift to the child was a reasonable provision for him according to his and the parent's circumstances. When a child claims to hold land as a pur- chaser for valuable consideration against a creditor, a sus- picion of fraud arises, and more proof of its payment and its adequacy is required than where the purchaser is a stranger. Brice vs. Myers, 5 O. 125. 27. When it is alleged that a former deed is voluntary and fraudulent a junior deed from the same person for the property is competent evidence as a circumstance to prove fraud. A voluntary conveyance by a father in embarrassed circumstances to an infant child is on its face void as against creditors. The subsequent control and possession of the property are but circumstances to strengthen the presumption of fraud. Humbert's Lessee vs. M. E. Church, W. 213. 28. When one in embarrassed circumstances conveys land to his father, he continuing in possession and exercising acts of ownership, and his father on dying wills this property to children of his son, these circumstances are badges of fraud. Gray vs. Tappan, W. 117. 29. An advancement to a son, when the grantor is in- solvent, or with a view to insolvency, or while deeply in debt, will be postponed to creditors. If the son claims for a valuable ■consideration, he must show when and how it was paid, and the omission to do so is a strong if not conclusive badge of fraud. Godell vs. Taylor, W. 82. 30. The leaving of mortgaged chattels in the possession of the mortgagor is a badge of fraud, but subject to be rebutted by evidence showing some good reason why the possession was not changed. Quaere, as to the effect of the 220 DECISIONS ON EVIDENCE. [CHAP. act requiring mortgages to be deposited with the township clerk in rebutting this presumption. Freeman vs. Rawson, 5 O. S. i ; 7 O. S. 218. 31. When the vendor in a bill of sale or mortgage of goods retains the possession, that circumstance is prima facie evidence of fraud, but is not fraud per se. Hornbeck vs. Van Meter, 9 O. 153; 21 C. C. 788; 160. 553; w. 136,359- 32. Possession and exercise of power of sale without an agreement to account raises a presumption that the mortgage is fraudulent; this may be overcome by showing good faith and that creditors were not injured. Ford vs. Miller, Assignee, 5 N. P. 512; (5 Dec. 603). 33. Retaining possession with power of sale does not warrant presumption of fraud in fact, but is fraud in law. Goodenough vs. Harris, i D. 55 ; 5 O. S. i ; 21 C. C. 788. 34. The power of sale must be for mortgagor's benefit to constitute fraud. 20 O. S. 117. 35. When purchaser at. administrator's sale immediately conveys to administrator's wife the presumption of fraud can be overcome only by clear and satisfactory explanation. Riddle vs. Roel, 24 O. S. 572. 36. Trustee purchasing at his own sale. Welsh vs. Perkins, 8 O. 55 ; 20 O. 503 ; 6 O. S. 189 ; 3 O. S. 494 ; 10 O. 1 17 ; 2 O. S. 336. 37. Appraisers purchasing. Armstrong vs. Huston's Heirs, 8 O. 551 ; 14 O. S. 80; 14 O. 228. 38. R. S. 5404. Purchases of real or personal property, by the officer making sale thereof, or by an appraiser of such property, shall be considered fraudulent and void. 39. Attorney purchasing. Wade vs. Pettibone, 11 O. 57; 14 O. 557. 40. Guardian ad litem and trustee cannot acquire infant's property. Heirs of Massie vs. Mathew's Ex'rs, 12 O. 351. XIX.] PRESUMPTIONS — FRONTAGE. 221 41. Receiver of insolvent bank appointed by state bank purchasing assets from state bank. Lafayette Bank vs. Buckingham, 12 O. S. 419. 42. Treasurer purchasing claims on treasury. Porter vs. Dunlap, 17 O. S. 591. [See Influence, p. 223.] Frontage. Where the boundary lines of a corner lot extend along one of its two abutting .streets a materially greater distance than along the other, a presumption arises that it fronts upon the latter street. Effect of the presumption of frontage of building. City of Toledo vs. Sheill, 53 O. S. 447 ; 34 Bull. 302. Grant. [See Conveyance and Grant under Real Estate.] Guardian, grounds of appointment. When a guardian is appointed for an infant lunatic the presumption is that the appointment was on both grounds. King vs. Bell, 36 O. S. 460. Hiring for a year. When one rendering service for another under a monthly employment, says to his employer that he desires to have his employment made more permanent, and thereupon a specified amount per year is agreed upon, payable in specified install- ments, a hiring for a year mav be inferred. Bascom vs. Shillito, 37 O. S. 431. Identity. From identity of names identity of persons may be pre- sumed when the name is not common, and this presumption is strengthened by the fact that the surnames and given names are identical. Sperry vs. Tebbs, 20 Bull. 181 ; T. 192 ; 2 W. L. M. 588; 12 Bull. 152. The person swearing to the pleading being of the same 222 DECISIONS ON EVIDENCE. [CHAP. name as the plaintiff he will be presumed to be the same person without the verification stating that he is plaintiff. Brotton vs. Allston, 2 W. L. M. 588. When the name of a person preceded by the words "good for costs" is found indorsed upon an indictment for a misde- meanor, when presented to the court as a true bill, it will when nothing appears to the contrary be presumed to be the name of the prosecuting witness. Mtmson vs. The State, 20 O. S. 232. Question on appeal bond as to identity of judgment. It will not be presumed that there was no other action between the same parties in the district court. North vs. Alerchant, i W. L. M. 284. When the vendi, under which property was sold, was for a different amount of costs from the judgment in evidence, it is prima facie issued on a different judgment. Bank of U. S. Lessee vs. White, W. 51. When the execution recites a different amount from the judgment, and the deed a different amount from either, prima facie they do not relate to that judgment. Humbert's Lessee vs. M. E. Church, W. 213. Indictment for forgery contains two counts in each of which a copy of the instrument alleged to have been forged is set out, and the copies are alike ; it will not be presumed that each is a copy of only one and the same original instrument. Devere vs. The State, 5 C. C. 513; (3 C. D. 249). Impotency. [See Capacity, p. 176.] Inability to invest trust funds. When a guardian had an opportunity to show his inability to invest the money of his ward, but omitted to do so, the court will not presume inability to invest to excuse him from liability for interest. Armstrong vs. Miller, W. 562. Infectious disease. Presumption in action to recover damages for infecting, cattle with Texas or Spanish fever. R. S. 421 1. XIX.] PRBSUMI'TIONS INFWTENCe;. 223 Influence. 1. While as a general rule fraud and undue influence must be proved by him who alleges them, they may be inferred from circumstances. Baugh vs. Buckles, 2 C. C. 497; (i C. D. 607). 2. If a person might have exercised domain over the testator and such person gained any advantage by the will, the proposition that it is to be presumed until the contrary is proven, that undue influence is exercised, is not sound. Mears vs. Mears, 15 O. S. 90. 3. Where there is imbecility undue influence may be inferred from circumstances and results. Corbit vs. Corbit, 4 Bull. 1006 ; 6 Bull. 691. 4. Undue influence is not to be presumed from the mere relationship of the parties ; may be shown by direct proof, or may be presumed from circumstances. [As to burden of showing fairness of transaction, p. 53.] Kock et al. vs. Sayre et al., 3 N. P. 45 ; (4 Dec. 195)- 5. Though in cases of alleged gifts from the wife to the husband, courts will look with a jealous and scrutinizing eye upon the transaction, yet undue influence on the part of the husband will not be presumed from the mere relation of the parties. Hardy et al. vs. Van Harlington, 7 O. S. 210. 6. The fact that a man knowingly married and cohabited with the wife of another, and by the influence of such marriage and cohabitation procures from her a will in his favor does not invalidate the will, unless the influence placed the testatrix under some restraint, and such restraint cannot be implied from the facts mentioned. Monroe et al. vs. Barclay et al., 17 O. S. 302. 7. The jurisdiction which courts of equity employ to pro- tect infants is not confined to cases of a strictly fiduciary character. The principle on which relief is given applies to all cases where influence is acquired and abused, and con- fidence is reposed and betrayed. In cases of a fiduciary 224 DECISIONS OK EVIDENCE. [CHAP. character influence is presumed, in others its existence must be proved. Long et al. vs. Mulford et al., 17 O. S. 485. 8. A release to a father without consideration, by an unmarried daughter Hving with her father, of interests held by him for her is presumed, if made before emancipation, to have been made under parental influence. Jaeger vs. Herancourt, i Bull. 10. 9. Undue influence will not be lightly presumed. 2 C. S. C. R. 390; 32 O. S. 239; 45 Bull. 374. 10. Where a husband has conveyed lands to his wife without valuable consideration and under such circumstances that the presumption of law arising from the relation of the parties, that an absolute gift was intended is rebutted, if the transaction be questioned, the burden is on the party claiming under the deed to show that it was not obtained by an abuse of the relation of trust between husband and wife. Rankin vs. Rankin, 21 Bull. 126. 11. Presumption that a person of wealth has more influ- ence in the community than an impecunious person. Steen vs. Friend, 20 C. C. 459; (11 C. D. 235). 12. Improper charge to a jury or admission of improper testimony presumed to have influenced the jury. Lowe vs. Lehman, 15 O. S. 178. rSee Courts, p. 184.] [See Burden of Proof, p. 315.] [See Fraud, p. 215.] [See The Improper Admission of Evidence.] [See Coercion of Wife by Husband, p. 178.] Innocence. 1. Upon the trial of all criminal cases the law presumes a party charged with crime to be innocent. State vs. Lukens, 6 N. P. 363 ; (9 Dec. 394). 2. The presumption of innocence has no less force before than after the indictment has been presented. State vs. Owen, 3 N. P. 182 ; (4 Dec. 163). XIX.] PRICSUMPTIONS — INNOCBNCB. 225 3. Failure of defendant to testify raises no presumption of guilt. 9 C. C. 627; (6 C. D. 7TJ). 4. The presumption of innocence justifies an employer in putting that construction upon the misconduct of his servant or agent which will make the action only a breach of duty and not an act or course of dishonesty. Ins. Co. vs. Olhaber, 17 Bull. 353. 5. Presumption of guilt from accusation under military law. Wright vs. Munger, W. 614. 6. Where a contract will admit of two constructions one involving improper conduct, or a breach of trust, the other not, the latter will be adopted. Railroad Co. vs. Kelly, 5 O. S. 193. 7. Upon the trial of all criminal causes the law presumes the party charged to be innocent, and the burden of proof is upon the prosecutor unless a different rule has been provided by statute. This legal presumption of innocence can be over- come only by full proof, such as will exclude all reasonable doubt of the guilt of the accused. The reason of this rule, resting upon the presumption of innocence, makes it appli- cable to all criminal trials. Fuller vs. The State, 12 O. S. 433 ; T. 98 ; W. 29 ; 6C. C. 183; (3 CD. 397); W. 617. 8. An instruction to the jury that the state must prove the material elements of the crime beyond a reasonable doubt fully secures to the defendant the benefit of the legal pre- sumption of his innocence. Morehead vs. The State, 34 O. S. 212. 9. Indictment for burglary. The charge "that it is not necessary that every fact requisite to constitute burglary should be proved beyond a reasonable doubt, but the jury must look to all the facts and circumstances and be able to say that the defendant is guilty beyond a reasonable doubt" is misleading. ' ''^ Adams vs. The State, 31 O. S. 462. 10. On an indictment for arson with intent to defraud an (16) 226 DECISIONS ON EVIDENCE. [CHAP. insurance company, proof beyond a reasonable doubt of the incorporation is not required. Evans vs. The State, 24 O. S. 458. 11. The presumption of innocence which proof of good character raises varies with the force of circumstances, but not with the grade of the crime charged. It is error to charge that evidence of character is only available in doubtful cases. Its weight and bearing is to be left to the jury. Harrington vs. The State, 19 O. S. 264; 22 O. S. 477- 12. Action for false imprisonment. Presumption that imprisonment was unlawful. Burch vs. Franklin, 7 N. P. 155 ; (7 Dec. 519). [See Burden of Proof — Preponderance of Evidence.] Intention. 1. Where one shot another in the trunk of the body and the result was to produce paralysis of the leg, causing a per- manent disability of that member, a verdict of guilty of shoot- ing with intent to maim is supported by sufficient evidence. The accused might fairly be presumed to have intended the actual and natural result of his unlawful act. Ridenour vs. The State, 38 O. S. 272. 2. There is no presumption of intent to commit larceny from taking property without the consent of the owner. Berry vs. State, 38 O. S. 272. 3. Intent to burn jail presumed from setting fire to it in such a way that it would probably burn. State vs. Nevil, 2 W. L. M. 494. 4. The natural results of illegal acts presumed intended. 62 O. S. 360; 37 O. S. 18; 48 O. S. 65; 21 O. S. 304; 21 C. C. 43; (II C. D. 353). 5. If death was the natural and probable consequence of wounds inflicted in an assault the jury may infer that death was intended. State vs. Shields, i W. L. J. 118. 6. The purpose or intent to kill in general is proved by XIX.] PRESUMPTIONS INTENTION. 227 the circumstances, by what a party does and says, the manner of inflicting wounds, the instrument used and its tendency to destroy Hfe. If palpably calculated to take life, it may be presumed to be so intended. Cottell vs. The State, 12 C. C. 473 ; (5 C. D. 472). 7. Where death is caused by the use of a deadly weapon, and the circumstances of the killing are detailed to the jury, some of which tend to disprove a malicious or intentional killing, it is misleading to charge the jury "that in this case the law raises a presumption of malice in the defendant, and an intent on his part to kill the deceased." Erwin vs. The State, 29 O. S. 186; 10 C. C. 104. 8. Where all the attending circumstances of a homicide, including the use of a deadly weapon, are in evidence, the jury should not be told that a presumption of malice or intent to kill arises from the use of a deadly weapon. Though, where the intentional use of a deadly weapon is shown and the cir- cumstances of the homicide are not explained, a presumption of malice and intent to kill arises. Bailus vs. The State, 16 C. C. 247; (Dayton, 370). 9. Crime cannot be inferred from proof of intent to com- mit it. Proof that accused discharged his pistol, and that he expressed his intent to shoot the person shot, in the absence of proof that he shot such person, or that the pistol was pointed toward such person, is not sufficient to convict. State vs. Nuttles, 4 Bull. 964. Intent to use force necessary to commit a rape cannot be presumed. 21 C. C. 186; (11 C. D. 602). 10. Where it is shown that an assignee has wrongfully appropriated and used money belonging to the estate, as and for his own, then -the law infers from such fact that he intended such appropriation and use as and for his own. State vs. Mannix, 16 Bull. 213. 11. On the trial of a person indicted for aiding and abet- ting an owner of property to commit the crime defined in section 6832, the trial court charged the jury as follows : "The law presumes a person to intend the natural and probable consequences of his act, therefore, should you find 228 DECISIONS ON EVIDENCE. [CHAP. from the testimony that the owner of the property procured the defendant to burn the same; that it was insured to said owner by said company, against loss or damage by fire ; that the natural and probable consequences of its being burned would be to prejudice, damage or defraud such insurance company, then you will find such burning to be with the intent to prejudice, damage and defraud such insurance company." Held, that such charge is erroneous as tending to mislead the jury into misapplying a general rule of law, and as treating the presumption alluded to as conclusive. Searles vs. The State, 6 C. C. 333 ; (3 C. D. 478). 12. The intention of the defendant to impose his goods upon the public as those of plaintiff may be presumed from imitation of plaintiff's packages or trade mark, but the pre- sumption is not conclusive. Hoeb et al. vs. Bishop et al., 22 Bull. 151. 13. Where a purchaser of land paid a rnortgage and is entitled to subrogation his intention to keep the mortgage on foot for his protection being to his advantage will be pre- sumed. Joyce vs. Dauntz, 55 O. S. 538. 14. Presumption of intent of mortgagee not to release his prior lien. 2 N. P. 248; (i Dec. 237). 15. Presumption that material man intends to retain his right to lien. 5 N. P. 401 ; (7 Dec. 537). 16. The law will not presume that it was the intention of parties that one should convey land to the other, in such a manner that the grantee could derive no benefit from the conveyance ; nor that he should so convey a portion as to deprive himself of the enjoyment of the remainder. Meredith vs. Frank et al., 56 O. S. 490. 17. When a tenant erects expensive structures for carry- ing on his trade, which can be removed without their destruc- tion or material injury to the freehold, the presumption is that it was not his intention to make them permanent accessories to the freehold. I O. S. 531 ; 3 N. P. 230; (4 Dec. 270). XIX.] PRi;SUMPTlONS — INTENTION. 229 The bare fact that three persons took a prisoner and hung him raises no presumption that they assembled with an unlaw- ful intent. 41 Bull. 112. 18. When rights are unreasonably neglected the pre- sumption is legitimate of an intention to abandon them. Tuttle vs. Wilson, lo O. 27. 19. When words have by usage acquired a particular signification the parties will be presumed to have intended them in that sense. Wayne vs. Steamboat General Pike, 16 O. 421. 20. Where a new clause is introduced into a contract that has an established form the presumption is irresistible of an intention to vary the usual construction. Snapp et al. vs. Fireman's Ins. Co., 2 H. 253. 21. Where one of several co-sureties pays a joint judg- ment against them, the intention to save his right to be subrogated to the place of the judgment creditor will be presumed from the simple fact of payment until the contrary is shown. Neilson & Churchill vs. Fry, 16 O. S. 553. 22. It is no evidence of an intention to dedicate land to the use of the public, that the original proprietor joins in a petition for a town charter, extending the limits of the cor- poration over such land. McLaughlin vs. Stevens, 18 O. 94. 23. On the question whether the acts of the surety have . been such as to keep the security on foot, the court in the absence of evidence to the contrary, will presume that they v/ere done with that intention which is most for the benefit of the party doing them. Hill vs. King, Ex'r, 48 O. S. 80. 24. The fact that a transfer of stock is not entered upon the books of the company will not be conclusive against its validity, and relieve the holder on the books from liability. But where made a few days before the insolvency of the com- pany was developed, the presumption is strong that the object was to get rid of liability. Wehrman & Co. vs. Reakirt, i C. S. C. R. 257. 230 DECISIONS ON EVIDENCE. [CHAP. 25. The fact that title to stock is transferred to the pledgee is not conclusive of an intention that he should vote it. Allen vs. Lagerberger et al., 20 Bull. 370. 26. A note from husband to wife raises a strong pre- sumption that he intended to withdraw the money of which it was the evidence from his own control and give it abso- lutely to her. Wood vs. Warder, Adm'r, etc., 20 O. 525. 27. As to cases in which settler of a trust on a married woman presumed to intend to protect the property from her husband. Soteldo vs. Clement, Trustee, 29 Bull. 386. 28. When a contract will admit of two constructions, one involving improper conduct, the other not, the latter will be adopted. R. R. Co. vs. Kelley, 5 O. S. 193. 29. In construing a joint contract the presumption is that the parties intended to contract in reference to business in which all had a common interest. Stanley vs. R. R. Co., 18 O. S. 562. 30. In the absence of satisfactory proof showing that the shipper has, by assent and acquiescence, or otherwise, agreed to limit the liability of the carrier, the presumption is that he intended to insist on his common law rights. R. R. Co. vs. Barrett & Walton, 36 O. S. 449 ; 6 Bull. 78. 31. Investments not authorized by an assignee for the benefit of creditors are prima facie for his own use. A wrong- ful act being presumed unintentionally committed. State vs. Mannix, 16 Bull. 212. 32. One selling liquors to a person in the habit of becom- ing intoxicated is presumed to intend the consequence of his act. Boyd vs. Watt, 27 O. S. 259. 33. To the extent that a conveyance works a fraud to that extent is fraud presumed to have been intended. 4 O. S. 305; 55 O. S. 572; 6 Bull. 67; 5 C. C. 224. [See Fraud, p. 215.] XIX.] PRESUMPTIONS INTENTION. 23 1 34. An intention to ratify the unauthorized and culpable conduct of an agent in giving up rights of a principal will not be implied from acts done by the principal in ignorance or mistake of his rights. Grant vs. Ludlow's Adm'rs, 8 O. S. 20. 35. The rule that a testator will not be presumed to have intended to die intestate as to any part of his estate to which his attention seems to have been directed, applies only in the construction of a will the language of which is of equiv- ocal import. Gilpin and wife vs. Williams et al., 17 O. S. 397; 3O. 5.369:250. S. 668. 36. Presumption against partial intestacy, and when equality between children presumed to be intended. Gillen vs. Kimball, 34 O. S. 352. 37. Retaining the legal title is very strong, if not con- clusive, evidence of intention to rely upon it as security. When the legal title is conveyed the presumption is that vendor intends to rely on the property sold as security. And before a waiver of such security can be found it must be shown that he did not intend to rely upon it. R. R. Co. vs. Lewton, 20 O. S. 410. 38. Clear proof ought to be made to warrant a court in holding that a man who has executed and acknowledged a deed, and caused it to be recorded, did not mean thereby to part with his title. Mitchell vs. Ryan, 3 O. S. 377. 39. Desire of a party to have a bill of exceptions made part of the record presumed from the fact that it is made a part of the record. Smith vs. Board of Education of Bucyrus, 27 O. S. 44. [Intent to make legal contract — See LegaHty, p. 240.] [See Bills, Notes and Bonds, p. 166.] [As to intention to make advancement of gift — See Real Estate.] 232 DECISIONS ON EVIDENCE. [CHAP. Interest. On assignment of insurance policy presumption that inter- est of the assignee is the same as that of assignor. Wall vs. Ins. Co., 2 Bull. 113. Knowledge. 1. Actual knowledge may be shown by circumstances as well as direct evidence. 19 C. C. 738. Every one is presumed to know the law. State ex rel. vs. Beal, 60 O. S. 212. 2. One is presumed to know the law makes provision not only for depositing, but also for recording mortgages of chattels. Stevenson vs. Colopy, 48 O. S. 247. 3. Parties are presumed to contract with reference to the provisions of the statute and to have agreed to all the con- sequences resulting from their operation. Walsh vs. Miller, 51 O. S. 490; 10 C. C. 438. 4. Statute presumed to have been in the minds of con- tracting parties and deemed a part of the contract as though written therein. 6 N. P. 134; (8 Dec. 45). 5. The maxim that every person is presumed to know the law is not always applicable to trustees. They may be exonerated when they exercise proper prudence. Miller et al. vs. Proctor and Anderson, 20 O. S. 442. 6. In equity, where the parties misunderstood the legal effect of words used, relief may be granted against the mistake of law. Evants vs. Adm'r and heirs of Strode, 11 O. 488. 7. Parties litigant and their counsel are presumed to know the rules of court. Fliedner vs. Rockefeller, 12 Bull. 21. 8. Ignorance or mistake of the law punishing the viola- tion of duty is no defense, but ignorance or mistake of the law defining or creating the duty, honestly and reasonably enter- tained, is. Rattermann, Treasurer, vs. Ingalls, 23 Bull. 266. [See Probasco vs. Raine, Auditor, 21 Bull. 89.] XIX.] PRESUMPTIONS — KNOWLEDGE. 233 9. One dealing with a board of education is presumed to know the Hmits within which it can transact business. State ex rel. Dunn et al. vs. Freed, Treasurer, lo C. C. 294; (6 C. D. 550). 10. One dealing with a municipal ([i] or private) corpo- ration is presumed to know the laws governing it. 18 O. S. 455; 27 O. S. 431; 4 Bull. 104; 31 O. S. 244; [i] 3 Bull. 140. 11. Legatees and others directly interested in the admini- stration of an estate are presumed to know the course of administration, as shown by records duly made in the proper court. Dean vs. Nicholas et al., 25 Bull. 278. 12. Strangers coming into a corporation must, at their peril, take notice of the by-laws of such corporation. Marietta vs. Fearing, 4 O. 431. 13. No presumption that a non-resident does not know of the existence of an ordinance limiting speed of railway trains. The Pennsylvania Co. vs. Trainer, Adm'r, 18 C. C. 716; (7 G. D. 567). 14. Stockholders must be presumed to know the law of Ohio in regard to individual liability. Van Dyke vs. Rule, 49 O. S. 530. 15. One who contracts with a corporation presumed to know the liability of stockholders. Boice vs. Hodge et al., 51 O. S. 236. 16. One is presumed to know the law in regard to the sale of game out of season. Roth vs. State, 51 O. S. 209. 17. In deahng with the property of a corporation a director is charged with notice of all that has transpired at the meetings of the board of directors. A stockholder is not charged with such notice. Gas Co. vs. Reis et al., 54 O. S. 557. 18. The action of public officers and public bodies are admissible on the theory that every one within their juris- 234 DlJCISIONS ON EVIDENCE. [CHAP. •diction is familiar with their action. This presumption is not conclusive. Rattermann, Treasurer, vs. Phipps et al., 3 N. P. 69 ; (4 Dec. 453). 19. All are presumed to deal with a corporation in reliance upon the securities which the law has required. Hessler ct al. vs. The Qeveland Punch & Shear Works et al., 61 O. S. 627. 20. One is presumed to know the invalidity of the statute, but one has a right to assume that the proceedings of public officers are regular until he has knowledge to the contrary. Tone vs. Columbus, 39 O. S. 281. 21. Where the statute requires a particular authority to be pursued in the transfer of an interest in real estate, the purchaser is presumed to know such authority. Mack and wife vs. Brammer et al., 28 O. S. 508. 22. Prosecuting attorney presumed to know direction of the statute in regard to depositing funds collected by him for the county. Graham et al. vs. Stein, 18 C. C. 771 ; (4 C. D. 140). 23. Persons are as much presumed to know of exceptions to a principle as of the principle itself. Morgan vs. Lewis, 46 O. S. 9. 24. We are bound to presume that the legislature in adopting a form of supersedeas bond did so with the full knowledge of the decisions of the supreme court construing such form. Bulkley vs. Stephens, 29 O. S. 622. 25. Principal and surety in a recognizance for appearance before court presumed to know when and where the term will commence, [ i ] and the rules of law concerning their liability. Proseck vs. State, 38 O. S. 606. [i] 14 O. S. 76. 26. Sureties on the bonds of executors, like other sureties, are presumed to contract in view of the law in force at the time controlling their liability. McGaughey, Adm'r, etc. vs. Jacoby et al., 54 O. S. 500. XIX.] PRESUMPTIONS' — KNOWLBDGE. 235 27. Sureties on a constable's bond presumed to know the rules of law concerning their liability. The State vs. Jennings et al., 14 O. S. 76. 28. As a general rule, an agent intrusted with the trans- action of business is bound to know the duties required of him by law as well as the legal principles by which they are restricted. Herff vs. Hatch, 2 D. 63. 29. Powers conferred on a corporation are merely directory or in the nature of a limitation. Third persons are presumed to know the latter. James vs. C, H. & D. R. R. Co., 2 D. 261. 30. Presumption that the heir made improvements with knowledge of the widow's right of dower. Larrowe vs. Beam, 10 O. 498. 31. Presumption of knowledge of the law that the section line must be ascertained by running a straight line between opposite corners on the exterior township lines. Hamil vs. Carr, 21 O. S. 276. 32. Those giving credit to a corporation presumed to know its corporate powers and the limitations on them. R. R. Co. vs. Burk et al., 19 Bull. 30. 33. When a patent for land issued by the U. S. recites assignments by persons competent to convey there is no pre- sumptive notice to one who derives title under such patent of latent defects in the assignment. It is otherwise if the patent recites assignments by persons not competent to convey. Bell vs. Duncan, 11 O. 192. 34. Presumption of knowledge of the municipality of the use of streets for underground pipes from the giving of a license for such use, but from such fact there arises no pre- sumption of knowledge of the public of such use. Elster vs. Springfield, 49 O. S. 94. 35. Presumption of notice cannot be admitted to pre- vent the impeachment of an order vacating a prior judgment. Hetrick vs. Wilson, 12 O. S. 136. 236 DECISIONS ON EVIDENCE. [CHAP. 36. Lapse of time to bar the rights of infants does not, in a case where they have been wronged by those in whom they reposed confidence, commence until their discovery of the wrong, and the burden of proof of showing such knowl- edge as to make them chargeable with laches rests on the defendant. Long vs. Mulford, 17 O. S. 484. 37. One of ordinary intelligence presumed to know what by ordinary care he could have known. Schaal vs. Heck, 17 C. C. 39; (8 C. D. 596). 38. One presumed to contract in view of a certain state of facts, when that state of facts is commonly known. City of Toledo vs. Goulden, 10 C. C. 164; (6 C. D. 445)- 39. Presumption of continuance of knowledge once pos- sessed, may be rebutted. Morris vs. Daniels, 35 O. S. 416. 40. Presumption of knowledge of owner that property was entirely escaping taxation. Draude vs. Staley, 6 Bull. 773. 41. Presumption that when one signed a paper he knew what it contained. Stichenoth vs. Toph & Kreis, Ex'rs, 23 Bull. 131. 42. When one who could read, signed a paper, he is pre- sumed to know its contents. Railroad Co. vs. Bryant, 9 C. C. 338. 43. Presumption of knowledge of defective character of a brake when one doing his duty should have known. Railway Co. vs. Ackworth, 10 C. C. 583 ; (6 C. D. 622). 44. Presumption that an experienced brakeman knows those things which in the course of his employment he should know. Railway Co. vs. Frick, 14 C. C. 460; (8 C. D. 28). 45. Mechanics' lien law. Material men, laborers, and Xix.] PRESUMPTIONS — KNOWLEDGE. 237 sub-contractors are presumed in the absence of fraud to have notice of the terms of the original contract. Eimbert vs. Madden et al., 2 N. P. 346; (3 Dec. 497)- 46. Knowledge of city of defect in a sidewalk presumed from character of defect and its long existence. City of Toledo vs. Center, 16 C. C. 308; (8 C. D. 503)- 47. Knowledge of the city of defect in sidewalk may be shown not only by length of time such defect has existed, but by its character. City of Toledo vs. Higgins, 12 C. C. 646; (7 C. D. 29). 48. One accepting and retaining a policy presumed to know its terms and conditions. Union Central Life Ins. Co. vs. Hook, 62 O.S. 256. Travelers Ins. Co. vs. Meyers & Co., 62 O. S. 541. 49. Court presumed to know who the foreman of the grand jury is. Whitmg vs. The State, 25 Bull. 264; 48 O. S. 220. 50. From the fact that A. is the owner of a house in which gambling is carried on by his lessee, it is not to be presumed that he knew of the gambling. Smith vs. Wyatt, 2 C. S. C. R. 12. 51. When city ordinance was repealed presumption that it was with knowledge of the status of a case imder it. Earnhart vs. Village of Lebanon, 5 C. C. 582; (3 C. D. 282). 52. Presumption of knowledge by the insured, when making representations to the insurer of the condition of the property and the dangers attending it. Ins. Co. vs. Ins. Co., 5 O. S. 478. 53. Drawee of draft presumed to have knowledge of drawer's signature. Ellis vs. Ohio Life Ins. and Trust Co., 4 O. S. 628 ; 58 O. S. 212. 238 DECISIONS ON EVIDENCE. [CHAP. 54. Principal presumed to know a course of business openly pursued by their agents. Darst & Hersciielrode vs. Slevins & Calvert, 2 D. 473- 55. Suit for the killing of hogs by a dog. The presump- tion of law is that every man is acquainted with the habits and disposition of his domestic animals. Clark vs. Hite, T. i ; 13 O. S. 485 ; 24 O. S. 329. 56. A member of a purely mutual life insurance company is bound to know all the rules and regulations of such com- pany. Gaff vs. Ins. Co., 18 Bull. 310. 57. In an action between former parties to wind up the affairs of the firm one of them, who had free access to the books and occasionally inspected them, will be presumed to have knowledge of the entries in such books affecting his account with the firm. Keys vs. Baldwin, 19 Bull. 375. 58. The officers of a corporation knowing the existence of a will are presumed to know its contents so far as they affect the title to and the right to transfer the stock of the corporation. Allen vs. Globe Ins. Co., 19 Bull. 189. 59. If in the investigation of a title a purchaser with com- mon prudence must have been apprised of another's right, notice of that right is presumed. Reeder et al. vs. Barr et al., 4 O. 459. 60. The owner of land is chargeable with notice of facts recited in the deed through which he traces title, [i] This principle applies to patents from the government. Bonner vs. Ware et al., 10 O. 469. [i] Lessee of Beardsley vs. Chapman, i O. S. 119; II O. 192; 4 O. 448. 61. A person seeking the benefit of the occupying claim- ant law is not to be presumed to know any defects or recitals that do not appear upon the muniments which are necessary to establish his claim under the act. Lessee of Beardsley vs. Chapman, i O. S. 119. XIX.] PRESUMPTIONS — KNOWLEDGE. 239 62. A man is not at liberty to shut his eyes against the truth, and shelter himself under a plea of ignorance ; when a fact comes to his knowledge that necessarily puts him on his guard, he is bound to make diligent inquiry, and to search for information at the sources frona which it is most natural to expect it ; and that the possession which was adverse at the time was presumptive notice of a violent nature of the occu- pant's title to land. Cunningham vs. Buckingham, i O. 267; 7 O. Pt. 2, 90; 13 O. 426; I D. 69. 63. When a mortgage to secure certain bonds contains a clause limiting the effect of the contract contained m the bond, as to matters not pertinent in the mortgage, a holder of such bonds will not be presumed to have notice of such clause merely by reason of a general reference to the "terms and conditions" of the mortgage contained in the bonds. Raymond vs. Railroad Co., 21 Bull. 103. 64. Presumption of knowledge from information of ex- traneous facts. Kernohan vs. Durham et al., 48 O. S. 19. 65. Constructive notice. Byers vs. Wackman, 16 O. S. 440; 20 O. 261 ; 10 O. 83 ; 2 D. 406. 66. Possession of land constructive notice of contract of purchase and equity. Jaeger vs. Hardy ec al., 25 Bull. 413. There is no presumption of notice of prior equities though they are disclosed in an unauthorized deed of executors. Blake vs. Graham, 6 O. S. 580. 67. Presumption of knowledge that the use of the firm name on a note by an individual member to pay his debts was a diversion of firm property, and the party taking the note cannot recover against the firm. Bradley vs. Nicola, 10 Bull. 373. 68. In the use of poisons and firearms scienter is pre- sumed. Farrier vs. The State, 2 O. S. 54. [See Similar Acts, p. 33.] 240 DECISIONS ON EVIDENCE. [CHAP. 69. Indictment for selling intoxicating liquors need not aver that defendant knew the liquors sold were intoxicating. All men are presumed to possess that knowledge of language, men and things which men of ordinary intelligence have. State vs. Carson, i W. L. M. 333. Law, foreign. That foreign law is the same as domestic. Ins. Co. vs. Stanhope, 9 Rec. 378; 52 O. S. 224; 14C.C. 570; (8 CD. 73). Published laws and printed reports presumptive evidence. R. S. 5244. That the foreign law is either the same as that of Ohio or is the common law. 19 C. C. 687; (10 C. D. 27). Legality. [Illegality, see Fraud, p. 215.] 1. A marriage solemnized in due form is presumed to be lawful until some enactment which annuls it is produced and proved by those who deny its validity. Evans vs. Reynolds, 32 O. S. 163. 2. It will not be presumed that a secret lodge heard charges and rendered judgment while the party accused was insane. Kent vs. Odd Fellows' Benefit Ass'n, 14 Bull. 237. 3. When a contract in express terms provides for a rate of interest lawful in one, but unlawful in the other state, the parties will be presumed to contract with reference to the laws of the state where the stipulated rate is lawful, and such pre- sumption will prevail until overcome by proof that the stipulation was a shift to impart validity to a contract for a rate of interest in fact usurious. Scott vs. Perlee, 39 O. S. 67. [See Intention, p. 226.] 4. Presumption is, in the absence of an express agree- ment, that the parties contract with reference to laws under which their contract would be valid. 24 Bull. 27, 376; II Bull. 141 ; 4 Bull. 1042. XIX.] PRESUMPTIONS— LEGISLATIVE ACTS. 241 5. A company stipulating to pay dividends must be pre- sumed to have proceeded in view of the terms of the act of the legislature. Miller, Ex'r, vs. Ratterman-, Treas., 47 O. S. 158. 6. In doing only what the law authorized him to do, a party will be presumed to have acted in a lawful manner. Titus vs. Lewis, 33 O. S. 304. 7. Presumption that ballot is legal. Newman vs. McManus, 23 Bull. 226. Legislative acts. 1. The presumption of law is that an act of the legislature took efifect from the commencement of the day of its passage and not from its expiration. This presumption will not prevail where it is in conflict with any right acquired in actual point of time on that day before the act took efifect. In such cases the exact time of the day may be shown. Arrowsmith vs. Hammering, 39 O. S. 573 ; 36 O. S. 384, distinguished; 3 N. P. 302; (6 Dec. 57). 2. The legislature is presumed to be consistent with itself, and if in one place it has expressed its intent distinctly it will be understood not to have changed it unless that intent clearly appears. Fries vs. Railway Co. et al., 56 O. S. 142. 3. Cotemporaneous construction of a statute is of vast importance. The general practice of courts is very conclusive evidence of what the cotemporaneous construction was. Statute may be presumed to have existed from lapse of time or where extraordinary accident renders it probable that it has been lost. Ludlow's Heirs vs. Johnson, 3 O. 568. 4. Expressio unius est exclusio alterius. Courson's Ex'rs vs. Courson, 19 O. S. 461. 5. In construing a statute to prevent fraud that con- struction which would encourage fraud is presumed incorrect. Wilber vs. Paine, i O. 255. 6. Presumption is that the legislature in adopting a statute from another state intended that it should receive the (17) 242 DECISIONS ON EVIDENCE. [CHAP. same construction that it had in the state from which it was taken. Favorite vs. Booher's Adm'r, 17 O. S. 554; T. 141. 7. When a considerable change in the phraseology of a law copied from another state is made, there is a presumption that a change of meaning was intended. Bloom vs. Richards, 2 O. S. 403; 3 C. C. 115; 59 O. S. 334. 8. The distinction between a mere change of phraseology and the introduction of an entire clause into a statute, the effect of which is to clearly qualify the former statute, is wide and clear. Collins, Ex"r, vs. Millen et al., 57 O. S. 295. 9. When a change in language is made, not by revision but by amendment, it must be presumed that a change in meaning was intended. In the matter of the Estate of Hinton, 45 Buil. 423; see 64 O. S. 485. 10. But change in phraseology of a revised statute does not work a change unless it evidently appears that such was the intention of the legislature. Ash vs. Ash, 9 O. S. 387; 16 O. S. 432. 11. The presumption is that a clause in the present constitution is used in the same sense as in the former con- stitution from which it was taken. 19 O. S. 250. Presumption that new phraseology was intended to have some efficient operation. Hartshorne et al. vs. Ross, Adm'r, et al., 2 D. 454. 12. Presumption that every word was inserted for some purpose. Bloom vs. Richards, 2 O. S. 402. 13. Presumption that the legislature employed the word "Addition"' in the sense which judicial construction had given it. Schindler vs. Lewis, Auditor, 16 C. C. 350; (9 C. D. 174)- 14. Act in restraint of liquor traffic excepts liquors sold for "medical and pharmaceutical purposes." Subsequent act XIX.] PRESUMPTIONS — LEGISLATIVE ACTS. 243 makes no such exception. From this and the fact that the exception was liable to abuse, it is presumable that the legis- lature intended to exclude the exception. Schaffner vs. The State, 8 O. S. 642. 15. Presumption that words are used in their ordinary sense. State ex rel. vs. German T'p, 2 C. C. 365 ; (i CD. 532);7C. C.8;(3C. D.637). 16. Presumption that words of a fixed legal signification are used in their legal sense. 27 O. S. 63; 14 O. 218; 5 C. C. 53-; 17 O. S. 64; 64 O. S. 529. 17. When one or more sections of a statute are repealed and re-enacted in a different form the fair inference is in general that a change of meaning is intended, but this may not be the fact. When all the statutes of a state, or all on a par- ticular subject, are revised and consolidated, there is a strong presumption that the same construction which the original statutes received or would have received, should be applied to the revised statutes, although the language may have been changed. Allen vs. Russell, 39 O. S. 337; i O. 176; 8 O. 20; 9 O. S. 387 ; 15 O. S. 368 ; 35 O. S. 175 ; 36 O. S. 286, 326; 37 O. S. 640; 54 O. S. 328. 18. A code of statutes relating to one subject is presumed to be governed by one spirit and policy, and all of the several sections are to be considered in order to arrive at the meaning of any part, unless a contrary intent is clearly manifest. City of Cincinnati et al. vs. Guckenberger, 60 O. S. 353- 19. Whether the repeal of a statute is absolute or modi- fied, is always a question of legislative intent, and the legis- lature will not be presumed to have intended an absurd or unjust consequence. Debolt vs. Ohio Life Ins. & Trust Co., i O. S. 565. 20. The presumption is that an ordinance is reasonable. Moerder vs. The City of Fremont, 19 C. C. 397; (ioC.D.5oi);iiO.S.55o. 244 DECISIONS ON EVIDENCE. [CHAP. 21. Where by the terms of a statute, several classes of persons are apparently included within its operation, and as to some of them, its enforcement would render the act uncon- stitutional, and as to others not, it will be presumed that the legislative intent was to apply the statute to the latter class only. State vs. Rouch, 47 O. S. 484; i O. S. 15. 22. In the construction of a statute^ it is, as a general rule, reasonable to presume that the same meaning is intended for the same expression in every part of the act [i] and in subsequent acts on the same subject. But the pre- sumption is not controlling, and where it appears that by giving it effect an unreasonable result will follow, and the manifest object of the statute be defeated, a court is at liberty to disregard the presumption, and attach a meaning to the words in qpestion, which will make the act consistent with itself and carry out the true purpose and intent of the law makers. Henry vs. Trustees, 48 O. S. 671. [i] Norris vs. The State, 25 O. S. 224; 42 O. S. 529; 21 Bull. 114. 23. It is not presumed from the language of Section 1692 R. S. that the legislature intended to authorize the passage of unfair or unjust ordinances. Sipe vs. Murphy et al., 49 O. S. 542. 24. Unjust or absurd consequences cannot be presumed to be intended. New Carlisle Bank vs. Brown, 11 C. C. 79; (5 CD. 94);i3C. C. 545;(7C. D. 540). 25. It is not presumed that the legislature intended to embrace under the term '"court" the independent action of the judge or judges thereof at chambers. Atwood et al. vs. Whipple, 48 O. S. 313. Presumption that power conferred on a corporation is a corporate power. 50 O. S. 657. 26. Except as to incidental powers such as are essential to the very life of a corporation, the presumption is that the XIX.] PRESUMPTIONS — LEGISLATIVE ACTS. 245 State has granted in clear and unmistakable terms all it is designed to grant. Cincinnati ex rel. vs. Sinking Fund Trustees, lo C.C. 265; (6 CD. 594). 27. Presumption that legislature will change common law when it works public inconvenience. [The court will not change the established law although apparently it works an injustice.] State for the use of, etc., vs. Boring, 15 O. 516. 28. The presumption is always in favor of the validity of the laws, if the contrary is not clearly demonstrated. 10 O. 237; 51 O. S. 504; 54 O. S. 34; I O. S. 7T, 39 O. S. 399; II O. S. 653; I C. S. C. R. 126; IS O. S. 673 ; 12 C. C. 1 17 ; 49 O. S. 103 ; 20 O. S. 33; 34 O. S. 24s; 48 O. S. 132; 54 O. S. 292; 49 O. S. 292 ; 50 O. S. 660, 41 ; 32 Bull. 58 ; 8 C. C. 29; 5 O. S. 358; 16 C. C. 122; 61 O. S. 26; 7 N. P. 374. 29. The presumption is in favor of an ordinance of a municipal corporation. Moerder vs. City of Fremont, 19 C. C. 397; (10 C. D. 85). 30. An act conferring certain powers on officers, pro- viding it was passed by a two-thirds vote, will be presumed to have been passed by such vote, in the absence of all showing in the record to the contrary. Steamboat Northern Indiana vs. Milliken, 7 O. S. 384- 31. Every reasonable intendment is to be made in favor of the proceedings of the legislature. It is not to be presumed that the assembly, or either house of it, has violated the con- stitution. When, therefore, it appears by the journals, that a bill was amended by striking out all after the enacting clause, and inserting a "new bill" so called, it cannot be presumed that the matter inserted was upon a different subject from that stricken out, especially when the matter inserted is con- sistent with the title borne by the bill before such amendment. 246 DECISIONS ON EVIDENCE. [CHAP. Nor does the fact that the inserted matter was called "a new bill" prove that it was not an amendment. Miller & Gibson vs. The State, 3 O. S. 476. 32. Where the journals of the legislature show that the bill was passed, and there is nothing in them to show that it was not read as the constitution requires, the presumption is that it was so read and this presumption is not liable to be rebutted by proof. Miller vs. State, 3 O. S. 484 ; 49 O. S. 474 ; 39 O. S. 455- 33. When a case is not within the excepting or saving clauses of a statute the presumption is that the legislature did not intend to except it from the general rule. Earnfit vs. Winans, 3 O. 135. 34. Presumption of intention of legislature to adhere to general policy of legislation. 61 O. S. 27. 35. Presumption as to legislative intent in construing statutes. Moore vs. Given, 39 O. S. 661; 2 O. S. 151; 44 O. S. 252; 43 O. S. 113; 6 Bull. 635; T. 255; 40 O. S. 214 ; 47 O. S. 492 ; 44 O. S. 538 ; 6 C. C. 360. 36. Statutes on the same subject passed about the same time to be construed together. 16 O. S. 428, 570; 8 O. S. 299. Legitimacy. Presumption that a child born in wedlock is legitimate. Under the bastardy act the presumption is conclusive. Haworth vs. Gill, 30 O. S. 627. To overcome this presumption it is not necessary to show the impossibility that the issue should be the husband's. A reasonable certainty is sufficient, as where the wife was living with another man. Sutphin vs. Cox, i W. L. M. 346. In case of conflicting presumptions on the subject of legitimacy that in favor of innocence must prevail. Johnson vs. Dudley, 3 N. P. 196 ; (4 Dec. 243). XIX.] PRESUMPTIONS — LIABILITY. 247 The presumption that a child conceived during wedlock is legitimate is not conclusive. If the child is born after a divorce is had, and the mother had been deserted by the husband for several years, and could not have had access to him, a finding that that child is illegitimate will not be dis- turbed. SchaiTer vs. Mueller, 9 Bull. 287. It cannot be conclusively presumed that a man who mar- ries a pregnant woman is the father of the child born in wedlock. Roth vs. Jacobs, 21 O. S. 646. If the husband knew the woman was pregnant when he married her the presumption is conclusive that he" is the father of the child. This rule applies to proceedings under bastardy and not where the question is one of heirship or inheritance. Miller vs. Anderson, 43 O. S. 473. Liability. As between joint debtors, there is no presumption of law that either is primarily liable for the debt ; nor is there a pre- sumption that any fact or relation between them exists which would show that each is not equitably bound, as between themselves, to pay his proportionate share of the debt. Gaster vs. Waggoner, 26 O. S. 451. If it appear that the defendant was a stockholder in an unincorporated bank, and the notes offered in evidence were issued by the bank, he is prima facie liable. Goodenow vs. Duffield, W. 456. [See Negligence.] [See Bills, Notes and Bonds.] License. An acquiescence, in order to raise a presumption of a license to use a stream of water, must be with the knowledge of the owner's rights. Buckingham vs. Smith, 10 O. 288. Mail. Presumption that notice mailed was received. I Bull. 170; 2 N. P. 297; (2 Dec. 475). 248 DECISIONS ON EVIDENCE. [CHAP. Malice. 1. Malice cannot be inferred from the fact that the defendant in an action for malicious prosecution had, on find- ing his affidavit defective, dismissed the prosecution against the plaintiff in order to institute another suit. Funk vs. Armor, 4 C. C. 271 ; (2 C. D. 541). 2. Action for malicious prosecution. Presumption of law is that every prosecution is founded on probable cause and instituted for the purpose of justice. John vs. Bridgeman, 27 O. S. 22. 3. Malice is presumed in slander, from the false speaking of the words. It is for the defendant to negative this pre- sumption. Stevens vs. Handy, W. 121 ; 31 Bull, iii ; W. 316; 23 Bull. 184; W. 683; I D. 482. 4. Publication of libel admitted and falsity proved, malice is presumed. Ickes vs. The State, 16 C. C. 39; (8 C. D. 442). 5. A publication is presumed malicious if done willfully and unlawfully and in violation of the just rights of another. State of Ohio vs. Cass, 6 N. P. 503; (8 Dec. 214). If the matter is a privileged communication there is no presumption of malice. How vs. Bodman, i H. 530; 17 Bull. 138; 15 Bull. 334; 6 C. C. 180; 42 O. S. 631. 6. Malice is not presumed from the falsity or injurious character of a criticism of acts of a public officer. Boyle vs. The State, 6 C. C. 164 ; (3 C. D. 397). 7. When death is caused by the use of a deadly weapon and the circumstances of the killing are detailed to the jury, some of which tend to disprove a malicious or intentional killing, it is misleading to charge the jury "that m this case the law raises a presumption of malice in the defendant and an intent on his part to kill the deceased." Erwin vs. The State, 29 O. S. 186. 8. Where the fact of killing is proven, malice is to be presumed, and all the circumstances of justification, excuse, XIX.] PRESUMPTIONS MARRIED WOMAN'S PROPERTY. 249 or extenuation, must be made out by the accused unless they appear from the evidence adduced against him. Davis vs. The State, 25 O. S. 369. 9. Killing having been proven, the presumption in Ohio, [i] is that it was done with malice, but without deliberation or premeditation, and consequently is murder in the second degree. To convict of murder in the first degree the state must affirmatively show premeditation and deliberation. To reduce it to manslaughter the accused must show matters in extenuation. Silvus vs. The State, 22 O. S. 99. [i] Ohio vs. Niel, T. 122; i W. L. J. 23; W. 29. 76, 400. Dayton, 357. 10. The character of the act and attending circumstances may rebut the presumption of malice. Dayton, 362. Married woman's property. 1. The fact that a judgment has been obtained in the name of the husband is not conclusive evidence of a reduction to possession of the property for which it was obtained. The presumption arising therefrom may be rebutted by proof that the action was prosecuted at the instance of the wife and for her sole benefit. Pierson vs. Smith, 9 O. S. 554. 2. The intention of a married woman to bind her separate estate may be inferred from the fact that she executed a note or other obligation for the indebtedness. (The indebtedness was for the purchase of a piano.) Phillips et al. vs. Graves and wife, 20 O. S. 371. 3. An intention to charge married woman separate prop- erty will not be implied merely from the giving of a note or other obligation. (The note was for a subscription to railroad stock.) Rice vs. Railroad Co., 32 O. S. 380. 4. Where a married woman acquires the title to property by purchase, and executes her promissory note therefor, an implication arises, in the absence of proof of a different under- 250 DECISIONS ON EVIDENCE. [CHAP. standing, that she thereby intended to charge her separate estate with its payment, and such imphcation is not affected by the fact that she, with her husband, executed a mortgage ■of the property purchased to secure the payment of such note. In such case the wife will not be permitted to testify that she had no intention to charge her separate estate with the pay- ment of such note. Avery vs. Vansickle, 35 O. S. 270; 3 C. C. 587; (2 C. D. 339). 5. The indorsement of a married woman of a promissory note, solely for the accommodation of her husband and as surety thereon, in order to enable him to dispose of the same, is, of itself, not sufficient to warrant a court of equity in presuming that she had intended to charge her separate estate with the payment of the same. Levi vs. Earl, 30 O. S. 148. 6. A married woman, having a separate estate, who signs a promissory note as surety for her husband, will be presumed without further proof to intend thereby to charge her separate estate. Such presumption can be overcome by proof of facts or circumstances showing a diiiferent intention. Hershizer vs. Florence, 39 O. S. 516. 7. The fact that a note signed by a married woman was also signed by her husband would seem to be prima facie evidence that it was given on his account and not on account of the wife or her estate. Jenz vs. Gugel and Gugel, 26 O. S. 529. Cook vs. Spencer, i Bull. 73 ; 4 Rec. 665. 8. When a married woman, having a separate estate, executes a promissory note as surety for the principal maker, a presumption arises that she thereby intends to charge her separate estate with its payment. [Levi vs. Earl, 30 O. S. 147, and Rice vs. Railroad, 32 O. S. 380, in so far as they conflict with the decision in this case, are overruled.] Williams vs. Urmston, 35 O. S. 296; 12 Bull. 157; 40 O. S. 300. XIX.] PRESUMPTIONS MEDICINE. 25 1 9. The intent of a married woman to cliarge her separate property may be inferred from circumstances. Society of Friends vs. Haines, 47 O. S. 428 ; 9 Bull. 363- 10. It may be shown by her endorsement of a note which is her separate property. Hineman vs. Williams, 4 Bull. 1079. 11. The intent to bind her property generally is negatived by giving a mortgage on a particular piece of her property. Hamilton vs. Leaman, 4 Bull. 911. 12. Money loaned to husband and wife, lender takes note of husband, the presumption is conclusive that he intends to rely on the husband for payment. Behlen vs. Fraas, 6 C. C. 153 ; (3 C. D. 292). 13. When a married woman signs a promissory note, expressing therein her intention to bind her property, the debt is presumed to have been contracted for her benefit. Biedinger vs. Goebel, 2 Bull. 245 ; 6 Rec. 282. Medicine, right to practice. Certificate exclusive evidence. R. S. 4403 c. Copy prima facie evidence. R. S. 4403 d. Merger. Merger will never be presumed against the equities of the Corwin vs. Collett's Ex'rs, 16 O. S. 289; i N. P. parties. 252; (2 Dec. 177); 4 N. P. 127; (6 Dec. 273). Motive. The fact that the applicant declined to avail himself of a final discharge under the insolvent law raises a strong pre- sumption that his principal object was a release from imprisonment and that he was not insolvent. Loines vs. Phillips, 4 O. 174. The presumption is that a husband, in the purchase of necessaries, either food or medicine, for his wife or children, is acting on the promptings of duty rather than as a mere 252 DECISIONS ON EVIDENCE. [CHAP. medium or agent in a business transaction; and evidence to rebut this presumption should be quite clear and satisfactory. Davis vs. Guarnieri, 45 O. S. 487. [See Malice.J [See Intention.] Name. Presumption is that wife bears the name of the husband. Barnett vs. Ward, 36 O. S. iii. [See Identity.] Negligence. 1. A jury is not justified in finding negligence unless the evidence show it. They may not decide from their own ideas or instincts without evidence. Railroad Co. vs. Cavagona, 6 C. C. 609; (3 C. D. 608) ; W. 203 ; 18 C. C. 99; (9 C. D. 638). 2. To establish negligence, there should be either direct proof of the facts constituting such negligence or proof of facts from which negligence may be reasonably presumed. There should be no guessing by either court or jury. Railroad Co. vs. Marsh, 63 O. S. 236. 3. In doing only what the law authorized him to do, the party will be presumed to have acted in a lawful manner until the contrary is shown, and the burden of proving negligence, carelessness or wantonness is on the party claiming to have sustained injury. Titus et al. vs. Lewis, 33 O. 304. 4. The supreme court has never gone so far as to say that a violation of a statute or ordinance raises a presumption of negligence. Hoppe vs. Parmalee et al., 20 C. C. 303; (11 C. D. 24). 5. Negligence will not be presumed — From failure of physician to efifect a cure. 17 O. S. 259- From the fact that stock was killed by a railroad. Z7 O. S. 554; 38 O. S. 666; 13 O. S. 66; 7 N. P. 380. XIX.] PRESUMPTIONS — NEGLIGENCE. 253 From the fact of an accident. 22 Bull. 244; 18 C. C. 177; 10 C. D. 49. From the mere fact of a defect and an accident. 15 C. C. 612; (8 CD. 454). From existence of defect in highway. 2 C. C. 369 ; (I C. D. 534). From the fact of the explosion of a steam boiler. 46 O. S. 386. 6. Negligence in the innkeeper presumed from the fact of loss by guest, the rule does not apply in case of loss of articles as to which innkeeper's liability is limited. Lang vs. Arcade Hotel Co., 12 Bull. 250. ,7. Negligence on the part of the telegraph company in sending message not presumed. Hord & Co. vs. Telegraph Co., 3 Bull. 42. 8. Where in an action against a telegraph company for damages resulting from an inaccurate transmission of a message, such inaccuracy is made to appear, the burden of proof is on the company to show that the mistake was not attributable to its fault or negligence. Telegraph Co. vs. Griswold, 37 O. S. 301. 9. One is prima facie liable for damages caused by the escape of a dangerous substance kept upon his premises. St. Mary's Woolen Man'f't'g Co. vs. Bradford Glycerine Co., 14 C. C. 526; 12 C. D. 341; 54 O. S. 532. 10. When a vicious animal does injury, negligence is presumed. Thomas vs. Boyson, 21 C. C. 306. 11. The burden to show negligence of the defendant is on the plaintif?. It cannot be presumed. Facts proven consistent with the absence of negligence do not tend to show negli- gence. Connel vs. Miller, etc., M'f'g Co., 10 Bull. 22 ; 14 C. C. 456; 15 C. C. 260. 12. Evidence that stock was breachy to meet presump- tion of negligence when railroad was not fenced. Railroad Company vs. Howard, 9 Bull. 234. 254 DECISIONS ON EVIDENCE. [CHAP. Stock at large is prima facie, but not conclusively so, by the sufferance of the owner. 47 O. S. 436. 13. Presumption that a railroad will not be negligently operated. Ohio Oil Co. vs. T. F. & S. R. R., 4 C. C. 210; (2 C. D. 505). 14. Failure of a person crossing a railroad track to look out for cars raises a presumption of negligence. This pre- sumption can only be rebutted by facts or circumstances showing that it was not reasonably practicable to make or keep such lookout, or such as would ordinarily induce persons, of common prudence to omit that precaution. Bellefontaine R'y Co. vs. Snyder, 24 O. S. 670. 15. If a traveler, by looking, could have seen an approaching train in time to escape, it will be presumed that he did not look, or, looking, did not heed what he saw. Railway Co. vs. Swartout, 14 C. C. 587; (6 C. D. 768). 16. When, about midday, one, without looking or listen- ing, permits a locomotive on the main track to run him down,, the presumption that he was negligent is perhaps irresistible. Railroad Company vs. Margrat, 51 O. S. 137. 17. The fact that a child was nine years of age, of imma- ture experience and judgment, may rebut a presumption of contributory negligence. Railroad Co. vs. Mackey, 53 O. S. 370. 18. When one of ordinary intelligence would have seen a defect in a sidewalk, the presumption of negligence in going- there may arise. Village of Monroeville vs. Weihl, 13 C. C. 689;. (6 C. D. 188). 19. When a person crossing a railroad track is killed, the fault is prima facie his own. Schweinfurth, Adm'r, vs. Railway Co., 60 O. S.. 225. 20. There is a presumption that all parties are careful ;. negligence is never presumed. 9C. C. 347;(6C. D. 137). XIX.] PRESUMPTIONS — NlJGUGENCE. 255 21. When a city ordinance prohibits the running of trains through its limits at a greater speed than named, a traveler upon a street crossing a railroad track, has a right to presume that the company will conform to such regulations. Hart vs. Devereux, 41 O. S. 565 ; 38 O. S. 632. 22. One has a right to presume that others are obeying a city ordinance, but not against the evidence of his senses. Baker vs. Pendergast, 32 O. S. 494. 23. Action against railroad company, under statute for causing death. Presumption of law is that neither party was guilty of negligence. The existence of negligence on either side is a fact to be ascertained by the jury under proper instructions from the court. Railroad Co. vs. Crawford, 24 O. S. 636; 12 O. S. 475 ; 30 O. S. 480 ; 42 O. S. 318 ; I C. C. 267. 24. A railroad company under the act of April 2, i8go,. is chargeable with knowledge of defects in its cars, etc. The presumption of diligence raised by proof of the employment of competent and careful employees, will not be sufHcient to overcome the effect of the knowledge of defects, which by this statute it is deemed to have. In the trial of a personal injury case against a railroad company for injuries caused by defects in its cars, etc., the defects so causing injury are prima facie evidence of negli- gence on the part of such corporation, and by force of this statute, the burden is thrown upon the company to show by proof that it has used due diligence, and is not guilty of negligence. Railway Co. vs. Erick, 51 O. S. 146; 10 C. C. 70; 12 C. C. 164; (5 C. D. 353); 12 C. C. 263; (4 C. D. 28). 25. The act of April 2, 1890, raises against the corpora- tion a prima facie presumption of negligence from evidence showing that the employee received an injury by reason of a defect in the car or locomotive, or the machinery, or attach- ments thereto belonging. Hesse, Adm'x, vs. Railroad Co., 58 O. S. 170. 256 DECISIONS ON EVIDENCE. [CHAP. 26. To overcome the presumption, the company must show that in fact it did not have knowledge. McCann vs. Pennsylvania Co., 10 C. C. 139; (6 C. D. 610). 27. An injury from a defective or unblocked frog does not come within the rule of the statute of April 2, 1890. R'y Co. vs. UUom, Adm'r, 20 C. C. 513 ; (11 C. D. 321)- 28. Railroad company presumed negligent in using a gummed-up brake. Hill, Adm'x, vs. R'y Co., 22 C. C. 291. 29. Where a railroad company is authorized to propel its trains and operate its road by the use of steam locomotives, no inference of negligence arises from the mere fact that an injury to adjacent property was caused by sparks emitted from such locomotives. Rufifner vs. Railroad Co., 34 O. S. 96; 48 O. S. 63. [See I C. S. C. R. 480.] See "An act making railroad companies liable for loss or damage by fires in certain cases and presenting rules of evi- dence in certain cases." O. L., Vol. 91, p. 187. II C. C. 371 ; (5 CD. 168) ; 12 C. C. 145 ; (5 C. D. 451)- 30. The fact that the fire originated on the land of the company is prima facie evidence that it was caused by operat- ing the road. Where the fire originated on land adjacent to that of the company the fact that it was caused by sparks from an engine is prima facie evidence of negligence. R'y Co. vs. Creager, 61 O. S. 312 ; 62 O. S. 302. 31. The existence of fire upon a railroad company's land, prima facie evidence that such fire was caused by operating such railroad. R. S., Section 3365 — 5; see 16 C. C. 127; (8 C. D. 765). 32. Action against a railroad company by a passenger, XIX.] PRESUMPTIONS — NEGLIGBNCE. 257 for injury received, a collision of trains of the company raises a prima facie presumption of negligence against the company. Railroad Co. vs. Mowery, 36 O. S. 418; cited 9 C. C. 198; 9 C. C. 170; 17 C. C. 562. 33. Two trains coming together on the same track is prima facie proof of negligence. Railroad Co. vs. Yokes, 12 C. C. 499 ; (5 C. D. 599). 34. On proof of injury sustained by a passenger on a railroad train by the fall of a berth in a sleeping car, and that the passenger was without fault, a presumption arises, in the absence of other proof, that the railroad company is liable. Railroad Co. vs. Walrath, 38 O. S. 461. 35. Passenger's arm, resting on car window, was struck by an obstruction of unknown character and broken. The injury is prima facie evidence of negligence of the railroad company and the burden rests on it to show that the cause of the accident was not under its control. Railroad Co. vs. Brown, 36 Bull. 349; same on 9 C. C. 19, 198 ; (10 C. D. 400, 269). 36. On proof of the failure of street railway to carry a passenger safely to his destination, the burden rests on it to show that the injury was the result of an independent inter- vening cause. Street Railway Co. vs. Murray et al., 53 O. S. 578. 37. The fact of loss of valuables stolen out of the clothing of passengers is not presumptive evidence of the negligence of sleeping car company. The Falls Rivet and Machine Co. vs. Pullman Palace Car Co., 4 N. P. 26; (6 Dec. 85). 38. Presumption that the ordinary manner of erecting a structure is suitable and proper. Strong vs. The Pickering Hardware Co., 9 C. C. 253;(6C. D. 212). 39. When a street railway company had full control of its cars and tracks, and the car is overturned by reason of running at such a high rate of speed that it could not keep the track, a presumption arises, in the absence of proof to the (18) 258 DECISIONS ON EVIDENCE. [CHAP, contrary, that the company was in some way negligent in permitting the car to go at so high a rate of speed. Street Railway Co. vs. Kelsey, 9 C. C. 170; (6 C. D. 209). 40. Conductor presumed to have contracted in con- templation of the railroad company using due diligence to furnish safe and sufficient cars and machinery for the train, such as is most common and usual in the business of railroad companies. Mad River & L. E. R. R. Co. vs. Barber, 5 O. S. 541- 41. One who engages in a hazardous employment as- sumes all risks incidental thereto ; but is not bound to antici- pate such dangers connected therewith as arise solely from the negligence of others, not in law his fellow servants ; and therefore his failure to foresee and guard against dangers of the latter class, does not raise against him, nor his personal representatives, a presumption of contributory negligence. Railway Co. vs. Kernochan, Adm'x, 55 O. S. 306. 42. Conductor getting ofif train in motion when author- ized to stop, it raises a presumption of negligence. II C.C. 579; (5 CD. 366). 43. Where loss of goods is shown to exist, the law raises the presumption of negligence against the carrier, and on him rests the burden of proof to show that the loss or damage occurred without his fault or that of those employed by him. Fatham vs. R. R. Co., 2 D. 248; 11 O. 304. 44. In cases of loss or damage the presumption is against a common carrier and he must show that the loss was by the public enemies or act of God. Bowman vs. Hilton, 11 O. 304. 45. Proof of non-delivery or loss is prima facie evidence of negligence on the part of the common carrier, and it devolves on him to prove that the loss occurred from some jxception contained in the contract of carriage. U. S. Express Comp'y vs. Bachman, 2 C. S. C. R. 2SI. XIX.] PRESUMPTIONS — NOTICE. 259 46. When a trunk was started in a sound condition the burden is on the company in whose hands it was found injured to show that the injury did not occur while in its possession. Check vs. Little Miami R. R. Co., 2 D. 247. 47. Presumption of negligence from fact of explosion on steamboat. Curran vs. Cheeseman et al., i C. S. C. R. 53. 48. Workman's knowledge of the defect in the machine by which he was injured was not, under the circumstances, conclusive of contributory negligence. Manufacturing Co. vs. Morrissey, 40 O. S. 148. 49. Jury may infer negligence from the leaving of a post or column in such a condition that it falls and injures a work- man. McManus vs. R. R. Co., 9 Bull. 364. [See Burden of Proof.] Notice. [See Knowledge.] Ownership. Improvements of a permanent nature, erected upon real estate owned by one member of a partnership, who holds the legal title thereto, will, notwithstanding the real estate is used as the place of business of the firm, be presumed to be the individual property of such partner, until it is proven that such improvements were erected by the firm and paid for out of the firm assets, or contributed as firm capital by such partner. Goepper vs. Kinsinger, 39 O. S. 429. The presumption of ownership arising from possession is not a strong one. It is of the slightest nature and open to be blown away by the slightest breath of suspicion. Osburn vs. McClelland, 43 O. S. 305. When a mortgage is on record in the name of the mort- gagee the presumption is that he is the owner. Heffner vs. Mahoney, 19 Bull. 373. That United States bonds on which the testator had always received the interest, found in his safe deposit after his death, 26o DECISIONS ON EVIDENCE. [CHAP. had been registered in his son's name and were without the latter's endorsement, is not presumptive evidence of a gift to or ownership in the son. McCammon vs. Dillaby & Robson, Ex'rs, 30 Bull. 89. One in possession of leased premises presumed assignee of the lease. Thompson vs. Ackerman, 11 C. D. 456. [See Bills, Notes and Bonds.] [See Real Estate.] Parentage. The presumption that a party is the parent of a child, arising from her acts, treatment and acknowledgment of the child, is very strong, but may be rebutted. Kendall vs. Kendall, 8 Bull. 3. [See Legitimacy.] Partnership, The presumption of a partnership from a sharing in profits is rebutted by the fact that there is no common ownership of property or mutual agency. Bank vs. Wagon Co., 6 N. P. 264; (9 Dec. 380). Payment. [See Bills, Notes and Bonds.] I. A motion to amerce the sheriff is not within the statute of limitations, not being an action. Nor does pre- sumption of payment from lapse of time arise in ten years in such a case. State vs. Crowell, i W. L. J. 305. 2. The presumption from the payment of money is that it was paid in discharge of a legal obligation ; this may be rebutted by proof. Conahan vs. Purcell, 6 Bull. 122. 3. Where two persons entered land together, and the payments were made, but it was not shown whence the funds came, the presumption must be that each paid his own portion. Reynolds vs. Clark, W. 656. XIX.] PRESUMPTIONS — PAYMENI 261 4. That payment of tax was involuntary. Adams Express Co. vs. Rattermann, 21 Bull. 238. 5. Debt contracted in Germany presumed to call for pay- ment in gold. Bohm vs. Broadhagen, 2 C. S. C. R. z. 6. Place of contracting a debt presumed the place of pay- ment. Hill vs. Myers, 10 Bull. 263 ; 22 Bull. 65. 7. Check marked paid presumed paid at date of check. In re Dellenbaugh, 17 C. C. 306; (9 C. D. 380). Genuineness of signature admitted, receipt presumed cor- rect. Dayton, 444. 8. All agreements to pay in specific articles are presumed to be made in favor of the debtor and he may pay in money. Trowbridge vs. Holcomb, 4 O. S. 38. 9. No presumption that a debt not yet due will not be paid. King vs. Longworth, 7 O., Pt. 2, 231. 10. Presumption that sale without stipulation as to pay- ment is for cash. Edwards vs. Glancy et al., i C. C. 457; (i C. D. 258); 18 O. 28; 23 O. S. 311. 11. Payment presumed from lapse of time. [See Time, Lapse of.] 12. A party invoking afHrmative relief based on the alleged payment of a debt, must establish the fact of payment ; such relief will not be granted upon a presumption of payment from lapse of time. Such presumption is a shield, not a weapon of attack. Allen vs. Everly, 24 O. S. 97. 13. Presumption of payment by administrator to guardian when it is his duty so to do. 17 O. S. 150. 14. The receipt of the treasurer of a corporation as money is prima facie evidence of payment to that amount. Stewart vs. Saybrook Township, W. 374. 262 DECISIONS ON EVIDENCE. [CHAP. 15. Sale on plaintiff's execution. Plaintiff voluntarily appears in court and consents that his own purchase shall be set aside. The law presumes that the sale was set aside because the debt had been paid or released. Lytle and Avery vs. Cin. Man'f g Co., 4 O. 469. 16. An agreement by A. in consideration of a bill of mer- chandise sold to him by B. to pay the amount of the bill in discharge of certain notes signed by B. and endorsed by A. is presumptive evidence of the payment of a previous indebt- edness from B. to A. Colvin vs. Carter, 4 O. 358. It is only by force of an agreement of the parties, that the giving of an unsealed note by the debtor will be payment of a preceding debt. The burden of proof is upon the debtor, who must establish the agreement clearly. Merrick vs. Boury, 4 O. S. 61 ; 7 C. C. 381 ; (4 C. D. 64s) ; 58 O. S. 524. [See Bills, Notes and Bonds.] 17. An uncertified check, if given in the ordinary course of business, and unattended by special circumstances, is not presumed to be received as absolute payment, even if the drawer have funds in the bank. No imphcation arises from the mere fact that the drawer has procured the check to be certified, that it is accepted as money or currency. Oyster & Fish Co. vs. Bank, 51 O. S. 112. 18. From the giving of receipts or posterior notes the settlement of prior demands may be implied. In demands of long standing the jury may infer payment from the solvency of the debtor. His insolvency may be shown. Cole vs. Kerr, W. 676. 19. Lapse of time is only probable evidence of payment, and slight circumstances are admitted to do away with the presumption. Every one is presumed to call in what is due him shortly after it is due, and if written evidence of debt under seal remain twenty years after the debt is due, it is supposed to have been carelessly left, though the money is paid, and prima facie the debt is held paid. The plaintiff may XIX.] PRESUMPTIONS — PAYMENT. 263 meet and repel this presumption by showing an inability to prosecute, or any other circumstance which satisfies the jury that the debt is not paid. McBride's Adm'r vs. Morris, Adm'r, W. 524. 20. Presumption of payment from lapse of time is not available as a weapon of attack. Green vs. St. R'y Co., 62 O. S. 78. 21. When a mortgagee continued in life ten year after the mortgage notes were made, and at his death the notes were not found among his papers and for a period of more than ten year after his death no claim was asserted upon either the mortgage or the notes, the presumption of payment to the mortgagee in his life time is very strong. Rife vs. Lybarger et al., 49 O. S. 428. 22. Where an assignee for creditors held a note on which one of them was surety, long after maturity, without any ei¥ort to collect it, and the principals were solvent for several years after it became due, and subsequently became insolvent, these are all circumstances proper for the consideration of a court or jury as raising a presumption of payment. They are not, however, so significant or conclusive that a reviewing court would be warranted in acting on them. Rossman vs. McFarland, 9 O. S. 369. 23. The presumption of payment arising from lapse of time may be rebutted by proof that the debt remains due and unpaid, or that the debtor^ within the time required to raise such presumption, acknowledged the claim to be a subsisting liability, [i] Or by the circumstances showing that it is not paid. Bissell vs. Jordon, 16 O. S. 498. [i] Allen vs. Everly, 24 O. S. 97. 24. Where nothing is said, but the note is dated and signed at the residence of the debtor, the presumption is that it is payable at the place of residence of the debtor when it would be a lawful contract there and unlawful at the place of residence of the creditor. Scott vs. Perlee, 9 Bull. 207; 39 O. S. 63. 264 DECISIONS ON EVIDENCE. [CHAP. Performance. A life insurance company, doing business under the act of April i6th, 1867, purchased the assets of another company doing business under the same act, and, in consideration thereof, agreed to assume its risks and to pay its debts. Held, that in an action on the note by the purchasing company, it will be presumed, in the absence of any averment to the con- trary, that the agreement between the companies has been performed, or, at least, that it has not been abandoned. Ehrman vs. Ins. Co., 35 O. S. 324; 5 Bull. 16. When it appears from a contract made in one state, that it is to be performed in another, the presumption is that it was entered into with reference to the laws of the latter. Railway Co. vs. Shepperd, 56 O. S. 79. Kanaya vs. Taylor, 7 O. S. 142. Heaton vs. Eldridge, 56 O. S. 87. Pleadings, presumptions arising on. In an action by an administrator against owners of a steamboat for loss of decedent's life, the presumption is that the allegation relates to an occurrence in this state and it need not be so stated. Lawton vs. Maratta et al, 2 C. S. C. R. 82. The allegation that a contract was made is an allegation that a valid contract was made, and in the absence of an answer the court will presume that, if necessary to be in writing, it was in writing. Society of Friends vs. Haines, 47 O. S. 428; 31 Bull. 102. But when the agreement is a matter of defense the fact that it is in writing should be averred. 31 Bull. 102; 2 Bull. 262; 4 W. L. M. 575. [See Waiver.] Possession, presumption from. The fact that a building was burglariously entered, goods stolen therefrom, and the possession by the accused soon thereafter of the stolen goods, are competent evidence to go to the jury, and with other circumstances indicative of guilt. XIX.] PRESUMPTIONS — POSSESSION. 265 such as giving a false account, or refusing to give any account, of the manner in which, or the means by which, he came into possession of the stolen goods, may afford a strong presump- tion of the fact of the guilt of the accused, and warrant the jury in finding him guilty of both the burglary and larceny. But the facts of burglary and larceny and of the possession of the stolen goods soon thereafter by the accused, do not alone raise a presumption of law that he is guilty of both the burglary and larceny. Methard vs. The State, 19 O. S. 363; 21 C. C. 32. Unexplained possession alone not sufficient to warrant conviction for the larceny, unless the fact of a theft of the goods by some one is clearly shown. McGuire vs. The State, 3 C. C. 551 ; (2 C. D. 318). There must be some competent evidence implicating defendant, in addition to the fact of possession. Blaney vs. The State, 17 C. C. 486; (9 C. D. 616). Possession of stolen goods. Evidence to rebut presump- tion arising from. 15 O. 283. Possession. Presumptions as to, by purchaser at tax sale. R. S. 41 14. One in possession of leased property presumed assignee of lease. 21 C. C. 740. [See Continuance.] Prejudice. The presumption of law is that where error has intervened in a criminal case, it is prejudicial to the defendant. Bennett vs. The State, 10 C. C. 84; (4 C. D. 129). Prejudice to prisoner not presumed from prosecutor com- menting on affidavit of expected proof of absent witness. Comerford vs. The State, 23 O. S. 599. Where the plaintiff in error caused only part of the record to be printed, there being no order excusing him from print- ing any part of it, it will be presumed that he printed all he deemed material. Railway Co. vs. Campbell, 36 O. S. 659. 266 DECISIONS ON EVIDENCE. [CHAP. Where the indictment contains several counts, each charging a criminal offense in regard to property, the record discloses the fact that the property described is the same. Prejudice to accused will not be presumed from refusal of trial court to require prosecutor to elect. Searles vs. The State, 6 C. C. 331 ; (3 C. D. 478). Demurrer for misjoinder of actions, judgment against •defendants thereon is, if erroneous, presumed prejudicial. Minor vs. Smith et al., 13 O. S. 79. Prejudice of juror presumed when it is a natural inference irom his misconduct. Alen vs. Andrews Bros. Co., 9 C. C. 591 ; (6 C. D. 514)- [See Courts.] [See Improper Admission and Rejection of Evidence.] Price. In a contract to take all the salt B. manufactures within a given time, and pay a certain price on delivery, and a certain quantity is tendered and not accepted and B. sues A. Held, if B. keep, or use, or sell the salt and does not account for it he will be presumed to have sold at the market price. Hadly vs. Pugh, W. 554. Principal. When one deals as for himself, he is presumed to be prin- cipal. Wheeler vs. Miller & Towle, 2 H. 149. Where two persons deal with each other the law presumes they act as principals. Soutter & Co. vs. Stoeckle, 6 Bull. 186. Profits. A partner who takes on himself the entire control of the business of the firm is chargeable with the ordinary profits of the business he undertakes to conduct, and it lies on him to explain by proof the causes of his failure to make ordinary profits. Stidger and wife vs. Reynolds, 10 O. 352. XIX.] PRESUMPTIONS PROMISE, IMPI.IED. 267 Promise, implied. 1. Express promise excludes presumption of iniplied. 29 O. S. 59; 18 O. S. 447; 18 O. S. 542. 2. As to what kinds of service the law implies a promise to pay for. 3 C. C. 191. 3. There is no implied promise of a husband to pay a wife's attorney fees in a divorce case. Dorsey vs. Goodenow, W. 120. 4. Admission of assets by an administrator raises no implied assumpsit. Vanlear and wife vs. Haslet's Ex'r, W. 457. 5. Facts not raising an implied contract to pay rent for land. Mitchell & Rowland vs. Pendleton, 21 O. S. 664. 6. Facts raising an implied promise to pay rent for land. I H. 457; 14 0.346. 7. Where the mortgagor retains possession of the horse, it may be presumed that the animal was to be furnished all necessary care and keeping without impairing the mortgage security therefor. Graham vs. Mitchell et al., 3 N. P. 106; (4 Dec. 139)- 8. Presumption that an attorney is to receive reasonable pay for his services. Burden is on client claiming special con- tract to prove it. 8 N. P. 557. 9. The implied liability of a corporation for the service of a promoter may be rebutted by proof that they were gratui- tously given, and when the services are those of an attorney in organizing a building association, there being no express contract as to services, it is proper in rebuttal of the implied contract to show that the attorney had rendered like services gratuitously in getting up other building associations when the same persons were among the promoters. And the proof should not be limited as to what was said and done at the time of service. Subsequent admissions also may be shown, but it is proper to reject a question as to the understanding of the parties. Building Ass'n vs. Lotze, 11 Bull. 285. 268 DECISIONS ON EVIDENCE. [CHAP. 10. No implied obligation arises against a father to pay an unmarried daughter for services rendered while resident in and a member of his family. Pollock vs. Pollock, 2 C. C. 143; (i C. D. 410J. 11. When one works for another the law in general implies a promise to pay what the work is worth, [2] but that implication does not arise in favor of a son who continues with his father's family after he attains his majority, without agree- ment for wages, nor in favor of a man who marries a daughter, and lives in his father-in-law's family. Lovet vs. Price, W. 89, 134. In re Dunn, 23 Bull. 328. [2] Cin. vs. Green, 2 C. S. C. R. 278. The presumption is rather that such services are gratui- tous. In re Estate of Mary Ward, 21 C. C. 753. 12. Where a little girl lived with her grandparents for nine months after appointment of guardian there was no pre- sumption that she was to pay board. Lynch vs. Cogswell, Ex'r, 18 C. C. 643; (7 C. D. 12). 13. Compensation will be allowed a child for nursing a parent in the absence of an express contract, where the cir- cumstances justify the child in assuming that she would be paid. In re Estate of Skelton, 20 C. C. 704; (11 C. D. 372). 14. The rule that the relation of parent and child repels the presumption that services rendered by the child after becoming of age are in expectation of payment, applies in case of an adopted child, designated as heir at law of the husband, rendering services to the widow, and the burden is on him to show an express or implied contract. Finch vs. Finch, 4 Bull. 908. 15. When the wife deserted the husband and he obtained a divorce, but the court granted the custody of the child to the wife, there is no implied promise on the part of the father to pay the wife for services rendered the child. Christoff vs. Christoff, 6 C. C. 515; (3 C. D. 562). XIX.] PRESUMPTIONS — PUBLIC PROPERTY. 269 16. Implied promise to pay pound-master for services rendered. City of Cin. vs. Green, 2 C. S. C. R. 278. 17. Where a prosecuting attorney appears before a mag- istrate, at the request of a citizen, and prosecutes one charged with the commission of a felony, preparing the papers neces- sary for such purpose, there is no implied contract that such citizen will pay him for such services. Railroad Co. vs. Lee, 37 O. S. 479. 18. While in possession of the estate, and enjoying the benefit of the lease, there is an implied promise on the part of the assignee that he wiU take the burden from his assignor and indemnify him against the claims of the lessor. McHenry vs. Carson, 41 O. S. 220. 19. The law implies a contract to use usual skill and do work in the usual method. W. 229, 466; 7 O., Pt. 2, 123; W. 471 ; 17 O. S. 273; W. 351. 20. Mutual mistake as to power; implied promise on the part of the corporation to pay back principal and mterest. Weeden vs. L. E. & W. R. R. Co., 14 O. 563. Public property, presumed held for public purposes. The plain presumption, that must prevail until overthrown by proof, is that all the property owned by the city is either used or intended for public purposes. Brush Electric Light Co. vs. City of Cin., 28 Bull. 31. Ratification of contract. When the state becomes a party in court, suing upon tht unauthorized contract of her agent, without any suggestion that the suit is prosecuted without authority, the presumption, as in like cases of private individuals, is that she has ratified the contract. State vs. Ex'r of Buttles, 3 O. S. 311. Suit against agent for value of goods consigned by him without authority is evidence of a ratification of consignment. Frank vs. Jenkins Bros. & Chipman, 22 O. S. 597. 1 270 DBCISIONS ON EVIDENCE. [CHAP. Real Estate. Possession raises a presumption of title, 1-6. Payiyig taxes and other acts evidence of possessio?i, 7. Paper title from former owner better evidence of title than mere possession, 8. Title is prima facie evidence of right of possession, g. Burden of proof after production of deed by one in possession, 10, II. Conveyance presumed, j, S, 12-20. Presumption of intention to part with title, 2i. Agreem,ent to sell, presumption that deed of general warranty is intended, 22. Survey presumed, 2^. Grant of easement presumed, 20, 2^-2^. Grant of right of way not presumed to be in gi'oss, 28. Dedication, 29-31. Easement. [See Abandonment^ Record of deed prima facie evidence of its delivery, 32. Presumption that deed was recorded with assent of grantee, jj^ That deed was recorded with assent of grantor, j^. That deed was delivered, 21 , J5. Against intent to create estate tail, j6. That husband conveying to wife intended a gift, ^7. That deed was a mortgage, 38, jp. That vendor retained lien, ^o, 41. As to ownership of mortgage, ^2. As to vendors' lien, ^o, ^i. As to incumbrances , 4.2-^g. Acknowledgment of payment of purchase money when evidence of its payment, 4.6. Presumption as to covenants, 50, 57. Building when part of real estate, ^2. Reservation of growing crops, 52. Notice and knowledge when presumed, §3-60. Presumption of resulting trust, 61 , 62. Calls J or certain distance presumed to be in a straight line, 63.. Tract sold presumed square, 64. Officers' deeds, 6§-68. Presumption as to ow7iership of land underlying lake, 66. XIX.] PRESUMPTIONS — REAL ESTATi;. 271 Presumption that grant was to center of streain, 6f. Presumption from lessee holding over, 68-7 j. Possession by tenant in common not presumed adverse to the co-tenant, 74.-75. Presumption from possession without contract, yd. Use as common raises no presuinption against right of village to improve, 77. Presumption that canal lands were selected, yS. Presumption as to liability for rent on perpetual lease, yg. Whether surveys were run by magnetic or true meridian, 80. As to boundary from existence of wall, 81. ' ^Balance, ' ' meaning of the word in report of commissioners to- assign dower, 82. See Acceptance, p. 1^5 ■ Advancements , p 1^7. Assignment {of Land Warrant. ) Authority. Paym-ents. Knowledge and Notice. Regularity of Acts of Officers. 1. A person proved to be in possession of land will prima. facie be presumed to be seized in fee. Driggs vs. State, 52 O. S. 55. Prior possession is presumptive evidence of title to real estate. 3 O. 255 ; 19 C. C. 254 ; (10 C. D. 308) ; T. 296, 345. 2. Possession under a general claim of title is prima facie evidence of an estate in fee simple. Burden is on the defend- ant to show that the possession was, in fact, referable to a less estate. Ward vs. Mcintosh, 12 O. S. 238. 3. Possession for less time than under the statute of limitations would bar a recovery in ejectment, is not sufficient to warrant the presumption of a deed, unless accompanied by other circumstances. Courcier & Revises vs. Graham, i O. 349. 4. For the purpose of supporting a continued possession" of over forty years, under a defectively executed conveyance 272 DECISIONS ON EVIDENCE. [CHAP. by a cestui que trust, who during the whole period had made no claim thereto, and was under no disability, the court will presume a good title to the equitable estate in the occupant. Bierce et al. vs. Pierce et al., 15 O. 529. 5. Where one is in possession of land the presumption is that he has a memorandum in writing entitling him to hold it, rather than that he is in possession under a parol lease. Sims vs. Porter, T. 109. 6. If a party be in possession of real estate and make a conveyance under which his grantee enters into possession there is prima facie evidence of title. Holmes vs. Spinning, 3 Bull. 80. 7. Bill to quiet title. Paying taxes and assessments, sell- ing part of the land, and sub-dividing the whole is prima facie evidence of possession. Harvey vs. Jones & Eaton, i D. 69. R. S. 41 14. [Presumption as to possession by purchaser at tax sale.] 8. A paper title from a party whose original title is admitted is prima facie evidence of better title than pos- session. A deed cannot be presumed from possession and claim of title, unless the possession is continued, until the statute of limitations comes in. A man cannot raise a legal presumption in his own favor by his own acts merely to the prejudice of others. Ross vs. Corwin et al., 3 O. 407. 9. In ejectment proof of legal title is prima facie evidence of right of possession. Williams' Lessee vs. Burnet, W. 53. 10. The production of a deed by one in possession under it, its formal execution being admitted, casts the burden of showing it not, in law, the deed of him it purports to bind, upon the party who denies its validity. Truman vs. Love, 14 O. S. 154; see 4 Bull. 445. 11. The production of a deed with usual covenants of warranty prima facie establishes seizing in fee. Ruffner vs. Evans, 2 C. C. 71 ; (i C. D. 368). XIX.] PRESUMPTIONS — REAL ESTATE). 273 12. The existence of a deed is presumed in support of long continued possession [i] by cestuis que trust, where the trustees should have conveyed; but the presumption is not raised to support the possession of a stranger, in opposition to a deed of recent date. Harman vs. Kelley et al., 14 O. 502; [i] 7 Rec. 411. 13. This presumption of a conveyance, springs from a possession, is raised to support a possession and has no exist- ence in his favor who attacks the rights of one who holds the possession adversely against him. Kinsman's Lessee vs. Loomis & Wood, 11 O. 479. 14. Proof of sale, of the return of the sheriff of the order of confirmation and that the sheriflf made the deed, with other evidence held sufficient to raise the presumption that a valid deed was made by the sheriff. Lessee of Armstrong vs. McCoy, 8 O. 128. 15. Under the articles of association entered into between the proprietors of the Ohio Company and the partition there- under made, deeds of conveyance from the directors to the agents, and from the agents to the several proprietors, as therein provided for, may be presumed to protect the equitable rights and possession of those claiming under said proprietors. Such presumption cannot be made in aid of a party who is not the rightful, equitable owner of the land, and in the actual possession or what is equivalent thereto. Whether a conveyance is to be presumed from circumstances alleged to be sufficient to justify it, is a question of fact for the jury under the advice of the court. (The circumstances of this case do not justify the presumption of a conveyance.) Lessee of Blake vs. Davis et al., 20 O. 230. 16. A patent for lands from the U. S. cannot be pre- sumed, where the proper records contain no evidence or indication of a grant having been made. Wallace's Lessee vs. Minor, 7 O. Pt. i, 249. 17. A grant may sometimes be presumed, but if it be produced and is defective, nothing can be presumed to aid (19) 274 DECISIONS ON EVIDENCE. [CHAP. that defect. (The acknowledgment of the deed was not presumed from lapse of time.) Roads vs. Symmes, i O. 316. 18. It was claimed that from the lapse of time and other circumstances, a grant from the government must be pre- sumed. But the evidence showing that none had issued, it was held that the presumption failed. Presumptions never prevail against positive facts, although they often supply the want of facts. Wallace's Lessee vs. Minor, 6 O. 366; 7 O. Pt. i, 249. 19. Lapse of time for a period equal to the bar of the statute of limitations, raises a presumption that the occupants of land for such period have received grants from holders of prior equitable titles. Morrison vs. Balkins, 8 Rec. 577. 20. Lands granted to A. and taken possession of by B., whose possession is not protected by the statute of limita- tions ; proof that B. purchased the warrants of A. before their location, located them and paid taxes, not admissible to raise the presumption of a conveyance from A. to B. (As to pre- sumptive right to incorporial hereditaments, from length of user, see Opinions.) Starke's Lessee vs. Smith, 5 O. 455. 21. When a man executes and acknowledges a deed, and delivers it to the recorder, with unqualified instructions to record it, the reasonable presumption is, in the absence of any rebutting circumstances, that he means to part with his title, and this presumption is powerfully strengthened, when the grantee is a minor child, and at a distance so that the delivery in person cannot be made, and the gift was a reasonable one. The fact of a grantor possessing a deed, after an alleged delivery of it, may be a very pregnant circumstance to show that the supposed delivery was not absolute. But such pos- session of a recorded deed is entitled to much less considera- tion than the possession of a deed not recorded. Clear proof ought to be made to warrant a court in holding that a man XIX.] PRESUMPTIONS — REAL ESTATE. 275 who has executed and acknowledged a deed, and caused it to be recorded, did not mean thereby to part with the title. Mitchell, Lessee, vs. Ryan, 3 O. S. 382. Where a deed is found in the grantee's hands, a delivery and acceptance is always presumed. Schurtz, Adm'r, vs. Colvin et al., 55 O. S. 288. 22. Where a person agrees to sell land the presumption is that a deed of general warranty is intended. Stanley vs. Bedinger, 2 C. C. 344; i C. D. 522). 23. All lands conveyed by metes and bounds are pre- sumed to have been surveyed before conveyed. Alspires, Lessee, vs. Hulse, W. 171. 24. Where a turnpike company constructed its road, with the acquiescence and consent of a canal company, along one side of the canal, and used said road for a series of years with the canal company's consent. A court of equity will presume a grant of easement to the turnpike company. C. & L R. R. Co. vs. Zinn et al., 18 O. S. 417. 25. A prescriptive right presumes a grant. Knoblock vs. Hollinger et al., 9 C. C. 288; (6 C. D. 424). Where the owner of two adjacent lots conveys one of them, no grant or reservation of an easement for light and air will be implied merely from the nature or use of the structures existing upon the lots at or prior to the time of the convey- ance. Mullen vs. Strieker, 19 O. S. 135. Presumption of grant from possession, paying taxes, improving and numerous overt acts of ownership from 1842 to 1896. Schulte et al. vs. Beineke et al., 4 N. P. 207; (4 Dec. 250). 26. The doctrine of prescription or presumption of grant from lapse of time has no appHcation to underground waters flowing through one man's land and coming out as a spring on another's. Frazier vs. Brown, 12 O. S. 294. 27. Presumption of grant of easement for a road from 276 DECISIONS ON EVIDENCE. [CHAP. acquiescence in the laying out and the establishing the road and forbearing to interpose a claim until the road is ordered to be opened. Viers, Herring vs. McDowell's Petition, T. 89. 28. When the grant or reservation of a way can be fairly construed to be appurtenant to the land, it is never presumed to be in gross. Metzger et al. vs. Holwick, 31 Bull. 241. 29. An act of dedication, by the record of a town plat, of lots as "public ground" is presumed to be for a public square for the use of the town. Neither a subsequent deed by the proprietors nor their posterior declarations can affect the right. Town of Lebanon vs. Comm'rs Warren Co., 9 . O. 80. 30. Some acts of acquiescence and ratification of action of municipal corporation by owner of land held not sufficient to imply a dedication of the land to public use. Longworth et al. vs. Cin., 26 Bull. 363; 48 O. S. 638. 31. Presumption of intention to dedicate a street from setting apart a strip and opening a passage way over it and conveying lots described as bounded on it by the name of "Mulberry Street" and used by the public for twenty-five years. McNeal & Urban vs. City of Cincinnati, 8 Bull. 324- 32. Recording of a deed but prima facie evidence of delivery. The possession of the deed after record by the grantor, when its existence was unknown to the grantee, is almost conclusive evidence that there was no intention to deliver it. Harvey vs. Jones & Eaton, i D. 70 ; 7 O. Part H, 50; 4 W. L. G. 393 ; 3 O. S. 377. 33. Presumption that deed was recorded with the assent of grantee and for his benefit. Hammell vs. Hammell et al., 19 O. 20. XIX.] PRKSUAfPTlONS — REAL ESTATE. 277 34. Presumption that deed was recorded with assent of grantor. 45 O. S. 87 ; 33 O. S. 203 ; 3 O. S. 377. 35. Deed recorded in the life time of grantor and found after his death in the possession of grantee, together with other facts, raises a presumption of deHvery. Williams vs. Hears, 2 D. 615 ; 55 O. S. 288. 36. Estates tail are not favored, and the presumption is against the intention to create them. The presumption must be overcome by language entirely free from ambiguity. Collins vs. Collins, 40 O. S. 363 ; 41 O. S. 241. 37. Conveyance by husband to wife without a valuable consideration; the presumption that an absolute gift was intended may be rebutted by the circumstances. Rankin vs. Rankin, 21 Bull. 126. 38. Circumstances raising a presumption that a deed absolute on its face was a mortgage. Marshall vs. Stewart, 17 O. 356; 5 Bull. 319. 39. Gross inadequacy of price, the grantor's continued possession, regular payment of taxes and assessments on the property by him, receiving the rents and profits as his own, controlling, using and improving the property as his own by the grantor, in connection with the grantee's avowed purpose to make 10 per cent, on his investments, and continued expectation that the vendor would take back the property, afford strong presumptions that the vendor still holds the equity of redemption in the real estate. Wilson vs. Giddings, 28 O. S. 554. 40. Retaining the legal title is very strong, if not con- clusive evidence, that the vendor intended to rely upon the thing sold as security for his payment. When the legal title is conveyed the presumption is that vendor intends to rely upon the property sold as security and before a waiver of such security can be found it must be shown that he did not intend to rely upon it. Railroad Co. vs. Lewton, 20 O. S. 410. 41. 'A vendor's lien arises upon presumed intention, and this presumption continues until overcome by evidence that it 278 DECISIONS ON EVIDENCE. [CHAl'. has been abandoned or extinguished, and the vendee has the burden of repelling the presumption. Taking vendee's unsecured note or renewal of it -does not repel the presump- tion of a Hen, nor does the fact that the vendor and vendee were related as father and son, and that the father left the son a legacy. Hunter vs. Hunter, i Bull. loi. 42. When a mortgage is on record in the name of mort- gagee the presumption is that he is the owner of it. Heffner, Treasurer, vs. Mahoney, 19 Bull. 373. 43. When on sale of incumbered realty an abatement is made in the price because of the incumbrance a promise to indemnify the grantor against the incumbrance is presumed. Thompson's Adm'x vs. Thompson, 4 O. S. 333. 44. Incumbrances known to the parties at the time of the conveyance are not presumed to be excluded from the opera- tion of a covenant that the premises are free of incumbrances. Parol evidence not admissible to show such intent. Long vs. Moler, 5 O. S. 271. 45. A mortgage not satisfied of record is presumed to be outstanding. Holinger vs. Bates, 43 O. S. 445. 46. A recital of the payment of the purchase money is between the parties evidence of its payment. Ranney vs. Hardy, 43 O. S. 161 ; 6 C. C. 594; (3 C. D. 597). An assignee of an equity of redemption is presumed to have purchased subject to the mortgage and by his contract to have assumed to discharge it, but not so the assignee of the land mortgaged. Union Bank of Massillon vs. Bell et al., 14 O. S. 210. 47. On taking account between mortgagor, who is en- titled to redeem, and mortgagee in possession, the use of the land and interest on debt not assumed to be equal. McArthur vs. Franklin, 16 O. S. 207. 48. The coincidence in date of deed and mortgage justifies the presumption that they were parts of the same transaction. Rufifner vs. Evans, 2 C. C. 70; (i C. D. 368). XIX.] PRESUMPTIONS — REAL ESTATE. 279 49. In a contest between purchasers of separate parcels of land encumbered by a mortgage on the whole, as to whose land shall be first sold, the dates as to when their respective legal titles vested prima facie determines the order of such sale. Sternberger vs. Hanna, 42 O. S. 305. 50. In a lease for a life there is no presumption of war- ranty for quiet possession, but there is in a lease for years. Young vs. Hargrave's Adm'r, 7 O. Pt. 2, 63. 51. Where an administratrix signs a deed G. L. adminis- tratrix of S. M., and in the covenanting parts of the deed she is named G. L. simply, and the deed contains no reference to any order of court authorizing a sale of the real estate of the intestate, the covenants are prima facie those of G. L. in her individual capacity. Lockwood vs. Gilson, 12 O. S. 526; 3 O. 70; 2 O. 345- 52. If a growing crop be not reserved the grantor is pre- sumed to have intended it to pass. [It will not pass at judicial sale or sale on partition.] Herron vs. Herron, 47 O. S. 547. Livery barn prima facie part of real estate : when. Histe vs. Buckley, 8 C. C. 470; (4 C. D. 490). 53. Quit claim deed presumed to have been given because grantor knows of outstanding equities and does not intend to bind himself by warranties against them; and the grantee is presumed to have accepted a quit claim because he has knowledge of the equities. Grantor and grantee will be pre- sumed to have fixed the purchase price in view of the uncertainty of the title. Cook et al., Ex'rs, vs. Dinsmore et al., 5 C. C. 387; (3 C. D. 189). 54. Where a patent for land issued by the U. S. recites assignments by persons competent to convey, there is no presumptive notice to one who derives title under such patent of latent defects in the assignments. Otherwise if the patent recites assignments by persons not competent to convey. Bell vs. Duncan, 11 O. 192. 28o DECISIONS ON EVIDENCE. [CHAP. 55- Where a lot of land is held by tenants in common, and for the purpose of quieting the titles by bill, the com- plainant who purchased from one of the tenants, and relies upon his possession taken under his purchase, as constructive notice to one claiming by later title from the same grantor, if the last purchaser have no actual notice of complainant's equity, he is chargeable only with the knowledge of the inter- est of the co-tenant, who holds the legal title to the undivided interest. The occupation of the lot will, in the absence of proof to the contrary, be presumed to be the act of such part owner, and need not be regarded for any other purpose. Williams vs. Sprigg, 6 O. S. 585. 56. Where the statute requires a particular authority to be pursued in the transfer of an interest in real estate, the purchaser is presumed to know such authority. Mack and wife vs. Brammer et al., 28 O. S. 508. 57. If in the investigation of a title a purchaser of com- mon prudence must have been apprised of another right, notice of that right is presumed. Reeder et al. vs. Barr et al., 4 O. 459. 58. The owner of land is chargeable with notice of facts recited in the deed through which he traces title ; this principle applies to patents from the government. Bonner vs. Ware et al., 10 O. 469. 59. A person seeking the benefits of the occupying claim- ants' law is not to be presumed to know any defects or recitals that do not appear upon the muniments which are necessary to establish his claim under the act. Lessee of Beardsley vs. Chapman, i O. S. 119. 60. Purchaser at sheriff's sale presumed to have investi- gated title. Hollister vs. Dillon et al., 4 O. S. 205. 61. When one purchases property with his own funds and places the title in the name of a stranger there is a legal presumption that the property is held in trust for the pur- chasee, but this may be rebutted by circumstances or evidence showing a different intention. Creed vs. Lancaster Bank, i O. S. i. XIX.] PRItSUMPTlONS REAL ESTATE. 281 62. Where an agent has funds of the principal and invests them in land, the presumption is that the purchase is for the benefit of the principal. Reynolds vs. Morris, 17 O. S. 515. 63. Call in description of land of a certain distance on lower side of a small creek presumed to be in a straight line. Buckley vs. Gilmore & Hopkins, 12 O. 63. 64. Sale of given quantity land, presumed square, when. Walsh vs. Ringer, 2 O. 327; W. 366, 650. 65. Auditor's deed to purchaser at tax sale is not prima facie evidence of title. R. S. 907, amended April 16, 1892. As to other officers' deeds^ see lb. Auditor's deed under act of 183 1, is prima facie evidence of title, and may be given in evidence without any proof of the regularity of the proceedings resulting in the sale of the land. Contra under act of 1825. Turner vs. Yoeman, 14 O. 208; 19 C. C. 235 ; 5 O. 370; 13 O. S. 571; 27 O. S. 592. The effect of this rule is to shift the burden of proof, by imposing on the party asserting the validity of the deed, the duty of showing it to be void for want of compliance with the statute in the proceedings leading to the alleged forfeiture. Magruder vs. Esmay, 35 O. S. 234; and cases in 65 above. A tax deed executed under the act of March 23d, 1840, f Curwen, i, 630] is not, without other evidence than the deed itself, prima facie evidence of the validity of the tax sale ; nor will the destruction of the records in the office of the county auditor relating to such sale warrant the presumption of its validity. Rhodes vs. Gunn, 35 O. S. 387; 8 O. S. 430. See also, Lessee of Holt's Heirs vs. Hemphill's Heirs, 3 O. 233. R. S. 41 14. [Presumption as to possession by purchaser at tax sale.] To sustain a collector's deed for land sold for taxes proof must be given to show that notice and the other preliminary 282 DECISIONS ON EVIDENCE. [CHAP. steps have been duly taken. The recital in the deed is not proof of such facts. Lessee of Heirs of Thompson vs. Gotham, 9 O. 170. R. S. 5402. [Efifect of deed of sheriff, master, etc.] The ■deed shall be prima facie evidence of the legality and regu- larity of the sale. R. S. 6163. The deed of the executor or administrator made in pursuance of the order of the court, shall be received in all courts as prima facie evidence that the executor or administrator in all respects observed the directions and com- plied with the requisitions of the law. R. S. 907a. Restored records, deeds of officers. R. S. 2877. The deed made by the auditor on delinquent lands sales shall vest in the grantee, his or their heirs and assigns, good and valid title, both in law and equity, and shall be received in all courts as prima facie evidence of a good and valid title in such grantee, his heirs and assigns. R. S. 2914. Efifect of auditor's deeds for lands heretofore sold for taxes. In a trial to determine the validity of a tax title the burden of proof is on such owner to show that the land of the debtor was listed, advertised and sold, as directed by statute ; but by reason of the statutory language in that regard a contrary rule of proof prevails as to the title owner by forfeited tax rule. Building Ass'n vs. Bacon et al., 2 N. P. 295; (i Dec. 492). 66. Presumption as to the ownership of land underlying an unnavigable inland lake where the conveyance makes the lake one of the boundaries. Lemback vs. Nye, 47 O. S. 336. 67. Presumption that grant was to central thread of stream. Railroad Co. vs. Piatt et al, 53 O. S. 266, cases cited. 68. Where a tenant holds over by the consent of the XIX.] PRESUMPTIONS — REAL ESTATE. 283 lessor, the law presumes the holding to be upon the terms of the original lease. 30 O. S. 573; I C. C. 234; I C. D. 127; 15 C. C. 233; 8 C. D. 551; 9 Bull. 17; II C. C. 456; (5 C. D. 260). 69. The tenant, by holding over, is regarded as consent- ing or proposing to enter upon a new term for another year, at the same rent and conditions, and the landlord's acceptance is presumed from his receiving the rent or other acquiescence. Railroad Co. vs. West, 57 O. S. 168. 70. Tenant holding over under a contract with privilege of renewal presumed to have elected to renew. Powell vs. Harrison, 10 Bull. 215. 71. An agreement creating the relation of landlord and tenant is presumed where the defendant holds over after the expiration of his lease by parol. Butler vs. Cowles' Adm'r, 4 O. 214. 72. Tenancy at will, not presumed. Lease for a year may be inferred from circumstances. Cary vs. Richards, 4 W. L. M. 251. 73. A mortgagee in possession of the mortgage premises, after condition broken, with assent of the mortgagor, is presumed, until the contrary is shown, to occupy in his char- acter of mortgagee. Where a tenant in possession for a fixed term purchases outstanding past due mortgages on the premises, and after the expiration of his term continues in possession and in receipt of the rents and profits, such con- tinuing occupancy, until the contrary is shown, is presumed to be under the mortgagee, and not of a tenant holding over. Anderson vs. Latterman and Henry, 27 O. S. 104. 74. Sole possession by one tenant in common is not pre- sumed to be adverse to his co-tenant. Farmers' and Merchants' National Bank vs. Wal- lace, 45 O. S. 164; 5 Bull. 645; 7 N. P. 90; (8 Dec. 407). 75. Where a grantee enters under a deed describing his estate as a tenancy in common with others, his possession will 284 DECISIONS ON EVIDENCE. [CHAP. be presumed to be not adverse to the owners of the other undivided interests, until by unmistakable acts or declara- tions, of which his co-tenants had or ought to have taken notice, he claims the entire ownership. Hogg vs. Beerman, 41 O. S. 81. 76. In ejectment. Defendant shown to have gone into possession under another and showing no contract is pre- sumed to be a tenant at will. Wood's Lessee vs. Pindall, W. 507. J"]. The long continued use of ground as an uninclosed common could lay no foundation for any presumption against the right of the village to improve the ground, and use it in any other manner deemed more advantageous and beneficial to the public, within the term of the dedication. Langley vs. Gallipolis and Regnier, 2 O. S. 108. 78. Presumption as to selection of canal lands. Strong vs. Lehmer, 10 O. S. 93. 79. Perpetual lease with provision for re-appraisement. No presumption that lessee should continue liable for rent. Quaere, whether the fact of lessee being a corporation with power of perpetual succession will not raise the presumption. Worthington vs. Hewes & McCann; 19 O. S. 76. [See Payment, p. 260.] 80. Some of the original surveys of this state have been run by the magnetic and some by the true meridian. Where the original survey has been made by the magnetic meridian and subdivision of the section has afterwards been made, there arises a strong, perhaps a conclusive presumption that such subdivision lines were intended to be run by the magnetic meridian. McKinney et al. vs. McKinney et al., 8 O. S. 423. 81. Presumption as to boundary from existence of a boundary wall overcome by the language of the deed and manifest intention of the parties. Brachman vs. Smith, Adm'r, i C. S. C. R. 342. 82. Meaning of balance, in report of commissioners ap- pointed to assign dower. Biggins vs. Jones, 39 O. S. 95. XIX.] PRESUMPTIONS — REGISTBR. 285 Register, hotel. The fact that one's name is on the hotel register is prima facie evidence that he is a guest. Wiatt vs. Arcade Hotel, 9 Bull. 21. Regularity of acts of officers. General Rule. Adjutant General, p. 286. Administrators, p. 286. Appraisers, p. 28'/. Arbitrators, p. 28J. Assessors, p. 288. Attorney General, p. 288. Auditor, p. 288. Boards — County Commissioners, City Councils, etc. , p. 28g. Clerk, p. 29^. Collector, p. 2g6. Corporation — That officers did not exceed authority in affixing seal, p. 2g6. Guardian, p. 2g6. Judge — Probate, p. 2gj . Juror, p. 2^^ . Magistrate, p. 297 . Mayor, p. 2gj . Notary, p. 2^"/. Recorder, p. 2g8. Reporter, p. 2g8. Sheriff, p. 2g8. Surveyor , p. 2gg. v. S. Officers' account Jor supplies, p. 2gg. [See Presumptions, "Courts," p. 184.] General Rule: In respect to official acts, the law will presume all to have been rightfully done, unless the circumstances of the case overturn the presumption ; and consequently, acts done which pre-suppose the existence of other acts to make them legally operative, are presumptive proof of the latter, [i] An entry made by the registrar of a land office in the "tract-book'' that 286 DECISIONS ON EVIDENCE. [CHAP. certain tracts are "school lands" is prima facie evidence that they are duly selected and approved as such. Under the circumstances of this case it is held that it should be presumed that the lands had been selected for the township in which they lie. Lessee of Combs & Ewing vs. Lane, 4 O. S. 112; I H. 477. [i] Ward's Lessee vs. Barrows, 2 O. S. 241. The maxim, "omnia presumuntur rite esse acta," is not of universal application. It is not to be extended so as to make it cover substantive, independent facts as distinguished from facts which are mere incidents of others duly established. Rhodes vs. Gunn, 35 O. S. 395. Length of time raises a presumption in favor of the regu- larity of official acts. 2 O. S. 241 ; 7 O. Pt. I, 190; 10 O. 278; 18 O. 400. Adjutant General: Certificates of, as prima facie evidence of re-enlistment of soldier. Vol. 90, O. L. p. 64. Administrators, etc. : All reasonable presumptions should be made in support of sales of real estate by executors or administrators, especially respecting matters in pais. Lessee of Goforth vs. Longworth, 4 O. 130. Administrators' deeds as evidence. See Vol.89, P-357> O.L. When a person occupies the double relation of adminis- trator of a decedent's estate and guardian of the minor heirs of such decedent, and it becomes his duty, as such adminis- trator, to pay over a fund in his hands for distribution to himself as guardian of the minor heirs, the law will, in general, presume such payment to have been made. But this legal presumption may be rebutted. And when he charges himself with the fund in his account as administrator, but fails to credit himself in that account with its payment to himself as guardian, and, in an attempted settlement of his accounts as guardian, refrains from charging himself therein with such fund, the legal presumption of a transfer of the fund is rebutted. And in an action by his former wards on his bond XIX.] PRESUMPTIONS — REGULARITY. 287 as administrator for the recovery of the fund, he will be estopped to deny that he still holds the same as administrator. Wilson vs. Wilson et al., 17 O. S. 150. [See Realty.] In 1864, Henry First absconded, deserting his wife and children ; nothing was heard of him until he reappeared in 1880. In 1873 land belonging to him in common with others was partitioned at suit of co-tenants and his share of the proceeds came to the custody of Brent, the clerk of the com- mon pleas. In 1879, with his wife's assent, the probate court appointed Bennett administrator of W. H. First, supposing that to be the true name of the absentee, and he collected from Brent $174, the proceeds of said partition. In October,. 1880, First demanded said sum from Brent, and upon his refusal to pay brought suit. Held, [ij In the absence of a showing to the contrary, the presumption from the facts stated is that the money was paid to the wife, who was entitled to a year's support on the supposition that her hus- band was dead. [2] As she was entitled to support out of his property during his life. First's conduct estops him from claiming that the payment to her was unauthorized. Brent vs. First, 41 O. S. 436. Appraisers: The court will not presume that the appraisers of land made their return upon oath. Lessee of Patrick vs. Costerout, i O. 32. Presumption that appraisal of property has been returned. Piatt vs. Piatt, 9 O. 41. The presumption that the decennial appraisement was made as of the second Monday of April is not conclusive. State ex rel. vs. Lewis, Auditor, 15 C. C. 280; (8 C. D. 276). Arbitrator: When the written submission is of all differences, damages and claims whatsoever existing between the parties, and the award purports to have been made "as per submission in writing," the presumption is authorized that all claims and matters of difference presented by the parties were considered. Rice vs. Hassenpflug, 45 O. S. 377. 288 DECISIONS ON EVIDENCE. [CHAP. Assessor: Presumption that he acted correctly. Commissioners vs. Wood, 3 Bull. 841 ; 6 Bull. 673. A ttorney- General: When the attorney-general refuses to bring mandamus his refusal is presumed to be for sufficient cause. Thompson vs. Watson, Att'y-General, 48 O. S. 558. Auditor: Presumption of the regularity of proceedings necessary to authorize auditor's deed, and of the existence of such records and documents as the law requires in proof of such regularity. If there is such a presumption it may be rebutted. Skinner vs. Brown, 17 O. S. 36. The act of a county auditor in allowing credit, and making the certificate, which could only be lawfully done after the delinquent list had been verified by the collector, is pre- sumptive proof that the oath had been administered by the auditor to the collector. Winder's Lessee vs. Sterling, 7 O. Pt. 2, 194. Ward's Lessee vs. Barrows, 2 O. S. 241. A sale of land for taxes, made in 1827, under laws then in force, cannot be avoided, because it does not appear affirma- tively in the auditor's record that the delinquent list was sworn to by the collector ; the return being in accordance with the forms prescribed by law. Ward's Lessee vs. Barrows, 2 O. S. 241. Auditor's deeds for lots sold at tax sale carries no pre- sumption of validity. If there is any presumption it is to the contrary. Cook vs. Prosser et al.,_ 14 C. C. 137 ; (7 C. D. 619). Auditor's deed prima facie good. 62 O. S. 24. By 2908 R. S. the auditor's deed for forfeited lands is prima facie evidence of title. 19 C. C. 235 ; 14 O. S. 207 ; 13 O. S. 571 ; 27 O. S. 592. When the auditor caused publication to be made in a paper XIX.] PRESUMPTIONS — REGULARITY. 289 printed in an adjoining county there is a presumption that there was no paper printed in the county in which the land lay. Winder's Lessee vs. Sterling, 7 O. Pt. 2, 194. Auditor's deeds for tax sale, see Vol. 89 O. L. p. 357. Boards — County Commissioners, City Councils, etc.: Judicial oiificers, though of special and limited jurisdiction, will be presumed to have acted regularly as to all matters within their jurisdiction, unless the record shows to the con- trary. Anderson vs. Commissioners, 12 O. S. 635 ; cited 13C. C. 366;(7C. D. 193). The court will not presume wrong, illegality, collusion or fraud upon the part of public officials. 6 N. P. 452 ; (9 Dec. 146). Where an inferior board or tribunal makes an award or decision it will be presumed that a proper state of facts was shown to warrant the judgment. 3 N. P. 240. Presumption that intermediate steps prescribed by a statute in the passage of an ordinance were taken. Brown vs. The Village of Milford et al., 8 N. P. 317- Presumption that officers performed their duty, [2] and declared the result of the count of ballots and which candi- dates were elected. The State ex rel. Whetmore vs. Stewart, 26 O. S. 223. [2] The State ex rel. vs. Tanzey et al., 28 Bull. 350; 49 O. S. 656. Polls presumed to have been properly designated when the record recites that the votes of city electors were cast within their respective wards, "at the places properly fixed and designated for holding said elections." The State ex rel. Halsey vs. Ward, 17 O. S. 544. The presumption is that a re-appraisement, for the pur- pose of assessing rent on school lands leased for ninety-nine years, was properly made. Trustees of School Section vs. Hough, W. 160. The admission that a claim was duly presented to the (20) 290 DECISIONS ON EVIDENCE. [CHAP. county commissioners for allowance, and that they refused to allow the claim or order it to be paid, does not show that the commissioners refused tO act on the claim for want of author- ity. The presumption in such case is that they did act on it and decided against its validity. State ex rel. Gerke vs. Commissioners, 26 O. S. 364- An approval of an official bond of a justice of the peace, sigfned by two trustees on the same date, will, if nothing appear to the contrary, be presumed to have been done at a meeting of the trustees. Place vs. Taylor, 22 O. S. 317. The presence of a majority of a board of equalization when acting is presumed. Halbut vs. Wise, 6 Bull. 390. A grant by city council for the extension of a street railway is not conclusive on the property owners that the requisite number of them have signed the petition for extension. Sommers vs. Cincinnati, 8 Rec. 612. The presumption is in favor of the good faith and validity of the action of the city council in passing an ordinance ; this presumption can be overcome only by the averment of issuable facts showing the contrary. State ex rel. vs. Gas Co., 37 O. S. 45. It is to be presumed in favor of the acts and proceedings of a municipal body, that the members of council acted advisedly and for the best interests of all concerned. Johnson vs. City of Elyria, 6 N. P. 375 ; (8 Dec. 362). One has the right to assume the performance of its duty by the city council, which was, before acting upon the petition for a street improvement by ordering the improvement, to ascertain whether a sufficient number had signed to confer the jurisdiction. Tone vs. Columbus, 39 O. S. 281 ; 8 C. C. 536; (4 C. D.69);8N. P. 354. When the action of the city council is legislative, not judicial, nothing can be presumed to sustain it. 4 O. S. 394; I C. S. C. R. 119; 16 O. 574. XIX.] PRESUMPTIONS — REGULARITY. 29I Presumption that ordinance was passed in full view of the law as it then stood in regard to assessments. 46 O. S. 296; 25 Bull. 212; 6 N. P. 22; (9 Dec. 128); 5 C. C. 400; (3 C. D. 196). Where an ordinance fixing the expense of lighting railway- line under sections 2492-99 R. S. has been enacted, such ordinance furnishes prima facie evidence of the expense of the lighting. Village of St. Mary's vs. Railroad Co., 60 O. S. 136. Service cannot be presumed when the records and papers show that it was not made. Jurisdictional defects cannot be thus cured. Beck et al. vs. Medina Co. Commissioners, 11 Bull. 23. A return under R. S. 2315 showing service is prima facie evidence of service. 23 Bull. 359. Jurisdictional facts are open to inquiry, but the presump- tion is in favor of their existence. 22 O. S. 584; 12 O. S. 635; II Bull. 161. Presumption that board of improvements, in reporting to council an estimate of the amount to be assessed, did its duty. Knorr vs. City of Cincinnati, 21 Bull. 297; 27 O. S. SSI- Presumption that a levy, which might have been made under either of two statutes, was made under a statute under which it was not excessive. Lima vs. McBride, 34 O. S. 338. Abuse of discretion vested in a municipal corporation will not be presumed. Bliss vs. Kraus, 16 O. S. 60; 2 Clev. Rep. 285. Iron R. R. Co. vs. fronton, 19 O. S. 304. If a board of equalization add to the value returned by the assessor, the law will presume it to be done upon sufficient evidence, unless the contrary be made to appear by the party aggrieved. Hambleton vs. Dempsey & Co., 20 O. 168 ; 44 O. S. 112; 29 Bull. 369; I N. P. 70. The burden is on the property owner to show that re-appraisement for taxation is unauthorized. 16 C. C. 255 ; (9 C. D. 93). 292 DECISIONS ON EVIDENCE. [CHAP. Where the proceedings in an appropriation assessment, on the principle of special benefits, merely show upon their face, that the aggregate amount of the assessment is placed on "benefited property,'' it will not be conclusively presumed that the assessment is limited to the special benefits conferred, or that it has been properly apportioned amongst the several lots assessed. Chamberlain vs. Cleveland, 34 O. S. 551. When the commissioners have apportioned the costs and expenses and amount of work to each land-owner, on the line of a ditch, and have on due notice heard exceptions thereto, and confirmed such apportionment, it will be presumed in the absence of proof to the contrary, that' such apportionment is just and fair, and was made with reference to benefits to be derived from improvement. Chesbrough vs. Commissioners, 37 O. S. 508. Presumption that assessment for improvement was rightly done. Bolten vs. Cleveland, 35 O. S. 319; i H. 477; 34 Bull. 281 ; I H. 464. Approval of bond of a justice of the peace presumed to have been done at a meeting of the trustees. Place vs. Taylor et al., 22 O. S. 317. Presumption that the board of equalization did not act on property not returned for the current year. It had no authority. Gibson vs. Zumstein, Treasurer, 21 Bull. 318. The court cannot presume a breach of official duty where the evidence is more consistent with the faithful performance of that duty. Fisher vs. Graham, i C. S. C. R. 113; 2 Bull. 251. Unless error in the proceedings of the trustees is manifest, evidence to show that the ditch was not conducive to public health is inadmissible. Hulse vs. Cofifland et al., 4 Bull. 241. A petition for street improvement having been left at the office of the board of public afifairs and placed with the papers in the case before the board recommended the passage of the ordinance to improve, the presumption is that the action was XIX.] PRESUMPTIONS — REGULARITY. 293 taken on the faith thereof. The fact that no mention of it was made on the journal, and the want of recollection of the secretary of the board of his having seen it, is not sufificient to overcome the presumption. Squier vs. City of Cincinnati, 5 C. C. 400 ; (3 C. D. 196). Presumption of reasonableness of price for gas as fixed by ordinance of city. When the answer contains a denial of reasonableness of the price and an affirmative allegation of its unreasonableness the plaintifif must offer some proof. City of Toledo vs. Natural Gas Co., 5 C. C. 575. Presumption that city board in fixing price of gas acted legally. Foster vs. City of Findlay, 5 C. C. 460; (3 C. D. 224). In support of the record of county commissioners' pro- ceedings laying out a county road, it will be presumed that the signers of the petition are freeholders and that the viewers were disinterested freeholders. Miller vs. Hamilton Co., 12 Bull. 152. Averment that work was done on account of the county in pursuance of a contract with the commissioners ; the pre- sumption is that the contract was duly entered into. Commissioners vs. Noyes, 35 O. S. 201. Presumption of the necessity of an appropriation from the fact that the corporation resolved that it was necessary. No abuse being shown, and the fact that they have already con- demned a strip for a railway does not show that it was not necessary to take other property so as to widen the strip. Trustees vs. O'Meara, 2 Bull. 142. The statute prescribing what shall constitute the record of a road does not require that all the preliminary steps shall appear therein and, when the report, survey and plat have been recorded as directed by statute, it will be presumed that all was done which the law required should be done, where the road has long been opened and used with the acquiescence of land-holders adjoining. McClelland vs. Miller, 28 O. S. 488. 294 DECISIONS ON EVIDENCE. [CHAl*. Where it appears by the proceedings of the city council that a report and recommendation of the board of city improvements had been made to it, and that thereupon the city council proceeded to make the improvement so recom- mended, it will be presumed, until the contrary is shown, that such report and recommendation of the board of city improve- ments were duly and properly made. Reynolds vs. Schweinefus, 27 O. S. 311; 4 O. S. 112. Under the statute providing for street railroads and pro- hibiting city councils from permitting their construction, without the consent of a majority in interest of the owners of property upon the street in which they are to be constructed "being first had and obtained," the act of the council granting such permission to the street railroad company is not con- clusive against the property owners that the majority of the property owners have given their consent. Roberts vs. Easton et al., 19 O. S. 78. Application to enjoin the laying of a street railroad in the street whereon plaintiff's lot fronts. Although it is necessary that a majority of the abutting property holders should con- sent, yet if the proceedings of the city council purport to be founded on such consent, it will not be presumed in the absence of evidence that the council acted without such con- sent. Cincinnati College vs. Nesmith, 2 C. S. C. R. 24. The court will not presume illegality in an ordinance to improve a street, when the acts of the parties show clearly that none was contemplated, and none has been in fact com- mitted. Scully vs. Cincinnati, i C. S. C. R. 183. Presumption of regularity of acts of commissioners acting under Section 1377 R. S. Russell vs. Commissioners, 6 C. C. 187; (3 C. D. 407). The fact that the county commissioners have under R. S. 4448 made a change in a ditch, raises the presumption that there was legal cause therefor. Railway Co. vs. Commissioners, 63 O. S. 39. XIX.] PRESUMPTIONS — REGULARITY. 295 The presumption that a power has been exercised is not so strong as that of the performance of a duty under a power. Reynolds and Ahren vs. Schweinefus, z'j O. S. 320. The presumption is that deputy state supervisors of elec- tions have exercised a sound discretion in letting contracts. Pugh Printing Co. vs. Yeatman et al., 12 C. D. 477. Presumption that assessment for sewer was made upon the basis required by law. Cincinnati vs. Bickett, 26 O. S. 56. It is not to be presumed that a municipal corporation has contracted a debt without being correspondingly benefited. Powers vs. Commissioners, 8 O. S. 285 ; 52 O. S. 454- Presumption that the apportioning committee under the two mile assessment pike law followed the law in their return of lands assessed. Lewis et al. vs. Laylin et al., 46 O. S. 663; 3 C. C. 338;(2C. D. 193). Presumption that board of trustees act within the scope of their authority. Kerr vs. Village of Bellefontaine, 13 C. C. 27; (7 C. D. 93). When the record shows only "Petition presented to town- ship trustees on the 26th day of April, 1877, after having notice up in three public places in the township for thirty days" it is error for the trustees to proceed to order the establishment of the road, for the reason that there is no sufficient showing in the record that the proper notice was given, or that the trustees were satisfied that it had been given. Fravert vs. Finfrock, 43 O. S. 335. CUrk: Indorsement of a summons presumed to be for the correct amount. Brotton vs. Allston, 2 W. L. M. 588. Presumption that entry approving bond was made at the time the bond was received and filed by the clerk. Robinson et al. vs. Chadwick, 22 O. S. 532. 296 DECISIONS ON EVIDENCE. [CHAP. Action to recover back money paid as an assessment under the "Dow Law." The tax duplicate is prima facie evidence of every fact necessary to authorize the assessment. Stephenson vs. Hunter, Treasurer, 2 N. P. 300; (5 Dec. 27). Under Section 3, act of March 14, 1893. It is presumed that the clerk sent a copy of the instructions to each member of the committee. 12 C. C. 568; (5 C. D. 500). Collector: Where the delinquent tax list is produced, and a certificate of the collector found on it, not purporting to be under oath, nor in accordance with a prescribed form, a strong presump- tion arises that it was not intended to be, nor was it in fact otherwise verified. But where a certificate was in a prescribed form and purports to be under oath, a presumption will arise that the collector was sworn. The presumption in favor of the regularity of proceedings upon which official acts rest, is liable to be rebutted by evidence of the absence of such records and documents, or their want of conformity with the requirements of law. Lessee of Winder vs. Sterling, 7 O. Pt. 2, 191. Ward vs. Barrows, 2 O. S. 241. Corporation — That officers of did not exceed authority in affixing seal: The presumption is that officers of a corporation did not exceed their authority in affixing a seal. Western Female Seminary vs. Blair, i D. 372. Grand Jury: Presumption that indictment by grand jury was found on proper evidence. Turk vs. State, 7 O. Pt. 2, 242. Guardian: The statute for the sale of infant's estate by guardians requires that the petition of the guardian shall contain a description of all the real estate of the ward ; and where the contrary does not appear it will be presumed that the real XIX.] PRESUMPTIONS REGULARITY. 297 estate described in the petition includes all that the ward owns. Mauarr vs. Parrish, 26 O. S. 636. Judge, Probate: The presumption is that the time of filing a deed of assign- ment is correctly stated in the endorsement, but the presump- tion is not conclusive. ClafiBin Co. et al. vs. Evans et al., 55 O. S. 183. Juror: Presumption that juror obeyed the instruction of the court. Marsh et al. vs. Comm'rs of Clark Co., 27 Bull. 56. Magistrate: The court will presume that an officer taking an acknowl- edgment of a deed did his duty. Ruffner vs. McLenan et al., 16 O. 639. Mayor: The court will not presume that a mayor collected more than proper as fees for a license. Ex parte Ryan, 7 Bull. 50. The presumptions which attach to the records of courts are not to be applied in the same liberal sense to the record of the mayor. State ex rel. vs. Sullivan, 58 O. S. 514. Notary: There is no presumption that the notary complied with the statute in taking deposition. Beidell & Co. vs. Cook & Co., i H. 94. Where a grantee takes a mortgage having a proper notarial certificate of a married woman's acknowledgment, and without knowledge or means of knowledge of any defect, the grantors cannot impeach it as against him. Catholic Institute vs. Gibbons, 3 Bull. 381. Presumption that officer taking separate examination of wife did his duty and acquainted her with the contents of the deed. Chestnut vs. Shanes' Lessee, 16 O. 606 ; 45 O. S. i ; 16 O. 639. 298 DECISIONS ON EVIDENCE. [CHAP. A regular statutory certificate of the acknowledgment of a deed of conveyance, made by husband and wife, is, in the absence of fraud, conclusive evidence of the facts therein stated. Baldwin vs. Snowden, 11 O. S. 203; 56 O. S. 220. Recorder: After the lapse of fifty years record of a town plat is pre- sumed where it is left for record, and a record is required by law. 8 A. L. R. 716. [See Realty.] Reporter: Presumption is that the reporter of the supreme court acted in good faith in placing manuscript opinions in the hands of the contractors for printing supreme court reports. Banks vs. Dewitt, 42 O. S. 263. Sheriff: Where a levy is made upon land, the presumption is, there were no goods on which to levy. Coal Co. vs. Bank, 55 O. S. 251. In a replevin suit the presumption is that the law requiring a bond before delivering the property was complied with. White vs. Semper & Semper et al., 8 C. C. 346; (4 C. D. 408). Presumed to act as officer, not as individual. Rea V. Smith, 2 H. 193. As to proper acknowledging of his deeds made under the act of 1795. Roads vs. Symmes, i O. 281. The intention of the sheriff, in passing title to the debtor's land, to levy upon a given quantity, may be inferred as well from the law regulating his duty, as from the description given in the deed. Spiller vs. Nye's Lessee, 16 O. 16. A deed executed by sheriff prima facie evidence of pay- ment of purchase money. Morris vs. Daniels, 35 O. S. 420. XIX.] PRESUMPTIONS — REGULARITY. 299 That summons was properly indorsed. Cook et al., Ex'rs, vs. Dinsmore et al., 5 C. C. 386; (3 C. D. 198). Sheriff's deed as evidence. Vol. 89, O. L., p. 357. Surveyor: Deed calls only for section line. Presumption is that the line was located where it should have been located. Burden on defendant to prove it otherwise. Hamill vs. Carr, 21 O. S. 258. It is to be presumed that surveys were legally made, when the officer was acting under the obligation of his oath. McArthur vs. Nevill et al., 3 O. 182. In the absence of proof it will be presumed that an officer had on hand the public funds and kept them separate from his private funds. The State vs. Corsey, 4 W. L. M. 563. Public lands conveyed by metes and bounds presumed surveyed before conveyed. Alshire's Lessee vs. Hulse, W. 171. It being the duty of a surveyor to start with previously fixed corners his lines will be presumed to have those termini. Ginn vs. Brandon, 29 O. S. 656. U. 8. Officer's Account: The presumption is that what should have been included in an account of a U. S. officer for supplies was included. Williams vs. Harbaugh, 757. Regularity. [See Courts, p. 184.J [See Regularity of Acts of Officers, p. 285.] Where in a petition it is averred that the directors of a railroad company had been duly elected by the stockholders, in pursuance of notice, it is to be presumed that the requisite amount of stock had been subscribed to authorize such election and also to authorize the location of the road, and the making of assessments by the directors so elected. Railroad Co. vs. Smith, 15 O. S. 328. 300 DECISIONS ON EVIDENCE. [CHAP. A certificate of stock issued by an incorporated company, and bearing the genuine signature of the president and secre- tary of the company, and the corporate seal, is presumed to be vaHd, until it has been shown by clear and satisfactory evidence that it could have been issued neither as an original certificate, nor in lieu of a certificate surrendered for that purpose. Where a certificate is shown to have been invahd when issued, but it is claimed to have subsequently become valid, the burden of proving the fact is upon the party assert- ing it. The books of the company may be put in evidence to show that the certificate cannot be accounted for among the genuine stock. Perrin vs. Railroad Co., i8 Bull. 382. Railroad Co. vs. Rawson, 16 Bull. 423. Presumption that notice mailed was received. McCoy vs. Hornbrook, i Bull. 170; 2 N. P. 297; (2 Dec. 475). Release. That release was in such form as to operate as an extin- guishment of the obligation. Carver vs. Second National Bank, 9 Bull. 80. Reputation. The law presumes a person's reputation in regard to his trade or profession to be good. Parker vs. Bricklayers' Union, 21 Bull. 224. Residence. There is no presumption that the owner of land reported by the viewers for assessment lived thereon or in the county. Muchmore vs. Miller, Treasurer, 11 Bull. 161. Sale. When wheat is delivered to one engaged in buying and selling grain, and a receipt is given, by the dealer's agent, as each load is delivered, acknowledging receipt of the wheat, and directing the holder to "present this at office," the law, XIX.] PRICSUMPTIONS SANITY. 30I in the absence of an express contract, will presume a contract of sale rather than bailment. Neer vs. Plank, 25 Bull. 238; 48 O. S. 255. Sanity and ordinary senses. 1. In trying the question of sanity in a criminal case, the jury must bear in mind that the law presumes every person of the age of fourteen to be of sufficient capacity to form the criminal purpose, and to deliberate and premeditate upon the acts which malice and other evil disposition might impel him to perpetrate. Proof of prior insanity changes the burden, for then there is a presumption of continuance in the state of lunacy, and the state must show that the act was committed during a lucid interval. Clark vs. The State, 12 O. 483; 5 C. C. 109; 10 O. S. 598; Dayton, 362, 370; 7 N. P. 638, 443, 458. 2. If prior to the commission of a crime the accused had, while under indictment for another crime, been tried on an inquest of lunacy, and adjudged insane, such adjudication is so far conclusive that the burden is on the state to show beyond a reasonable doubt that prior to the commission of the second crime he was so far restored to reason as to be responsible. State vs. Browsher, 3 Bull. 187. 3. Record from probate court, showing that four years before defendant had been adjudged insane, held admissible. Wheeler vs. State, 34 O. S. 394. 4. On a trial for murder it is error to reject testimony of the predisposition of the deceased to suicide, although the testimony referred to a time six years before her death. Blackburn vs. The State, 23 O. S. 165. 5. R. S. 7242. Where a person is tried upon an indict- ment and acquitted on the grounds that he was insane, the verdict shall, on the charge of lunacy, be prima facie evidence of his insanity. 6. Under a plea of insanity preliminary to the trial, the 302 DECISIONS ON EVIDENCE. [CHAP. burden is on the prisoner to show by a preponderance of proof that he is insane. State vs. O'Grady, 3 N. P. 279. 7. Evidence of character is admissible to show improb- ability of prisoner committing the crime unless insane. State vs. Adin, i Bull. 38. 8. It is not error to refuse a charge that if the jury have a reasonable doubt of the prisoner's sanity they must acquit. They must be reasonably satisfied by a preponderance of evidence that the accused was insane. Bond vs. State, 23 O. S. 349. LoeiTner vs. State, 10 O. S. 598; 12 C. C. 468;, (5 C. D. 472). 9. Sanity is presumed until the contrary is "clearly proved." But this is not the same as proved beyond a reason- able doubt. The latter usually implies a higher degree of certainty than the former. If the preponderance of testimony is clearly on the side of insanity, it ought to be considered as clearly proved, though there is a reasonable doubt of its existence. But it is not the rule that a reasonable doubt of^ sanity is sufficient to acquit. Insanity must be established by a clear preponderance of proof. Farrer vs. State, 2 O. S. yj. 10. One is presumed to possess the ordinary senses, as. hearing and sight. 17 C. C. 224 ; (9 C. D. 703) ; 18 C. C. 298 ; (10 C. D. 195)- Burden of proving imbecility is on party asking that guardian be appointed. 8 N. P. 399. 11. Where a policy of insurance was to be void in case the insured "shall, under any circumstances, die by his own hand." The death of the insured by his own act is not within the proviso, if at the time he was insane. The burden is upon the company to show that the death was within the proviso. Schultz vs. Ins. Co., 40 O. S. 217. 12. When, in a trial for murder, the accused sets up his ■ insanity as a defense, he is bound to establish it by a pre-- XIX.] PRESUMPTIONS — SCIENTER. 303 ponderance of the evidence, but should be held to no higher degree of proof. Kelch vs. The State, 55 O. S. 146; also, 55 O. S. 666; 23 O. S. 349; 31 O. S. iii; 10 O. S. 598; I Bull. 38; 2 C. C. loi ; 13 C. C. 74; 22 O. S. 101. Scienter. [See Knowledge, p. 232. J Set-off. Presumption of agreement for. 6 N. P. 138; (9 Dec. 229). Settlement. Presumption that settlement included all matters between the parties which would naturally have been embraced in it. Dayton, 232, 41. Solvency. Estate presumed solvent. Williams vs. Longley, 3 C. C. 508 ; (2 C. D. 292). No presumption of insolvency. 21 C. C. 474. Time, lapse of. 1. The bar of the statute of limitations rests upon the presumption that title has passed. McCoy vs. Grandy, 3 O. S. 463. 2. The statute of limitations affects the remedy merely by the presumption of payment. Ins. Co. vs. West, 6 O. S. 599. 3. The presumption of payment of a claim arising at common law from the lapse of time, may be rebutted by proof that the debtor, within the period required to raise such pre- sumption, acknowledged such claim to be an existing liability. Bissell vs. Jaunden et al., 16 O. S. 499; 51 O. S. 254- Allen vs. Everly, 24 O. S. iii. 4. The prima facie right of the public to fish in Lake Erie is not rebutted by proof of the mere uninterrupted enjoyment of the privilege of fishing for the period requisite to perfect a 304 DECISIONS ON EVIDENCE. [CHAP. title by prescription ; the mere lawful exercise of a common right for that period does not establish an exclusive right. Sloan vs. Biermiller, 34 O. S. 492. 5. Record of a change in route of a road presumed lost after a lapse of twenty-five years. Ingersoll vs. Herider, 12 O. 542. 6. When lapse of time is not pleaded in bar to an action, but is relied on merely as evidence of the payment of the debt, it can only raise a presumption of such payment, which pre- sumption may be rebutted by other circumstances, showing that the debt is not paid. A party invoking affirmative relief, based on the alleged payment of a debt, must establish the fact of payment. Such relief will not be granted upon a pre- sumption of payment arising alone from lapse of time. Though such presumption may be successfully used as a shield, it is not equally available as a weapon of attack. Allen et al. vs. Everly et al., 24 O. S. 97. 7. The statute of limitations of a sister state, set up as a defense to an action in this state and issue joined thereon, must be proved as other matter of fact, and where the record is silent it will not be presumed that evidence, tending to prove it, was offered. While a pledge remains in the pos- session of the pledgee, mere delay, on the part of the pledgor, to claim a redemption of the pledge for a period shorter than the time prescribed by the statute of limitations as a bar to an action on the debt for which the pledge was held, will not suffice to raise a presumption against the right of the pledgor to redeem. Whelan's Ex'rs vs. Kinsley's Adm'r, 26 O. S. 131. 8. The rule that a technical or direct trust is not barred by lapse of time is subject to several important qualifications, one of which arises when circumstances exist calculated to raise a presumption, from lapse of time, of a discharge or extinguishment of the trust. Phillips vs. The State ex rel., 5 O. S. 122. There is no presumption that a cause of action is barred by the statute of limitations. Osborn, Adm'r, vs. The Portsmouth Nat. Bank, 61 O. S. 427. XIX.] PRESUMPTIONS — TIME. 305 Long continued use of ground dedicated to a city as an uninclosed public common raises no presumption against the right of the city to improve the ground within the terms of the dedication. Langley vs. GalHpolis, 2 O. S. 108. Lapse of time raises no presumption of license as to light. Dayton, 395. 9. The lapse of a less period than would bar an action at law to recover the title or possession of land, does not of itself raise the presumption that the trust had been discharged or extinguished. Paschall vs. Hinderer, 28 O. S. 568. 10. When a trustee, with knowledge of his cestui que trust, conveys, apparently in derogation of the trust, and the grantee holds for fifty years and makes improvements, it may be presumed that the cestui que trust, for a sufficient con- sideration, directed or acquiesced in the conveyance. Williams vs. First Presby. Society of Cin., i O. S. 487. 11. Lapse of time may furnish evidence of acquiescence in a deed made by an infant. But, of itself, it does not take away the right to avoid until the statute of limitation takes effect. Drake vs. Ramsay, 5 O. 254. 12. Conveyance by an infant. Lapse of less time than twenty-one years after he comes of age not a confirmation, unless connected with other facts and circumstances. Cressinger vs. Welch, 15 O. 156. 13. Abandonment of a highway for a long time raises a presumption of extinguishment of public right. Fox vs. Hart, 11 O. 416:46 O. S. 544; 32 Bull. 217. [See Abandonment, p. 154.] 14. After five years, without an execution, the law pre- sumes the judgment satisfied. Simpson vs. Hook, 6 C. C. 30; (3 C. D. 333). 15. A cause of action against a sheriff for not paying money collected by him on an execution does not accrue until (21) 306 DECISIONS ON EVIDENCE. [CHAP. demand is made on him for payment; and the statute of limitations begins to run from the time of demand. Such demand must be made in a reasonable time, and if no cause for delay is shown should be made at least within the time limited by the statute for bringing the action; and in the absence of special circumstances, if no demand be shown within that time it will be presumed to have been made at the expiration of that period so far as regards the statute of limitations. Keithler vs. Foster et al., 22 O. S. 27. 16. ' A slight impression upon process, after a lapse of many years, will be presumed to be a seal. Heighway vs. Pendleton et al., 15 O. 735. 17. Length of time raises a presumption in favor of the regularity of official proceedings. 2 O. S. 241 ; 7 O. Pt. I, 190; 10 O. 278; 18 O. 400. 18. Presumption from conduct of owner of land that road was established although laid out and traveled less than twenty-one years. Ingersoll vs. Herider, 12 O. 527; 2 D. 105. 19. A person was declared bankrupt in 1842. In 1862 the court ordered sale of his lands by his assignee. Held, the long time, twenty years, before the sale was made, would have raised the presumption that the trust had been executed, but the order of the court to sell overthrows this. Herbst vs. Bates, 13 Bull. 565. 20. Ancient documents. See 44 O. S. 690; 30 Bull. 267. Trust. Where an agent invests funds of his principal in land, the presumption is that the purchase was for the benefit of the principal. Reynolds vs. Morris et al., 17 O. S. 514. Time of misconduct in office. Misconduct in office. Wrong presumed to have been com- mitted at the time the law directs the act to be done. 5 Dec. 29. XIX.] PRESUMPTIONS — USAGE. 307 Usage and practice. 1. Where, in the absence of any statutory provision on the subject, a rule of commercial law has been adopted by the court of last resort in this state, the usage will thenceforth be presumed to conform to such rule throughout the state and the presumption, if not conclusive, can only be rebutted by clear proof of a uniform and settled local usage to the con- trary. Hence a negotiable promissory note made at Cincin- nati in 1837 and payable in ninety days from date, at no specified place, is not entitled to days of grace, without clear proof of a uniform usage, at that time and place, allowing days of grace to such paper. Isham vs. Fox, 7 O. S. 317. 2. A uniform or generally adopted practice of courts is evidence of the probably correct construction of a statute. Campbell vs. Campbell, 3 C. C. 453 ; (2 C. D. 256) ; I O. 208. 3. Approved precedents are good evidence of what the law is, on points of practice and pleading, and it is always safe to pursue them as well in form as in substance. 2 O. 258 ; 16 O. 603 ; 3 O. 568 ; 3 O. S. 442 ; 6 N. P. 216; (8 Dec. 636). 4. The fact that such an action has never been brought affords strong presumptive evidence against it. First National Bank vs. Railroad Co., 20 O. S. 281; I O. 45; 16 O. S. 70. 5. This may be explained by showing that the question was not likely to be presented. Schaettle vs. Benedict, i D. 450. 6. Failure in a number of cases to raise a point raises a presumption that it was deemed untenable. Benedict vs. Schaettle, 12 O. S. 525. 7. Where nothing is said in negotiations for insurance about special rates of insurance, or special conditions of the policy, it will be presumed that those which were usual and customary were intended. Machine Co. vs. Insurance Co., 50 O. S. 549. [See Words, p. 313.! 308 DECISIONS ON EVIDENCE. [CHAP. Validity. Certificates of stock bearing the genuine signatures of the officers of the company and the' corporate seal are presumed to be genuine. The burden of proving such certificate invaHd rests upon the corporation, and the books of the company are admissible for that purpose, [i] This presumption is very strong, but may be rebutted. R. R. Co. vs. Rawson, i6 Bull. 423; 17 Bull. 262; II Bull. 86. [ij Perin vs. R. R. Co., 18 Bull. 382. Presumption of validity of patent very strong. McKenzie vs. Bailie, 4 Bull. 209 ; 12 Bull. 53. The presumption is against the validity of agreements for pooling interests. 11 Bull. 259. [See Legality, p. 240.] [See Legislative Acts, p. 241.] Waiver. 1. Presumption that defendant waived a jury unless record shows that he demanded it. Billigheimer vs. The State, 32 O. S. 435. 2. Waiver of separate trial presumed when parties pro- ceed, without objection, to impanel a jury and exercise the right of challenge. Hallenger vs. The State, 25 O. S. 441. 3. Where a party delays his demand for a special jury until the day set for trial of the cause, prima facie he will be held to have waived his right to such jury. This presumption is not rebutted by the issuing of a venire by the opposite party not concurred in but procured to be quashed by prisoner. Bond vs. State, 23 O. S. 349. See also 50 O. S. 373. 4. Questions of error, not specifically assigned, are pre- sumed to be waived by a party who claims there is error to his prejudice in the record. Pollock vs. Cohen, 32 O. S. 514; i C. S. C. R. 401 ; 5 C.C. 386; (3 CD. 189). 5. Waiver of land owner's right to compensation on opening road. Reckner vs. Warner, 22 O. S. 275. XIX.] PEBSUMPTIONS WAIVER. 309 6. Want of reply cannot be first urged in supreme court. It will be presumed lost or waived. Woodward vs. Sloan, 27 O. S. 592. 7. Suit in replevin. Trial by justice. In the absence of a showing to the contrary the presumption is that a jury was not demanded. Latimer vs. Hotter, 26 O. S. 482. A waiver of the statutory provision prescribing the order to be observed by an officer in subjecting a debtor's property to sale on a writ of execution, may be presumed unless the debtor assert his right by a direct proceeding to set aside the action of the officer. Coal Co. vs. The First Natl. Bank, 55 O. S. 233. 8. .When an administrator has seen a claim and is re- quested to allow it by the owner, who informs the adminis- trator that he has it in his pocket, the formal presentation may be presumed waived. Kyle's Adm'r vs. Kyle, 15 O. S. 15. 9. Habeas corpus. When personal liberty is in question facts, which would in other cases amount to a waiver of juris- diction, will not be given that effect. Ex parte Everts, 2 D. 41. 10. If no objection be made before appearance objection to defective verification of a pleading will be presumed waived. Kerns vs. Roberts, 3 W. L. M. 604. 11. Subscription to railroad stock. Waiver of conditions precedent. Chamberlain vs. R. R. Co., 15 O. S. 225. 12. Waiver of forfeiture of insurance policy not presumed from silence after knowledge of facts. Ins. Co. vs. Hoeffier, 2 C. C. 133; (i C. D. 403). 13. Objection that a contract is within the statute of frauds must be made by plea or it is presumed waived. Robinson vs. Hathaway, 4 W. L. M. 105. [See Bonds, Notes and Bills, as to waiver of medium of payment.] 3IO DECISIONS ON EVIDENCE. [CHAP. Waste. A presumption that one is about to waste or squander a legacy will not arise from the mere fact that she and her husband are residents of another state and are pecuniarily irresponsible. Martin vs. Lapham, 38 O. S. 538 ; 33 O. S. 99. Wills, presumptions arising under. [See Presumption of Intention, p. 226.] 1. Where a will has been signed for the testator by another person the fact of such signing and the authority to sign, when done in the absence of the attesting witness, may be shown by the acknowledgment of the witnesses, or by other competent testimony, or may be presumed from the facts and circumstances of the case. The due execution of a will cannot be assumed in the face of positive evidence to the contrary, or in the absence of all proof on the subject, except perhaps in case of ancient wills, merely because it purports to be the will of the testator, and the attestation is in due form ; yet it will not be defeated by the failure of memory, or corruption, of the attesting witnesses, if it can be established by other competent testimony. Haynes vs. Haynes, 33 O. S. 598. 2. The attestation clause to a will executed and probated in a sister state, whereof an authenticated copy has been duly admitted to record in this state, is as follows, "Signed, sealed, and published in presence," the will being signed at the end thereof, by the testator and three witnesses. Held, in the absence of proof to the contrary, it will be presumed that the testator and witnesses signed the will in the presence of each other. Carpenter vs. Denoon, 29 O. S. 379. 3. The entry of an election by a widow, in the probate court, to take under the will of her deceased husband, need not show affirmatively that the judge had explained to her the provisions of the will ; in the absence of averment or proof to the contrary, such explanation will be presumed. Davis et al. vs. Davis, 11 O. S. 386. XIX.] PRESUMPTIONS — WILLS. 31I 4. Presumption is that devise was in lieu of dower. 24 O. S. II ; 4 W. L. G. 65 ; I D. 281 ; 7 Bull. 262. 5. A testator is never presumed to intend to die intestate as to any part of his estate to which his attention seems to have been directed. 3 O. S. 373; I C. C. 466; 25 O. S. 668; 34 O. S. 360; 19 O. 334; 9 C. C. 489; (6 C. D. 460); 34 Bull. 319. This rule applies only in the construction of a will, the language of which is of equivocal import. Gilpin and wife vs. Williams et al., 17 O. S. 397. 6. Presumption is that a testator intended that a legacy should be paid out of the personal estate only. Geiger vs. Worth, 17 O. S. 568; 19 Bull. 282. 7. When equality in the distribution of residue of per- sonalty presumed. Gillan vs. Kimball, 34 O. S. 352. 8. When a legacy to be paid by devisee presumed a per- sonal charge. Decker Ex'rs vs. Decker Ex'rs, 3 O. 157; 4 O. S. 333- g. Testator before executing his will made an advance- ment to his child. Unless the will provides that it be deducted, evidence of his intention is not admissible. The written instru- ment- cannot be varied by parol. Stichtenoth vs. Toph and Kreis' Ex'rs, 23 Bull. 129. 10. As to intention of testator assuming to dispose of another's property. 24 O. S. 11. 11. From occupation of land devised the presumption is that the widow has made her election. Nimmons et al. vs. Westfall, 33 O. S. 213. 12. Legacy to a physician is not presumed to be in satis- faction of a claim for professional services. Swing and Millen vs. Gatch, 3 Bull. 571. When presumption arises that a testator intended legacies 312 DECISIONS ON EVIDENCE. [CHAP. should be paid out of proceeds of sale of real estate as well as personalty. Hunt, Adm'r, vs. Hayes et al., 19 C. C. 151 ; (10 C. D. 388). 13. The officers of a corporation knowing the existence of a will are presumed to know its contents. 19 Bull. 198. [See Knowledge, p. 232.] 14. Omnia praesumuntur contra spoliatorem. Banning vs. Banning, 12 O. S. 450; W. 485. 15. Where a will is shown to have been in the testator's custody and cannot be found after his death, the presumption is that he has destroyed it, but this may be rebutted, and sub- sequent declarations of the testator are admissible for that purpose. Wiswell's Will, Ohio Probate Report, ig, 14. 16. Where a will, once known to exist, and to have been in the custody of the testator, cannot be found after his decease, the legal presumption is, that it was destroyed by the testator with the intention of revoking it. To strengthen such presumption it is competent to prove the .declarations of the testator after making his will that he had destroyed or intended to destroy the same. 47 O. S. 323; 33 O. S. 598; 15 O. S. 90; 7 N. P. 591 ; (5 Dec. 399). 17. When a will is revoked under R. S. 5959, no evidence to rebut the presumption of revocation will be received. Rhodes vs. Weedy et al., 21 Bull. 66. 18. Where the record of a foreign will shows the evidence of but one of the witnesses to it, and it is shown that the uniform practice is to record all the evidence, it will not be presumed that the evidence of both witnesses was taken. The fact of record is sufficient to show due admission to probate. Barr vs. Closterman, 2 C. C. 387; (i C. D. 546).. 19. Presumption against intention to entail estate. [See Presumptions, "Realty."] 20. Sanity presumed. [See Sanity, p. 301.] Corbett vs. The State, 5 C. C. 159; (3 C. D. 79). XIX.] PRESUMPTIONS — WORDS. 313 21. Failure of testator to take such notes as are pre- scribed by the will upon making a gift would justify the presumption that the gift was not an ademption of a legacy, but such presumption may be rebutted by any competent evidence. Stichtenoth vs. Toph and Kreis' Ex'rs, 23 Bull. 133- 22. Unexplained interlineations in a codicil are presumed to have been made after the execution of the will. Brundige vs. Benton et al., 17 Bull. 244. 23. When a power is conferred to be exercised by "last will" the presumption is that the words "last will" were used in their ordinary sense. Taliaferro vs. Young Men's Christian Ass'n, 18 Bull. 3. Words. 1. In contracts the presumption is that he who uses the words used those most favorable to his interest, and doubtful terms or ambiguous words, are construed against him. In a penal bond they are construed in favor of obligor. The State vs. Ex'rs of Worthington, 7 O. Pt. i, 172. 2. When words have a technical sense in a certain business and are used in a contract relating to that business they will be presumed to be used in the technical sense, [i] Unless it will defeat the manifest intention of the parties. Ins. Co. vs. Dufifield, 2 H. 127; 6 O. S. 200. [i] Railroad Co. vs. Veeder, 17 O. 385 ; 2 C. S. C. R. 6. 3. Words prima facie referring to a past transaction may be shown by parol to refer to the future, if that is necessary to render the contract valid. Lamping & Co. vs. Cole, 5 W. L. M. 187. 4. Legislature using "town" instead of "village" in pro- viding for the removal of county seat presumed to use the word in its popular sense. Peck vs. Weddell, 17 O. S. 271. 314 DECISIONS ON EVIDENCE. 5- Words presumed to have been used in their ordinary sense. Van Ingen vs. Newton et al., i D. 482 ; 12 Bull. 66; 64 O. S. 492 ; 22 C. C. 200. Action for slander. Words spoken presumed to have been spoken in the English language unless the contrary appears. Heeney vs. Kilbane, 59 O. S. 499. 6. When a power is conferred to be exercised by "last will" it is presumed the words were intended to be understood in their ordinary sense. Taliaferro et al. vs. Young Men's Christian Ass'n, 18 Bull. 3. 7. Words used by the legislature when assigned certain meaning by text writers are presumed to be used in that sense. [See Legislative Acts, p. 241.] Meyer vs. Meyer, 3 Bull. 297. CHAPTER XX. BURDEN OF PROOF. See "Presumptions." As to the Opening and Closing of the Evidence See "Taking Oral Evidence and the Examination of Witnesses." Burden Rests on Affirmant, 1-9. Burden not Changed by the Form of the Denial, 80. When Testimony Balances Jury Should Find Against Affirmant, 2. When Facts are Peculiarly Within the Knowledge of One, 10-12, i, 81. When Answer Sets Out New Matter, 153, 158. When Answer Sets Out New Matter not Denied in the Reply. Proof of Negative, 13-18. Proof of Identity, 102. Shifting of Burden. 19. Misdirection as to Burden, 20. Preponderance of Evidence, Meaning of, 26. Qualifying the Word "Preponderance" is Error, 28. Preponderance of the Evidence is all that is Required in Civil Cases, 25-30. Proof Beyond Reasonable Doubt, When Required, 21-23. See Presumptions, "Innocence." Proved Beyond Reasonable Doubt and Clearly Proved Distinguished, 24. Clear Proof is Required — Of Mistake when Reformation of Contract is Sought, 31, 32, 33, .34. To Set Aside a Deed on the Ground of Duress or Fraud, 37. Clear Proof when there is an Allegation of Fraud, or Crime, 37, 35. See, 28^/2. Clear Proof: Collateral Security. Abandonment of Contract When Against Interest, 37. When Change of Venue is Sought. To Divert Estate from Lawful Channel of Descent, 37. Of Gift Causa Mortis, 3l6 DECISIONS ON EVIDENCB. [CHAP. Of Gift Inter Vivos, Of Change of Domicile, 37. When Party Claims Priority in Funds of Insolvent, Of Account of Trustee not Admitted, 37. To Support a Finding Contrary to Certificate of Acknowledg- ment of Deed, 42, 43. To Support a Defense which Varies a Written Contract, 44. To Justify Appointment of a Receiver, To Reform a Blank Endorsement, 37. To Support a Family Conveyance, In an Action to P.emove an Officer, Of Default in Proceedings in Rem, To Establish a Trust or a Parol Contract for the Sale of Lands, Z7, 40- To Defeat Priority of Mortgage, 41. To Reverse Finding of a City Council, 37. Abandonment of Contract, 45. Abortion, 46. Accord and Satisfaction, 47. Accounting by Partners, 48. Administrator Seeking Allowance of Debt Due Himself, 48%. Advancement, 49, 37. Adoption of a Seal when there are more Signers than Seals to a Bond, SO. Alibi, 51." Alteration of Contract. See Presumptions, "Alterations," 52. Appropriation of Property, 53. Arbitration and Award, 54. Assault and Battery, 55. Assessment and Condemnation Proceedings, 56. See Presumptions, "Regularity of Acts of Officers." Assent of Stockholders to Individual Liability, 57. Assignee Settling His Account, 58. Attachment, 59. Bad Faith. See Bona Fides. Bills, Notes and Bonds, 60. See Presumptions, "Bills, Notes and Bonds." Production of the Note and Proof of Execution make a Prima Facie Case, 60. As to Alterations. See Presumptions, "Alterations." Executrix Should Show Death of Decedent. Erased Indorsement of a payment, 52. See Presumptions, "Altera- tions."' Modification of Terms of a Note, 61. Extension of Time, 62. Consideration, 63. XX.] BURDEN OF PROOF. 317 In Case of Mental Incapacity of Maker, 64. On Production of Mortgage and Notes, 65. Payment, 65. Part Payment, 65. Action Against One as Joint Maker, Answer that He is Accommo- dation Indorser, 66. In Case of Fraud, 67. Genuine Signature, Defense that Note was not Voluntarily Exe- cuted, 68. Proof of Partnership when Suing on a Note, 69. Assent of Partnership to Accommodation Indorsement, 70. Assent of Partner to Note of Firm for Individual Debt, 71. Bona Fides, 72. Bonds, 73. See Bills, Notes and Bonds. Suits on Administrators, 74. Suits on Bonds of Justice of the Peace, 75. Building and Loaff Association, 76. Change of Venue, ^^. Child Complaining Against Provision made by Father for Mother, 78. Common Carriers — Action Against, 79. See, also, Negligence. Condition Precedent. 80. Conditional Sale, Burden is on Party Asserting Contract to be, 82. Consideration. 83. Corporate Existence and Capacity, 84. Defense by Municipal Corporation that Fund Provided has been Ex- pended, 84%. Damages for Breach of Contract, 83. Ditch, Petition for, 8(1. Education Compulsory, 87. Ejectment, 88. As to Channel of Stream Forming Boundary, 89. Election, 90. See, "Poll Books." Embezzlement, 91. Escape. See, Officers, Action Against. False Imprisonment, 02. Family Conveyance, 93. Forfeiture, 94. Forgery, 95. Fraud, 96. See, Clear Proof. Also Presumptions "Fraud." •Gifts, Causa Mortis, 97. Inter Vivos, 98 Habeas Corpus, 99. Homestead, Burden is on Wife Claiming, to Show that Removal was with Intention of Returning, 100. Homicide, loi. Identity, 102. 3l8 DECISIONS ON EVIDENCE. [CHAP. Illegal Sales of Liquors, 133-137, Illegal Arrest, 138. Illegal Voting, 139, 140. Innocent Purchaser, 103. Injunction, 59. Insanity. See Presumptions, "Sanity."' Insurance Policies, Action on, 104-123. Intoxicating Liquors, 133-137. Judgment, Proceedings to Vacate, 124. Judgment, Action on, 125. Jurisdiction of Foreign Court — Burden on Affirmant. See Presump- tions, "Courts." Knowledge and Intent, 126. Lease for Mining Purposes, Defense that there was no Minable Coal, 14s. Libel and Slander, 127-131. Liens, Proceedings Under, R. S. §3398, 1.32. Malicious Prosecution, 141. Malpractice, 142. Mandamus, 143. Master Commissioners' Fees, 144. Negligence, 146. See, also. Presumptions, ''Negligence." Common Carriers. See Common Carriers Above. Contributory, 147. Causing Fire, 148. Causing Death, 149. In Surgeon, 130. Under the Act of Congress fo: the Better Security of Passengers on a Steamboat, 151. Action .A.gainst Agent Claiming to Have Lost Money, 152. Officers: Action to Remove, 155. Action Against Sherifif for Escape, 16C. Action Against Supervisor of Roads for Trespass, 167. Payment, I.S7-IS9. Perjury, 160. Proceedings Under R. S. 3398, 132. Pure Food Laws, Prosecutions Under, 161. Quantum Meruit — Special Contract as Defense, 162. Quo Warranto, 163. Rape, 164. Receiver, 165. Sanity. See Presumptions, "Sanity." Scrap Metal Appertaining to Railroad Ownership, 168. XX.] BURDEN OF PROOF. 319 Self Defense, 169. Shooting — Accidental, 171. Specific Performance, 172-175. Statute of Limitations, 176-178. As Affecting Infants. 179. Taxes, Action to Recover Back, 180. Action to Collect, 181. Trespass, 182. Trust— Parol Evidence to Establish Must be Clear, 37, 40. Trust, Action by Infant to have Purchaser Declared Trustee, 184. Trustee Settling with His Ward, 18.=;. Trustee Making Advances, 186. Trustee Expense Account, 187. Venue, Change of, 188. Vacation of Judgment, 124. Way — Burden to Show Use of. Over Land of Another was Permissive, 189. Will, Contest of, 190. Lost Will, 191. Burden rests on affirmant. 1. Upon the trial of issues of fact, the general rule is that the burden of proof rests upon the party holding the affirma- tive; and this is so especially, where from the nature of the case the facts alleged must be peculiarly within his own knowledge. Ferguson vs. Gilbert and Rush, i6 O. S. 88; 17 Bull. 331 ; 14 O. 364; 4 O. 316; W. 304; 29 Bull. 341 ; 14 O. 502; 3 O. 290; 32 Bull. 294; W. 614; 51 O. S. 278; II C. C. 633; 14 C. C. 308; 59 O. S. 342; 60 O. S. 256; 6 N. P. 240; W. 56; 6 N. P. 185. 2. In cases where the testimony on any particular issue leaves it doubtful whether the affirmative is sustained, it is a safe and proper course for the jury to find against the party holding the affirmative. Ins. Co. vs. Paver, 16 O. 324; W. 549, 56; 7 O. Pt. 2, 89. 3. The legislature has power to provide upon whom the burden of proof shall rest. State vs. Jones, 5 N. P. 390; (8 Dec. 645). 320 DECISIONS ON EVIDENCE. [CHAP. 4. In order to put plaintiff upon proof of a material aver- ment in his petition, the defendant must, in some form, deny its truth. 13 O. S. 263. 5. Allegations in reply that under the code are treated as denied must be proved by plaintiff. The McAlpin Co. vs. Finsterwald et al., 57 O. S. 541- 6. Burden of proving affirmative defense rests on affirm- ant. Railvifay Co. vs. Roos, Adm'r, 9 C. C. 201 ; (6 C. D. 33);9C. C.66i;(6C. D.733). 7. Burden of proof is on the plaintiff to sustain the allega- tions of new matter in avoidance of a defense. 19C. C. 7iS;(ioC. D. 675). 8. A charge that the burden of proving a material aver- ment in the answer, not denied in the reply, is on defendant, is error. Titus vs. Lewis, 33 O. S. 304 ; 9 O. S. 44. 9. Petition for money had and received. Answer admits the receipt of the money, but avers that it was paid in advance on a contract which defendants were ever ready to perform, but plaintiffs violated. Burden is on the plaintiff. McNutt vs. Kaufman, 26 O. S. 127. When knov^ledge is in possession of other party. 10. The law does not require a vain thing — it will not compel a party to prove facts exclusively and necessarily in the knowledge and possession of the other party. Stump vs. Carner, 22 Bull. 367. 11. Where the information is peculiarly within the knowl- edge of the defendant, and the evidence if introduced by the plaintiff would be of a negative character, the burden of proof is sometimes shifted to the defendant. City of Toledo vs. Buechele, 21 C. C. 429. 12. When the situation of the parties is such that the plaintiff must rely on the books of the defendant, the jury should require of the defendant more perfect proof on that account. Lawson vs. Perry, W. 242. XX.] BURDEN O? PROOF. 32 1 Proof of negative. 13. Under the act of April 25, 1890, entitled "an act to compel children under fourteen years of age to attend school a certain length of time each year,' section 9 provides that the law shall not be operative when there is not sufficient seating capacity. Held, the burden of proving that there was not sufficient seating capacity was incumbent, in the first instance, upon the defendant, but upon the whole evidence the burden of proof remains with the prosecution. Quigley vs. The State, 5 C. C. 638; (3 C. D. 310). 14. A contractor's bid for the construction of a street railway being rejected, although the lowest, the burden is on the board to show that he was not a bidder in good faith. Gallagher vs. Johnson et al., 30 Bull. 139. 15. Action for negligence. Burden of proving that signals were not given by railroad employee is on plaintifif. R'y Co. vs. Richerson, 19 C. C. 390 ; (10 C. D. 326). 16. Where a petition in an action for negligence alleges that no rule of a company provided for stoppmg cars in a certain way, the burden of proving the negative is on the party alleging it. R'y vs. Starkey, 18 C. C. 702; (6 C. D. 5.) 17. The general rule is that some evidence must be given to sustain a negative allegation when such allegation is part of the description of the ofifense. Exceptions to this rule obtain only when the proof is readily at the command of the defendant, and is practically beyond the reach of the state. In a prosecution for abortion the state must introduce some evidence in support of the allegation that the abortion was not necessary to preserve the life of the mother. Semble, the state need not prove that the abortion was not advised by two physicians, as this could more easily be proven by the defense. Moody vs. The State, 17 O. S. no; 9 C. C. 394; (6 C. D. 90.) 18. The plaintifif in an action for malicious prosecution must establish the want of probable cause ; this being a (22) 322 DECISIONS ON EVIDENCE. [GHAP. negative, the proof need not be so positive and certain as of an affirmative. Britton vs. Granger, 13 C. C. 285 ; (7 C. D. 182). Shifting of burden. 19. The burden of proof of the case is to be distinguished from the burden of proof of some single fact. The burden is shifted by presumptions of law, presumptions of fact of the stronger kind and evidence strong enough to establish a prima facie case. Railway Co. vs. Roos, Adm'r, 9 C. C. 201 ; (6 C. D. 33). The burden of proof does not shift during the trial as the weight of evidence alternates. There may be matters of fact which need not be proved because presumed by law, and the other party may be bound to overcome such presumptions by evidence or they will be held established by his adversary. But this pertains to the weighing of evidence and not to ascertaining on whom the burden rests. Life Ins. Co. vs. La Boiteaux, 4 Rec. i. See 17 C. C. 497; 4 O. S. 67. Misdirection as to burden. 20. Misdirection of the jury as to burden of proof is error for which the judgment will be reversed. McNutt vs. Kaufman, 26 O. S. 127; 11 Bull. 213. A misdirection as to burden of proof, not objected to, will not be considered on error to overruling a motion for a new trial unless the jury might reasonably have been expected to render a different verdict, if differently instructed. Young vs. Langdon, 12 Bull. 246. Proof beyond reasonable doubt. 21. The state is bound to establish beyond a reasonable doubt every fact necessary to constitute the crime. [See Presumptions, "Innocence," p. 224.] 51 O. S. 331; 24 O. S. 589; 25 O. S. 369; 13 C. C. 349; 8 O. S. 98, 306; 10 O. S. 459; Dayton, 357; 6 N. P. 232; II C C. 464. XX.] BURDEN OF PROOF. 323 22. This rule is not changed by reason of the accused contending, and introducing evidence tending to prove, that the homicide was accidental. Jones vs. State, 51 O. S. 331. 23. If the evidence satisfies the jury as to that degree of certainty on which they would act without hesitation in their own most important affairs of life there is no reasonable doubt ; otherwise there is. State vs. Johnson, 8 N. P. 496. 24. "Proved beyond a reasonable doubt" and "clearly proved" do not mean the same. The former implies a higher degree of certainty than the latter. Farrer vs. The State, 2 O. S. 78. See 17 C. C. 337 ; 20C. C. 86;(ii C. D. 172). Preponderance only required in civil cases. 25. In civil suits a preponderance of evidence is all that is required to sustain the issue. 34 O. S. 156 ; 18 C. C. 425 ; (10 C. D. 81) ; 10 C. C. 16; 8 N. P. 422; II Dec. 760. 26. A verdict is contrary to the evidence if not supported by a preponderance in a civil case. Moran vs. The State, 11 C. C. 464; (5 C. D. 234). A preponderance of the evidence does not mean the larger number of witnesses, but the greater weight of the testimony. Holmes & Booth vs. Holland et al., 29 Bull. 115; 6 N. P. 4. A preponderance of the evidence exists when the evidence tending to establish the claim is more convincing than the opposing evidence. Davidson, Treasurei, vs. Spitler, 5 N. P. 466; (7 Dec. 393). 27. When the preponderance is to determine the issue, the court or jury deals simply with the probabilities of the case. Davis vs. Guerneri, 45 O. S. 471. 28. A charge, in an action to contest a will, that the jury must be satisfied by a fair preponderance of all the evidence. 324 DECISIONS ON EVIDENCE. [CHA". that the paper is not the last will of the decedent or they must find that it is, is erroneous. The jury must not be fettered by grades of preponderance. Russell et al. vs. Russell et al., 6 C. C. 294; (3 C. D. 460) ; 9 C. C. 376 ; (6 C. D. 417) ; contra, 13 C. C. 428 ; (7 C. D. 6). On the trial of a civil action, wherein the claim or defense is based on an alleged fraud, the issue may be determined in accordance with the preponderance or weight of evidence, whether the facts constituting the alleged fraud do, or do not, amount to an indictable offense. Semble, insurance cases are no exception. If there be an exception to the rule it is limited to cases where, to maintain the issue, it is necessary to prove that a crime was in fact committed; as in justification of a slander imputing a crime when the facts charged involve moral turpitude, there is a presumption of innocence, which stands as evidence in favor of the party charged, and the more heinous the offense the stronger the presumption. It is only where the testimony in connection with the presumptions of law arising in the case preponderates in favor of the charge that its truth should be found. Jones, Stranathan & Co. vs. Greaves, 26 O. S. 2; 17 O. S. 626; W. 294. 29. In a suit by a colored person under R. S. 4426-2 a preponderance of the evidence is sufficient. Deveaux vs. Clemens, 17 C. C. 33 ; (9 C. D. 647). 30. In an action to recover money lost at gambling the plaintiff need estabUsh his case by a preponderance only of the evidence. Robertson vs. Deming et al., 33 Bull. 190. Clear and convincing evidence required. 31. Clear and convincing proof is required to warrant the reformation of a written instrument on the ground of mistake. 27 O. S. 84; 2 D. 128; I H. 179; 18 O. S. 83; 10 O. S. 544 ; 10 Bull. 368 ; 18 C. C. 849. 32. Where it is sought to establish an implied contract from extraneous facts and circumstances and have a reforma- XX.] BURDEN OF PROOF. 325 tion of a written instrument in conformity therewith, such relief, if attainable in any case, should only follow clear and convincing proof that the party against whom it is sought had full knowledge of all the material facts from which it is claimed the implied contract arose. Gas Co. vs. Tififin et al., 59 O. S. 420. 33. To reform a contract ([2] or a conveyance of land) requires clear evidence : first, that the contract as written is erroneous and does not express the contract as made ; second, that a specific contract was made; third, to prove definitely the terms of the contract as it was made. Jung vs. Weyand, 14 Bull. 144; [2] 19 Bull. 137; 57 O. S. 667. 34. A claim made in 1878 to reform a contract made in 1861, in a suit pending three years before such claim is made, will not be granted, unless the proof amounts almost to demonstration. Whitney vs. Denton, 3 Bull. 870. 35. That a contract is void under the statute of frauds must be clearly proved. 6 N. P. loi ; (8 Dec. 35). 36. In a suit under the assignment act to set aside a sale made to hinder, delay and defraud creditors, proof beyond a reasonable doubt is not required. Daugherty vs. Schlotman et al., i C. S. C. R. 298. 37. Clear and convincing proof is required — To set aside a deed on the ground of duress. 52 O. s. 550. Of waiver of beneficial stipulation in a contract. 56 O. S. 559- Of change of domicile. 8 N. P. 197. To reform a blank endorsement. 46 O. S. 265. To set aside a conveyance because of alleged fraud. 15 O. 600. Of fraud in impaneling a jury, to justify the arrest- ing of the trial. 5 Bull. 875. Of priority in funds of an insolvent. 25 Bull. 31. To prove a trust by parol. 326 DECISIONS ON EVIDENCE. [CHAP. 6 Bull. 390, 64; 19 C. C. 536; 46 O. S. 102; 24 O. S. 615 ; 5 O. S. 19s ; 7 N. P. 225 ; 22 O. S. 559; 45 Bull. 151 ; 16 O. S. 169; see 40 below. To prove a parol contract for the sale of land. 5 C. C. 495; Dayton, 211. That money was an advancement when decedent held notes and mortgage of his child. 15 C. C. 415- To divert estate from lawful channels of descent. 25 Bull. 72; 17 Bull. 370. Of claim of trustee for expenses. 3 O. S. 129. To reverse finding of city council as to which bid on a contract was the lowest. S C. C. 125 ; (3 C. D. 64) ; 9 C. C. 638 ; (6 C. D. 786). ■38. A debtor in failing circumstances may prefer one of his creditors, and a judgment by confession in open court is less liable to suspicion and would require stronger evidence to impeach it for fraud than a private arrangement between the parties themselves. The evidence of one of the parties, denied by the other partner in the firm, will not be sufficient to impeach it unless corroborated by circumstances. Hanel vs. Mintzer, i H. 379; 3 W. L. G. 113. 39. In an action for insurance where the defense is that the plaintiff was guilty of fraud and caused his boat to be burned, it must be proven beyond a reasonable doubt. Insurance Co. vs. Paver, 16 O. 324; i C. S. C. R. 164. 40. A trust engrafted on an absolute deed may be shown by parol evidence ; but the declarations of the trust must be cotemporaneous with the deed and the evidence must be beyond a reasonable doubt as to the existence of the trust, and must be cl^ar, certain and conclusive as to its terms. Russell et al. vs. Bruer et al., 64 O. S. i. 41. Evidence to defeat the priority of a mortgage re- corded previous to one having an earlier date, tending to prove that second mortgagee had notice of the first mortgage, must establish such knowledge beyond question. Bardshar, Adm'x, vs. Holtzman et al., 18 C. C. 668; (4 CD. 174). XX.] BURDEN OF PROOF. 327 42. Where the wife claims that a deed signed by her hus- band and herself as a conveyance of her lands, had not been acknowledged by her as it purports to have been, the burden is upon her to show the fact by clear and convincing proof ; a mere preponderance of the evidence is not sufficient to sup- port a finding contrary to the certificate of acknowledgment. Ford vs. Osborn, 45 O. S. i. 43. Claim that signature to a mortgage is a forgery. Clear and convincing evidence required to overcome notary's certificate. Feagles vs. Tanner et al., 20 C. C. 86; (11 C. D. 172). 44. When the effect of a defense is to vary a written con- tract it must be proved not only by a mere preponderance of the evidence, but by clear and convincing proof. The supreme court will examine the evidence to see whether the evidence is of the required character. 36 Bull. 30s ; 55 O. S. 661 ; 7 N. P. 304; (2 Dec. 481). Abandonment of contract. 45. Burden is on party setting up abandonment of con- tract. House vs. Beatty et al., 7 O. Pt. 2, 89; W. 555. Abortion. 46. The state must produce some evidence that the abortion was not necessary to preserve the life of the mother, but need not prove that it was advised by two physicians, as this could be more easily proved by the defense. Moody vs. The State, 17 O. S. no. Accord and satisfaction. 47. The plaintiff produces mortgage and notes. Burden of proving satisfaction is on the defendant, and is not changed by the fact that the bill anticipates such defense and seeks to avoid it. Holister vs. Dillon et al., 4 O. S. 208. ' 328 DECISIONS ON EVIDENCE. [CHAP. Accounting by partners. 48. Suit for an accounting by one partner against the other. Burden is on plaintiff to furnish the evidence requisite to enable the court to state the account. Oglesby, Ex'r, vs. Thompson, 59 O. S. 60. Administrator seeking allowance of debt due himself. When the administrator seeks the allowance against the estate of a debt due himself. R. S. 6101. The same rules of evidence apply as in an action at law. Gerke's Estate, Ohio Probate Report, 289. Advancement. 49. Clear proof required that money was an advance- ment when decedent held notes and mortgage of his child. Medill, Adm'r, vs. Fitzgerald et al., 15 C. C. 415; 8 C. D. 129). [See Godell vs. Taylor et al., W. 83. J Adoption of a seal when more signers than seals to bond. 50. Whether it was the intention of the party signing a bond to adopt the seal of another signer, is a question of fact for the jury, the burden being on the plaintiff to prove that a party adopted the seal or scroll. Building Association vs. Cummins, 45 O. S. 664. Alibi. 51. The burden of proof is not changed when the defend- ant undertakes to prove an alibi. If the jury should entertain reasonable doubt as to the defendant's guilt, he should be acquitted although the jury should not be able to find that the alibi was fully proved. Walters vs. State, 39 O. S. 215; 13 C. C. 116; (7 C. D. 19). Alteration of contract. [See Presumptions, "Alterations," p. 159. J 52. In foreclosing a mortgage on land against a pur- chaser from the mortgagor, when an endorsement of a XX.] BUEDEN OF PROOF. 329 payment made by the mortgagor has been erased from the back of the note, the plaintiff need not explain it, for the endorsement of the note is not part of the body of the note. Stanberg vs. O'Neal, ii Bull. 260. In an action by a railroad company brought upon a sub- scription to its stock, which after its execution had been materially altered without the knowledge or consent of the maker, to recover the amount appearing to be due on such altered subscription, and the execution of the contract, as set out, is denied, the plaintiff cannot recover the amount due on the original subscription, without showing that the alteration was not fraudulently made by the plaintiff. Berry vs. Railroad Co., 26 O. S. 673. Appropriation of property. 53. In proceedings to appropriate the burden is on the corporation to show its existence, its inability to agree with the owner and the necessity for the appropriation. R. S. 6420; 33 O. S. 429. On the trial the land owner holds the affirmative. R. S. 6422. Under 2245 R. S. the municipal corporation was permitted to open and close. 32 O. S. 219. Arbitration and award. 54. The party enforcing an award shall produce satisfac- tory proof to the court of the due execution of the submission or arbitration bond, and that the party neglecting or refusing to obey the award was furnished with a true copy thereof at least ten days before the term at which the application to enforce the award was made. R. S. 5612. Proof of the submission or arbitration bond may be revised, i O. S. 463. When the defendant claims that the submission had been revoked the burden is on him to show the revocation. Lessee of Hunt vs. Guilford, 4 O. 316. Arrest. [See Illegal Arrest, p. 352.] 330 DECISIONS ON EVIDENCE. [CHAP. Assault and battery. 55. Action for assault and battery. Proof of the assault and battery beyond a reasonable doubt not required. Shaul vs. Norman, 34 O. S. 157; 17 O. S. 624. Assessment and condemnation proceedings. [See Presumptions, "Regularity," p. 299.] 56. On a petition to enjoin a street assessment the burden is on the plaintiff to show a clear right. Spangler vs. Cleveland, 43 O. S. 526. A municipal corporation insisting on the right to impose an assessment should show that such power had been clearly granted to it by statute ; but authority being shown in general terms to make the assessment, whoever insists that his prop- erty is exempt from the burden will be required to support his claim by a provision equally clear. Lima vs. Cemetery Association, 42 O. S. 128. Regularity of assessment proceedings of a city council is presumed and the burden is on those attacking them, though it is proving a negative, but this does not require proof excluding every hypothesis upon which the fact might be otherwise. Where it is shown that the signature to a petition for an improvement was not placed there by the owner of the abutting property this is sufficient, and the other side must show that it was put there by some one who had authority. Tone vs. Columbus, i C. C. 305; (i C. D. 168): 8 C. C. S36;(4C. D. 69). In a contest as to whether or not the council has the requisite number of consents to give it jurisdiction. The presumption is in favor of the action of council, and the burden of proof lies upon the property owner to show that the consent was not given. Where the consent is given by Mrs. A. B. and the abstract shows that A. B. is dead, the burden is upon the plaintiff to prove that Mrs. A. B. is not the heir of A. B. Simmons vs. The City of Toledo et al., 8 C. C. 536; (4 C. D. 69). If the city's decision as to the sufficiency of the repairs XX.] BURDEN OF PROOF. 33I to a sidewalk under R. S. 2329-30 is open to review at all, the property owner who is resisting the assessment on the ground that he did not comply with the order, must prove it so clearly and convincingly as to leave little doubt. Cincinnati vs. Longworth, 22 Bull. 153. Assent of stockholders to individual liability. 57. The burden of showing assent of stockholders to individual liability not imposed by their charter or the laws under which they had been organized, is upon the corporation or party seeking to enforce the liability, and will not be pre- sumed from the mere fact that bonds from the company were issued in pursuance of the said act by its directors, and their amount assessed upon its members by a meeting of the stock- holders, at which the party sought to be charged was not present. Ireland vs. Palestine, etc.. Turnpike Co., 19 O. S. 369- Assignee settling his account. 58. On the trial of exceptions to his account the burden is on the assignee to show its correctness. Claflin et al. vs. Goebel, Assignee, 7 C. C. 384: (4 C. D. 645). Attachment. 59. Strictness of proof required to render judgment on default in proceedings in rem. Young & Co. vs. Steamboat Virginia, i H. 157. Any party who pursues an extraordinary remedy, whether by attachment or injunction, must make out a clear case to authorize judicial interference. 2 D. 174; 2 H. 247; I C. C. 474; 8 C. C. 499; 14 Bull. 224; I C. S. C. R. 150; 19 C. C. 734. The charge made in the affidavit for attachment, if denied by defendant, must be sustained by the plaintiff to the satis- faction of the court ; upon the plaintiff, by the denial, is thrown the burden of proof. 9 O. S. 397; I C. S. C. R. 153; 46 O. S. 52; 7 C. C. 208 ; 32 Bull. 13s ; 3 C. C. 455 ; 3 Bull. 890 ; 4 W. L. G. 132 ; 13 C. C. 530; 5 N. P. 243, 274. 332 DECISIONS ON EVIDENCE. [CHAP. On a motion to discharge an attachment upon a particular piece of property, the burden is upon the applicant, and the showing must be clear and satisfactory. • Northern Bank of Kentucky vs. Nash & Guild, I H. 153. An attachment founded on an affidavit, taken in conform- ity with the statute, must be considered prima facie as legal. Hartshorn vs. Wilson, 2 O. 29. When the facts stated in plaintiff's affidavit are denied in defendant's, it devolves on plaintiff to furnish proof to support his attachment. 59 O. S. 556; 5 C. C. 290; (3 C. D. 143). The burden is on a garnishee to show that he is exempt from liability to pay interest on his indebtedness. 9 O. S. 452. Authority. [See Presumptions, "Authority," p. 161.] Bad faith. [See Bona Fides, p. 337 and p. 176.] Bills, notes and bonds. 60. Suit on a note ; plaintiff sustains the burden by pro- ducing the note and proving its execution. When the execu- tion is admitted the production of the note makes a prima facie case, and plaintiff is not required to prove consideration. Langhorst vs. Dolle, 5 Bull. 933 ; 20 C. C. 11. See R. S. 6577 as to proof of execution of note, in suits before justice of the peace. An executrix, in proving title to notes payable to decedent, should prove death of decedent and her own appointment. 8 C. C. 160; (4 C. D. 325). H rased indorsement of payment: [See Alteration of Contract, p. 159.] Modification of terms of a note: 61. The burden of proving a valid modification of the terms of a note, by which the debtor became liable for the higher rate of interest, is upon the plaintiff. The mere fact XX.] BURDEN OF PROOF. 333 that in pursuance of his promise he had for several years annually paid interest at the higher rate, and had not been pressed for payment of the principal, does not raise the pre- sumption of such pre-existing modification of the original contract, as the statute requires. Andrews vs. Campbell, 36 O. S. 361. Extension of time: 62. When in a suit on a note of the defendant's, a surety answers that plaintiff, without his consent, and for a consid- eration, granted an extension of time to the principal, and the plaintiff replied that such further time was not given with- out the consent of the surety, but with his full knowledge and consent, the burden is on the defendant to prove that he did not consent to such extension. Schmidt vs. Cordes, 2 C. S. C. R. 294. Extensions of time set up by a surety or endorser as a defense to a note is a new matter, and the burden is on the party setting it up. 40 O. S. 267; 40 O. S. 264; 2 C. S. C. R. 294; 2 D. 477; 3 W. L. G. 305 ; Dayton, 108. When the creditor admits that the extension was without the knowledge or consent of the surety, and relies upon a subsequent promise to pay, if the principal does not, the burden of proof is upon the creditor. Bramble vs. Ward, 40 O. S. 267. Consideration: 63. The burden is on defendant who sets up want of consideration to prove it. Davis & Co. vs. Gray, 17 O. S. 350. In an action by an endorsee upon a negotiable note, obtained before due, against the makers, the defendants set up as a defense that the note was held by the payee without consideration, and that he has wrongfully transferred it in fraud of the rights of the defendants, and that the plaintiff had full knowledge of the premises when he received the note. Held, upon the defendants proving the want of consideration and fraudulent transfer of the note as between themselves and 334 DECISIONS ON EVIDENCE. [CHAP. the payee, it was incumbent upon the plaintiff to show that he received the note for a vahd consideration. The plaintiff having proven that he paid for the note and received it, endorsed and transferred to him, before due and in the usual course of trade, it was not incumbent on him to prove that he received it in ignorance of the rights of the defendant as against the payee. Upon proof by the plaintiff of so receiving the note before due, in the usual course of business, for value, the proof so made by the defendants was thereby overcome, and the plaintiff's presumptive right was restored and the burden of proof then shifted to the defendants, to show knowledge on the part of the plaintiff of such want of con- sideration and fraud. Davis vs. Bartlett, 12 O. S. 534; 36 O. S. 390; 20 C. C. 12; 29 O. S. 473. The court will not order the plaintiff suing on a note to show the consideration, although suspicion has been thrown on it by the evidence. The question is one for the jury, and if the plaintiff fail to show consideration, that omission will be a circumstance for their consideration. Murphy vs. Hagerman, W. 293. In an action on a contract the burden of proving a con- sideration is on plaintiff, and where the consideration pleaded is denied and the answer unnecessarily details a state of facts which, if established, would disclose a want of consideration, such burden is not thereby shifted on the defendant. Piatt vs. Scribner, iS C. C. 452 ; (9 C. D. 771) ; case there cited. Consideration in case of incapacity of maker of note: 64. When a person non compos mentis is the maker of a note, his mental incapacity is prima facie a complete defense to an action on a note signed by him, and when interposed the burden is upon the plaintiff to prove the consideration for the note, and other facts necessary to overcome such defense and entitle him to recover. A purchaser takes it charged with the same burden. [As to infancy, see discussion in this case.] Hosier vs. Beard et al., 54 O. S. 398. XX.] BURDEN Of PROOF. 335 On production of mortgage and notes: [See Payment, below.] Payment: 65. Suit on a note. Answer setting up payment is new matter. Fewster vs. Goddard, 25 O. S. 276. Plaintiff produces mortgage and notes. Burden of showing satisfaction is on the defendant ; and it is in no way changed by the fact that the bill anticipates such a defense and seeks to avoid it. Hollister vs. Dillion et al., 4 O. S. 208. Where defendant avers payment and that the endorsement on the note was a memorandum, not intended to pass title, and this is met by a denial, the burden is on defendant tO' establish his allegations by clear proof. dinger vs. McGuffey et al., 55 O. S. 661. Where part payment, endorsed on the note, is relied on to save the note from statute of limitations, and such payment is denied, the burden is on the party seeking to recover to show that such payment has been made. The endorsement is not prima facie evidence of such payment unless in the hand- writing of the party sought to be charged. Keel, Ex'r, vs. Rudisell, 13 C. C. 199; (7 C. D. 464). It is only by force of an agreement of the parties, that the giving of an unsealed note by the debtor will be payment of a precedent date ; the burden of proof is upon the debtor, who^ must establish the agreement clearly. 4 O. S. 60; 15 O. S. 169; I C. S. C. R. 258. Action against one as joint mal-er, answer that he is accommodation endorser: % 66. Where one, sued as a joint maker, answers that he is only an accommodation endorser, the burden is on the plaintiff and is not sustained by the production of the note endorsed by the defendant. Parrish, Adm'r, vs. Mears, i H. 492. In case of fraud: 67. Whatever may be the rule where no fraud is showi* 336 DECISIONS ON EVIDENCE. [CHAP. to have been perpetrated on the maker by the original holder in transferring the note, in a case which shows that the transfer of the note on the part of the first holder was a positive fraud, it lies on the party claiming under such transaction to show that he acted honestly, without knowl- edge of the fraud. McKesson vs. Stanberry, 3 O. S. 156. In proof of fraud in former holder, burden is on present holder to show bona fides. Allen vs. Johnson, 20 C. C. 14. Genuine signature, defense that note was not voluntarily executed: 68. When the negotiable instrument^ with the genuine signature of a prior party, comes into the hands of a bona fide holder for the value before maturity, the presumption is in favor of its validity ; and if such party seeks to escape liability, on the ground that it was not voluntarily executed, the burden of showing that fact rests upon him, and also to show that he was without negligence in the premises. 29 O. S. 479; 36 O. S. 530; 29 O. S. 467, 480. Proof of partnership when suing on a note: 69. Where a partnership, holder of a note endorsed in black, sues on it, no more strict proof is required of the part- nership than of any other essential fact. Clark vs. Kensall, W. 480. To shoiv relation of parties to the note: [See Presumptions, "Bills, Notes and Bonds," p. 166.] Of assent of partnership to accommodation endorsement : 70. The burden of proving assent of partnership to an accommodation endorsement for the benefit of an outsider is on party claiming such assent or authority. Bank of Detroit vs. Wickham, Jr., et al., 18 C. C. 685; (6 C. D. 790); 14 O. 601. XX.] BURDEN OF PROOF. 337 Of assent of partner to note given for mdividual debt of onepartner: 71. Note given by partner in firm name to secure indi- vidual debt; payee having knowledge of the facts has the burden of showing the assent of the other partners. 17 C. C. 165 ; (9 C. D. 611). Bona fides. 72. Burden is on the defendant to show that he was a bona fide purchaser of a chattel mortgage when the facts are peculiarly within his knowledge, 4 C. C. 301 ; (2 C. D. 558). The burden is on a railway company having an unrecorded deed giving them permission to lay additional tracks, to show bad faith or knowledge of a bona fide purchaser. Varwig vs. Railroad Company, 54 O. S. 455. Preferred claim against insolvent debtor's estate. R. S. 6355. Burden on claimant to show bona fides. 11 C. C. 563; (5 C. D. 276). Bonds. 73. Whether it was the intention of the party signing a bond to adopt the seal of another signer, is a question of fact for the jury, the burden being on the plaintiff to prove that the party adopted the seal or scroll. Building Association vs. Cummings, 45 O. S. 664. Suits on bonds of administrators: 74. It is only where an action is brought on an adminis- tration bond by a creditor, legatee, widow or other distributee, under sections 182 and 183 of the administration act of March 23d, 1840, that the plainlifl is required by the statute to allege and to prove his right to a sum liquidated by allowance, judg- ment, order or award. In an action by an administrator de bonis non, on the bond of his predecessor, for failing to account for property charged against him in the inventory returned by him, it is not error in the court to refuse a charge to the jury which tends to mislead them into a belief that the (23) 338 DECISIONS ON EVIDENCE. [CHAP, burden of proof does not rest upon the representatives of such predecessor to account for property proved by his inventory to have come into his hands. Douglas vs. Day et al., 28 O. S. 175. Suits on bond of the justice of the peace: '75. Action on the bond of a justice of the peace. Burden of proving facts in mitigation of damages rests on the defend- ant. Carpenter vs. Warner, 38 O. S. 416. Boundary; channel of creek, section line. 89. When the defendant shows that the channel of a creek, formerly a boundary, has suddenly changed, the burden is on the plaintiff to show where the old channel was. Maddox, Hobath & Co. vs. West et al., 5 Bull. 833. When a section line is a boundary the burden of showing that it is not located where it should be is on the party affirm- ing such to be the case. Hamil vs. Carr, 21 O. S. 272. Building and loan association. 76. Burden is upon shareholder to show payment accord- ing to law, and this burden is not sustained by the mere introduction of the pass book showing credits to the amount claimed. Sachs vs. Duckworth B'ld. and Loan Ass'n, 4 N. P. 214; (6 Dec. 254). Change of venue. yy. Venue should not be changed on the affidavit of the party alone, but only upon clear and satisfactory proof that fair and impartial justice probably cannot be obtained in the county where the suit was commenced. Bank vs. Ward, 11 O. 128; 25 Bull. 366. Child complaining against provision made by father for mother. 78. Where a husband provides for his wife by deed without the intervention of a trustee and a child complains XX.] BURDEN OF PROOF. 339 against such provision, the burden of showing that no pro- vision has been made in its favor rests upon the complainswit. Crooks et al. vs. Crooks, 34 O. S. 61D. Common carriers, action against. See NegHgence, p. 252. J 79. The assent of a shipper to conditions in a bill of lading limiting the common law liability of a common carrier must be shown. The mere receipt of such a paper by the shipper without objection is not necessarily sufficient. [See cases under Negligence.] Gains vs. Union Trans, and Ins. Co., 28 O. S. 418; 3 C. C. 36; (2 C. D. 22). The assent of a shipper to the conditions in a bill of lading or other contract for the carriage of goods, limiting the carrier's Hability, is binding upon him, when loss happened without fault or negligence of the carrier ; but such assent will not be implied or presumed from facts or circumstances which do not clearly show an assent to such conditions in the contract on which the action is founded. In the absence of satisfactory proof, showing that the shipper had by assent and acquiescence, or otherwise, agreed to limit the liability of the carrier, the presumption is that he intended to insist on his common law rights. Neither usage nor custom, though known to the shipper, which he has not clearly assented to as a condition of the contract of the shipment, can be set up to absolve a carrier from his common law liability. Railroad Company vs. Barrett, 36 O. S. 448. In an action on the ground of negligence against a com- mon carrier upon a bill of lading containing an exemption from liability from loss by fire, the burden of proof is on the carrier to show that the loss occurred within the terms of the exemption and without fault on his part. [Union Express Co. vs. Graham, 26 O. S. 595, approved.] U. S. Express Co. vs. Backman, 28 O. S. 144; 4 O. S. 362; I C. C. 387; 28 O. S. 358. Proof of loss or non-delivery by the common carrier is prima facie evidence of negligence on his part, although the 340 DECISIONS ON EVIDENCE. [CHAP. loss occurs from a peril excepted from the bill of lading, and it devolves upon him to prove that the loss did not happen by mean of any negligence on his part. [Childs vs. L. M. R. R. Co. explained, and said to be imperfectly reported.] U. S. Express Co. vs. Beahman, 2 C. S. C. R. 251 ; 28 O. S. 418. When a bill of lading contains an exception of "unavoid- able dangers" and the goods were destroyed by fire, the burden of proof rests upon the carrier to show the cause, and that it was unavoidable, as by lightning. It is not sufficient to show that the cause is unknown and that ordinary care was taken to protect against it. Union Mutual Ins. Co. vs. I. C. R. R. Co., i D. 480. [See Presumptions, "Negligence," p. 252.] In an action against a common carrier, for goods lost during transit, where the plaintiff, instead of merely declaring on the contract, avers negligence on the defendant's part, which the defendant denies. The burden of proof of negli- gence is on the plaintiff, and mere presumption of negligence, arising from the fact of loss, is not enough to authorize a recovery where there is rebutting proof. The fact that the train was on a sidetrack when loss was caused by fire is not proof of negligence. Childs vs. Little Miami R. R. Co., i C. S. C. R. 480. Explained and qualified. United States Express Co. vs. Bachman, 2 C. S. C. R. 251. The burden is on the common carrier to show an agree- ment restricting his liability. 36 O. S. 647 ; 2 O. S. 131 ; 4 O. S. 740 ; 10 O. S. 65 ; 19 O. S. I ; 19 O. S. 221 ; 4 O. 722. Where the trunks are received by the railroad company in good condition, and are lost or damaged in transit by forces and agencies within the control of the company, the burden rests upon the company to show due care. Railway Co. vs. Ambach, 10 C. C. 490. Affirmed 57 O. S. 48. Where the trunks contained merchandise the burden is on XX.] BURDBN OP PROOF. 34I the passenger to show knowledge of that fact by the railroad company. Railway Co. vs. The Bowler & Burdick Co., 57 O. S. 56. Condition precedent. 80. The burden of proving the performance of conditions precedent* to the right of recovery is on the plaintiff, and the burden is not changed by the fact that the answer, in addition to a denial of performance, enumerates particulars in which such failure to perform consist. Mehurin vs. Stone, 37 O. S. 49; W. 303. On. a contract to pay when sales have been effected, it is incumbent on the plaintiff to show that sales have been made. Fallis vs. Griffith, W. 303. 81. Where a promise is dependent on conditions or ex- ceptions, the facts as to which are exclusively within the knowledge of the promisor, if the promisor pleads the con- dition or exception, the burden is on him to prove it. The Supreme Commandery vs. Wending et al., 20 C. C. 689; (II C. D. 419). Conditional sale, burden is on party asserting contract to be. 82. Courts of equity lean against construing a contract for the securing of a debt to be a constitutional sale. The onus probandi is on the party asserting such contract to be a conditional sale, to give it that character. Cotterell vs. Long, 20 O. 473. Consideration. 83. Under the act of Feb. 22, 1831, a purchaser of unim- proved and unoccupied lands may be protected against a prior unrecorded deed. The burden of proof as to the payment of a valuable consideration rests upon the subsequent pur- chaser. Upon the proof of the payment of a valuable con- sideration by the subsequent purchaser, the burden of proving his bad faith and his knowledge, at the time of his purchase, of the existence of a former unrecorded deed from the same grantor, rests upon the holder of the prior deed. Morris vs. Daniels, 35 O. S. 406. 342 DECISIONS ON EVIDENCE. [CHAP. Corporate existence and capacity. 84. When the answer is a general denial the burden is on foreign corporation, plaintiff, to show corporate capacity. Lewis vs. Bank of Kentucky, 12 O. 148. [See 5 O. 283.J A corporation suing need not aver that it is a corporation, and a general denial to the petition will not impose upon the plaintiff the burden of proving that it is a corporation. Brady vs. The National Supply Co., 64 O. S. 267. Action on a promissory note executed to an educational institution. Burden of showing that the institution was not incorporated is upon the maker of the note. A party having dealt with a corporation is estopped from denying its legal existence. Durrell vs. Belding, 9 C. C. 74; (4 C. D. 263). In proceeding to appropriate property under R. S. 6420 the burden is on the corporation to show corporate existence. Powers vs. Railway Co., 33 O. S. 429. Contract; damages, conditions severable, conditional. 85. In an action for damages caused by breach of con- tract, the burden is upon the plaintiff to prove the extent of his damages. Burkhardt vs. Burkhardt, 8 Bull. 253. Where the conditions of an agreement constitute an entire contract, the burden of showing that they have become severed, independent and personal rests on the party asserting such claim. Hall vs. Geyer, 14 C. C. 229; (7 C. D. 436). In an action brought on a contract which was claimed to be absolute, but denied by the answer, the evidence introduced by the defendants tended to show a conditional contract. Held, that the burden of proof did not shift, and that the court erred in charging the jury that the burden of proof was upon the defendants to prove that the contract was a conditional one. Leisy & Co. vs. Zuellig, 7 C. C. 723. Burden of proving non-existence of coal on land leased for mining is on lessee. 36 O. S. 174; 38 O. S. 65. XX.] BURDEN OF PROOF. 343 Clear and convincing evidence required to prove waiver of condition which was for the benefit of employer. Ashley vs. Henahan, 56 O. S. 559. Corporation, defense that fund provided lias been ex= pended. Burden of proof in a suit by contractor against a municipal corporation, when the defense is that the fund provided has already been expended. Cincinnati vs. Cameron, 33 O. S. 336. Ditch, petition for. 86. The petitioners for a ditch have the burden to prove the necessity for the ditch by a preponderance of testimony. Miller vs. Weber, i C. C. 130; (i C. D. "jf). Education compulsory. Under the act of April 25, 1890, the burden of proving that there was not sufficient seating capacity was on defendant, but the burden of proof in the whole case was on the prose- cution. Quigley vs. The State, 5 C. C. 638 ; (3 C. D. 310). Ejectment. 88. Proof by the plaintiff in ejectment, that the original grantee under whom he claims is within the exception of the statute of limitations, throws upon the defendant the burden of proving an intermediate owner without that exception. Thompson et al. vs. Gibson and Jolly, 2 O. 339. In ejectment proof of legal title is prima facie evidence of a right to enter and enjoy, and such presumption must be rebutted by the party setting up adverse possession. Williams' Lessee vs. Burnett, W. 53. Election. 90. Poll books prima facie evidence of the truth of their contents ; when impeached by proof that they are fraudulent, the burden of proving legal votes is oti the party claiming them. Phelps vs. Schroder, 26 O. S. 549; 16 O. S. 184; 21 O. S. 216. [See 6 Bull. 188.] 344 DECISIONS ON EVIDENCE. [CHAP, Embezzlement. 91. Trial of one charged with embezzlement. There should be some proof in support of the allegation that the defendant was not, when the offense was claimed to have been committed, under the age of eighteen years, and was not an apprentice. Grills vs. The State, 9 C. C. 394; (6 C. D. 90). False imprisonment. 92. The burden of proving want of probable cause is on plaintiff. Johnson vs. McDaniel, 7 N. P. 467; (5 Dec. 717), Family conveyance. 93. Plea of innocent purchaser for fair consideration, interposed in support of a family conveyance, can only be sustained by clear and satisfactory proof. House vs. Beatty at al., 7 O. Pt. 2, 84. Where a husband has conveyed lands to his wife without a valuable consideration, and under such circumstances that the presumption of law, arising from the relation of the parties, that an absolute gift was intended, is rebutted, if the transaction be questioned, the burden is upon the party claiming under the deed to show that it was not obtained by an abuse of the relation of trust between husband and wife. Rankin vs. Rankin et al., 21 Bull. 126. Forfeiture. 94. The burden is upon the insurance company to show that rights had been forfeited. 10 Bull. 391. Forgery. 95. In a prosecution for forgery of a promissory note, where the defendant admits the making of the signature, the burden is on the state to show that it was done without authority. Romans vs. The State, 51 O. S. 528. Fraud. [See Clear and Convincing Evidence, p. 324.] XX.] BURDEN OF PROOF. 345 96. Whatever may be the rule where no fraud is shown to have been perpetrated on the maker by the original holder in transferring the note, in a case which shows that the transfer on the part of the first holder was a positive fraud, it lies on the party claiming under such transaction to show that he acted honestly, without knowledge of the fraud. McKesson vs. Stanberry, 3 O. S. 156. A transfer of property made by a debtor upon a secret trust is prima facie fraudulent as against creditors; and, as against them, the burden of proof is on the party claiming under it to show adequacy of consideration and good faith in the transaction. The production and proof of a mere formal transfer by the debtor is not enough to cast upon, antecedent creditors the burden of showing a want of good faith or of adequate consideration. Ferguson vs. Gilbert & Rush, 16 O. S. 88. Burden of proof of ignorance of the fraud under an aver- ment that "the fraud was not discovered until within four years," which averment was met by a general denial. Stephenson vs. Reeder, 2 Bull. 355. Gifts, causa mortis. 97. To establish a gift causa mortis, clear and unmistak- able proof of an intention to give, and an actual gift perfected by as complete a delivery as the nature of the property will admit, is required. Gano vs. Fisk, 43 O. S. 473 ; 15 C. C. 415 ; (8 C. D. 129). Gifts, inter vivos. 98. Gifts inter vivos, like gifts causa mortis, are watched with caution by the courts, and to support them clear and convincing evidence is required. Flanders vs. Blandy, 45 O. S. 113. Habeas corpus. 99. Proceedings in habeas corpus ; the burden is on the prisoner to show illegal detention. Evidence as to guilt or innocence inadmissible. 38 Bull. 85. 34^ DECISIONS ON EVIDENCE. fCHAI'. Homestead; burden is on wife claiming to siiow that re- moval was with intention of returning. 100. On the question whether a wife is occupying prem- ises as her home, so as to be entitled to a homestead therein, if it appears that she was not living with her husband and in the property claimed, but had been residing for several months with her children in another part of the state at her father's, the burden is upon her to show that her removal was only temporary and with the intention of returning. In the absence of such proof the court may refuse to allow a home- stead. Elliott vs. Platter, 43 O. S. 207. Homicide. On the trial of an indictment for murder, ([2] or foi malicious shooting with intent to kill), the burden of proving that the homicide was excusable on the ground of self defense rests on the accused, and should be shown by a preponderance of evidence. Amount of proof sufficient to establish self defense. Silvus vs. The State, 22 O. S. 90; 8 Bull. 90; [2] 24 O. S. 584; Dayton, 384; 21 C. C. 50, 124. Identity. 102. The tendency of courts is to release parties from the onus of proving identity. It being generally more easily disproved than established. But where the reason of the rule fails, the rule does not apply. Under the circumstances of this case the rule does not apply. Sperry vs. Tebbs, 20 Bull. 181. Innocent purchaser. 103. Burden is on the defendant to show that he was a bona fide purchaser of a chattel mortgage when the facts are peculiarly within his knowledge. 4 C. C. 301 ; (2 C. D. 558). One who stands upon the rights of an innocent purchaser for value must allege and prove the facts out of which such rights arise. Gwynne et al. vs. Jones et al, 5 C. C. 305 ; (3 C. D. 151)- XX.] CURDBN OF PROOF. 347 Insurance policies, actions on. 104. Fire is not an unavoidable danger, and in case of loss defendant is bound to show the origin of the fire ; other- wise the presumption is it might have been avoided. Ins. Co. vs. R. R. Co., i D. 480. 105. Burden of proof is on the Mutual Benefit Associa- tion to show forfeiture of member's rights. Entry on books that he had been dropped is -not sufScient. Odd Fellows' Protective Ass'n vs. Hook, 10 Bull. 391- 106. Where an insurance policy requires notice and due proof of loss, the burden of proof is on the plaintiff to show these. Harris vs. Protection Ins. Co., W. 550. 107. In a suit on an accident insurance policy the burden is on the defense to prove the breach of conditions avoiding the same. The Interstate Casualty Co. vs. Bird, Adm'x, 18 C. C. 483 ; (9 C. D. 480) ; 52 O. S. 12. 109. The defense of false swearing to proof of loss, which the policy provides shall forfeit all claims, must be proved beyond a reasonable doubt. Cochran vs. Ins. Co., 2 Bull. 54. no. Notwithstanding the limitation upon the power of agents, declared in the policy in respect to waiving forfeiture, the company is competent to invest such authority in any of its agents. The authority may be expressed or it may be implied from circumstances, but the burden of showing it, in either case, is on the party claiming the benefit of its exercise. Ins. Co. vs. McMillen, 24 O. S. 67. III. An insurance company cannot be held liable, in chancery, to issue a policy of insurance, in pursuance of an alleged contract, unless the proof is clear that such contract has been made. Neville et al. vs. Merchants & Manfrs. Ins. Co., 19 O. 452. 348 DECISIONS ON EVIDENCE. [CHAP. 112. To authorize a court of equity to reform a policy on the ground of mistake, there must be clear proof of a mutual mistake, by the omission or insertion of a material stipulation, contrary to the actual agreement and intention of the parties. Elstner vs. Cin. Eq. Ins. Co., i D. 412. 113. The condition requiring notice and endorsement on the policy of prior insurance imposes the duty of compliance on the insured, which cannot be cast on the insurer, except by clear proof of an express agreement between the parties, or of a general usage to that effect among underwriters; without such proof the court will not reform the policy by requiring an endorsement of prior insurance. Fellowes vs. Madison Ins. Co., 2 D. 128. 114. An admission in the policy that premium was paid casts the burden of disproving it upon the company. Roberts vs. Ins. Co., 2 D. 113; i H. 217. 115. The defendant insurance company must prove the falsity or breaches of warranty or representations in the policy. (The rule is different as to warranty of seaworthiness in marine insurance.) Life Ins. Co. vs. Reif, i Bull. 290. 116. The burden is upon the company, if it desires to avoid the policy for violation of the warranties therein con- tained, to set up that as a defense. Ins. Co. vs. Leonard, 9 C. C. 46 ; (6 C. D. 49). 117. Burden of proof, where plaintiff has failed to comply with provisions in marine insurance policy as to sale of damaged property. Ins. Co. vs. Cobb, 2 C. S. C. R. 87. 118. Burden of proof when the defense is that insured did not own the property insured. Cochran vs. Ins. Co., 2 Bull. 54, 16. 119. When the defense by the insurance company is that plaintiff set fire to his goods, the burden is on the company to prove it. Dayton, 314. 120. In an action which was upon a policy of life insur- ance, containing a proviso that it should be null and void XX.] BURDEN OF PROOF. 349 in case the insured "shall under any circumstances die by his own hand," issue was joined as to whether his death was within the proviso. Held, the onus is upon the company to show that the death was within the proviso. Schultz vs. Ins. Co., 40 O. S. 217. 121. Where it is shown by the evidence of plaintiff that the assured came to his death within the general terms of the policy, the burden rests upon the company to prove that a recovery was defeated by reason of the exception pleaded, viz., that death was the result of "voluntary exposure to unnecessary danger." Mutual Accident Ass'n vs. Hubbell, 56 O. S. 526. 122. An insurance policy contained the clause, "that persons insuring property at this office must give notice of any other insurance made in their behalf on the same, and cause such other insurance to be endorsed on the policy; in which case each office shall be liable to the payment of a rat- able proportion of any loss or damage which may be sus- tained. And unless such notice is given, the insured will not be entitled to recover in case of loss." Held, that the burden of proof lay on the plaintiffs to show that notice was given of other insurance taken. [As to evidence that it was given, see "Insurance Companies."] Harris vs. Ohio Ins. Co., W. 545. 123. Where the answer alleges and the reply denies that certain assessments were regularly made upon the premium notes of the plaintiff, and payment thereof demanded and refused, it is not necessary for the plaintiff, in his evidence in chief, to disprove such allegations, although he has, in his petition, averred full performance on his part of the terms of the contract. The alleged assessments should be proven by the records of the company. Ins. Co. vs. Bowersox, 6 C. C. i ; (3 C. D. 321). The burden of proof to show a default in not paying assessments accruing after issue of certificate rests vtpon defendant. Hall vs. Aid Ass'n, 6 C. C. 140; (3 C. D. 384). 350 DECISIONS ON EVIDENCE. [CHAP. Judgment, proceedings to vacate. 124. Proof required to authorize court to vacate judg- ment. Kolkhoff vs. Bussee, 29 Bull. 341. Judgment, action on. 125. Action on foreign judgment; jurisdiction of court rendering judgment affirmed, general denial. Burden is on affirmant. 17 C. C. 234; (9 C. D. 724). Knovt'Iedge and intent. 126. Knowledge, when an element of the offense, must be proven, [i] So also intent. [2] [I] 8 O. 230; 3 O. S. 475; 30 O. S. 382; 32 O. S- 456; [2] 51 O. S. 331. Libel and slander. 127. In an action for slander for words imputing the crime of stealing a horse, the defendant pleaded the truth of the words. Held, it is not necessary that it be proved beyond a reasonable doubt. Bell vs. McGuiness, 40 O. S. 204. 128. The jury must be satisfied beyond a reasonable doubt. The defense that the matter was true and published for justifiable ends need not be proven beyond a reasonable- doubt. State vs. Cass, 6 N. P. 503; (8 Dec. 214). 129. Action for libel. Plaintiff must show that the pub- lication was false and malicious; the burden is not cast on the defendant to prove that the publication was honest, fair and impartial, as alleged in the answer. Parks vs. The Enquirer Co., 16 C. C. 409; (8 C. D. 621). 130. Where the charge is that words have been falsely and maliciously published, and proof is given of their pub- lication, the charge is made out, and it devolves on the defend- ant to show that they were true or written under circum- stances showing no malice or no injury. Vaningen vs. Newton, i D. 484. XX.] BURDEN OF PROOF. 351 131. A justification must be proven strictly, especially when it imputes a crime. Seely vs. Blair^ W. 633. Liens, proceedings under 3398 R. S. 132. In an action to marshal liens, when the holder of a judgment for "materials and supplies," furnished in accord- ance with the provisions in that section, claims priority over mortgagees existing before the supplies were furnished, the burden of proof is upon such claimant to show not only thai, he has obtained such judgment within the terms of section 3398, but also that the cause of action upon which it was obtained was such as to come within the terms of the statute. Farmers' Loan and Trust Co. vs. R. R. Co., 21 Bull. 275. Liquors. 133. Illegal sales; selling adulterated. Action to subject property when sold, keeping open on Sunday. On the trial of an information for selling spiritous liquors not inspected, the state is bound to give some evidence in support of the negative averment. Cheadle vs. The State, 4 O. S. 477 ; 1 1 C. C. 578. 134. On a charge under section 11 of the Dow Law, for keeping open on Sundays the doors of a place where liquors are sold, the accused must be convicted unless he prove by a clear preponderance of the evidence that the doors were kept open for another purpose than selling liquors. Molitor vs. The State, 20 Bull. 323. 135. It is not necessary to a conviction under the act of March 26, 1891, 88 O. L. 231, for selling adulterated wine, that the jury should be satisfied beyond a reasonable doubt that the accused must have known the wine to be adulterated. Altschul vs. The State, 8 C. C. 214; (4 C. D. 402). 136. In an action for damages resulting from an illegal sale of intoxicating liquors, the sales need not be proved beyond a reasonable doubt. Lyons vs. Fleahmann, 34 O. S. 151. 352 DECISIONS ON EVIDENCE. [CHAP. 137. In an action under 4364 R. S. to subject the premises where intoxicating Hquors were sold to the payment of a judgment recovered against the seller for damages caused by such sale, the allegation that the premises were leased by the seller for the purpose of selling intoxicating liquors therein, or were rented by him to be used for that purpose, and that the liquors which caused the plaintiff injury were sold on the premises, may be put in issue by the owner; and when that is done, the burden of proof is on the plaintiflf. Goodman vs. Hailes, 59 O. S. 342. Illegal arrest. 138. In an action against a city for illegal arrest it is incumbent on the city to show that such a state of facts existed as justified the officer in making the arrest without previous issue of a warrant, and that he did not detain the party arrested an unreasonable time before obtaining a war- rant. ' Reinhardt vs. City, 49 O. S. 257. Illegal voting. 139. Indictment for illegal voting. The prosecution having proved that the defendant was born in a foreign coun- try, of parents owing allegiance to that country, who had not removed to the United States and become naturalized under the laws thereof during his minority, the burden of proof is on the defendant to show that he had been naturalized. The State vs. McGinby, 2 W. L. M. 594. 140. Upon an indictment for voting at an election, with- out being a citizen of the United States, it is sufficient on the part of the prosecution to prove that the defendant is a foreigner by birth and that he deposited a vote, without showing that he had voted for any person. If he had become a naturalized citizen, or the vote was a blank, he should prove it. Patterson vs. The State, 2 W. L. M. 333. Malicious prosecution. 141. In an action for malicious prosecution the burden of proof to show want of probable cause and malice is on the XX.] BURDEN Ol? PROOF. 353 plaintiff, as the presumption of law is that every prosecution is founded on probable cause and instituted for the purpose of justice. That presumption must be overcome by the plaintiff, and the mere fact of acquittal and discharge by the magistrate was not enough. Other evidence was necessary, and added to an acquittal and discharge, very slight circumstances are sufficient to cast the burden of proof upon the defendant. John vs. Bridgman, 27 O. S. 22; 56 O. S. 160; 13 C. C. 285 ; (7 C. D. 182). Malpractice. 142. In an action against a surgeon for negligence, the burden of proof as to the existence of the injury rests upon the plaintiff; not to prove it beyond a reasonable doubt, but by a preponderance of evidence, arising either from the nature of the negligent act or omission, or made to appear other- wise, as may be warranted by the nature of the case. Craig vs. Chambers, 17 O. S. 253. Mandamus. 143. The burden of proving matters set up in jurisdiction in an answer in mandamus rests on the defendant. Case vs. Wresler, 4 O. S. 561. Under R. S. 3015-22 the burden of proof is on the same party as in mandamus. State ex rel. Hoffman vs. Stewart, 6 Bull. 188. Evidence required to compel auditor to transfer property on the tax duplicate. Cincinnati College vs. La Rue, 22 O. S. 469. Burden on relators to show that bill became a law. State vs. Kiesewetter, 45 O. S. 255. Master commissioner's fees. 144. When the length of time spent by a master is dis- puted, it must be shown affirmatively by affidavit. Dayton, 13. Mining lease; defense, no minable coai. 145. C. agreed to lease and sell to A. & H. all the coal underlying a certain tract of land, and granted them the pos- (24) 354 DECISIONS ON EVIDENCE. [CHAP. session of the premises, and the exclusive right to test said land for coal and open the mine and remove the coal, if discovered in sufficient quantity and quality, the coal mined to be paid for quarterly per ton. They were to test the land by drilling or otherwise within the time stated. Upon failing to commence mining within a period stipulated, they were to pay an agreed sum annually, which was to be treated as an advance upon coal mined thereafter. In an action by C. to recover from A. & H. the annual sum agreed to be paid upon failure to mine within the stipulated time, held, in order to defeat a recovery in such action, the burden is upon A. & H. to allege and prove the non-existence of minable coal on said land. 36 O. S. 174; 38 O. S. 65; 26 O. S. 595; 36 O. S. 448. Negligence. [See Presumptions, "Negligence."] 146. To entitle a plaintiff to recover, he must show that he was free and that the defendant was guilty of the negli- gence which proximately caused the injury. Dayton, 300. Burden of proving that signals were not given by railroad employee is on the plaintiff. R'y Co. vs. Richerson, 19 C. C. 390. When petition alleges that no rule of a company provided for stopping cars in a certain way, the burden of proving the negative is on the party alleging it. R'y Co. vs. Starkey, 18 C. C. 702; (6 C. D. 5). Contributory: 147. In an action for injury occasioned by negligence, where the circumstances require of the plaintiff the exercise of due care to avoid the injury, and his testimony does not disclose any want of such care on his part, the burden is upon the defendant to show such contributory negligence as will defeat a recovery. But if plaintiff's own testimony in support of his cause of action raises a presumption of such contrib- XX.] BURDDN OF PROOF. 355 utory negligence, the burden rests upon him to remove such presumption. R. R. Co. vs. Whitacre, 35 O. S. 627; 22 O. S. i ;, 38 O. S. 638; I C. C. 36; 28 O. S. 241 ; 22 Bull. 280; 17 C. C. 232; 10 C. C. 583, 369, 17; 40 O. S. 376; 12 C. C. 356; 37 O. S. 301 ; 13 C. C. 689; 4 N. P. 225; 9 C. C. 254; 18 C. C. 51, 729. It is error for the court to charge the jury that plaintiff not only must prove defendant's negligence, but also prove affirmatively that he did not contribute to his injury. The burden of showing contributory negligence is on the defend- ant. . P., C. & St. L. R'y vs. Hart, 10 C. C. 411; (6 C. D. 731); 12 C. C. 356; (5 C. D. 690). The words, "the burden rests upon him to remove such presumption" and "the burden of proof is upon him to prove ordinary care on his part," are equivalent expressions. Railway Co. vs. Woods, 9 C. C. 327. It is only where the injury is shown by the plaintiff and there is nothing that implies that his own negligence con- tributed to it, that the burden of proving contributory negligence can be said to be cast on the defendant. Robinson & Weaver vs. Gary, 28 O. S. 250. Voss vs. Young, 10 Bull. 292. The burden of proof is upon the plaintiiif to establish, by a fair preponderance of the testimony, the negligence of the defendant, while the burden is on the defendant to establish by a fair preponderance of the testimony, that the plaintiff is guilty of contributory negligence, unless the testimony which the plaintiff himself has introduced is such as raised a pre- sumption of contributory negligence on his part, in which event the burden is then upon the plaintiff to remove such presumption. Davies vs. Griffeith & Sons, 27 Bull. 180. Plaintiff's testimony raising presumption of negligence, burden is upon him to rebut such presumption. Railway Co. vs. Blair, 11 C. C. 579; (5 C. D. 366). See this case, 37 Bull. 59. 356 DECISIONS ON EVIDENCE. [CHAP. Causing fire: 148. In an action against a railroad company for damages by fire emitted from a smoke stack, when it is shown by the evidence that a locomotive properly constructed and equipped with the best appliances in general use will not emit sparks, and that the fire was caused by sparks from the company's locomotive, the burden of proof is upon the company to prove that its locomotive and appliances were properly constructed and in good order. R. R. Co. vs. Fredenburg, 3 C. C. 23; (2 C. D. 15). Causing death: 149. Under R. S. 6134, contributory negligence prevents the liability from arising. The burden of proving that the liability has arisen rests upon the plaintiff. Wolf, Adm'r, vs. Railway Co., 55 O. S. 528. Helman vs. Railway Co., 58 O. S. 407. In surgeon: 150. In an action against a surgeon for negligence, the burden of proof as to the existence of the injury rests upon the plaintiff; not to prove it beyond a reasonable doubt, but by a preponderance of evidence, arising either from the nature of the negligent act or omission, or made to appear otherwise, as may be warranted by the nature of the case. Craig vs. Chambers, 17 O. S. 253. Under act for the security of passengers on boats: 151. Burden of proof on the question of negligence under act of congress providing for better security of passengers on steamboats. Murphy's Adm'r vs. Northern Trans. Co., 15 O. S. 553- Action against agent claiming to have lost money: 152. When an action is brought against an agent who, having received money to be carried to his principal, claims yX.] BURDEN OF PROOIf. 357 that the money is lost, the burden is on the agent to show that there was no breach of duty on his part. Ordinarily the question is one of mixed law and fact, and not of law merely. Darling vs. Younker, 37 O. S. 487. New matter set up in answer. 153. Where the defendant sets forth new matter in his answer, he must prove it. Cummins vs. Nutt, W. 713. Officers, malfeasance or misfeasance. 154. To convict an officer of malfeasance, the jury must be satisfied beyond a reasonable doubt of the guilt of the accused, and to convict of misfeasance, by a preponderance of evidence. [Common pleas court held the last part of the charge erroneous.] Colburn et al. vs. Newfarth, Ohio Pro. Rep't, 24, note. 155. Action for removal of a notary from office. Proof must be clear and satisfactory. 20 C. C. 667; (10 C. D. 818). Payment. 157. The defendant averring payment, the burden to prove it is on him, and if the proof leave it doubtful the verdict should be against him. W. 735. One who sets up payment to an assignee must prove the payment and the assignment. W. 526 ; Dayton, 444. 158. Suit on a note. Answer setting up payment is new matter. Fewster vs. Goddard, 25 O. S. 276. 159. Burden of proving that a note was accepted as pay- ment is on party alleging the fact. S8 O. S. 517; 4 O. S. 67; 15 O. S. 169. Perjury. 160. The proof of perjury should be something more than sufficient to balance the oath of the accused and the presumption of innocence. 7 N. P. 450; (5 Dec. 691). 358 DECISIONS ON EVIDENCE. ' [CHAP. Pure food laws, prosecutions under. i6i. Burden on accused to show that article was not sold as a food, ii S. & C. 555. Quantum meruit, special contract as defense. 162. Action on quantum meruit for work and labor. Special contract set up in defense. Burden of proof on defendant. Sanns et al. vs. Neal, 52 O. S. 56. Quo warranto. 163. In quo warranto, plaintiff must show a clear title to the office before he is entitled to a judgment of ouster against the incumbent. The State ex rel. Chambers vs. Cook, 20 O. S. 252. The personi claiming an office on a quo warranto must show his right to the office claimed. The public is not required to show its right. The State ex rel. Rea vs. Hay, W. 96. See The State vs. Kiesewetter, 45 O. S. 255 ; also. The State vs. Cappeller, 39 O. S. 455 ; The State vs. Vanderbilt et al., 7 Bull. 141. Rape, defense incapability to commit. 164. When accused denies capability of committing the crime because of drunkenness, it is error to charge that the burden is on him to show want of capability. Jefifers vs. The State, 20 C. C. 294; (10 C. D. 832). Receiver. 165. Clear and satisfactory proof required to justify appointment of receiver. Mitchell et al. vs. McCullough, 12 C. C. 763: (4 C. D. 471). Sheriff, action against for escape. 166. Action against sheriff for escape. On proving the XX.] BURDEN OF PROOF. 359 judgment, arrest and escape, the plaintiff is prima facie entitled to recover the whole amount of his debt. To reduce the recovery below the amount of the debt due from the escaping prisoner, the onus probandi rests on the defendant. For this purpose the defendant may not show that the amount ' of the debt is capable of being collected from the escaped prisoner, but may show his partial or total insolvency at the time of the escape. Hootman vs. Shriner, 15 O. S. 43. Supervisor of roads, action against for trespass. 167. Quaere, whether in a suit against the supervisor of roads for trespass, for removing plaintiff's fence, as being an obstruction, and the plaintiff denies that the fence was within the highway, it is incumbent on the supervisor to prove not only the fact of obstruction, but that the road was a lawfully established highway. But parol evidence, if not objected to, of its accustomed user^ is sufficient. Baird vs. Clark, 12 O. S. 91. Sanity. [See Presumptions, "Sanity."] Scrap metal appertaining to railroad, ownership. 168. One dealing in scrap metal appertaining to railroad, R. S. 3359, has the burden of showing title. Self defense. 169. On the trial of an indictment for murder, [2] or for malicious shooting with intent to kill, the burden of proving that the homicide was excusable on the ground of self defense rests on the accused, and should be shown by a preponderance of evidence. Amount of proof sufficient to establish self defense. Silvus vs. The State, 22 O. S. 90; 8 Bull. 90; [2] 24 O. S. 584; Dayton, 384; 21 C. C. 50, 124. 360 DECISIONS ON EVIDENCE. [CHAP, Shooting, accidental. 171. When it is claimed that the shooting was accidental, the burden is on the defendant to establish that fact. Dayton,. 386. Specific performance. 172. Where a vendor of land, having contracted to con- vey a perfect title, brings his action to compel specific performance against the vendee, who denies the sufficiency of the vendor's title, the plaintiff must show that he has a mar- ketable title, and the introduction of a deed of recent date executed to himself, without further proof, is not sufficient. [Evidence of title is peculiarly within the knowledge of vendor.] Walsh vs. Barton et al., 24 O. S. 40. 173. Abandonment of a contract set up as a defense to an action must be clearly proven, where it would be against the interest of the party. WoodrufJ vs. Hargrave, W. 555 ; 7 O. Pt. 2, 89. 175. A., having a defective title to numerous city lots, leased them to tenants for a term of years ; and having sub- sequently perfected his title, shortly before the expiration of the leases, sold all the lots to B. The tenants having been encouraged to believe that A. would sell to each the lot occu- pied by him, and regarding A. as more friendly to them than B., refused to recognize B. as the owner of the lots, and applied to A. for terms of sale. A. answered by a letter pur- porting to be solely his own, and signed by himself only, stating the terms upon which he would sell them their respective lots. B. consented that A. might write the letter for himself alone, and it was not signed by B., nor by A. for B. Held, specific performance of the terms of the letter can not be enforced against B. without clear and convincing proof that the letter, though signed in the name of A., was in fact the letter of B. Proof that B. consented that A. might sign the letter for himself alone is not sufficient to bind B. to the performance of the terms of the letter at the suit of the tenants. Bickett vs. White et al., 27 O. S. 405. XX.] BURDEN OF PROOF. 361 Statute of limitations. 176. The burden of proving the bar of the statute of limitations rests on the party setting it up. Bank vs. Mclntire, 40 O. S. 539; W. 755. 177. The statute of limitations of another state, when set up as a defense and denied by plaintiff, must be proved by the defendant. Whelan vs. Kinsley, 26 O. S. 131. [See Judicial Notice, p. 132.] 178. Where the petition shows on its face that the account is barred and defendant pleads the bar, the burden of showing absence of the defendant such as to prevent the running of the statute is on the plaintiff. 4 N. P. 382 ; (7 Dec. 268). As affecting infants: 179. Lapse of time as a bar to the rights of an infant does not commence to run until the discovery of the wrong; and the burden of showing such knowledge as to make the infant chargeable with laches rests on the defendant. Long et al. vs. Mulford et al., 17 O. S. 485. Taxes, action to recover back. 180. In an action under R. S. 5848 and 5850 to recover back taxes illegally collected, the fact that the taxes were voluntarily paid is a defense, the burden of proving which is on the officer making the collection. Adams Express Co. vs. Ratterman, 21 Bull. 238. Taxes, action to collect. 181. Action to collect taxes. Duplicate prima facie evi- dence. Burden upon defendant, who alleges that he has returned all his taxable property and paid the taxes. Davidson, Treasurer, vs. Spitler, 5 N. P 466; (7 Dec. 393). Trespass. 182. Action by owner, for damages to his property in possession of his lessee, against one who has painted an 362 DECISIONS ON EVIDENCE. [CHAl". advertisement on his barn. Burden is on the landlord to show that he gave no consent and that the act was wrongful without his authority. Kilfoyle vs. Hull, 2 Clev. Rep. 369. Trust. 183. Parol evidence to establish must be clear. [See Clear Proof, When Required, p. 324.] Trust, action by infant to have purcliaser declared trustee. 184. Where an infant, on coming of age, seeks to have a guardian ad litem, who was purchaser at a sale of the infant's property, declared a trustee for him on the ground of a verbal agreement to purchase for that purpose, the terms of such agreement must be proved with certainty and clearness. Marsh vs. Marsh, 4 Rec. 257. Trustee settling with his ward. 185. Where a party occupying any trust relation claims any advantage from a settlement with his ward, on his coming of age, of his trust transactions, the burden of proof is on him to show that he has made full disclosures ; that he has exer- cised no undue influence, and that such settlement is fair and equitable. A conveyance by such minor, on the day he comes of age, of all his real estate to the person occupying such relation in execution of such a settlement made for such minor by others not authorized to bind it, and while he is still under their influence and control, and not advised of his rights, is not binding, and can only be upheld in a court of equity by clear proof that under all the circumstances it is just and equitable. Berkmeyer vs. Kellerman, 32 O. S. 239. Trustee making advances. 186. When a trustee, like the archbishop of the Roman Catholic Church, has made advances from his own private means to assist in buying or improving the trust property, he has a claim on the particular property so purchased or XX.] BURDEN OF PROOF. 363 improved, which passes to his assignee in insolvency as indi- vidual assets, and in such case the burden is on such assignee to show that such advances were not made as donations, but with an expectation of repayment. Miller and Tafel vs. Elder et al., 7 C. C. 97; (3 C. D. 681). Trustee, expense account. 187. If the account of a trustee for expenses is not admitted, he must clearly establish it. Gilbert vs. Sutlifif, 3 O. S. 129. Venue, change of. 188. Venue should not be changed on the affidavit of the party alone, but only upon clear and satisfactory proof that fair and impartial justice probably cannot be obtained in the county where the suit was commenced. Bank vs. Ward, 11 O. 128; 25 Bull. 366. Way, burden to show permission to use. 189. Where one uses a way over the land of another without permission as a way incident to his own land ana continues to do so with the knowledge of the owner, such use is, of itself, adverse, and evidence of a claim of right, and where the owner of the servient estate claims that the use was permissive, he has the burden of showing it. Pavey vs. Vance et al., 56 O. S. 162. Wills. 190. The order of probate is prima facie evidence of the due attestation, execution and validity of the will, and the burden is on the contestants to invalidate the will. 47 O. S. 323; 12 O. S. 437; 33 O. S. 598; 6 C. C. 295 ; 30 Bull. 283 ; 23 O. S. 491. See R. S. 5862. The party propounding a will must make out a prima facie case of testamentary capacity. Estate of John Ludlow, 4 N. P. 99; (6 Dec. 106) ; 4 N. P. 155 ; (6 Dec. 344). 364 DECISIONS ON EVIDENCE. The burden is on the contesting party to prove that the will is the offspring of mental defect. Ousley vs. Witherm et al., 13 C. C. 298; (7 C. D. 448). Lost will. 191. Burden is on proponents to show that statutory formalities were observed. 5 N. P. 20; (7 Dec. 246); 5 O. S. 291. [See Presumptions, "Wills." See also Revised Statutes.] CHAPTER XXI. SEPARATION OF WITNESSES. 1. While the court is vested with discretion to refuse or permit the examination of a witness who has remained in court, by procurement or connivance of the party calling him, in violation of an order for the separation of witnesses, it is vested with no such discretion to prevent the examination where there has been no such procurement or connivance ; but the order is to be enforced by the officers in attendance, and disobedience of it to be punished by the court as for contempt. Dickson vs. State, 39 O. S. y^. r — ^ 2. Where the witnesses in a cause have been ordered by the court, at the request of a party, to withdraw, and one of them remains, in violation of the order, and hears the testi- mony of other witnesses, it rests in the discretion of the court whether he shall be permitted to testify in the case. Laughlin vs. State, i8 O. 99. 3. Where witnesses for the state, ordered to remain out of the hearing of the testimony, are conducted to the witness room and thence go to the jury room and listen at a door communicating with the court room to other testimony, and are subsequently called to testify for the state, a new trial will be granted to the accused unless the court can find that the witnesses heard nothing in violation of the order. [The prosecuting attorney was directed to file information against the witnesses.] State vs. Ross, 15 Bull. 238. R. S. 7148. When witnesses may be examined separately. CHAPTER XXII. RIGHT TO FACE WITNESSES. It is a fundamental principle in this state that in criminal prosecutions the accused has not only the right to be heard by himself or counsel, but to meet the witnesses face to face, to require the testimony against him to be under the sanctity of" an oath, and that the witnesses shall be subject to any com- petent cross-examination. In a prosecution for forgery the prosecutor offered a letter of a cashier of a bank and the protest of a notary to prove that the maker of a note was a fictitious person. The evidence was held inadmissible. Farrington vs. State, lo O. 354. The tenth section of the Bill of Rights, providing that "on any trial in any court, the party accused shall be allowed to- meet the witnesses face to face," is a constitutional guarantee of a fundamental principle. It has reference to the personal presence of the witnesses, and not to the quality or compe- tency of the evidence to be given. Summons vs. State, 5 O. S. 325. 5242a is not a violation of the constitutional provision. 17 C. C. 33; (9 C. D. 647). Proceeding for contempt of court for failure to pay ali- mony decreed. The party accused has the right to meet the witnesses for the prosecution face to face, and the opportunity to cross-examine, and affidavit can, therefore, not be used. Eff^nger vs. The State, 11 C. C. 389; (5 C. D. 408).- CHAPTER XXIII. ORDER OF PROOF. Affirmant Produces His Evidence First, 1-4. Discretion of the Court as to, 3. Some Illustrations, S-12. A Party Must Produce All His Evidence, 13, 14. Order in which Facts Should be Proved, 15-29. Preliminary Facts Should be Proved First, 26-29. To Permit a Witness to be Recalled is Discretionary, 22. Party Closing Without Oftering Evidence on a Vital Point, 30-34. Not Error on a Hearing to the Court to Give the Open and Close tO' the Wrong Party, 35. Right to Open and Close Given to the Wrong Party, 11, 36-38. 1. "5190 R. S. (3) The party who would be defeated if no evidence were offered on either side must produce his evidence ; and the adverse party must then produce his evi- dence. (4) The parties shall then be confined to rebutting evidence, unless the court, for good reasons, in the perform- ance of justice, permit them to offer evidence in their original case." 2. The rule prescribed in the third clause of the above section is especially applicable where, from the nature of the case, the facts alleged are peculiarly within the knowledge of such party. Ferguson vs. Gilbert, 16 O. S. 88. [Counsel has no right to interfere during the examination of witnesses by adverse counsel, but when the interference is not prejudicial it is not sufficient ground for reversal. 17 C. C. 38; (8 C. D. 596).] 368 DECISIONS ON EVIDENCE. [CHAP. 3. The party holding the affirmative of the issue, as a general rule, ought to open and close the evidence and argu- ment, and there being a numbei of issues, if the plaintiff holds the affirmative of any one, or if any evidence material to his case is required of him, he ought to begin. In determining the question, however, upon a complicated state of pleading, a liberal discretion is allowed to the court trying the cause, and this discretion will not be reviewed, except upon a plain case of error. Montgomery vs. Swindler, 32 O. S. 224. 4. If anything remains to be proven affirmatively by the plaintiff he must always open. Ins. Co. vs. Pavey, 16 O. 324. 5. Where it is necessary for the plaintifif to give any evidence in support of his claim, though only as to the amount of damages, he has the right to open and close. Standart vs. Shelton, i W. L. M. 405. 6. In an action for an assault and battery, where the defendant justifies on the ground of self defense, it is not error to permit the plaintiff to open and close. Dragoo vs. Whisner, 31 O. S. 192. 7. The plaintiff in a libel suit is entitled to open and close, though the publication is admitted, for he has the right to show in chief the amount of damages and express malice in order to increase his damages. Cincinnati Gazette Co. vs. Bishop, 7 Bull. 60. 8. In actions for unliquidated damages, with pleas of justification, the plaintiff has the right to open and close. Dille vs. Lovell, 37 O. S. 417. 9. In appropriations of land by general corporations the land owner holds the affirmative. R. S. 2245. R. S. 6422. See 32 O. S. 219. County ditch. On the trial of the statutory questions on appeal, the defendant has the right to open and close. Emig et al. vs. County Com'rs et al., i N. P. 320; 3 Dec. 362). 10. Where, in an action for the recovery of damages for XXIII.] ORDBR OF PROOF. 369 the alleged wrongful seizure and conversion of goods to which the plaintiff claimed title, the defendant answers, simply alleging fraud in the assignment under which the plaintiff claims, the plaintiff is entitled to open and close. Beatty vs. Hatcher, 13 O. S. 115. 11. Where there is no other issue than payment in an action on a promissory note, the defendant has the right to open and close the arguments, and it is error to allow plaintiff to open and close. Fewster vs. Goddard, 25 O. S. 276. Where the plaintiff had opened the testimony without objection, he will be permitted to open with the argument, although the defendant might have been defeated if no evi- dence had been offered on either side. Harrison vs. Castner, 11 O. S. 239. 12. The averment, in answer to a petition upon contract, of a material stipulation in addition to what is set forth in the petition as the contract, amounts at the most only to a denial of the contract set forth, and does not entitle the defendant to open and close. Fiedeldey vs. Reis, 12 Bull. JJ. 13. A party upon whom the affirmative of an issue de- volves is bound to give all his evidence in support of the issue in the first instance ; he can only give such evidence in reply as tends to answer the new matter introduced by his adversary. Any relaxation of this rule is not an infringement of a rule ot law, but an appeal to the sound discretion of the court in which the issue is tried, and cannot be reviewed on error. Graham vs. Davis, 4 O. S. 362; 37 O. S. 59; 15 C. C. 703. 14. A party may rest his case when he has made out a prima facie case under the act of April 26th, 1894. He cannot, however, withhold evidence confirmatory of such prima facie case and offer it in rebuttal unless it be actually rebutting evidence. R'y Co. vs. Wales, 11 C. C. 371, 378; (5 C. D. 168, 171). (25) 37° DECISIONS ON EVIDENCE. [CHAP. 15. It is not essential that the facts to be proved should be introduced in any given order. Carroll vs. Olmsted's Lessee, 16 O. 251. 16. The order in which testimony as to some fact goes to the jury does not affect its competency. Moran vs. The State, 11 C. C. 464; (5 C. D. 234). 17. In an action for libel or slander it is not error for the court to permit plaintiff for the first time to go into the ques- tion of defendant's wealth on cross-examination. Steen vs. Friend, 20 C. C. 459; (11 C. D. 235). 18. Whether evidence will be admitted out of time in the progress of a trial is a question addressed to the sound dis- cretion of the court. 33 O. S. 444; 48 O. S. 33; 29 O. S. 351; I C. C. 207; (i C. D. 109); W. 681; 21 C. C. 124; (II CD. 483). 19. Where a witness for plaintiff, upon cross-examination, answered a question competent for defendant to prove in making his defense, but not inquired about on direct examina- tion, it is not error for the court to sustain a motion to strike out. City of Circleville vs. Sohn, 20 C. C. 368; (11 C. D. 193)- 20. Admitting evidence out of its order is error only when it appears that a fair trial was thereby prevented. Webb vs. State, 29 O. S. 351 ; i C. C. 207; (i C. D. 109). 21. It rests in the discretion of the court to allow plaintiff to introduce further testimony after he has rested and defend- ant has moved for judgment. Hackman vs. Cedar, 13 C. C. 618; (5 C. D. 293). 22. To permit a witness to be recalled is discretionary with the court. R'y Co. vs. Thompson, 21 C. C. 778. 23. When the counsel state that they expect to prove facts which will make the evidence relevant, they may proceed. State vs. Perry, W. 662. 2 Clev. Rep. 290. XXIII.] ORDER Olf PROOF. 371 24. The discretion ordinarily conceded to counsel, to pursue their own order in the production of proof, so that its relevancy is made manifest during the investigation, must be limited to cases where the fact subsequently to be made rele- vant is itself established by competent testimony. Wilson vs. Barkalow, ii O. S. 470. 25. A motion to let in a witness for the state in a criminal case to contradict an alleged alibi, who came into court as the closing argument for the state was being made, will be over- ruled. State vs. Dugan, i Clev. Rep. 18. 26. Where an item of evidence offered is dependent upon some other fact, the preliminary fact should generally be first proven [i]. Where the plaintiff in ejectment makes title as assignee of a lease, the assignment must be proven before the lease can be read in evidence. Swearingen's Lessee vs. Hawkenbury, W. iii. [ij I C. C. 467; (I C. D. 261); W. 105, 188, 584, 449- 27. Where a party claims under a deed alleged to have been lost, its existence, execution, and loss should be proved before evidence is given of its contents ; but a departure from this order and giving evidence relative to the different points en masse is not ground for a new trial. Allen's Lessee vs. Parish, 3 O. 107. 28. If land be held by a trustee under a will, his deed may be read before or after the will. Richardson vs. Hughes, W. 648. R. S. 5864. Conduct of trial in cases to contest a will. 29. Upon the trial of an action to enforce the specific performance of a parol contract to convey land, or an interest therein, it is not error to admit parol evidence of the terms of the contract, before proof of its part performance has been made. In Ohio the practice is to permit a party to introduce all the evidence he can produce, that is pertinent to the issue on trial, the order of its introduction to be determined by the court in the exercise of a sound discretion. Shahan, Ex'r, et al. vs. Swan, 48 O. S. 25. 372 DECISIONS ON EVIDENCE. [CHAP. 30. A court of last resort will give leave to supply a defect in the evidence, before ordering a non-suit, when a party closes without offering any evidence on a vital point. Peney vs. Gilliland, W. 38. 31. After a case has been submitted to the jury, it is too loose practice to introduce new evidence merely because the counsel have made a mistake in the law. Seaton vs. Cordray, W. 102. 32. When evidence has been omitted by mistake, the superior court, to avoid a non-suit or new trial, will allow the case to be reopened for its introduction. Morris' Adm'rs vs. Bills, W. 343. 33. If a party has negligently omitted to prove a material fact, the court may give leave to supply it, rather than order a non-suit. Newbraugh vs. Curry, W. 511, 680. 34. When plaintiff rests and thereupon defendant moves for a non-suit, the granting of a request allowing the plaintiff to withdraw his submission and offer further evidence is in the discretion of the court. White vs. Francis, 4 Rec. 501. 35. On a hearing to the court it is not error prejudicial to the plaintiff to allow the defendant to open and close, where the burden is on the plaintiff. Union Rolling Mill Co. vs. Packard, i C. C. 76; (I C. D. 46). 36. A judgment will not be reversed because the right to open and close the case was given to the party who would have prevailed if no evidence had been offered, unless the record shows that there were no special reasons for directing that order of trial. Loudenback vs. Lowry, 4 C. C. 65 ; (2 C. D. 422). 37. The order of introducing evidence is in the discretion of the court, and not reviewable on error. It is not necessary that the record should show any "special reasons'" for changing the order. Byrnes vs. Painter, 2 W. L. M. 547. XXIII.] ORDER OF PROOF. 373 38. Where, in an action upon a promissory note, the answer simply denies that the plaintiff is the real party in interest, and the defendant, in the presentation of testimony, waives the right to begin, the plaintifif will be entitled to open and close the argument. But an error in such a matter would not justify imposing further litigation unless it clearly appeared that a party was prejudiced thereby. Baldwin vs. Fox, Dayton, lo. CHAPTER XXIV. LEADING QUESTIONS. 1. Whether a leading question will be allowed is to some extent within the discretion of the court, and a judgment will not be reversed unless an abuse of such discretion is shown. Deveaux vs. Clemens, 17 C. C. 33; (9 C. D. 647). 2. A party calling a witness who does not appear to have any interest in the controversy will not be permitted to cross- examine him upon the mere assumption that he is an adverse witness. Roush vs. Wengel et al., 15 C.C. 133; (8 CD. 141). 3. The mere fact that leading questions are improperly allowed on the examination of a witness, although allowed as of right, is not error for which the judgment will be reversed. Evans vs. State, 24 O. S. 458. 4. In an action on a prorriissory note, the defendant put to one of his witnesses a question in the words, "State whether you heard S. W., the plaintiff, say anything about the merits of this case?" The question was not objectionable as too leading-. Stull vs. Wilcox, 2 O. S. 569. 5. A question propounded to a witness as follows : "What do you know, if anything, of any custom of trade in delivering goods at Memphis by steamboats differing from the usage of other ports on the Mississippi river ?" is in proper form. Steamboat Albatross vs. Wayne, 16 O. 513- 6. "Did you ever do any work for the railroad company as the agent or servant of said company?" the question is leading in form. R. R, Co. vs. Moray, 47 O. S. 212. XXIV. 1 LEADING QUESTIONS. 375 7. Quaere. Whether a party, who by cross-examining a witness called by the other side has elicited evidence not in rebuttal, has thereby made the witness his own so as to entitle the other side to put leading questions. Evans vs. State, 24 O. S. 462. 8. A witness cannot state as the reason why former testi- mony was impressed upon his memory, his conjectural con- clusion therefrom as to the intention of the prosecuting attorney in conducting the examination. Breck vs. State, 4 C. C. 160; (2 C. D. 477). 9. A witness should not be asked what he meant by a question; his meaning must be gathered from the import of the language without the aid of a subsequent explanation of his meaning. Haywood vs. Foster, 16 O. 88. 10. Argumentative questions. Within discretion, ques- tions may be excluded by the court as being in form too argumentative. State vs. Leuth, 5 C. C. 94; (3 C. D. 48). 11. An objection to a question and answer in the depo- sition of a witness, on the ground that the question is leading in form, is an objection, not to the substance or relevancy of the testimony of the witness, but to the form and manner ot obtaining it, and should be made at the time the question was propounded; but if not made then, or within proper time before the cause is called for trial, it will fairly and reasonably be taken to have been waived. Crowell vs. Western Reserve Bank, 3 O. S. 406. 12. Leading questions in cross-examination. [See Cross- Examination.] CHAPTER XXV. CROSS-EXAMINATION. Rule, 1-3. Evidence in Chief on Cross-Examination of Adverse Parties' Wit- nesses, 2-8. Leading Questions on Cross-Examination, 3. Facts not Admissible in Chief Cannot be Introduced by Cross-Exam- ination, 10. Cross-Examination as to Whatever Goes to Explain or Modify or Test Accuracy or Credibility of Statements, 13-33. Witness May be Recalled for Further Cross-Examination, 9. Or to Bring out all of Conversation, 26. Right to Cross-Examine Extends to all Matters Connected with the Res Gestae, 13. Cross-Examination as to Collateral Matters, 34-49. In a Proper Case a Witness who has on Cross-Examination Testified as to His Bias May be Contradicted, 35, .36. Refusal to Answer on Cross-Examination, 49, 50. Cross-Examination of Witnesses Called to Impeach, 51. Cross-Examination by Adverse Party, 52. Secondary Evidence Cannot be Introduced on Cross-Examination, 53. Cross-Examination as to Written Instruments, 53-57, 6. Privileged Communications on Cross-Examination, 59, 60. 1. Much latitude is allowed on cross-examination. Ash vs. Marlow, 20 O. 128. 2. While some courts have allowed the defendant a large latitude in cross-examination, the general rule is that he must not go into matters purely of defense. Bennett vs. The State, 10 C. C. 84; (4 C. D. 129). 3. The term cross-examination would not, perhaps, strictly import anything more than a leading and searching XXV.] CROSS-EXAMINATION. 377 inquiry of the witness for further disclosures touching the particular matters detailed by him in his examination in chief. It is said to be one of the principal and most efficacious tests which the law has devised for the discovery of truth, and insomuch as it has for its object the disclosure of not merely the extent and degree of the accuracy of the witness' knowl- edge, as well as the means of his knowledge, but also his motives, inclinations, powers of memory, and relative situation in respect to the parties and the subject matter of the investi- gation, it becomes an important test of the credibility of the witness. To limit the cross-examination, therefore, ex- clusively to the particular facts called out in the direct examination would often defeat one of its most useful and important objects. Whether leading questions are admissible when the cross-examination is in reference to new matter, or topics disconnected with the subject matter of the direct examination, is in the discretion of the court. The rule that the cross-examination may be extended generally to the merits of the cause or to any matter embraced in the issue, is limited by the application of another rule, and that is that a party cannot, before the time of opening his own case, intro- duce it to the court or jury by cross-examination of the witnesses of his adversary [i]. It would appear that the fair conclusion, from all the authorities, is, that the right of cross- examination is not to be limited by the particular facts disclosed in the examination in chief, but may be extended to whatever the party calling the witness is required to establish to make out and sustain his cause of action or his defense. Leggvs. Drake, i O. S. 291. [i] State vs. Perry, W. 664. 4. It is not competent for the defendant, if it be objected to, to prove the facts of his defense by cross-examination of the plaintiff's witnesses. State vs. Perry, W. 664; 17 C.C. 168; (9 CD. 611). 5. The defendant may cross-examine upon any matter in issue upon which the plaintiff might produce testimony sub- ject to the limitation that defendant shall not, on cross- examination, go into matters of defense. Phillips vs. Ins. Co., 13 C. C. 679; (6 C. D. 266). 378 DECISIONS ON EVIDKNCE. fCHAP. 6.- Ordinarily, when a witness for plaintiff is on the stand, there is no objection to presenting papers which defendant desires to ofifer in evidence for identification; yet we cannot say that as a strict matter of right that plaintiff's witness may be thus used. R. R. Co. vs. R. R. Co., 12 C. C. 383. 7. It is in the discretion of the court to allow evidence in chief to be introduced on the cross-examination of the defend- ant's witnesses. Seely vs. Cole, W. 681. 8. The rule contained in section 151 of the Code as to the order of the production of evidence, although directory, should be observed in all criminal trials, but a judgment will not be reversed on the ground that the court permitted evi- dence in chief to be given on the part of the state on the cross- examination of the witnesses of plaintiff in error unless it appears that there was such an abuse of discretion as to have deprived the plaintiff in error of a fair trial. Adams vs. State, 25 O. S. 586; 24 O. S. 458; 33 O. S. 444. 9. By permission of the court, witness may be recalled at almost any stage of the case for further cross-examination. Brandon vs. R'y Co., 17 C. C. 705 ; (8 C. D. 642). 10. Facts not admissible in chief as a defense cannot be introduced indirectly by cross-examination under the guise of impeaching the witness. Duval vs. Davey, 32 O. S. 604. 11. It is competent for a railroad company to ask plain- tiff's witnesses, in cross-examination, whether the work proposed to be done by the railroad (building a bridge over the railroad) would not be an advantage rather than a detri- ment to the farm, and that, too, without reference whether this was a case where incidental benefits could be set off against incidental damages. Schaible et al. vs. R'y Co., 10 C. C. 334; (6 C. D. 505)- 12. A party desiring to offer independent evidence with XXV.] CROSS-EXAMINATION. 379 the view of impeaching the testimony of a witness of his adversary, cannot do so during his cross-examination of such witness, but must wait until the time arrives for him to offer his own evidence. The Nat. Benefit Ass'n vs. Harding, 7 C. C. 438 ; (4 C. D. 668). 13. A witness may be cross-examined as to his examina- tion in chief, in all its bearings as to whatever goes to explain or modify what he has stated in his examination in chief. The right to cross-examine extends in any view to, all matters connected with the res gestae. Martin vs. Elden, 32 O. S. 282; 23 O. S. 402. 14. The admission of a question and answer on cross- examination will not be held erroneous, if such question could have been admissible to test the credibility of the witness or lay the foundation for his impeachment. Reid vs. Sycks, 27 O. S. 288, 289. 15. Where a witness in his examination in chief testifies to the existence of a material fact, which, when established, is conclusive between the parties, questions which call upon the witness to reaffirm, qualify or deny his statements in chief as to the existence of such fact are within the just limits of cross- examination, and it is error to exclude them. Phillips vs.'Elwell et al., 14 O. S. 240. 16. An accomplice may be asked on cross-examination whether he does not expect his discharge to be dependent on the conviction of the principal. Allen vs. State, 10 O. S. 287. 17. Action for damages against railroad company. It is competent, in order to show bias on cross-examination, to ask a witness for the company how much his wages are. Valley Railway Co. vs. Ross, Adm'r, 9 C. C. 206. 18. In order to test the accuracy and value of the opinion of a physician that the prisoner on trial for murder was insane, he may be asked on cross-examination whether, in his opinion, the accused knew right from wrong — that it would be wrong for him to commit murder, rape, arson, or burglary. Clark vs. The State, 12 O. 483. 380 DECISIONS ON EVIDENCE. [CHAP. 19. Right to cross-examine as to the extent and character of dealings from which druggists' opinions as to skill of physicians in the use of medicines was formed. Dresback vs. The State, 38 O. S. 365. 20. Questions as to the probable future profits of a peach orchard may be put to witnesses on cross-examination, to test the grounds of their judgment and its correctness. Rhodes vs. Baird, 16 O. S. 573. 21. Cross-examination and re-examination as to whether a trench in a public street was dangerous. Street R. R. Co. vs. Nolthenius, 40 O. S. 376. [See Opinions.] 22. It is competent on cross-examination to ask a witness how he was employed during the time of the transaction he has detailed in his examination in chief. Stewart vs. The State, 19 O. 302. 23. It is not competent, on cross-examination of a wit- ness called to prove that a certain contract was within the legitimate business of an express company, to ask the witness if he had ever heard of such a contract being made by such a company. Adams & Co. vs. Brown and wife, 16 O. S. 75. 24. On the trial of one charged with crime, a person jointly indicted with him was called by the state and gave evidence tending to prove the guilt of the defendant on trial, which evidence was in conflict with former statements of the witness. Held, that the defendant may show, by cross- examination of such witness, that he had been offered money and immunity from punishment, if he would testify as he finally testified on behalf of the state ; the fact that the offer was made by one having no authority to make it going to the weight and not to the competency of the evidence. Tullis vs. The State, 39 O. S. 200. 25. It is always competent to cross-examine a witness upon statements that he made out of court which conflict with the statements which he makes upon the witness stand. .Devere vs. The State, 5 C. C. 521. XXV.] CROSS-EXAMINATION. 38 1 26. When part of a conversation has been brought out in cross-examination, the adverse party has a right to recall the witness to bring out the whole of it. Finnegan vs. Sullivan, i8 C. C. 876; (4 C. D. 292). 27. A witness may be cross-examined as to evidence given on a former examination. Turner vs. The State, 5 C. C. 537; (3 C. D. 263). 28. Indictment for rape. Prosecuting witness testified to the commission of the alleged crime. Another witness stated in corroboration that the prosecutrix made complaint thereof in his presence. Held, admissible on cross-examination of the last witness to show that between the time the offense was alleged to have been committed and the time such complaint was made, the prosecutrix had been informed that the act of sexual intercourse, constituting the alleged crime, had been witnessed by other persons. McFarland vs. The State, 24 O. S. 329. 29. Where an accomplice testifies as a witness, a liberal and full cross-examination for the purpose of testing the truth of his statements should be permitted, and it it error to restrict such cross-examination within unreasonable limits. When an accomplice testifies in chief that, in Gallia county, about a week before the 14th of November, he saw a letter from the accused, which was a material fact on the part of the prosecution, it was error in the court not to allow the accused to show, on cross-examination, that the vvfitness was absent from that county from the 5th to the 12th of the same month. Lee vs. The State, 21 O. S. 151. 30. On cross-examination of a witness called to prove the words in a suit for slander, it is competent to ask him whether the words used were not hypothetical. This is merely ascertaining the character of the words spoken. Her vs. Cromer, W. 441. 31. Where one of several defendants jointly indicted for a felony is tried separately, and the prosecuting witness testi- fies in chief that the offense was committed by several persons acting together, and testifies to the identity of the defendant 382 DECISIONS ON EVIDENCE. [CHAP. Upon trial, it is proper, in cross-examination, for the defense to inquire as to the identity of the other participants, and it is error for the court to refuse to permit such cross-examina- tion. Morgan vs. The State, 48 O. S. 371. 32. In an action to recover an amount alleged to be due on a book account, the plaintiff offered himelf as a witness to prove its correctness. Held, that it was competent on cross- examination to ask him "if he had not within the past two years made more than twenty-four mistakes in his account which he was compelled to rectify." Sheridan vs. Tenner, 5 C. C. 19; (3 C. D. 10). 33. Indictment for murder. Witness was asked on cross- examination whether he had not made certain threats against the deceased. He answered "No." It is not admissible in rebuttal to show that he had. State vs. Nevins, 23 Bull. 412. See W. 42. 34. The extent to which immaterial matters may be inquired into upon cross-examination rests in the sound dis- cretion of the court in which the witness is being examined. Village of Shelby vs. Clagett, 46 O. S. 549. 35. Where a witness has been cross-examined as to mat- ters which are merely collateral and immaterial to the issue and such as have no tendency to show bias or interest in favor of or against a party, his answer is in general conclusive upon the party making the inquiry ; but where the cross-examina- tion is with respect to matters involved in the subject under consideration, or is with the view of showing feeling, bias or interest of the witness with respect to the parties or either ot them, the party cross-examining may, in a proper case, call witnesses to contradict the testimony so elicited on cross- examination. Kent vs. The State, 42 O. S. 426. Williams vs. State, W. 42 ; 2 Clev. Rep. 281 ; 4 Bull. 676. 36. A witness may be cross-examined concerning facts which affect his credibility by showing bias or prejudice in favor of the party who called him, and if the witness denies. XXV.] CROSS-EXAMINATION. 383. the fact inquired about, the cross-examining party may prove them by other witnesses. Hayes vs. Smith, 62 O. S. 161. 37. A witness cannot be cross-examined as to any fact which is collateral and not material to the issue, merely for the purpose of contradicting him. Answers elicited from a witness on cross-examination as to his religious belief or his previous declarations in relation thereto, being collateral and not material to the issue, will not serve as a foundation to call witnesses to contradict him. Clinton vs. The State, 33 O. S. 27. 38. In an action against a municipal corporation for per- sonal injuries caused by a defective sidewalk, a cross-question asked of plaintifif, whether she had not had a bastard child, was overruled. Held, the extent to which immaterial matters may be inquired into upon cross-examination rests in the sound discretion of the court in which the witness is being examined. Shelby vs. Clagett, 46 O. S. 549. 39. Where a witness is asked on cross-examination whether he has been indicted before or not, the objection that the record is the best evidence, if available at all, must be made at the time, or it cannot be considered. Wroe vs. State, 20 O. S. 460. 40. Where the witness, without formal objection, in the course of his cross-examination, disclosed the fact that he had been confined in the penitentiary, it was not necessary to introduce the record. Wick & Co. vs. Baldwin, 51 O. S. 54. 41. The limits to which a witness may be cross-examined on matters not relevant to the issue for the purpose of judging- of his character and credit from his own voluntary admissions rests in the sound discretion of the court trying the case. Such questions may be allowed when there is reason to believe that it will tend to the ends of justice ; but they ought to be excluded when a disparaging course of examination seems unjust to the witness, and uncalled for by the circumstances- 384 DECISIONS ON EVID?:nCE. [CHAP. of the case, [i] It may be shown on cross-examination that indictments were pending against the witness. Wroe vs. The State, 20 O. S. 460. [i] Hamilton vs. The State, 34 O. S. 86. 42. On the trial of a criminal case it is error to permit the state to prove by cross-examination of a witness called by the defendant that the accused stands indicted for other offenses. Hamilton vs. The State, 34 O. S. 82. 43. On cross-examination of the accused, the question, "How many times have you been arrested?" is admissible, but an answer thereto cannot be enforced, and if voluntarily given, the state is bound by it. Coble vs. State, 31 O. S. 102. 44. Where a witness on cross-examination admits his conviction and confinement in a penitentiary for a crime involving moral turpitude, it is competent for the party who called him to establish his good character for truth by adducing evidence of his general reputation in that respect. Wick & Co. vs. Baldwin, 51 O. S. 51. 45. The question whether or not witness' wife had not kept an assignation house was uncalled for, and an objection should have been sustained. Thurman vs. The State, 4 C. C. 144; (6 C. D. 610). 46. Questions tending to elicit unchastity of witness may be competent as reflecting on her credibility. Reynolds vs. Walker, 36 Bull. 167. 47. Irrelevant questions tending to disgrace or criminate a witness should not be asked, with the purpose of contradict- ing the witness. Williams vs. State, W. 43. 48. Where, upon the trial of an indictment, the defendant offers himself as a witness and testifies in his own behalf, he thereby subjects himelf to the same rules and may be called on to submit to the same tests as to his credibility as may be legally applied to other witnesses. The plaintifif in error was indicted for murder, and on his trial gave testimonv in his own behalf; on cross-examination by the state he was asked if he XXV.] CROSS-EXAMINATION. 385 had not been once arrested for an assault with intent to kill, to which question he objected, but the court overruled his objection; thereupon, without claiming his privilege, he answered. Held, that the limits of such cross-examination on matters not relevant to the issue for the purpose of judging of his character and credit from his own voluntary admission, rests in the sound discretion of the court trying the cause, and the judgment will not be reversed unless it appears from the record that such discretion has been abused to the prejudice of the party. The accused has the same right to object to incompetent questions addressed to him as a witness as he would have were the questions addressed to another witness. Hanoff vs. The State, 37 O. S. 178. 49. The refusal of the court to compel a witness, on cross- examination, to answer a question as to a matter not relevant to the issue, for the purpose of impairing his credibility, is no ground for a reversal. Bank vs. Slemmons, 34 O. S. 142. 50. When the prevailing party testifies on the trial in his own behalf, and on cross-examination refuses to answer, and the trial proceeds, such refusal is misconduct for which the verdict may be set aside and a new trial granted. Foreman vs. Sandusky, 4 W. L. M. 159. 51. A party attempting to impeach the character of a witness for truth and veracity cannot introduce evidence of special acts, because a witness cannot be supposed to come ready to explain and justify every act of his life. This rule does not apply on cross-examination of a witness called to impeach, but he may be asked whom he heard give the witness a bad character. In defense of the character of a witness particular facts may be gone into. Gleason vs. Williams, T. 174. 52. 5243 R- S. A party may be examined as if under cross-examination, at the instance of the adverse party, either orally or by deposition, as any other witness ; but the party calling for such examination shall not be concluded thereby, but may rebut it by counter testimony. (26) 386 DECISIONS ON EVIDENCE. [CHAP. 53. On the cross-examination of a witness it is not admissible to ask him for the contents of a document known to have been in existence, and which might have been pro- duced, as the affidavit upon which the defendant was recognized by a justice of the peace to appear and answer to the charge upon which he is then being tried. It is not the best evidence. State vs. Lent, T. 105. 54. Right to cross-examine as to sealed pages of a record book. When party should proceed under section 5290-91 R. S. R. R. Co. vs. R. R. Co., 12 C. C. 367; (5 C. D. 643). 55. When it is sought to show a rejection of a claim by an administrator, the contents of a letter testified to in chief to be a rejection of the claim, is proper subject of cross- examination. Yager, Adm'r, vs. Greis, i C. C. 531 ; (i C. D. 296). [See Impeachment of Witnesses, p. 393. See Opinions.] 56. Cross-examination of plaintiff as to champertous agreement made since the suit was begun. Held, not proper, as it did not show that the plaintiff had any other interest than as owner to prosecute the action. It does not show passion or prejudice, and such champertous contracts consti- tute no defense. Ford vs. Holden, 2 Clev. Rep. 33. 57. The rule which excludes oral proof of the contents of a deed is not applicable to prevent inquiry on the cross- examination of a witness, as to his motives and purposes in procuring it, in a case where his motives are material, and he has given evidence in chief regarding them. Boyles vs. The State, 6 C. C. 163 ; (3 C. D. 397). 58. Indictment for forging will. Witness for the state testified that shortly before the date of the instrument in question, in a conversation with the alleged testatrix, he read to her a portion of a letter written to him by a third person, having reference to a proposed testamentary disposition ol her property; the defendant is not entitled, upon cross- XXV.] CROSS-EXAMINATION. 387 examination, to have read to the jury a certain other portion of the same letter, unless he consent that the entire letter may be read. Corbett vs. The State, 5 C. C. 156; (3 C. D. 79). 59. In a civil case, at whatever stage of the trial a party offers himself as a witness, he may, on cross-examination, be interrogated as to admissions or communications made to his counsel, and they may be proved by his attorney either in evidence in chief or for the purpose of impeachment. King vs. Barrett, 11 O. S. 261. 60. When the accused in a criminal trial becomes a wit- ness in his own behalf he cannot be compelled, on cross- examination, to disclose the confidential communications' between himself and his attorney ; nor can such disclosures be required of the attorney without the consent of the accused. It is the privilege of the accused to have such communications protected from compulsory disclosure, and the privilege is not waived by his becoming a witness. Duttenhofer vs. The State, 34 O. S. 91. CHAPTER XXVI. RE-EXAMINATION. I. Counsel has a right, upon re-examination, to ask all questions which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the wit- ness on cross-examination, if they be in themselves doubtful, and also of the motive by which the witness was induced to use those exprfessions ; but he has no right to go further and introduce new matter in itself^ and not suited to the purpose of explaining either the expressions or the motives of the witness. Holtz vs. Dick, 42 O. S. 23. 2. Testimony explanatory of what witness testified to on cross-examination may be given by witness on re-examina- tion. Moran vs. The State, 11 C. C. 464; (5 C. D. 234). 3. Where part of a conversation has been brought out in cross-examination, the adverse party has a right to recall the witness to bring out the whole of it. Finnegan vs. Sullivan, 18 C. C. 876; (10 C. D. 341). 4. Where the defendant, on cross-examination of plain- tiff's witness, shows the general nature of the business in which he is engaged, it is competent for plaintiiif, on re- examination, to inquire into the particulars of his business so far as it reflects upon the issues. Bean vs. Green, 33 O. S. 444. 5. A witness who, on cross-examination, admits that he has taken an active interest in the case in favor of the part> calling him, cannot be permitted, on re-examination, in XXVI.] RE-EXAMINATION. 389 explanation of his conduct, to give his opinion of the merits of the case. Stillwater Turnpike Co. vs. Coover, 26 O. S. 520. 6. On the trial of one charged with homicide, a witness on behalf of the state gave evidence tending to show that the defendant struck the blow which caused the death; and the witness, having been cross-examined with a view to his con- tradiction, admitted that he held a conversation on the subject of the homicide with another person, at a time and place stated, but denied that he had said to such person that it was not the defendant that struck the blow. Held, that the counsel for the state could not, on re-examination of the witness, show what he said in such conversation until testimony was offered to contradict such witness. Dickson vs. The State, 39 O. S. 73. 7. Where defendant had called out on cross-examination the opinion that the condition of a street, as claimed by him, was dangerous ; it is not error to permit witness, on re-exam- ination, to state that the conditions of the street claimed by plaintiff was dangerous. St. R'y Co. vs. Nolthenius, 40 O. S. 376. CHAPTER XXVII. REBUTTAL. 1. When all the testimony in chief has been introduced by the parties, they will then be confined to rebutting testi- mony, unless the court, for good reasons, in furtherance of justice, permits them to offer evidence in their original case, [5190 R. S. 4] ; but judgment will not be reversed for per- mitting evidence in the original case to be offered under such circumstances, unless it appear affirmatively that good reasons in furtherance of justice were not shown. Evidence of facts,, which are first introduced in a case by way of rebutting testimony, may be rebutted by other evidence. Morris vs. Faurot et al., 21 O. S. 155. 2. The same rules apply to testimony in rebuttal as to testimony in chief. Meeker vs. Browning, 17 C. C. 548; (9 C. D. 108). 3. A party upon whom an affirmative issue devolves is bound to give all his evidence in support of the issue in the first instance, and he can only give such evidence in reply as tends to answer the new matter introduced by his adversary. Mehurin vs. Stone, 2)7 O. S. 59 ; 4 O. S. 362. [See Order of Proof, p. 367.] Such discretion of the trial court is only reviewable after abuse shown. Sullivan vs. Fogarty, 3 N. P. 79 ; (6 Dec. 130). 4. Any relaxation of the rule is an exercise of the dis- cretion of the court and not reviewable. Graham vs. Davis, 4 O. S. 362 ; 9 O. S. 397. XXVII.] REBUTTAL. 39I 5. Where evidence is offered in rebuttal that was compe- tent in making out plaintiff's case, its admission or rejection is discretionary with the trial court. Foy vs. St. R'y Co., lo C. C. 151 ; (6 C. D. 396); 19 C. C. 616; (10 C. D. 530). 6. Allowing evidence out of its order is within the dis- cretion of the court, and if ground of error at all, it is only where it appears that a fair trial was thereby prevented. Webb vs. State, 29 O. S. 351. 7. The admission of testimony in rebuttal, which would properly have been evidence in chief, is not ground of reversal. Kane vs. Stone Co., 2 Clev. Rep. 290. 8. New evidence, or evidence of new facts first offered by a party in rebuttal, may afterwards be rebutted by his adver- sary. The Nat'l Benefit Ass'n vs. Harding, 7 C. C. 438; (4 C. D. 668). 9. The permitting a plaintiff in rebuttal to restate a material part of his testimony in chief is a practice which should be condemned, but it is in the discretion of the court and will not be reviewed on error. Strauss vs. Dashney, 12 Bull. 182. 10. In an action against a railroad company, where the defendant has offered evidence to show that plaintiff's con- dition was attributable to change of life and that, on being asked if any one was hurt in the collision, plaintiff made no complaint, it is error to permit plaintiff to call witnesses in rebuttal to show that on other occasions she had complained. Railroad Co. vs. Yokes, 12 C. C. 499 ; (5 C. D. 599). 11. In breach of promise, if the defendant attempts to show unchaste acts of the plaintiff after suit brought, by cross- examination of plaintiff's witnesses, the plaintiff may prove good character in rebuttal, and so although she did not object to the cross-examination. Duvall vs. Fiihrman, 3 C. C. 305 ; (2 C. D. 174). 12. When, in replevin, defendant produces a mortgage as evidence of his right, plaintiff may offer evidence to defeat 392 DBCISIONS ON EVIDENCE. the mortgage, and the defendant is entitled to rebut this evidence. Smith & Nixon vs. Simper & White, 15 C. C. 375; (8 C. D. 308). 13. In case of a joint indictment against two or more persons for burglary, and one of them is being separately tried, it is competent for the prosecution to give evidence tending to prove that one of the accused, not on trial, was present and participating in the commission of the crime, and that very shortly after the commission of the crime the two were consorting with each other and secretly consulting. But such evidence having been given by the state, it is error in the court to ' exclude evidence offered by the accused on trial tending to prove that the other was not and could not have been present and participating in the crime. Davis vs. The State, 19 O. S. 217. 14. When, in an action on the case by the father for the seduction of his daughter, the defendant has on cross-exam- ination inquired about the familiar intercourse of the daughter with him, known to the family, it is competent for the plaintiff to rebut any inference against him on that account, by proof that the defendant addressed the daughter under pretense of an intention to marry her. Keplinger vs. Sherrick, W. 103. Evidence in rebuttal : Doe. ex dem., Eaton vs. Longworth, 10 O. S. 20. CHAPTER XXVIII. IMPEACHMENT OF WITNESSES. Witness Need not be Believed Because not Directly Impeached, i. General Reputation for Truth and Veracity the Question,. 4-13. Proper Form of Inquiry, 6, 9-1 1. Reputation of Convict at the Time of Conviction may be shown, 13. Reputation at the Time of Examination the Question, 15. Reputation for Truth of Prosecutrix for Rape not Limited to Time of Commission of the Offense, 15. Evidence of Commission of Infamous Crime, 16, 17. Evidence of Conviction Under City Ordinances, 17. Evidence that Witness Does not Possess Ordinary Intelligence, 3. Disability Because of Drunkenness or Deafness, 2. Contradictory Statements, iS-28, 35, 38. Contradictory Statements — Proper Foundation before Proof of, 19, 23, 29. Contradictory Statements in Deposition in Another Suit, 29. Evidence to Contradict as to Collateral Matters, 20, 30-37. Witness may he Contradicted as to His Bias, 33. Evidence of Good Character of W'itness to Sustain Him, 35, 36. Evidence to Corroborate Witness, 37, 38. Impeaching Witness may be Impeached, 27. A Party Cannot Impeach His Own Witness, 40-42, 44, 45. But may Show the Fact to be Otherwise, 21, 42, 43. New Trial will not be Granted to Give an Opportunity to Impeach, 46. Calling Adverse Witness with a View to Impeachment, 45. Judge Commenting on Inaccuracy of Impeaching Evidence, 47. Credibility of Affidavit for Continuance Attacked by Impeaching Wit- ness, 14. Credibility of Deposition may be Attacked by Impeaching Witness, 14. See Cross-Examination. See Credibility of Witnesses. I. It is not law that a witness must be credited unless directly impeached or contradicted by other witnesses ; his 394 DECISIONS ON EVIDENCE. [CHAP. manner, the improbability of his story, and his self contra- diction in the several parts of his narrative may justify the jury in wholly rejecting his testimony, though he be not attacked in his reputation or contradicted by other witnesses. French vs. Millard, 2 O. S. 44. [See W. 316.] The value of the testimony of a witness depends upon the regard in which he is held in the neighborhood where he is known, but there is no rule of law requiring that his testimony must be utterly disregarded, no matter how successfully his reputation may have been impeached. Baldwin vs. Fox, Dayton, 11. 2. It cannot be shown that the witness could not have known of the matter about which he testified because he was drunk, deaf or the like, unless he was first inquired of on cross-examination as to the disability. Bell vs. Rinner, 16 O. S. 45. 3. It is inadmissible for the purpose of impeaching the credibility of a competent witness, to prove by other witnesses that such witness is not possessed of ordinary intelligence. Bell vs. Rinner, 16 O. S. 45. 4. It is not competent to inquire of the general reputation of a witness sought to be impeached ; but the inquiry must be confined to the reputation of the witness for truth and veracity. Perkins vs. iVEobley, 4 O. S. 669. 5. The witness called for the purpose of impeaching the character for truth and veracity of a witness called on the other side, can only speak of the general reputation of the witness sought to be impeached in the community, and cannot give his own opinion of his character. [Overruling Seely vs. Blair, W. 685.] Bucklin vs. Ohio, 20 O. 18. 6. When a person is brought forward to impeach the character of a witness, it is proper to examine ; first, as to his knowledge of that character, how it was acquired, the length of time the witness has been known, etc. ; then the proper form in which to put the question is, "Is his character for truth and veracity as good as that of men in general ?" for it is XXVIII.] IMPEACHMENT OE WITNESSES. 395 only as to general character and not as to particular facts that you may inquire, nor is it the opinion of the person called which is to have weight, but the public opinion of a man's character, as that is what gives credit to his testimony. Mallory vs. Smith, T. io8. 7. Though a party attempting to impeach the character of a witness for truth and veracity cannot introduce evidence of special acts, because a witness cannot be supposed to come ready to explain and justify every act of his life, this rule does not apply on cross-examination of a witness called to impeach, but he may be asked whom he heard give the witness a bad character. In defense of the character of a witness particular facts may be gone into. Gleason vs. Williams, T. 174. 8. When the testimony of a witness, called to discredit another for truth, shows that he is testifying from his personal knowledge, and not from the general reputation of the person whose testimony is sought to be discredited, it is not error to exclude it. It is error, however, to reject the testimony when the answer of the witness manifestly shows that he testified from a knowledge of the general reputation of such person for truth and veracity [The use of the word "character" instead of reputation, when used as synonymous with reputation, does not render the testimony incompetent.] Cowan vs. Kinney, 33 O. S. 422. 9. In making the inquiry as to truth and veracity, any form of words may be adopted by which to ascertain whether the impeaching witness has sufficient knowledge of the public estimation for truth in which the witness proposed to be impeached is held. Craig vs. The State, 5 O. S. 605. 10. The proper questions in the examination as to char- acter are : "Have you the means of knowing the general character of the witness for truth?" If the answer be in the negative the inquiry stops, but if in the affirmative one or the other of the following questions may be asked : "From your knowledge of his character, would you believe him under oath?" or "Is his character for truth as sfood as that of men 396 DECISIONS ON EVIDENCE. [CHAP. in general?" On cross-examination, inquiry may be made into the witness' means of knowing the character of the wit- ness he is called to impeach. Wilson vs. Rvmyon, W. 652. 11. Where a witness acquainted with the reputation of another for truth and veracity testifies that such reputation is bad, he may be allowed to further testify that from such reputation he would not believe the witness sought to be impeached under oath. The object of such testimony is not to introduce as evidence the opinion of the impeaching wit- ness as to the truthfulness of the witness against whom he testifies, but to enable the jury to ascertain the true character of such reputation as the impeaching witness understands .it, and thereby determine the extent to which it ought to dis- credit the witness. Hillis vs. Wyle, 26 O. S. 574. 12. A party desiring to offer independent evidence with the view of impeaching the testimony of a witness of his adversary, cannot do so during his cross-examination of such witness, but must wait until the time arrives for him to ofifer his own evidence. The Nat'l Benefit Ass'n vs. Harding, 7 C. C. 438; (4 C. D. 668). 13. When a convict, who has been in the penitentiary for two years, is taken therefrom to testify, it is competent for the adverse party to prove that his reputation for truth and veracity was bad at the time of and previous to his con- viction, at the place where he then resided. Hamilton vs. The State, 34 O. S. 82. 14. Where an affidavit for the continuance of a case on the ground of inability to procure the testimony of an absent witness contains a statement of what is expected to be proved by the witness, and such statement is given in ttvidence on the trial as the testimony of the witness, its credibility may be attacked in the same manner as that of a deposition, by impeaching the veracity of the witness. Ins. Co. vs. Wright, 33 O. S. 533. xxviir.] imPEJachmeNt of witnesses. 397 15. In a prosecution for rape it is competent to impeach the prosecutrix, who has been examined as a witness therein, by proving her reputation for truth to be bad at the time of the examination ; and it is error in the court to Hmit such evidence to her character as it existed at and before the time of the commission of the alleged crime. The distinction between bad reputation for chastity and for truth and veracity seems to be well settled. The time is limited in the former case by the date of the alleged crime, but in the latter case by the date of the examination. Pratt vs. The State, 19 O. S. 277. 16. Evidence cannot be given for the purpose of proving an infamous crime against a witness, of which he has not been convicted, for the purpose of impeaching his credit ; yet, when the question as to whether the witness is guilty of such crime becomes the legitimate subject of inquiry on the trial, his reputation for truth may be proved to rebut the imputation of guilt which the evidence makes against him. Webb vs. The State, 29 O. S. 351. 17. The credibility of a witness cannot be affected by showing his former conviction of an ofifense, under a city ordinance, against disorderly conduct. A conviction which may be shown to affect the credibility of a witness, under section 139 of the Criminal Code [66 O. L. 308] is such only as, independent of the section, would have rendered the con- vict incompetent to testify. Coble vs. The State, 31 O. S. 100. 18. Declarations made by witness previous to his exam- ination, contrary to his statements when examined, are admissible to discredit his testimony, [i] but contradicting the witness does not tend to prove or disprove the facts about which he testified. Lamb vs. Stewart, 2 O. 230; [i] 17 C. C. 307; (9 C. D. 380). Plaintiff impeaching defendant's witness may have his witness say that he (plaintiff) did not make the admission averred, or he may prove all the conversation on the subject. Inclined Plane R'y vs. Isaacs, 18 C. C. 177; (10 C. D. 49). 398 DECISIONS ON EVIDENCE. [CHAP. 19. Before a witness can be contradicted by proving statements out of court at variance with his testimony, he must be first inquired of on cross-examination as to such statements, and the time, place, and person involved in the supposed contradiction. King vs. Wicks, 20 O. 87; i C. C. 361; (i C. D. 200). It is error to exclude statements of a witness contradictory to his previous testimony when such statements are an affirm- ance of facts. Heintz vs. Caldwell et al., 16 C. C. 630; (9 C. D. 412). Where a witness states that certain language was used by another person, such person may be called and inquired of if he used that identical language, and he is not simply to be inquired of as to what he did say ; and it is not necessary that the first witness should have been asked the time and place where such statements were made. This is only necessary when laying a foundation for impeaching evidence. Stribley vs. Welz, 8 C. C. 579; (4 C. D. 520). 20. On cross-examination a witness cannot be asked an irrelevant question for the purpose of contradicting the answer by other witnesses, but facts testified to by a witness in answer to such questions can be falsified by other witnesses. When a prosecuting witness was asked, on cross-examination, whether she had not made threats of doing all she could to send the defendant to the penitentiary, the question was improper ; but if allowed and answered in the negative this will not prevent the defendant from calling other witnesses to prove such declarations, they being competent independent of the question, insomuch as they went to impeach her credit. Williams vs. The State, W. 42. 21. Where a witness had testified that the defendant always had money in his possession, it is competent for the prosecution to prove in rebuttal statements of the witness not in harmony with his testimony as affecting his credibility. Mimms vs. The State, 16 O. S. 233. 22. When dying declarations are proved in a case, a statement of the deceased, made at another time, neither a XXVIII. 1 IMPEACHMENT OF WITNESSES. 399 dying declaration nor a part of the res r^'estae, is not admis- sible to impeach such declaration. Wroe vs. The State, 20 O. S. 460. 23. Suit to contest the validity of a will. B., one of the subscribing witnesses, had died before the trial, and his testi- mony taken at the probate of the will was read in evidence. The contestors then offered in evidence declarations of B. respecting the capacity of the alleged testator to make a will at the time the one in question purported to have been made, for the purpose of impeaching his testimony. Held, that before such statements can be given in evidence to impeach a witness, he must be interrogated as to the same ; and the fact that the opportunity for such examination has been cut off by the death of the witness does not form an exception to the general rule. The want of such examination goes to the competency of the evidence, and where the witness has had no opportunity of explaining the supposed declarations, nor the party to be affected thereby of examining him in reference thereto, this method of impeachment cannot be resorted to. Runyan vs. Price, 15 O. S. i. 24. Where a witness called to prove an alibi narrated a conversation with the deceased^ and the state, having laid a foundation on cross-examination, was permitted to prove a different statement of the conversation by the witness, in which latter statement the accused admitted the crime, held, that the whole evidence was immaterial, and, therefore, not the subject of error. Callahan vs. The State, 21 O. S. 310. 25. Where the foundation is laid for contradicting a wit- ness by conduct or statement out of court inconsistent with his testimony upon a material matter, and such conduct or statement is susceptible of different meanings, one of which would be inconsistent with the truth of such testimony, it is admissible in evidence, leaving the jury to determine which is the true meaning, and to exclude such evidence is error. Dilcher vs. The State, 39 O. S. 130. 26. On cross-examination it may be shown, when the evidence given was in conflict with former statements of the 400 DKCISJONS ON EVIDENCE. [CHAP. witness, that he had been offered money, property and immunity from punishment if he would testify as he finally did testify. Tullis vs. The State, 39 O. S. 200. 27. A witness called to impeach another, by showing statements inconsistent with those testified to, may himself, the proper foundation being laid therefor, be contradicted by showing statements made by him out of court, inconsistent with those testified to by him in contradiction of such other witnesses. Berry vs. The State, 31 O. S. 219. Where a witness, on cross-examination, is shown a paper, with his name signed thereto, at variance with his testimony in chief, and denies his signature, it is competent to introduce evidence to prove the signature and then the paper is admis- sible. Where a part of the paper is in conflict with witness' testimony and another part is prejudicial to the party who called him, but no question is asked as to said latter part, it is error to admit such part of the paper. Ins. Co. vs. Carnahan, 19 C. C. 97; (10 C. D. 225). 28. Where, upon a trial under an indictment for receiving or buying stolen goods, a witness testified in behalf of the state that the goods were received and bought of him by the defendant, knowing that they were stolen ; and on cross- examination he denied that he had any knowledge whatever of a letter shown to him, purporting to be written by him to the defendant, stating that he knew nothing against the accused relating to the transaction, held, that for the purpose of impeaching the witness, the letter might be given in evi- dence by the defendant, on making prima facie proof that it was written at the dictation of the witness, and was, in fact, sent by him to the defendant. Shriedley vs. The State, 23 O. S. 130. 29. A witness not a party to the suit may not be contra- dicted by statements made in a deposition given by him in another suit in which the parties in the suit were not parties and in reference to which deposition no inquiry was made of the witness. Aldrich vs. Marcellus, 3 C. C. 500; (2 C. D. 287). XXVIII.] IMPEACHMENT OE WITNESSES. 401 Evidence of statements contradicting witness' testimony is not admissible unless witness has first been examined as to such statements. The fact that the testimony was in a depo- sition and that the witness was not accessible at the time of trial does not alter the rule. Village of Monroeville vs. Weihl, 13 C. C. 689; (6 C. D. 188}. 30. A brother of one on trial for murder, called by de- fendant as a witness, the defense being that the witness was being killed by the deceased, and defendant shot to save his brother, was asked on cross-examination as to threats by him against the deceased, the time, place and language being given, but witness denied the statements. Held, a collateral matter about which he could not be contradicted. State vs. Nevin, 23 Bull. 411. 31. A defendant being questioned as to collateral matters his answers are binding and he cannot be contradicted. The question asked was, why he had subpoenaed a certain person as a witness ; the answer was that the person had informed him of an admission by plaintiiif, which the witness, being called by plaintiff, contradicted. Such improper contradiction is prejudicial, for it casts a cloud on the rest of defendant's testimony. Brown vs. Hunkin, 4 Bull. 676. Statements of collateral matters on cross-examination cannot be contradicted. Krause et al. vs. Morgan, 53 O. S. 31. 32. On cross-examination of the accused, the question, "How many times have you been arrested?" is admissible, but an anwer thereto cannot be enforced, and if voluntarily given the state is bound by it. Coble vs. State, 31 O. S. 102. 33. Where a witness has been cross-examined as to mat- ters which are merely collateral and immaterial to the issue, and such as have no tendency to show bias or interest in favor of or against a party, his answer is, in general, conclusive upon the party making the inquiry. But where the cross- examination is with respect to matters involved in the subject (27) 402 DECISIONS ON EVIDENCE. [CHAP. under consideration, or is with the view of showing the feel- ing, bias, or interest of the witness with respect to the parties or either of them, the party cross-examining may, in a proper case, call witnesses to contradict the testimony so elicited on cross-examination. Kent vs. The State, 42 O. S. 426. 34. Answers elicited from a witness on cross-examination as to his religious belief, or his previous declarations in rela- tion thereto, being collateral and not material to the issue, will not serve as a foundation to call witnesses to contradict him. Clinton vs. The State, 33 O. S. 27. 35. The impeachment of the credit of a witness by show- ing that he has made statements at other times contradictory of his testimony given on the trial, does not lay the foundation for sustaining him by proof of his reputation for truth. Webb vs. The State, 29 O. S. 351. 36. Where a witness on cross-examination admits his conviction and confinement in a penitentiary for a crime involving moral turpitude, it is competent for the party who called him to establish his good character for truth by adduc- ing evidence of his general reputation in that respect. Wick & Co. vs. Baldwin, 51 O. S. 51. 37. An inquiry into collateral facts leading to controversy over facts foreign to the issue cannot be allowed for the purpose of corroborating the testimony of a witness. Henkle vs. McClure, 32 O. S. 202. 38. On the trial of one charged with homicide, a witness on behalf of the state gave evidence tending to show that the defendant struck the blow which caused the death, and the witness having been cross-examined with a view to contra- diction, admitted that he had held a conversation on the subject of the homicide with another person, at a time and place stated, but denied that he had said to such person that it was not the defendant who struck the blow. Held, that the counsel for the state could not, on re-examination of the witness, show what he had said in such conversation until testimony was offered to contradict such witness. Dickson vs. The State, 39 O. S. 73. XXVIII.] IMPEACHMENT OP WITNESSES. 403 39. Where the plaintiff examines a witness in chief, who merely testifies to matters which are not controverted by the defendant or his witnesses, and after the close of defendant's testimony the same witness, upon being recalled by the plaintiff as a rebutting witness, contradicts the testimony of the defendant and his witnesses, the defendant has a right then to prove the bad reputation of the witness for truth and veracity. Marts vs. The State, 26 O. S. 162. 40. A party cannot impeach his own witness on the ground of surprise, because the witness does not come up to his expectations, not testifying adversely to him, but doing him neither harm nor good. Ins. Co. vs. Schmidt, 8 Rec. 628. 41. A party who calls a witness and is taken by surprise by his unexpected and unfavorable testimony may interrogate him in respect to declarations and statements previously made by him which are inconsistent with his testimony, for the purpose of refreshing his recollection, and inducing him to correct his testimony, or explain his apparent inconsist- ency, and for such purpose his previous declarations may be repeated to him, and he may be called upon to say whetTier they were made by him. In case the witness denies having made such statements, or his answer is ambiguous concerning them, it is not competent for the party calling him to prove them by other witnesses. Hurley vs. The State, 46 O. S. 320. [See State vs. Carlyle, i Clev. Rep. 338.] [Review of above case, 20 Bull, i, and 18 Bull. 132. J 42. Where the declaration of a witness or party are called for, the party calling cannot impeach his character, but he may by other evidence show the facts as they are. Carrington vs. Davis, W. 735. 43. Where the plaintiff's witness testifies adversely to the plaintiff, such testimony is not conclusive of the fact, but he may show that it is otherwise. Emrie vs. Gilbert & Co., W. 764. 404 DECISIONS ON EVIDENCE. 44. When the subscribing witness to a writing denies his signature, other witnesses may be called to prove the execu- tion of the writing; and this is not impeaching one's own witness. Duckwall vs. Weaver, 2 O. 13. 45. A party will not be permitted to ask his own witness if he has not made certain statements out of court, unless such witness has testified to facts inconsistent therewith, and the party has been surprised by such testimony. One may not call a witness supposed to be adverse, in anticipation of his being called by the other side, and elicit from him answers otherwise incompetent, with a view of laying ground for his impeachment. Roush vs. Wengel et al., 15 C. C. 134; (8 C. D. 141). 46. The court will not grant a new trial to give a party the opportunity to impeach his adversary's witness. Hare vs. Harrington, W. 291. 47. It is error for the judge to comment on the inaccuracy of reports of testimony given before a coroner, when such report is about to be offered for the purpose of impeaching a witness. R'y Co. vs. Boroughs, Adm'x, 5 N. P. 12 ; (6 Dec. 527)- 48. As to questions tending to disgrace on cross-examin- ation, see "Cross-examination." CHAPTER XXIX. CREDIBILITY OF WITNESSES. Witness Presumed Credible, i, 2. Weight of Testimony, 3-7. Jury may Consider: Intelligence, Interest, Fairness, 7-9. Youth, 10. Unchastity of Life, Moral Infamy, 11-14, 16. That One is a Gambler, 15. Accomplices, 18-22. That One was Harassed by Litigation, 17. That Witness Testified Falsely to one Material Fact, 23, 24. Testimony of Impeached Witness, 25. Jury to be Cautioned as to use of Impeaching Testimony, 26. 1. Witness is presumed credible. City of Alliance vs. Campbell, 17 C. C. 599; (6 C. D. 762) ; 49 O. S. 358. 2. Affidavit for change of venue under section 5033 R. S. Affiant presumed a credible person, unless attacked. Snell vs. Street Railway Co., 60 O. S. 256. See Sauer's Adm'rs vs. St. Ry. Co., 4 N. P. 252; (7 Dec. 19). 3. It is not law that a witness must be credited unless impeached or contradicted by other witnesses; his manner, the improbability of his story and-his self contradiction in the several parts of his narrative may justify the jury in wholly rejecting his testimony, though he be not attacked in his reputation or contradicted by other witnesses. French vs. Millard, 2 O. S. 44. 4. The probative force of the testimony of any witness 406 DECISIONS ON EVIDENCE. [CHAP. is the final result of all his averments bearing on the matter, when considered and analyzed with reference to known facts. The Gendron Iron Wheel Co. vs. Santschi, 17 C. C. 723; (8 C. D. 578). 5. The rules for determining the weight of testimony accord with the common sense judgment of men. The credit to be given a witness depends upon his interest, honesty, intelligence and means for knowing the facts about which he testifies. Corbit vs. Corbit et al., 4 Bull. loio. 6. The weight of testimony and credibility of witnesses is a question for the jury; the number of witnesses is not decisive. R'y Co. vs. Richerson, 19 C. C. 385 ; 20 C. C. 558; 7N. P. 339; (5 Dec. 627). 7. The jury may consider the intelligence, interest, fair- ness, consistency and reasonableness of the witness and his testimony, and give it such weight as seems just. Mieritz vs. Ins. Co., 8 N. P. 422. 8. Where the testimony of a party stands opposed to that of a disinterested witness, the latter will prevail. Spang & Co. vs. McGarry, i W. L. M. 406. 9. As to weight of testimony wher-e witness is employee of one party. Davis vs. Griffith & Son, 27 Bull. 180. 10. It is for the jury to say what effect, if any, the youth of a witness should have upon the weight of his testimony. Quinn vs. Nolan, 4 Bull. 83. 11. The probative force to be given to the testimony of a witness who shows a quality of mind that can find material for light jocularity in a matter involving moral infamy of himself and a fellow man is to be measured with reasonable caution. Searles vs. The State, 6 C. C. 349. 12. Where a witness leads an unchaste life, this is a proper circumstance for the jury to remember in considering his testimony, but it does not follow that he is not to believed. State vs. Cook, 3 W. L. G. 412. XXIX.] CREDIBILITY OP WITNE;sSES. 407 13. The testimony of prostitutes viewed with suspicion. Bailus vs. The State, i6 C. C. 239. 14. The fact that a witness has committed a crime involv- ing moral turpitude should be considered by the jury. 7 N. P. 450; (5 Dec. 691). 15. When the testimony is equally balanced, the fact that the witnesses on one side are professional gamblers may have some weight. Wiatt vs. The Arcade Hotel, 9 Bull. 21. 16. It would be utterly unsafe to base any judgment upon the unsupported testimony of a witness whose evidence is self criminating, and showing either that he has been guilty of a felony or that the testimony is perjured. Ford vs. Osborne, 45 O. S. 5. 17. Action of person harassed by litigation as evidence of guilt. 19 C. C. 114; (10 C. D. 186). 18. The law applies the most rigid tests to the evidence of a particeps criminis, as when in a civil case a witness by asserting a fraud makes himself a particeps criminis. Hauel et al. vs. Mintzer et al., i H. 379. 19. Evidence of accomplices should not be relied on with much confidence. Nolan vs. The State, 19 O. 131 ; 48 O. S. 221 ; 10 O. S. 287; 18 O. S. 496; 2 N. P. 60; 21 C. C. 24; (II C. D. 446). 20. The fact that an accomplice has committed perjury on a former examination touching the same subject matter, even when he admits the fact upon his present examination, does not necessarily render his testimony incredible. Brown vs. The State, 18 O. S. 496. 21. On a trial under an indictment for prescribing or administering medicines to a pregnant woman with intent to procure a criminal miscarriage, the testimony of the woman in behalf of the state, if she voluntarily and knowingly par- ticipated in the act, should be regarded as that of an accom- plice. State vs. McCoy, 52 O. S. 157. 408 DECISIONS ON EVIDENCE. 22. Discussion as to conviction on testimony of feigned accomplice alone. Backenstoe vs. The State, 19 C. C. 572; (10 C. D 688). 23. The uncorroborated testimony of a witness who will- fully testifies falsely to a fact material to the issue may be taken by the jury as unworthy of credence. Dye vs. Scott, 35 O. S. 194. 24. That the plaintiff has knowingly sworn falsely to a material fact is a matter for the jury to consider as affecting his credibility, but does not make it their duty to reject and disbelieve his entire testimony. Mead vs. McGraw, 19 O. S. 55. [Overruling Stofifer vs. The State, 15 O. S. 47. Hargrave's vs. Miller's Adm'x, 16 O. 338.] 25. It is error to charge that if the general character of a witness for truth is successfully impeached you are bound to disregard the whole of his testimony. Sharp vs. The State, 16 O. S. 218. 26. It is difificult for a jury to discriminate between evi- dence which is only to impeach the credibility of witnesses and evidence which tends to establish facts material to the main issue, and it is therefore the duty of the court in such case to emphatically caution the jury as to the use which they are entitled to make of evidence which simply goes to the credibility of witnesses. Railroad Co. vs. Rambo. [See Impeachment of Witnesses, p. 393.] [See Weight of Negative Testimony, p. 409.] CHAPTER XXX. WEIGHT OF NEGATIVE TESTIMONY. 1. Seven respectable witnesses swear to the fact of a mill road passing within a few yards of defendant's door. Six witnesses swear that they know of no such road. The wit- nesses do not contradict each other and probably all swear truly. One hundred or any number of witnesses swearing that they do not know the circumstances of the road existing would not outweigh or shake the testimony of one witness who knows of the existence of the road and swears to that knowledge. Boyd vs. Sell, T. 44. 2. Negative testimony is entitled to full weight on ques- tions of notoriety. McArthur vs. Phoebus, 2 O. 426. 3. Testimony that papers were not received will not out- weigh testimony that they were sent. Trimble vs. Longworth, 13 O. S. 440. 4. If witnesses are otherwise equally credible, greater weight should be given to the testimony of those who swear affirmatively than to those who swear negatively or to a want of knowledge or recollection. Davies vs. Griffith & Sons, 27 Bull. 180; 8 C. C. 46. 5. Affirmative testimony is entitled to more weight than negative testimony. Street R'y Co. vs. Rohner, 9 C. C. 702; (6 C. D. 706). 6. The testimony of a witness who is near enough to hear and see, that he was paying attention, and that he looked and 4IO DECISIONS ON EVIDENCE. listened for a train, that he saw no train, and that the bell was not rung nor whistle sounded, is not negative testimony, but is as much positive and affirmative as that of a witness who swears that the signals were given. R'y Co. vs. Richerson, 19 C. C. 385 ; (10 C. D. 326). 7. Testimony of witnesses that they were walking on a railroad track, knew the train was coming, were giving atten- tion and heard no whistle or bell, is not negative testimony. Railway Co. vs. Schade, Adm'r, 15 C. C. 425; (8 C. D. 316). CHAPTER XXXI. REFRESHING MEMORY. 1. Where a statement of facts alleged to have occurred a year previously is entered in a memorandum book, and the person making the entry brings suit involving the truth of the matter so stated, and while the suit is pending, the book becoming worn, he copies the statement into another book, but is unable, except as aided by the writing, to testify to material matters therein, he should not be permitted, if objection be made, to use such copy while testifying as a witness in a cause. Lovell vs. Wentworth, 39 O. S. 614. 2. A witness may refresh his memory from a copy of items of original entries, made by himself in a memorandum book, which has been lost, where it appears that the copy was written by the attorney as the items were read ofif to him by the witness from the original memoranda, and was afterward compared by the attorney reading the copy and the witness the original, and found by them to correspond. Mead vs. McGraw, 19 O. S. 55. 3. The recollection of a witness concerning a fact in issue cannot be corroborated by the contents of a memorandum made by himself long after the circumstance, showing his recollection at a former date. Jones vs. State, 54 O. S. i. 4. When [i] "freight books" or [2] "check slips" are made in the regular course of business, a witness who made them may refresh his memory by them. [i] Moots vs. State, 21 O. S. 653. [2] Shriedley vs. State, 23 O. S. 130. 5. Notes of testimony may be used to refresh memory. I Bull. 26. CHAPTER XXXII. EXAMINATION OF PERSON. 1. Action for damages. Railroad company moved the court for an order that plaintiff submit his person to an examination by physicians. Against the objection of plaintiff, the court ordered that he submit to such examination or else his cause would be dismissed. Railroad Co. vs. Welsh, 22 Bull. 263. 2. In an action to recover for personal injuries caused by negligence of the defendant, the court has power to require the plaintiff to submit his person to an examination by physicians or surgeons, when necessary to ascertain the nature and extent of the injury. Turnpike Co. vs. Baily, 37 O. S. 104. 3. A medieal expert called at the request of the defendant to make an examination of the person of plaintiff may testify as to plaintiff's statements as to her symptoms, pain and suffering. Railroad Co. vs. Yokes, 12 C. C. 499 ; (5 C. D. 599). CHAPTER XXXIII. VIEW AND INSPECTION. 1. "R. S. 7283. [Court May Order View of Place.] Whenever in the opinion of the court it is proper for the jurors to have a view of the place at which any material fact occurred, it may order them to be conducted in a body, under the charge of the sherifif, to the place, which shall be shown to them by some person appointed by the court; and while the jurors are thus absent no person other than the sheriff having them in charge and the person appointed to show them the place, shall speak to them on any subject connected with the trial." 2. Where an order is made by the court, on motion of the prosecuting attorney, under section 7283, that the jury view the premises where the alleged crime was committed, in charge of the sheriff and a person appointed by the court to point out the premises, it is error to permit such view in the absence of the accused and against his objection. The record should show that he was present. Hotelling vs. The State, 3 C. C. 630 ; (2 C. D. 366). 3. Where the venue in a criminal case has been changed, the court of common pleas, sitting in the county to which the cause has been removed for trial, is authorized by sections 7264 and 7283 R. S. to send the jury, in a body, to the county in which the crime was committed and the indictment found, to view the locus criminis. Where, upon such view, counsel for the accused, and the prosecuting attorney, in the presence of the jury, cause measurement to be made, objects to be placed as near as possible in the relative positions they respectively occupied when the alleged crime was committed, and made experiments illustrative of the manner in which it may have been done, the accused being present, in the com- 414 DECISIONS ON EVIDENCE. [CHAP. pany of, and at liberty to communicate freely with his counsel, indicates no objection to, or dissatisfaction with, such pro- ceedings, should be deemed to have authorized the same ; and a motion made in his behalf, on the return of the jury into court, for its discharge, on account of such proceedings, was properly overruled. Jones vs. The State, 51 O. S. 331 ; 32 Bull. 241. 4. It is not error for the jury to make a view of the place where a felony is claimed to have been committed, under the order of the court and in charge of the sheriff, when the privilege is awarded the accused to accompany the jury, though he may refuse to attend the view. Blythe vs. The State, 47 O. S. 234. 5. Counsel in argument stated that a string attached to a purse was part of a wax-end. Opposite counsel objected that such statement was not sustained by the evidence. The jury may decide by inspection whether it was wax-end. Martin vs. The State, 16 O. 364. 6. No conclusive presumption that prisoner was pre- vented from attending jury at view of premises. Martin vs. The State, 17 C. C. 407; (9 C. D. 621). Defendant may waive view. Reighard vs. The State, 22 C. C. 340. 7. "R. S. 5191. The court, when of opinion it is proper for the jurors to have a view of the property which is the subject of litigation, or of the place in which any material fact occurred, may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown to them by a person appointed by the court for that purpose ; and while the jurors are thus absent, no person, other than the person so appointed, shall speak to them on any subject connected with the trial." [See also R. S. 5189^] 8. It is competent for the parties by agreement to exhibit to the jury, when viewing premises, the operation of the machinery. Devereaux vs. Thornton, 4 Bull. 355 ; 2 Clev. Rep. 177. 9. A justice of the peace has authority, under proper XXXIIT.] VIEW AND INSPECTION. 415 circumstances, to send a jury to view the premises, relative to which testimony is to be offered. In an action to recover a penalty provided in section 4715 R. S., held, that a jury should not have been sent to view the premises unless it was shown that the premises were, in fact, in substantially the same con- dition that they were in at the time the alleged ditch was dug or the excavation made. Sell vs. Ernsberger, 8 C. C. 499; (4 C. D. 100). 10. The jury may consider a fact patent to them, as that an attorney rendered services. The question was the right to recover attorney fees, and the attorney tried the case before the jury. Stevens vs. Morris, ;^2 O. S. 20. 11. The color of a witness, when, if black, he is incompe- tent, may be decided by the court. 4 O. 323. 12. In a trial of a bastardy case it is not error to permit the child to be exhibited to the jury as evidence of alleged paternity, and in corroboration of the testimony of the prose- cutrix. Crow vs. Jordan, 28 Bull. 353 ; 49 O. S. 655 ; 14 C. C. 626; (7 C. D. 677). 13. Action for damages alleged to have been sustained because of defective foot-board on engine. Jury allowed to view the engine nearly a year after the accident. R. R. Co. vs. Connell, 22 Bull. 239. 14. On appeal from finding of county commissioners that a ditch was necessary, etc., the jury may consider facts made known to them personally from an actual view of the premises. Section 4467 R. S. Williams vs. Lockoman et al., 46 O. S. 416; 63 O. S. 23 ; 5 N. P. 449; (5 Dec. 503). 15. In an action for damages to abutting property on account of street improvement, where the jury view the prem- ises, but no testimony is offered as to the value of the land taken, such view alone does not constitute evidence. Besuden vs. Com'rs Hamilton County, 7 C. C. 237 ; (4 C. D. 575). 16. A view under R. S. 51891 and 5191 is solely to enable the jury to apply the testimony adduced upon the trial ; and 4l6 DECISIONS ON EVIDENCE. [CHAP. an instruction that the jury must consider such view as evi- dence in the case is error. The City of Columbus vs. Bidlingmeier, 7 C. C. 136 ; (3 C. D. 698) ; 9 C. C. 32 ; (6 C. D. 94). 17. The view by the jury of the property which is the subject of litigation or of the place where a material fact occurred, which may be ordered in a civil action under section 5 191, Revised Statutes, is solely for the purpose of enabling them to apply the evidence offered upon the trial. Machader vs. Williams, 54 O. S. 344). [Distinguishing Williams vs. Lockoman, 46 O. S. 416.] See also 60 O. 5. 227. 18. View of premises in ditch proceedings. Marsh et al. vs. Com'rs Clark County, 27 Bull. 56. Jury not required to see every foot of the route proposed. 5 N. P. 471 ; (5 Dec. 459). 19. Under R. S. 4538 there are two legal sources of information to the jury as to the necessity of a ditch; one is the view, the other the testimony of witnesses. Miller vs. Weber, i C. C. 137. 20. So also in proceeding to condemn right of way for railroad. Israel vs. R. R. Co., 19 Bull. 258. R. S. 2242. Appropriation of property by municipalities. R. S. 4468. County ditch. R. S. 4580. Proceedings to remove drifts. R. S. 4602. Construction of levees. R. S. 4703. View in road cases. R. S. 5789. Proceedings by occupying claimants. R. S. 6428. Appropriation of property by corporations. Cast, plaster paris, 22. A plaster cast of the sidewalk where an injury occurred is not admissible until it is shown to be a correct representation at the time of the accident; after this is shown, it is admissible. Williams vs. City of Salem, 33 Bull. 148. Photographs. 23. In proper cases, maps of places, photographs of places, scenes, lands, machinery and persons may be intro- XXXIII.] VIEW AND INSPECTION. 4^7 _ duced in evidence, but their introduction must be preceded by proof of their correctness. The photograph of a testator is not competent as tending to prove or disprove his testa- mentary capacity. Varner et al. vs. Varner et al., i6 C. C. 391. Photographs, taken by the Roentgen process, of injured bones, admissible. Fish vs. Welker, 7 N. P. 472 ; (5 Dec. 725). Experiments. 24. Where, on the trial of an action for wrongful death, the defendant was permitted at its request, with the consent of the plaintiff, and in pursuance of an order of court procured by it, to make experiments in the presence of the jury, by the running of a l^-ain over the crossing where the plaintiff's intestate was killed, and under conditions practically the same as those which existed when the accident occurred, for the information of the jury as to the nature and cause of the accident, the information so obtained was competent evidence. Schweinfurth, Adm'r, vs. Railway Co., 60 O. S. 215- 25. On the trial of an indictment for malicious shooting, the prosecuting witness having testified to his position and attitude in the parlor of a tavern when shot at, and sworn to the identity of the defendant as the person who shot at him as seen through a glass window and by the light of the flash from the pistol, and the state having examined several witnesses who were not present at the shooting to prove experiments and observations subsequently made by them, at the same place, for the purpose of proving by inference from such experiments and observations, that the prosecuting witness might or could have seen and known the defendant under the circumstances and in the manner related by him, it was com- petent for the defense to prove similar experiments, with different results, made in another place, but under like circum- stances. Smith vs. State, 2 O. S, 512. (28) CHAPTER XXXIV. THE COURT MAY GIVE HIS RECOLLECTION OF TESTIMONY. 1. "5194 R. S. After the jurors have retired for delibera- tion, if there be a disagreement between them as to any pan of the testimony, or if they desire to be informed as to any part of the law arising in the case, they may request the officer to conduct them to the court, where the information upon the matter of law shall be given; and the court may give its recollection as to the testimony on the point in dispute, in the presence of, or after notice to the parties or their counsel." 2. It is a matter purely in the discretion of the court to allow a witness to restate, during the progress of the argu- ment, what he had testified, his testimony being in dispute between counsel. The court could have left it to the jury to remember, or could have stated his own recollection. [5194 R. S.] But if the witness is candid and unbiased and is pres- ent, it is better to permit him to state what he has sworn to. Simmons vs. Sav'g Soc'y, 2 Bull. 278; 6 Rec. 441. 3. The jurors in a criminal case, after retiring to consider their verdict, returned into court and requested the judge to state his recollection of the evidence of a witness. Held, to comply with the request is not error. Hulse vs. State, 35 O. S. 421. 4. The court is not bound to give its recollection of the testimony, though requested by the jury. Adm'r of Chambers vs. Ins. Co., i D. 337. CHAPTER XXXV. IMPROPER ADMISSION OF EVIDENCE. Admission Generally Safe and Wise, i. Admission of Competent Evidence for Wrong Reason not Error, 2. Judgment not Reversed if Any Part of Evidence Objected to is Admissible for any Purpose, 2-7. Incompetent in Part, Ofiered as a Whole Shrrnld be Rejected, 4. Objection: Time for Making, 8-10. Specific Waives Other, 11. To Manner of Proof, 12, 13. To Question Does not Reach Answer, 14. Witness — Testimony of Incompetent. 15-17. Competent Evidence in Answer to Incompetent Question, 47. Error in Admission not Presumed, 18-22. Evidence on One Issue when Verdict was General, 29, 30. Admission of Evidence on Issue not made by the Pleadings, 37, 74. Question as to Whether a Privileged Communication was made, not Reversible Error, 36. Where it Appears that Plaintiff was not Entitled to any Relief, 28. Prejudicial — Evidence Admitted must have been, or Judgment will not be Reversed, 33-53. Admission of Evidence as to Admitted Facts, 32-34. Prejudice Need not be Shown, 54-61, 41. Eflfect of Instructions to Disregard, 62. When the Evidence is Cumulative there is no Prejudice, 42. When the Evidence Simply Tends to Rebut Improper Evidence, 38. Force of Competent Evidence Admitted without Objection, 10. Admission generally safe and wise. I. "It may be laid down as a first principle, that exclusion is generally an evil, and admission generally safe and wise. It is certain the administration of justice in our courts has suffered, not from too free admission of evidence, but from too rigid exclusion." 2 Phil. Ev. 628. Quoted in Bell vs. Brewster, 44 O. S. 690; i N. P. 354. 420 DECISIONS ON EVIDENCE. [CHAP. When the court is equally divided as to the admissibility of testimony, on objection, it must be received. Easterday vs. Kilborn, W. 345, 511. Judgment not reversed if any part of evidence objected to is admissible for any purpose. 2. The admission of evidence pertinent' to any point in a case is not error; though the court admit it for a wrong reason. [If the court had instructed the jury to consider the evidence for a purpose for which it was not competent: Quaere.] Westerhaven vs. Clive, 5 O. 137; i O. S. 253; 13 O. 21 ; 17 C. C. 38; (8 C. D. 596). The jury should be charged to consider it only for the purpose for which it is admissible. 54 O. S. 381. Where evidence is received against several which is admis- sible against one only, the verdict will be set aside, unless the jury is properly instructed. 11 C. C. 40. 3. It is well settled that, where evidence is received against a general objection, the judgment will not be reversed, on the ground that the evidence is incompetent, unless no material part of such evidence was admissible for any purpose. 42 O. S. 426; 6 C. C. 155; (3 C. D. 393); 31 Bull. 183; ^^^ 438,44; 8 o. s. 570. When the answer to a proper question is partly competent and partly incompetent, it is not error to refuse a motion to strike out all of the answer. City of Circleville vs. Sohn, 20 C. C. 368: (11 C. D. 193)- 4. It is not error to overrule a general objection to all the testimony of a witness when part of it is admissible. Elstner vs. Fife, 32 O. S. 358 ; 21 O. S. 155. Testimony competent in part and incompetent in part, when offered as a whole should be rejected. Root vs. Village of Monroeville, 16 C. C. 617; (4 C. D. 53). 5. When a material part of an entry on the appearance docket is admissible, a general objection to the whole entry should be overruled. Chapman et al. vs. Seely,'8 C. C. 179 ; (4 C. D. 395). XXXV.] IMPROPEK ADMISSION OF BVIDEINCE. 42 1 6. Where a motion is made to exclude the entire testimony of a witness, part only of which testimony is incompetent, without specifying any particular part of the testimony objected to, or disclosing the ground of objection, it is not error in the court to overrule, the motion. Westerman vs. Westerman, 25 O. S. 500; 21 O. S. iS5;8C. C.343;(4C. D.5S3). If evidence is competent for any purpose, it is admissible, though it might be considered by the jury for some other and improper purpose. Baird vs. Howard, 51 O. S. 68; see 54 O. S. 381. 7. Where evidence offered is properly admissible on any count in the declaration, its admission will not be error. Barney vs. Demmitt's Adm'r, W. 44. [See Cross-Examinatibn, Reid vs. Sycks, 27 O. S. 288.] , , „ , It is error for the court, for the purpose of proving a date merely, to admit the petition in another cause, on the judgment in which defendant justified, in evidence and let it go to the jury; for it tended to divert their attention from the real issue and was prejudicial. Moravec vs. Buckley, 11 Bull. 225. It is not error to refuse to exclude evidence tending to prove the issue, though insufficient in itself to prove the issue. Hummel vs. The State, 17 O. S. 628. When portions of authenticated public documents, relative to the issue, are offered in evidence by the plaintiff, and the defendant insists that, if any portion of such documents are permitted to be offered in evidence, the whole shall be regarded as in, and the plaintiff consents thereto, it is not error to permit the whole of such documents to go to the jury, though parts thereof may be irrelevant. Serviss vs. Stockstill, 30 O. S. 418. Objection, time for making. 8. An objection to the admissibility of evidence, if not made at the trial, will not be ground of error, but will be con- 422 DECISIONS ON EVIDENCE. [CHAP. sidered as having been waived. The rule is the same in civil and criminal cases. [2] Clark vs. The State, 12 O. 483. [2] White et al. vs. Richmond et al., 16 O. 5. Lewis vs. Bank of Ky., 12 O. 148; 10 O. 434. 9. An objection to an improper question must be made before the question is answered. Union Rolling Mill vs. Packard, i C. C. yj; (1 C. D. 46). 10. Where evidence is introduced without objection, it is too late on error to object to it. Gage vs. Payne, W. 678. Hearsay evidence admitted without objection may on error be held to have some probative force. Thompson vs. Ackerman, 10 C. D. 456. Objection, specific waives otlier. 11. Specific objection waives other objections. Kent vs. The State, 42 O. S. 430; 3 N. P. 79; (6 Dec. 130). Objection to manner of proof. 12. Where a question is unsuccessfully objected to and the fact sought is relevant, but should have been proved by documentary evidence, but the attention of the court and counsel was not called to the manner of proof, this will not be ground for reversal. Wroe vs. The State, 20 O. S. 471. 13. Where oral evidence of the contents of an instrument has been received without objection, it is not error in the court to refuse to exclude such evidence after the cause has been argued to the jury. Where, in a prosecution for larceny of bank notes, the notes were offered in evidence and excluded on the objection of the prisoner's counel, and the state then, without objection, gave oral evidence of their contents, it was not error, after argument, to refuse to rule out the secondary evidence. It is not error in the court to refuse to exclude from the jury evidence tending to prove the issue, but which is insufficient of itself for that purpose. Hummel vs. State, 17 O. S. 628. XXXV.] IMPROPER ADMISSION OF EVIDENCE. 423 Objection to question does not reach answer. 14. Where a question as to what a third person said to whom defendant referred plaintiff for information is proper, an objection to the question does not reach incompetent parts of the answer, but the party should have moved to exclude the incompetent parts. Jennings vs. Haynes, i C. C. 22; (i C. D. 13); 13 Bull. 293. Witness, testimony of incompetent. 15. Where a witness who is interested in a case is called to testify in favor of himself, it is not error to permit his testi- mony to go to the jury, unless the record shows that the opposite party objected to his testifying, or asked to have the court rule out the evidence. Inglebright vs. Hammond, 19 O. 337. 16. When no objection is made to a party testifying, where the adverse party is an administrator, a reviewing court will not set aside a judgment against the administrator, there being enough in the record to support the judgment, even with the testimony omitted. Young vs. Langdon, '12 Bull. 246. 17. In a case tried to the court without a jury, the testi- mony of a party incompetent to testify being improperly received by the court, will not be considered error prejudicial to the objecting party, where there was other competent testimony sufficient to establish the same facts, so that the exclusion of the testimony would not have affected the result. Kilbourn vs. Fury, 26 O. S. 159. Error in admission not presumed. 18. An exception to the judgment of a court below ruling out evidence cannot be considered, unless such evidence is spread upon the record. Error will not be presumed, but must appear. Palmer vs. Yarrington, i O. S. 253. McHugh vs. The State, 42 O. S. 154. 424 DECISIONS ON EVIDENCE. fCHAP. 19. If a party move for a new trial, on the ground that improper testimony was admitted, such fact must be made distinctively to appear or the verdict will not be disturbed. Heighway vs. Pendleton et al., 15 O. 735. 20. Incompetency of witness because a partner sought to be shown by a deposition. Lower court held that the witness was not a partner. If it appear from the record that other evidence on the question than the deposition may have been given, the court cannot find error. Coil vs. Willis, 18 0:'30.' 21. Judgment will riot be reversed for alleged error in overruling exceptions to depositions, unless it appear, by bill of exceptions or otherwise, that the facts upon which the exceptions are predicated exist. The allegation in the excep- tions is not itself sufficient. Shamokin Bank vs. Street, 16 O. S. i. 22. When the bill of exceptions shows an isolated passage in a deposition without showing the state of tbe case when it was offered, the court will n6t presume that the court below erred in admitting it. Wood vs. Perry, W. 240. Prejudicial, evidence admitted must have been, or judg= ment will not be reversed. 23. It rarely happens in a long trial that one judgfe would rule on evidence in every respect as another one would, hence the reviewing court will consider the materiality of the testi- mony before reversing, whether it was likely to do any injury. But for this power there could scarcely ever be a case con- firmed. Buck vs. The State, 4 C. C. 160; (2 G.D. 477). The erroneous admission of incompetent evidence is not ground for reversal, if the evidence admitted is immaterial and not prejudicial. Foster vs. Borne, 56 O. S. 772 ; 21 C. C. 732. 24. A judgment will not be reversed on account of admis- sion of improper evidence, unless the evidence so admitted is XXXV.] IMPROPER ADMISSION OF EVIDENCE. 425 set out or its character is shown to be such as would tend to the prejudice of the party asking the reversal. Dudley vs. Geauga Iron Co., 13 O. S. 168. 25. In order to justify the reversal of a judgment in error, the record must affirmatively show not only that error inter- vened, but that it was to the prejudice of the party seeking to take advantage of it. Scovern vs. The State, 6 O. S. 288; 51 O. S. 29; 9 O. S. I ; 21 ,C. C. 402 ; 10 O. S. 557. 26. Where the bill of exceptions shows that there was error in the admission of evidence and sets forth all the evi- dence in the case and it clearly appears that the error was not prejudicial, the judgrtient will not be reversed. Banning et al. vs. Banning et al., 12 O. S. 437. 2"]. A judgment will be ireversed only for such errors as may have been prejudicial to the substantial rights of the plaintiff in error. Baker vs. Adm'r of Lawrence, 27 O. S. 418; 51 O. S. 39; 20 O. 376; 16 O. 513; II C. C. 464;