6?8 (Jom^ll ICaui i>rl|0ol ICxbtaty Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020133355 SHORT STUDIES IN. BVIDBNCB By IRVING BROWNE. BANKS & BROTHERS, New York. ■ Albany, N. Y. 1897. 116 COPYRIGHT, BANKS & BROTHERS, . 1897. PREFACE. This is a collection of papers on some rather unusual points of Evidence, which are scantily treated in the text-books, but which deserve exhaustive examination and setting forth. Most of the papers have been printed in legal periodicals — The Green Bag, Central Law Jour- nal, and American Law Review — and I am indebted to the courtesy of the proprietors of these periodicals for permission to reproduce them in this form. I have added to these two papers contributed to the American Law Register, in my youth — my first attempts at reforming the law of Evidence — which may have some historical interest, inasmuch as they point to a time, not very far back, when that law was less conveniently and sensibly administered than at present. These last are boyish performances, marked, as Talleyrand would say, by "too much zeal," but I am by no means ashamed of them, and especially am I not ashamed of the instinct and impulse which so early led me in that direction and which have never changed. Buffalo, N. Y. CONTENTS PAGE. Practical Tests in Evidence, . « 3 Theology on the Witness-Stand, 90 Evidence of Declarations and Reputation as TO Private Boundaries 99 Parol Evidence to Add a Warranty to a Written Sale, 113 Parol Admission of Contents of a Writing, . 130 Degrees of Secondary Evidence, 139 Unofficial Entries by Third Persons, . . .147 The "Excess and Deficiency Clause" in Bills OF Lading, 156 Of the Disqualification of Parties as Witnesses, 165 Testimony of Parties on Criminal Prosecutions, i 78 Parol Evidence in respect to Writings under the Statute of Frauds, 191 Self-Serving Declarations, 223 TABLE OF CASES. Abbe V. Eaton 157, 158, 159, 160 Abeel v. Radcliff 195 Abel V. Fitch 155 Abellv. Munson 218 Adams v. Gray 116 Adams v. 3tate 46 Adams v. Thornton 230 Alabama G. S. R. Co. v. Collier 82 Alba V. Strong 195 Albert! V. Railway Co 43 Alderson V. Clay 131 Allen V. Pink I15 Argus Co. V. Albany 199 Arms V. Middleton 151 Arnold v. Arnold's Estate 92 Ashmead v. Colby 155 Ashmore V. Hardy 131 Athol V. Asburnham no Attorney-General v. Bradlaugh 93 Attorney-General v. Sitwell 1 94 Atwater V. Clancy 116 Atwood V. Welton 91 Augusta V. Windsor 150 Aultman V. Clifford...: 127 Badger V. Story 145 Bailey V. Ogden 197 Baker v. Glass 195 Baldwin v. Hall 151 Baldwin v. Salter 220 Banks v. Harris Mfg. Co 196 Barkley v. Copeland 230 Barry v. Coombe 194, 203 Bartlett V. Emerson loi, 105 Battles V. HoUey 142 Beach V. Covillard 219 Bean V. Burbank 194 Beard's Lessee V. Talbot 107 Beaufort v. Swansea 99 Beckwith V. Talbot 196 Belk V. Meagher 145 Bellamy v. Hawkins 134 Bender V. Pitzer 105, 106 Bethea v. Byrd 106, no Bird V. Hueston 149 Bivins v. McElroy 134 Blackington V. Rockland 135, 137 Blackwell V. State 22 Blagden V. Bradbear 194 Blair v. Pelham 42, 45, 46 Blakemore, re , 9 Blanchard V. Trim 216 Blood V. Goodrich 216 Blossom V. Griffin 116 Bloxam V. Elsee 130, 131 Boardman v. Lessees of Reed.- 107, 109 Boardman v. Spooner 202 Boggs V. Lakeport A. P. Ass'n 142 Boulter V. Peplow 131 Bowden v. Achor 142 Brazier's Case 228 Brewster v. Doane 155 Bridgewater v. Roxbury 155 Briggs V. Morgan 9 Brigham v. Rogers 117 Brock V. Milligan 91 Brodie v. St. Paul 193 Brookbank v. State 224 Brooke v. Railroad Co 74 Brown v. Foster 73 Brown v. Sanborn 218 Brown v. Swineford 4, 17 Bryant v. Stilwell 7 Burleigh v. Stibbs 131 Butts V. Swartwood 91 Cameron v. Peck 141 Campbell v. State 20 Carpenter v. Dame 141 Carpenter v. Galloway 216 Carter v. State 96 Cash Register Co. v. Blumenthal 75 Cave V. Hastings 193 Chapin v. Dobson 124, 128, 129 Chapman v. Twitchell 103 Chestnut Hill, etc., Co. v. Piper 42 Child V. Kingsbury 107 Church V. Milwaukee 42 City of Philadelphia v. Rule 59 City of Racine v. Emerson 107 Clark V. Bradstreet 31 Clark V. Fey 217 TABLE OF CASES. PAGE. Clark V. Wilmot 149 Cleveland, etc., Ry. Co. v. Mona- ghan _ 44 Clifton V. U. S 7 Clinan V. Cooke 194 Coate V. Speer lo? Coatev. Terry 197 Cobb V. Wallace 116 Coffin V.Anderson 227 Collins V. Ball 142 Coman v. State 142 Com. y. Allen 84 Com. V. Betton 61 Com. V. Bigelow 137 Com. V. Blood 61 Com. V. Bosworth 227 Com. V. Brelsford 82 Com. V. Brown 35 Com. V. Burke 61 Com. V. Carey 97 Com. V. Costley 61 Com. V. Emmons 34 Com. V. Jenkins 225 Com. V. Lynes 98 Com. V. Scott 21 Com. V.Smith 140 Com. V. Twitchell 70 Com. V. Webster 35 Com. V. Wilson 225 Conant v. Nat. St. Bank.. 119, 121, 122 Conrad v. Griffey 224, 227 Cooke V. Curtis 227, 233 Cook V. Wood-- 142 Cooper V. St. Paul City Ry. Co 43 Cooper V. State 23 Corbittv. Salem G. S. Co 198 Corcoran v. Village of Peekskill 50 Cornett v. Williams 143 Costello V. Eddy 115 Cowley V. People y 50 Cozzens v. Higgins 42 Cravener v. Bowser 220 Crow V. Jordon 29 Cubbison v. M cCreary 92 Cuffv. Penn 209, 210, 211, 212, 213 214, 216 Culver V. Marks 155 Cumberland M. F. Ins. Co. v. Gilt- inan 13S Cummings v. Arnold 212, 213, 215 216, 222 Cupp V. Commonwealth 24 Curtis V. Aaronson 102 Curtiss V. Strong 90 Cutler V. Estate of Thomas 136 PAGE. Daggett V. Shaw '°5 Dana v. Hancock 218 Dayv. Day 3^> 3^ Day V. State 22 Deanv. Mason 117 Dearborn v. Cross 222 De Cordova V. Smith 198 De Rutzen v. Farr 154 Devanbagh v. Devanbagh 9 Devling v. Little 216 De -Witt v. Berry 115, 122 Dial V. Grain 220 Dickinson v. Coward 130 Diebold Safe Co. v. Houston 122 Dillard v. State 64 Diven v. Johnson ii£ Doar V. Gibbes 218 Dock V. Hart 194 Doe V. Beviss, 147 Doe V. Greenlee 142 Doe V. Ross 139, 140, 141 Doe V. Sleeman 99 Doe V. Steel 131 Doe V. Thomas 99 Doe V. Vowles 148 Doe V. Wainwright 140 Doherty v. Hill 204 Doolittle V. Blakesley 206 Dorsey v. Wayman Douglass v. Spears 198 Doyle V.Dixon 119 Draper v. Draper 97 Dudley v. BoUes 227 Durfee v. Abbott 153 Durkin v. Cobleigh 119 Dutton V. Gerrish 117 Dyson v. Railroad 42 Earl V. Lefler .' 58 Earle V. Picken 131, 136, 138 Eborn v. Zimpelman 39, 142 Eddy V. Gray 32 Edgar v. Richardson 135, 137 Edwards V. Tracy 135, 137 Eidt V. Cutter 74 Eighmie v. Taylor 117, 127 EUicott V. Pearl 104, 226, 228 Ellis V. Bray 199 Ellis V. Denman Thompson 70 Ellsworth V. So., etc., Co 198 Emerson V. Slater... 215 English V. Sta.te 230 Erskine v. Adeane... 117, 118, 125, 127 Eslow V. Mitchell 141 Espy V. Anderson 216, 220 TABLE OF CASES. Etheridgev. Plain 121 Evarts V. Middlebury 59 Farmers, & Mech. Bk. v. Young.... 86 FarreU v. Weitz '. 44 Farrington v. Brady 124 Featherman's Adm'r v. Miller 145 Filkins v. Whyland \ 116 Finnegan v. Dugan 29 Ford V. Cunningham 142, 144 F-ord V. Lacy. 99 Fowler v. Lewis 194 Fowler Elevator Co. v. Cottr'ell 195 Fralick v. Presley 133 Framingham Manufacturing Co. v. Barnard 154 Friend v. , London, Chatham and Dover R. Co 5 Frost V. Blanchard 121 Fry V. Piatt 195, 198 P'urnell v. State 230 Fusting V. Sullivan II9 Gallagher v. London Ass. Corp 137 Galpin V. Atwater 121, 127 Gardiner v. People 60 Gartrell v. Stafford 198 Garvin v. State 34 Gaunt V. State 28 Gay V. Lloyd 135 George v. Thomas 107 Gibbon V. Coggon 131 Gibbs V. Linsley 227, 229 Gibson v. Poor , 107 Gilbert v. Moline P. Co.-. 145 Gilbert v. Sage 223 Gilmanton v. Ham 29 ■Goodman v. Griffiths 208 Goodrich v. Stevens 207 Goodrich v. Weston 140 Goodtitle v. Duke of Chambers 148 Gordon V. State 27 Goss V. Lord Nugent 208, 210, 211 212, 216, 218, 219, 222 Goucher v. Martin 219 Governor v. Roberts 145 Grace v. Dennlson 195 Grafton v. Cummings 195 Graham v. Campbell 142 Graham v. McReynolds 230 Grangers' L. Ins. Co. v. Brown.. 34, 35 Graves v. Battle Creek 15 Great Falls Co. v. Worster 102, 107 Green V. Batson 119 Green w. Cawthorn 145 PAGE. Greenfield v. People 36 Greenway v. Hindley 131 Grimes v. State 97 Gulf, etc., Ry. Co. v. Dutcher 86 Guthrie v. Thompson 219 Haden v. Burton 148 Hagenlocher v. Coney Id., etc., R. Co 235 Hahn V. Doolittle 116 Hall V. Ball 140 Hall V. Mayo 102 Hanawalt V. State 30 Harnor v. Graves 121 Harris V. Johnston 116, 120 Harrison v. McCormick 122 Harter v. Town of Moravia 56 Harvey v. Grabham 218 Harvey v. Kay 131 Harvey v. Thomas 142 Harvey v, Thorpe 142, 144 Hasbrouck v. Tappan 217 Hatfield v. Railroad Co 7, 16 Hawkins v. Chace 202 Hayes v. Cheatham 226 Hays V. Railway Co 62 Hazard v.. Day 195 Hazard v. Loring 120 Heane v. Rogers 131 Hei V. Heller 113, 123 Henderson v. Jones 226, 227 Henman V. Lester 131, 132 Herrick v. Smith 224 Herson v. Henderson 116 Hesdra's Will, Matter of 223 Hess V. Lowrey 8, 16 Hester v. Com 226 Hewes v. Taylor 194 Hewitt v. Corey 225 Hickman v. Haynes 212 Higgins v. Reed 143, 144 Higham v. Ridgway 147, 148, 149 151, 152, 153, 154 Hill V. Blake 217 Hill V. Roderick 194 Hill V. State 98 Hilts V. Colvin 142 Hinkley v. Davis 149 Hoadly v. McClaine 199 Hobbs V. State 224 Hodges V. Kowing 206 Holladay v. Littlepage 149 HoUenbeck v. Rowley 45 Holmes v. Corjell 145 Hood V. Bloch 60 TABLE OF CASES. PAGE. Hope V. Dixon 19S Hosford V. Rowe 149 Hotchkiss V. Germania F. Ins. Co.. 224 Howard V. Gresham 219 Howardv. Smith 131 Huff V. Nims 86 Huffman v. Hummer 220 Hunt V. Order of Chosen Friends 153 Hunter V. Allen 60 Hunter v. Glenn 14S Hunter v. Railroad Co 84 Hunnicutt v. Peyton 103 Hurley v. Brown 206 Hutchins V. Kimmell 153 Ide V. Stanton 194 Ihinger v. State 34 Illinois, etc., Co. v. Bonner 142, 144 Indiana Car Co. v. Parker 4 Ingledew V. North R. Co 65 Innis V. State 80 In re Blakemore 9 In re Jessup's Estate 44 Ives V. Hazard 198 Ivory V. Murphy 198 Jackson v. Etz 227 Jackson V. Gridley 90, 91 Jackson V. Poole 61 Jackson v. Vail 145 Jaques v. Horton 145 Jenner v. Joliffe 132 Jervis V. Berridge 207 Jessup's Estate 44 Jim V. State 75 Johnson v. Com 22 Johnson v. Raylton 207 Johnson v. State 68 Jones V. Alley 117 Jones V. Jones 30, 32, 34 Justice V. Lang ig8 Kain v. Larkin 133 Kain V. Old I2i Kalamazoo Novelty M. Co. v. Mc- Allister 208 Keating v. Price 214 Keniston v. Rowe 32 Kennedy v. Gramling 205 Kennedy V. Rochester, etc., R. Co.. 235 Kern v. Bridwell 8, 10 King V. Eriswell 228 King V. Lynn 36 King V. Railroad Co 59 King V. State 61 PAGE. Kinglake v. Beviss 154 Kinneyv. Farnsworth 106, III Knowles v. Crampton 34 Kopp V. Reiter 201 Ladd V. King 214 Lash V. Parlin 199 Lassone v. Boston & L. R. Co 151 Lauer v. Lee 219 Lawless v. Queale 132 Lawrence v. Kimball 154 Laythoarp v. Bryant 198 Le Barron v. Le Barron 9^ Lee V. Cherry 198 Lee V. Hills 195 Leland v. Cameron 150 Lemp V. Armengol 200 Leonard v. So. Pac. Co 74 Lewis V. Marshall 153 Lewis v. Seabury 11& Libby V. Sherman 81 Lincoln v. Taunton Manuf. Co 64 Lindley V. Lacy 114 Line v. Taylor 63 Linsley V. Lovely 116, 120 Livingston V. Arnoux 150, 154 Locke V. Railroad Co 42, 45 Longv. Colton 101, 105 Long V. Hartwell 219, 220 Long V. Millar 193 Loomis V. Wadhams 135, 136- Louisville, etc., R. Co. v. Wilson 129 Lowber V. Connit 198 Lowry v. Cady 142. Lowry v. Mehaffy 19& Loydv. Railroad Co 7, 17 Lyons V. Gregory 142 McCausland v. Fleming 107 McConnell v. Brillhart 193, 2ofr McCord v. State 225 McCray R., etc., Co. v. Woods 122 McCrea v. Purmort 198 McEvoy V. Bock 136- McFarlane v. Moore 115 McGovern V. Hern ; 197 McGufT V. State 11, 23, 97 McGuire v. Joslyn 62 McGuire v. People 97 McGuire v. Stevens 202 McKay V. Lasher 86- McKilton V. State 230 McMuUen v. Helberg 202, 208 McNaier V. Ry. Co 17, 35 McQuaid v. Ross 1 1 j. TABLE OF CASES. PAGE. McQuigan v. Delaware, etc., R. Co. 13 McSwyny v. Railroad Co 7 Mactier's Adm'rs v. Frith 194 Mann V. Nunn 118, 125 March v. Ha well 224 March v. Barnes 41 Marks v. Lahee 149 Marsh v. Bellew 214 Marshall v. Lynn 210, 212, 216, 221 Martin v. Atkinson 107 Mason V. Decker 198 Mason v. Vestal 230 Mast V. Pearce 121, 122 Mathison v. Wilson 219 Matter of Foster's Will 41 Matter of Paige 151 Mead v. Parker 206 Mentz V. Newwitter 197 Merrick V. Certain Wheal 158 Meyer v. Peck 156, 158, 159 Miller v. Stevens 207 Miller v. Wood iii Milwaukee Boiler Co. v. Duncan 122 Mitchell V. State 61 Moon V. State 59' ^' Moore v. Campbell 212 Moore v. State 98 Morewood v. Wood 100 Morey V. Hoyt 135, 136 Morgan V. Griffith 117, 118, 125, 127 Morrill v. Colehour.... 219 Morton v. Fairbanks 59 Mulhado V. Railroad Co 4, 6 Mullain v. Thomas.. 115 Mumford v. McPherson 121 Murton v. Kingston and M. F. Co.. 163 Nally V. Long 117 Nason V. Jordan 141, 142, 143 Nat. Cash Reg. Co. v. BlumenthaL. 123 126 Naumberg V. Young 117, 122, 123 126, 127, 128 Neil V. Cheves 202 Nelson V. Shelby, etc., Co 201 Neuman v. Railroad 7, 13 Newell V. Radford 197 Newhall V. Holt 131 Nichols V. Stewart 230 Nichols, etc., Co. v. Crandall 115 Nicholls V. Parker 99 NichoUs V. Webb 150 Nieman v. Ward 106 Niskayuna v. Albany 143 PAGE. Nixon V. Porter 107 Noble V. Ward 212 North V. Mendel 195 Norton v. Gale 199 Nourse v. McCay 152 Nys V. Biemeret '... 107 Ogle V. Lord Vane 211, 212 O'Hara V. Hall 117 Old Colony R. v. Evans 198 Oliver V. Hunting 192, 193 Omichund v. Barker 90, 92 O'Neil V. Crane 199 Ortv. Fowler 84. Ortiz V. State 45 Osborn v. Phelps 194. Osborne v. City of Detroit 82 Osgood v. Davis 1 16 Outram v. Morewood 99 Overlock V. Hall 32 Owens V. Railroad Co 7, 16, 17 Packer V. Steward 215 Packard v. Richardson 200 Page V. Page 10 Parker V. Enslow 7, 15 Parker v. Gonsalus 227 Parkhurst v. Van Cortlandt 194 Parlman v. Young 145 Partin V. State 97 Partricke V. Powlett 211 Pasmore v. Bousfield 131 Patteshall v. Turford 148 Paul v. Meek 131 Peck V. Gilmer 149 Peck V. Vandermark 195 Pevice v. Corf 192 Peltier v. Collins 202 Pennsylvania Co. v. Newmeyer.. 14, 17 Pennsylvania Coal Co. v. Kelly 82 People V. Brow 153 People V. Buddensieck 59 People V. Carney 32 People V. Dennis 142 People V. Doyell 226 People V. Gardner 18 People V. Gonzalez 38, 60 People V. I-Iinchman 133, 144 People V. Hope 73 People V. Jackson 49, 50 People V. Johnson - 47 People V. Kelly 20 People V. Larned 60 People V. Mead 23 People V. MuUer 46 TABLE OF CASES. PAGE. People V. Smith 41 People V. Vane , 227 People V. Wright 61 Peoria D. & E. Ry. Co. v. Rice n Perrine v. Clieeseman 221 Perrine V. Cooley's Ex'rs 116 Petree v. Wilson 133 Petrie v. Howe 29 Phelps V. Seely 219, 221 Philipson v. Bates 144 Pitts V. Beckett 202, 208 Polin V. State 70 Porgay V. Atlantic M. Ins. Co 151 Potter V. Duffield 197, 205 Potter V. Peters 192 Powell V. Edmunds 121 Powell V. Wallace 145 Powers V. Silsby no Pratt V. Morrow 219 Preble v. Abrahams 206 Price V. Dyer 211 Price V. Earl of Torrington 148 Price V. Torrington 1 52 Pritchard V. Bagshawe . 131 Railroad Co. v. Botsford 5i I5> '7 Railroad v. Brunker 8 Railroad Co. v. Childress 7, 16 Railroad Co. v. Hill 7, 16 Railroad Co. V. Johnson 7, 17 Railroad Co. v. Thai 7, 16 Ralston V. Miller 107 Randall v. Chase 45 Randall V. Rhodes 121 Reddin v. Gates 50 Reddington V. Oilman 141, 145 Reece v. Robson 149 Reed V. Carnsi 79 Kecd V. Jackson 99 Reed V. N. Y. C. R. Co 234 Reed v. Spaulding 229 Reed V. Van Ostrand 116, 122 Reed v. Wood 117 Reed's Heirs v. Chambers 213 Reg. V.Basingstoke 131, 136, 137 Reg. V. Bedfordshire 99 Reg. V. Hesseltine 69 Reg. V. Heyford 147 Reg. V. Worth 155 Reitz V. State 32 Renner v. Bank 142 Re Stephens 41 Rex V. Mytton 99 Rhodes v. Newhall 158 Rice y. Forsyth 115 PAGE. Ridgway v. Ingram '95 Ridgeway v. Wharton 193 Riggs V. Tayloe '43 Ringer V. Holtzclaw I99. 201 Risk V. State 3^ Robb V. Hackley 223, 225, 227, 229 Roberts V. Railroad Co 7, 12, 15 Robertson v. Caw 227 Robertson v. Lynch 141 Robinson v. McNeil 122 Rodgers v. Perrault 115 Roe V. Davis 131 Rollwagen Case 10 Ross V. Allen 197, 202, 205 Rnloff V. People 42, 45 Rumbough v. South. Imp. Co 133 Ryan v. Fowler 49 Sabre v. Smith 198 Salmon F. M. Co. v. Goddard.. 195, 197 Sample v. Robb 108 Sanborn V. Flagler 197, 198 Sanders v. Karnell 132 Sanderson v. Graves 206, 219 Sasser V. Herring 107, io8 Sawyer V. Cleveland Iron M. Co 161 Smith V. Brown 140, 141 Schneider v. ^tna Life Ins. Co 17 Scholz V. Dankert 118 Schrieber v. Horsley..'. 207 Schroeder V. Railroad Co 4, 7, 16 Schultz V. Bradley 217 Scott V. Slingerland 141 Seitz V. Brewers' Refrigerating Co.. 122 Sexton V. Hollis 107, in Seymour v. Maddox 49 Shaffer v. Gaynor in Shardlow v. Coterell 203 Sheehy v. Adarene 200 Shepherd v. Gilroy 115 Sherburne V. Shaw 194, 197 Sherman v. People 132 Sherwood v. Walker 208 Shook V. Pate 58 Shorten v. Judd 44 Siberry v. State 86 Sibley V. Smith 7, i5 Singer M. Co. v. Forsy the n 8 Singleton v. Barrett 131 Sitler V. Gehr 153 Skinner v. Gt. Northern Ry. Co 6 Slater v. Smith 205 Slatterie v. Pooley 130, 132, 135, 136 137. 138 Smith V. Dallas 122 TABLE OF CASES. PAGE. Smith V.Forrest 102 Smith V. Headrick 106 Smith .V. Nowells 107 Smith V. Palmer 135, 136, 138 Smith V. St. Paul City Ry. Co 69 Smith V. Shell 202 Smith V. Smith 198 Smith V. Williams 114 Spann V. Baltzell 153 Spicer v. State 24 Sprouse v. Com 85 State V. Ah. Chuey 24, 26 State V. Arnold 29 State V. Belton 96 State V. Burnham 60 State V. Cady 230 State V. Cain 14S State V, Cooper 91 State V. Crow 6t State V. Danforth 27 State V. Dennin 229 State V. De Wolf 226 State V. Doyle 98 State V. Ellwood 44 State V. Fontenot 229 State V. Garrett '. 24 State V. Gibbs 144 State V. Graham 24, 26 State V. Grant 226 State V. Halstead 145 State V. Henderson 84 State V. Juneau 98 State V. Linkhaw 79 State V. Michael 97 State V. O'Reilly 49 State V. Parish 225, 233 State V. Petty 226 State V. Phair 152 State V. Prudhomme 24 State V.Richie 97 State V. Sanders 69 State V. Smith 27, 70 State V. Thomason 224 State V. Wieners 34 State V. Woodruff 29 Stanbro v. Hopkins - . 94 Stark V. Wilson 214 Stead V. Dawber 210, 211, 212, 215 221 Stearns v. Hall ...' 213 Stebbins v. Duncan 143 Stephens, re 4' Stevens V. Cooper 219, 220 Stevenson V. Hoy 142, 143 Stevenson v. State 145 PAGE. Stockwell V. Railroad Co 68 Stokes V. State 23, 26 Stolp V. Blair 226 Stowell V. Robinson 211, 218 Stroud V.Springfield 108 Stuart V. Havens 7, 16 Studds V.Watson 192 Sullivan v. Com 64 Sussex Peerage Case 148 Sutterell v. Maynell 227 Swain v. Seamens 216 Syers v. Jonas ^ 207 Tallman v. Franklin 206 Taylor v. Gould .■ 149 Taylor V. Peck .. ._ 135, 137 Taylor v. State 98 Taylor v. Wilham 148 Taylor, B. & H. R. Co. v. Warner.. 50 Tlioen V. Roche 107 Thomas v. Barnes 127 Thomas v. Jenkins 99 Thomas v. Scutt 114 Thomas v. Trustees 198 Thompson V. Libby 123, 128 Threadgill V. White 133, 134 Thurman v. Bertram 63 Tice V. Freeman 195 Tome V. Railroad Co 41 Tracy V. Union Iron Works 118 Tucker v. Smith 107 TuUman v. Franklin 197 Turnpike Co. v. Bailey 7, 16 Turquand V. Strand Union 7 Tyers V. Rosendale, etc., Co 212 Udderzook v. Com 42 Ulrich V. People 69 U.S. V. Britton 142, 144 United States V. Lot of Jewelry 48 United States v. Ried 84 Vanderbergh v. Spooner 197 Vanderslice v. Snyder 47 Van Houten V. Morse 50 Van Winkle V. Crowell 128 Venable v. McDonald 206 Vinal V. Gilman 1 54 Vincent v. State 97 Wain V. Warlters 200 Walker v. State 24, 25 Walrath v. Thompson 200, 201 Walsh v. People 51 Walsh V. Sayre 7 TABLE OF CASES. PAGE. Ward V. Walton 219 Wardell V. Williams 195, 199 Ware v. Roberson 133 Warlick v. White 34 Warren V. Greenville 148 Weed V. Clark 201 Weeks v. Sparke 99, 100 Wehlev. U. S. M. Ace. Assn 35 Weideman v. Walpole 6^ Welland Canal V. Hathaway 132 Welsh V. Barrett 152, 153 Welz V. Rhodius 118 West Paving, etc., Co. v. Citizens' Str. R. Co 119 Western Union Tel. Co. v. Carter .. 87 West. Un. Tel. Co. v. Stevenson ... 145 Wetherill v. Neilson 121 Wheeler v. United States 95 Whistelo Case 27, 34 Whitcher v. McLaughlin 153 White V. Breen 196 PAGE. White V. Chouteau ijo White v. Core 203 White v. Railway Co 7, 16 Whitehurst v. Pettipher 106 Widdifield v. Widdifield 135, 136 Wilcox V. Cate 117 Wilkinson v. Heavenrich '. . 198 Willard v. Ostrander 122 Williams v. Geaves 147 Williams v. Lake 197 Williams V. Robinson 198, 202 Wimer v. Smith 145 Winn V. Chamberlin 124 Winn V. Patterson 141 Withnell v. Gartham 99 Wolverton V. State 137 Wood v. Willard 107, no Woodward v. Larking 131 Worrall v. Munn 198 Wynne v. State 61 Short Studies in Evidence. Short Studies in Evidence. Practical Tests in Evidence. In the early and rude ages there was a strong leaning toward the adoption of demonstrative and practical tests upon disputed questions. Doubting Thomases demanded the satisfaction of their senses. The accused was con- fronted with the body of the victim. The judgment of Solomon was the typical example of this demand, and a striking instance of the satisfactory character of the result of the compliance with it. The shrewd and homely sense of Governor Sancho Panza devised several practical tests which proved eminently decisive, the most striking of which was that adopted by him in the rape case, which must have occurred to the mind of any modern lawyer witnessing a trial on such an accusation, accompanied by the mental query whether it might not still preserve its efficacy. As society grew civilized and refined, it seemed disposed to despise these demonstra- tive methods, and incline more to the preference of a narration, at second-hand, by eye and ear witnesses. But in this busy century there seems to have been a relapse toward the earlier experimental spirit, and a dis- position to make assurance doubly sure by any practica- ble method addressed to the senses. And so in recent days the instances have been numerous, and are con- stantly growing more numerous, of a resort to exhibi- tions, experiments, and tests, made out of court and proved by testimony, or in court before the eyes and ears of the jury called on to pronounce upon the issue of fact. This species of evidence was called " real " by Bentham. Others have named it "actual," or " demonstrative," and the latest term for it is " immediate." It now is ac- corded an independent place in the digests. A review of 4 SHORT STUDIES IN EVIDENCE. recorded instances of the introduction of such evidence must prove useful, and will not be devoid of interest and amusement. I believe I was the first to collect and com- ment on this class of cases, and I will preserve the original title under which I treated of them. Exhibition of the Human Body. I. In civil cases. There is no doubt that one suing for damages for physical injury may submit his body to surgical examination before trial, and have the result tes- tified to by experts, or in a case not involving indecent exposure may exhibit the marks of injury to the jury on the trial.^ In the celebrated Tichborne case the claimant was allowed to exhibit his thumb to a witness who had testified to a peculiarity in Sir Roger's thumb. In regard to the voluntary exhibition of the person In a civil action for corporeal Injury, the Michigan Court seems alone In holding, as it holds in Hanselman v. Carst- ens,^ that It is not permissible. This was a question of the surgical treatment of a broken leg of a woman. The trial court refused to allow her to show the leg to the jury. On appeal this was affirmed, partly on the ground that the Injury occurred several years before the trial. It is diffi- cult to see what force there Is In that position. If the mal- treatment was apparent after several years, so much the worse for the surgeon. But the court more explicitly ob- served : "No inspection after an injury Is healed, apart from some knowledge of the character of' the Injury and the method of treatment, could enable even a medical ex- pert to decide upon the merits or demerits of the attend- ing surgeon. A jury's guessing from such an Inspection would be of no value whatever ; and any needless expos- ure would have been, as the court below properly held. Improper, if not Indecent." I leave the subtle point of modesty out of the question, merely saying that one ' Mulhado v. Railroad Co., 30 N. Y., 370; Schroeder v. Railroad Co., 47 Iowa, 375 ; Brown v. Swineford, 44 Wis., 282 ; Indiana Cat Co. V. Parker, loo Ind., 181. ' 60 Mich., 187. PRACTICAL TESTS IN EVIDENCE. 5 Tvould suppose that if the woman did not object, the court need not be sqeamish ! But as to the extent of the mal- treatment and its effect upon the amount of damages, there can be no doubt that the exhibition of the limb was proper. It is the commonest thing in the world to allow it, and I cannot recall another case that denies it. But whether this is not purely optional with the plaintiff, •and whether the defendant may compel such preliminary examination or such exposure at the trial, is a point on which there is much conflict of opinion. It is probably the general rule that such examination or exposure is compulsory, some cases asserting the absolute right, others bounding it by judicial discretion. The latest judicial expressions, however, are to the contrary. In Railroad Co. v. Botsford,^ in the United States Supreme Court, it was held that the courts of the United States liave no power, in an action for personal injuries, to order before the trial an examination of the body of the injured person. Mr. Justice Gray gives a comprehensive and ■concise- statement of the various rulings, as follows : " So far as the books within our reach show, no order to inspect the body of a party in a personal action appears to have been made, or even moved for, in any of the English courts of common law, at any period of their history.^ The inviolability of the person is as much ' 141 U. S. 250, s. c. 44 Albany Law Journal, 325. ' "A correspondent calls our attention to an error of statement by the 'Supreme Court of the United States in the recent case of Union Pacific R. Co. V. Botsford, 141 U. S., 250 (33 Cent. L. J., 362). In that case, which involved the question as to the power of the court to order an inspection of the body in a personal action, the court uses this language : •' So far as the books within our reach show, no order to inspect the body of a party in a personal action appears to have been made or even moved for, in any of the English courts of common law, at any period of their history.' "The Supreme Court seem to have overlooked the case of Friend v. London, Chatham and Dover R. Co., in the Court of Appeal before Cockburn, C J., Bramwell, L. J., and Brett, L. J. (46 L. J., 696), where it appears that in the trial of that case in the court below the coutt made an order, at the instance of the railway company, requiring the plaintiff 6 SHORT STUDIES IN EVIDENCE. invaded by a compulsory stripping and exposure as by a blow. To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass; and no order- of process com- manding such an exposure or submission was ever known to the common law in the administration of jus- tice between individuals, except in a very small number of cases, based upon special reasons and upon ancient practice, coming down from ruder ages, now mostly ob- solete in Eng^land, and never, so far as we are aware, introduced into this country. "In the case at bar it was argued that the plaintiff in an action for personal injury may be permitted by the court, as in Mulhado v. Railroad, 30 N. Y., 370, to exhibit his wounds to the jury in order to show their nature and extent, and to enable a surgeon to testify on that subject, and therefore may be required by the court to do the same thing, for the same purpose, upon the motion of the defendant. But the answer to this is that any one may expose his body if he chooses, with a due to submit to a personal examination by the railway company's physician, to enable him to testify in the trial of a cause, and Cockburn, C. J., said : " The order for such an examination was clearly ultra vires." Our Supreme Court also appeared to have overlooked in their research sec- tion 26, chapter 119, 31 and 32 Vict., which says: 'Whenever any person injured by an accident on a railway claims compeiisation on account of the injury, any judge of the court in which proceedings to recover such compensation are taken, or any person who, by the consent of the parties, or otherwise has power to fix the amount of compensa- tion, may order that the person injured may be examined by some duly qualified medical practitioner named in the order, and not being a wit- ness on either side.' In Skinner v. Great Northern Railway Company, decided by Bramwell, B., Court of Exchequer (43 L. J., 150), it is held that where a railway company has procured an order under the above statute for such an examination, the report of its physician was privi- leged and the plaintiff not entitled to an order of court allowing its inspection. This opinion was followed in the Court of Appeal in the above case, where the latter court seems to interpret the statute as only giving the railway company the right to examine the plaintiff so as to put both parties on an equal footing, and in furtherance of compromise settlements." — Central Law J^otirnal. PRACTICAL TESTS IN EVIDENCE. 7 regard to decency, and with the permission of the court, but that he cannot be compelled to do so in a civil action without his consent. If he unreasonably refuses to show his injuries when asked to do so, that fact may be considered by the jury as bearing on his good faith, as in any other case of a party declining to produce the best evidence in his power. Clifton v. U. S., 4 How., 242 ; Bryant v. Stilwell, 24 Penn. St., 314 ; Turquand v. Strand Union, 8 Dowl., 201. In this country the earliest instance of an order for the inspection of the body of the plaintiff in an action for a personal injury appears to have been in 1868, by a judge of the Superior Court of the city of New York in Walsh v. Sayre, 52 How. Pr., 336, since overruled by decisions in General Term in the same State. Roberts v. Railroad, 29 Hun, 154; Neu- man v. Railroad, 50 N. Y. Super. Ct, 412 ; McSwyny v. Railroad Co., 7 N. Y. Supp., 456. And the powei to make such an order was peremptorily denied in 1873 by the Supreme Court of Missouri, and in 1882 by the Supreme Court of Illinois. Loyd v. Railroad Co., 53 Mo., 509; Parker v. Enslow, 102 111., 272; s. c. 4c Am. Rep., 588. Within the last fifteen years, indeed, as appears by the cases cited in the brief of the plaintiff in error (Schroeder v. Railway Co., 47 Iowa, 375 ; Turn- pike Co. V. Baily, -^"j Ohio St., 104; Railroad Co. v. Thul, 29 Kans., 466; s. c. 44 Am. Rep., 659; White v. Railway Co., 61 Wis., 536 ; s. c. 50 Am. Rep., 154; Hat- field V. Railroad Co., 33 Minn., 130 ; s. c. 53 Am. Rep., 14; Stuart V. Havens, 17 Neb., 211 ; Owens v. Railroad Co., 95 Mo., 169; Sibley V. Smith, 46 Ark., 275; s. c, 55 Am. Rep., 584 ; Railroad Co. v. Johnson, 72 Tex., 95 ; Railroad Co. v. Childress, 82 Ga., 719 ; Railroad Co. v. Hill, 90 Ala., 71), a practice to grant such orders has prevailed in the courts of several of the Western and Southern States, following the lead of the Supreme Court of Iowa in a case decided in 1877, and some of them citing the Walsh New York case, afterwards over- ruled. The consideration due to the decisions of those courts has induced us fully to examine, as we have done 8 SHORT STUDIES IN EVIDENCE. above, the precedents and analogies on which they rely. Upon mature advisement, we retain our original opinion that such an order has no warrant of law. In the State of Indiana the question appears not to be settled. The opinions of its highest court are conflicting and indeci- sive. Kern v. Bridwell, 119 Ind., 226, 229; Hess v. Lowrey, 122 Ind., 225, 233 ; Railroad v. Brunker (Ind.), 26 N. E. Rep., 178." This conclusion was dissented from by Brewer and Brown, JJ., Mr. Justice Brewer observing : " The end of litigation is justice. Knowledge of the truth is essential thereto. It is conceded, and it is a matter of frequent occurrence, that in the trial of suits of this nature the plaintiff may make in the court-room, in the presence of the jury, any not indecent exposure of his person to show the extent of his injuries ; and it is conceded, and also a matter of frequent occurrence, that in private he may call his personal friends and his own physicians into a room, and there permit them a full examination of his person, in order that they may testify as to what they see and find. In other words, he may thus disclose the actual facts to the jury if his interest require ; but by this decision, if his interests are against such a disclosure, it cannot be compelled. It seems strange that a plaintiff may, in the presence of a jury, be permitted to roll up his sleeve and disclose on his arm a wound of which he testifies ; but when he testifies as to the existence of such a wound, the court, though per- suaded that he is perjuring himself, cannot require him to roll up his sleeve, and thus make manifest the truth, nor require him, in the like interest of truth, to step into an adjoining room, and lay bare his arm to the inspection of surgeons. It is said that there is a sanctity of the person which may not be outraged. We believe that truth and justice are more sacred than any personal con- sideration ; and if in other cases, in the interests of jus- tice or from considerations of mercy, the courts may, as they often do, require such personal examination, why PRACTICAL TESTS IN EVIDENCE. 9 should they not exercise the same power in cases like this, to prevent wrong and injustice ? " Mr. Justice Gray also observes, in his opinion : " The authority of courts of divorce in determining a question of impotence as affecting the validity of a mar- riage, to order an inspection by surgeons of the person of either party, rests upon the interest which the public, as well as the parties, have in the question of upholding or dissolving the riiarriage state, and upon the necessity of such evidence to enable the court to exercise its juris- diction, and is derived from the civil and canon law, as administered in spiritual and ecclesiastical courts, not proceeding in any respect according to the course of the common law. Briggs v. Morgan, 2 Hagg. Cons., 324; 3 Phillim. Ecc, 325; Devanbagh v. Devanbagh, 5 Paige, 554; Le Barron v. Le Barron, 35 Vt., 365. The writ de ventre inspiciendo, to ascertain whether a woman con- victed of a capital crime was quick with child, was allowed by the common law, in order to guard against the taking of the life of an unborn child for the crime of the mother. "The only purpose, we believe, for which the like writ was allowed by the common law, in a matter of civil right, was to protect the rightful succession to the prop- erty of a deceased person against fraudulent claims of bastards, when a widow was suspected to feign herself with child in order to produce a supposititious heir to the estate, in which case the heir or devisee might have this writ to examine whether she was with child or not, and if she was, to keep her under proper restraint till delivered, i Bl. Comm., 456;. Bac. Abr., 'Bastard A.' In cases of that class the writ has been issued in Eng- land in quite recent times. In re Blakemore, 14 L. J. Ch., 336. But the learning and research of the counsel for the plaintiff in error have failed to produce an instance of its ever having been considered, in any part of the United States, as suited to the habits and. condition of the people." 10 SHORT STUDIES IN EVIDENCE. I may add that the writ was denied by the Supreme Court of New York, in 1874, in the RoUwagen case, in which a testator's widow alleged herself to be pregnant by him.^ Judge Thompson^ favors the requirement of the examination in the discretion of the* court, before trial and under proper safeguards. He says : " Some of the courts, carrying in their minds no higher conception of a judicial trial than the conception that it is a combat, in which each of the gladiators is permitted, within certain limits, to deceive and trick the antagonist and the umpire, have denied the right of the defendant to have an order for such inspection." In Page v. Page,^ a divorce case, the court said : "There was also a most extraordinary compulsory examination of defendant by physicians, who stripped him and subjected him to oral inquisition, to compel him to give evidence which they could repeat before the commissioner for use against him. What means they could be supposed to have for compelling him to answer their questions, in case he declined, as he ought to have done, we do not know ; but we are certain they could not be means known to the law. We strike from the record all the evidence obtained by this inquisition also. It should be understood that there are some rights which belong to man as man and to woman as woman which in civilized communities they can never forfeit by becoming parties to divorce or any other suits, and that there are limits to the indignities to which parties to legal proceed- ings may be lawfully subjected." A decision denying the right of the defendant to com- pel the plaintiff to submit to a physical examination, is Kern v. Bridwell.* This was an action of slander in charging that the plaintiff was unchaste, and had become ' 10 .Albany Law Journal, 3. ' Trials, § 859. ' 51 Mich., 88. ' 119 Ind., 226. PRACTICAL TESTS IN EVIDENCE. H pregnant and had committed an abortion ; and the de- fendant justified. The court said: "We are not cited to any case where any court has held such an examination to be proper, and we think none can be found. One should not publish and circulate slanderous charges against a young unmarried female, as proven in this case, without being able to substantiate them, when called upon to do so, without calling upon the court to aid in the search for evidence in his behalf by ordering and subjecting her to an indelicate examination of her person, with the hope of obtaining such information advantageous to the defence, and call to his aid the power of the court as a means of humiliating her still more. When one voluntarily asserts a slanderous charge against another, and defends it by alleging the truth of his assertion, he must be able to substantiate the truth of the charge without invading the privacy of the person about whom the charge is made." This seems to be a unique case. The same principle was declared on a prosecution for rape (McGuff v. State). ^ The court said: "Such a prac- tice has never prevailed in this State, and if adopted as matter of right in all cases of prosecution for rape, the temptation to its abuse would be so great that it might be perverted into an engine of oppression to deter many modest and virtuous females from testifying in open court against the perpetration of one of the most bar- barous and detestable of all crimes." The court distin- guish the case from that where the party is voluntarily invoking the assistance of the court in pursuit of a civil right. The court doubt the power to compel the exam- ination in question, but hold that at all events it is a matter of discretion in the trial court, and its refusal was not error. In Peoria, D. & E. Ry. Co. v. Rice,^ it was held that courts have no power to compel a plaintiff who sues for ' 88 Ala., 147. ' 75. lU., 227. J2 SHORT STUDIES IN EVIDENCE. damages for personal injuries to submit to a physical examination by medical experts. It is difficult to accept the argument that a party may be compelled to produce particular evidence against his will, simply because he has the right to produce it if he wishes. It seems to me that the true reason of the mat- ter has not been sufficiently emphasized in either of the opinions, nor anywhere else, so far as I have read, excepting one case. The court has no power to compel the suitor to produce any particular piece of evidence. He is suing for his own benefit, and may put In such legal evidence as he chooses, taking upon himself the burden of satisfying the jury. The jury may lean against him because of his omission to produce certain available evidence, but the court has no more power to compel his exposure of his person to a surgical examination, than to compel his production of a particular witness to the transaction In question, whom he omits or refuses to produce. This last class of omission is frequently com- mented on by opposing counsel as suspicious, but no one ever claimed that the party could be obliged to pro- duce such evidence. And yet the reasoning of Mr. Justice Brewer, followed to its legitimate conclusion, would imply such a cornpulsory power. The judges fre- quently lay stress on the fact that such an examination tends to certainty, which is the aim of the law. The answer Is, the plaintiff is not bound to render his case certain, although it may be within his power to do so. He simply takes the risk of his omission to do so. The most cogent expression of this Idea Is by Learned, P. J., in Roberts v. Railroad Co.,^ as follows: " But again * * * we know of no right which this court has to compel a party to submit to any bodily examination. In a common-law action like this the jury are to pass on the issues of fact. And they are entitled to see and hear for themselves the evidence. It is of the very essence of the common-law system that the evl- ' 29 Hun, 155. PRACTICAT. TESTS IN EVIDENCE. 13 dence shall be produced before the jury. Exceptions to this rule (and not desirable exceptions) are those cases in which evidence is previously reduced to writing, and then read to the jury. Now if a party is entitled to the compulsory exhibition of the body of his opponent, it would seem to follow that he might have such exhibition made before the jury. And the court might require the plaintiff, on the trial and before the jury, to submit to the same examination as is required by this order. Neu- man v. Third Ave. R. Co., 50 Supr. Ct., 412. It is undoubtedly true that not unfrequently plaintiffs, suing for bodily injuries, do exhibit in court the injured part. Nor do we know of any reason why they should not do this, notwithstanding the exhibition may excite sym- pathy. And on the other hand, all unreasonable con- cealment of an injured part (not justified by any dictate of modesty or otherwise) may excite a doubt in the mind of the jury as to the genuineness or extent of the alleged injury. But we cannot admit the principle that either in the presence of the jury or in the presence of a referee a party can compel, his Opponent to exhibit his body, in order to enable physicians to examine and ques- tion and testify. * * * There may be danger that in actions of this nature plaintiffs will exaggerate the in- juries they have received; and that defendants may be at a disadvantage in ascertaining the exact truth. But this evil is far less than the adoption of a system of bodily and perhaps immodest examinations, which might deter many, especially women, from ever commencing actions, however great the injuries they had sustained." Since the foregoing was written, the lead of the United States Supreme Court has been followed by the courts of last resort in New York and Indiana. Ill Mc- Quigan v. Delaware, etc.. Railroad Co.,^ the Court of Appeals denied the compulsory right, citing the Bots- ford case, and observing: ' 129 N. Y., 50. 14 SHORT STUDIES IN EVIDENCE. " It is very clear that the power is not a part of the recognized and customary jurisdiction of courts of law or equity. * * * yj^g exercise by the court of the power now invoked, as has been shown, is not sanctioned by any usage in the courts of England or of this State. Its existence is not indispensable to the due administra- tion of justice. Its exercise depending on the discretion of the judge would be subject to great abuses. .We think the assumption by the court of this jurisdiction, in the absence of statute authority, would be an arbitrary extension of its powers. It is a just inference that an alleged power which has been dormant during the whole period of English jurisprudence, and never attempted to be exercised in America until within a very recent period, never in fact had any existence." The court was unanimous. The Indiana case is Pennsylvania Co. v. Newmeyer.^ The conclusion is as follows : " So far as we know, the courts of this State have never attempted to exercise such a power, and we are of opinion that no such power is inherent in the courts. We think the better reason is against the existence of such a right, and in the absence of some statute upon the subject we do think the courts should attempt to compel litigants, against their will, to submit their persons to the examination of strangers for the purpose of furnishing evidence to be used on the trial of a cause. Should a litigant willingly submit, there could be no legal objec- tion to such an examination ; and should he refuse to submit to a reasonable examination, his conduct might possibly be proper matter for comment ; but this is quite a different matter from compelling him, against his will, to submit his person to the examination of strangers." The court was unanimous. Reliance was placed on the Botsford case ; but the decision was earlier than that in the McQuigan case. ' 129 Ind., 404. PRACTICAL TESTS IN EVIDENCE. 15 More recently, however, the contrary doctrine was as- serted in Graves v. Battle Creek,* where it was held that the court has power to require plaintiff to allow a physician to examine an injured arm in the presence of the jury. The court said : " The decisions are not uniform upon this question, but the very great weight of authority is in favor of the exercise of such power by the court under proper restrictions, the rule recognizing, however, that a wide discretion is vested in the trial court, which justifies a refusal to require the examination where the necessities of the case are not such as to call for it, or where the sense of delicacy of the plaintiff may be offended by the exhibition, or where the testimony would be merely cumulative, and where in the judgment of the trial court it would not materially aid the jury. The power has been exercised in Iowa, Alabama, Arkansas, Georgia, Ohio, Missouri, Nebraska, Texas, Minnesota, Kansas, Wisconsin and Indiana. Opposed to the rule in these States are the decisions of Parker v. Enslow, 102 III, 279; Roberts V. Railroad Co., 29 Hun, 154; and Rail- road Co. V. Botsford, 141 U. S., 250. In the case of Parker v. Enslow the question was not discussed beyond a bare statement of the holding, and no authority was cited ; all that is said upon the subject being ' the court had no power to make or enforce such an order.' The case of Roberts v. Railroad Co. overrules a previous decision of the Special Term of the Superior Court of New York, and is not a decision of the court of last resort. Stress appears to have been laid in the decision upon the fact that the order, which preceded the trial, required the plaintiff to submit to answer any questions that should be put to her, and this was treated as par- ticularly objectionable, although the court does hold that the court has no power to compel a party to submit to any bodily examination. The decision in Railroad Co. V. Botsford was concurred in by seven of the nine justices of the Supreme Court, Justices Brewer and Brown dis- ' 95 Mich., 266 ; 19 L. R. Ann., 641. IQ sho'rt studies in evidence. seating from the conclusion of the majority. This deci- sion is entitled to very great weight, but in view of the manifest justice of a requirement that the plaintiff in case of personal injury shall produce the best evidence attainable, we think this case should not be permitted to stem the otherwise almost unbroken current of authority upon the subject. It is true that the rule is one of modern growth, but it is also true that actions for personal injury, while not of modern origin, are rapidly increasing, and are constantly presenting new questions. The rule is well recognized by substantially all the courts of the country that the injured party may exhibit his wounds to the jury, in order to show their nature or extent, and that ■ rule has been followed in this State. Testimony which is open to one party ought logically to be open to his opponent, if it can be obtained with due regard to decency, and In the orderly conduct of the trial. It is well stated by the court in Railroad Co. v. Childress, 82 Ga., 721: 'This conclusion may be placed upon the. higher ground, that when a person appeals to the sover- eign for justice, he impliedly consents to the doing of justice to the other party, and impliedly agrees in advance to make any disclosure which is necessary to be made in order that justice may be done. The concep- tion of the nature and objects of a judicial trial which denies to the defendant, under proper safeguards, the right of such an inspection, is not higher than that of the old law, which would not even compel a party to produce a deed or private paper, in a civil case, where it was intended to be used in evidence against him, a rule which the Court of Chancery invaded to prevent failures of justice, and which has alniost entirely disappeared from modern civil jurisprudence.' See also White v. Railway Co., 61 Wis., 536; Turnpike Co. v. Baily, 37 Ohio St., 104; Railroad Co. v. Hill, 90 Ala., 71; Scroeder v. Rail- road Co., 47 Iowa, 375 ; Railroad Co. v. Thul, 29 Kans., 466 ; Owens V. Railroad Co., 95 Mo., 169; Sibley v. Smith, 46 Ark. 275 ; Stuart v. Havens, 1 7 Neb., 211; Hatfield v. Railroad Co., 33 Minn., 130; Hess v. Lowrey, 122 Ind., PRACTICAL TESTS IN EVIDENCE. 17 225 ; Railroad Co. v. Johnson, 72 Tex., 95. The case of Loyd V. Railroad Co., 53 Mo., 509, cited by Mr. Jus- tice Gray in Railroad Co. v. Botsford, as sustaining the conclusion of the majority of the court, is not now the law of Missouri, as will be seen by a reference to Owens V. Railroad Co., above cited." It is singular that McOuigan v. Delaware, etc., R. Co.,i and Pennsylvania Co. V. Newmeyer,- which follow the Botsford decision, were overlooked by the counsel and the court in the principal case. But although it is permitted to the claimant of dam- ages for corporeal injuries to exhibit his hurt to the jury, if he chooses, he will not be allowed to make an indecent exposure. Thus in Brown v. Swineford,^ the appellate court lectured the trial court very severely for suffering the plaintiff to " uncover and exhibit to the jury his organ of generation," although the opposing counsel did not object to it. But he may expose a wound to show that pus still flows.* In Schneider v. ^tna Life Ins. Co.,^ it was held that in an action on a policy of life insurance, where the issue was on the death of the insured, the insurer is not bound to bring him bodily before the court. The court said : * "There was nothing whatever in these objections, and they were rightly overruled. If the person whose identity was in issue had been himself a party to the action as claimant of some right based on such identity, as in the famous Tichborne case, the opposite party might have demanded a view of his person and the opportunity of personal examination in presence of the court. Such was not the case here. The person whose identity was in question was not a party to this suit, and ' 129 N. Y., 50. ' 129 Ind., 404. ' 44 Wis., 282. * McNaier v. Ry. Co., 51 Hun, 644. ' 32 La. Ann., 1049 j s. c, 36 Ann. Rep., 276. 18 SHORT STUDIES IN EVIDENCE. was not within reach of its process, and was in no manner subject to its orders. If he had been within the reach of process of the court, plaintiff would have had the same right to invoke it to compel his attendance that the defendant had. As he was not within reach of its pro- cess, neither party had power to enforce his attendance ; and the law imposes impossible duties on no one. A free man is not subject to the possession and control of another, his body cannot be offered or filed in evidence, and he is not to be treated like a document of which profert or oyer may be claimed." Other living human bodies. In a recent action in the Superior Court, in Boston, for dislocation of the collar- bone, the plaintiff's experts having testified that such an injury in most cases is permanent, the defense offered to produce three persons who had suffered exactly similar injuries, and who would visibly demonstrate to the jury that their recovery was complete. This was excluded. The latest instance of the exhibition of the living human body In court, which has come to my notice, was on the criminal trial in the city of New York, before Recorder Smyth, of Dr. Parkhurst's detective, where the judge ordered the defendant to rise In court to enable a witness to identify him. The judge claimed that his counsel interfered to prevent his obeying, and thereupon fined counsel for contempt. This probably was In the case of People v. Gardner,^ where, on the contention that the prisoner's constitutional 'right was thus violated, the court said : " We do not think that the defendants' constitutional right was violated, or that he was com- pelled, within the meaning of the constitutional provi- sions referred to, to give evidence against himself. He was bound to be In court and In the presence of the jury, the recorder and the witnesses, who might be there. The recorder, the jurors and the witnesses had the right to see him, and he had the right to see them. It was necessary that he should be identified as the person ' 144 N. Y., 119; 28 L. R. A., 699. PRACTICAL TESTS IN EVIDENCE. 19 named in the indictment and charged with the crime. His mere standing up did not identify him with the alleged crime, and did not disclose any act connected with the crime. There was nothing on his person or in his appearance that in anyway connected him with the crime, or furnished any evidence whatever of his guilt. Sup- pose he had come into court with his face veiled, could not the recorder compel him to remove the veil that his face might be seen ? Could he not compel him to remove his hat ; to stand or sit in the prisoners' dock ? In the examination of the witness could not the district attorney have pointed to the defendant and asked the witness whether he was the person he had seen with Mrs. Amos ? Instead of compelling the defendant to stand up, could not the recorder have directed the witness to go to the place where he was and look at him with the view of identifying him ? If" all these things could be done without violating the rights of the prisoner, how is it possible to say that he was harmed, or that his consti- tutional right was invaded by compelling him to stand up for the purpose of identification ? For the orderly con- duct of a criminal court it is requisite that the trial judge should have the power to say what place the prisoner shall occupy in the court-room, and whether at any time he shall stand or sit, and be covered or uncovered ; and he must have the power at all times to keep the prisoner within sight of the court, the jury, the counsel and the witnesses. The history of the constitutional provision referred to clearly demonstrates that it was not intended to reach a case like this. (Story's Con. Lim., § 1788 ; i Steph. Hist. Cr. L., 440.) The main purpose of the provision was to prohibit the compulsory oral examina- tion of prisoners before trial, or upon trial, for the pur- pose of extorting unwilling confessions or declarations implicating them in crime. It could reach further only in exceptional and peculiar cases coming within the spirit and purpose of the inhibition. A murderer may be forci- bly taken before his dying victim for identification, and the dying declarations of his victim may then be proved 20 SHORT STUDIES IN EVIDENCE. upon his trial for his identification. A thief may be forcibly examined and the stolen property may be taken from his person and brought into court for his condemna- tion. A prisoner's person may be examined for marks, and bruises, and then they may be proved upon his trial to establish his guilt ; and it would be stretching the con- stitutional inhibition too far to make it cover such cases and cases like this, and the inhibition thus applied would greatly embarrass the administration of justice." 2. In criminal cases. It seems that the defendant in a criminal case may exhibit his body to the jury. Thus in Campbell v. State, ^ it being a material question whether certain footprints were made by the prisoner, he was permitted by the court to exhibit his naked feet to the jury, that they might see whether he could have made the tracks, and also to walk over the sawdust on the floor of the court-room in front of the jury-box ; and his counsel, having measured the tracks, commented on the difference between them and those described by the witnesses for the prosecution. The court, commenting , on this practical test, cited i Hale P. C, 136, where a prisoner charged with rape successfully defended himself "by being permitted to show privately to the jury that he had a frightful rupture, which made it impossible he could be guilty." In a recent case in Texas, the defendant being indicted for aggravated assault by biting off a piece of the com- plainant's ear, the complainant was permitted to exhibit the maimed ear to the jury. In his brief in People v. Kelly,^ Mr. John H. McKinley, complaining that the complainant was permitted to show his maimed hand to the jury, said : " No gaping wound of Ceesar can be used in this age to convict the inflictor." But the court held otherwise. The most singular instance of such an exhibition was. that made at a court in Mercer county, Pennsylvania. ' 55 Ala., 80. " 94 N. Y., 526. PRACTICAL TESTS IN EVIDENCE. 21 A young woman named Scott, who was soon to become a mother, appeared before a Mercer county justice of the peace, and swore out a warrant for the arrest of a young man named Bloodgood on a charge of assault and bat- tery. Bloodgood was arrested. The young woman swore that two weeks previously the prisoner had come to her house, and as she objected to his remaining, he had choked her until she was almost unconscious, and had twisted her .left wrist, almost dislocating it. She said the marks of his fingers and thumb were visible on her throat for several days, and her wrist had remained crooked for some time. She had no witnesses of the assault. Bloodgood admitted having been at the young "woman's house, but denied the assault. The justice held liim however for trial. The case came on for trial. The complainant appeared, carrying her three-weeks'-old baby. She swore to having been assaulted by the pris- oner, as she had sworn before the justice of the peace, and that she was the mother of the child in her arms. Her lawyer then offered to show the baby to the jury ; after examining- it the judge allowed this, and the prose- cuting lawyer took the infant to the jury, and uncover- ing its throat, revealed to them the distinct marks of four fingers on one side of it, and the plain and unmistakable impression of a thumb on the other. After the remark- able birth-marks had been examined by the jury, the lawyer uncovered the baby's left wrist. It was twisted out of shape and swollen, as if it had been suddenly wrenched. These marks on the throat and the twisted wrist corresponded exactly with the injuries the baby's mother swore, more than a month before it was born, to having received at the hands of the prisoner Bloodgood. After this -startling and most extraordinary evidence was presented, the prosecution rested its case. The prisoner was convicted. It has been held, however, that the prisoner may not thus voluntarily exhibit his • voice. In Com. v. Scott,' ' 123 Mass., 222; s. c, 25 Am. Rep., 8i. 22 SHORT STUDIES IN EVIDENCE. where a cashier undertook to identify a masked burglar by his voice, it was held not competent for the defendant "to prove what was his usual and natural voice, by using his voice in the court-room ' to repeat something,' when not under oath," as " there was no way of determining whether he would use his voice in the court-room in a natural or in a constrained or simulated manner." He might have mitigated his voice, like Bottom — put a mask on it, so to speak. But if he had sworn to his voice, the court seemed to imply that the ruling would have been different. And he may, on request of the prosecution, exhibit his voice by his own consent. In Johnson v. Com.,' at the request of the district attor- ney, the prisoner stood up and repeated certain words, in order to afford a witness, then " on the stand, an oppor- tunity of seeing the prisoner and hearing the sound of his voice, so that she might the more intelligently testify whether he was or was not the man by whom she was con- fronted on the night in question." It did not appear that any objection or exception was taken, and the court held that the prisoner for this reason could not complain. But obiter the court said it could not be construed as a case of compelling the prisoner " to give evidence against himself," and likened it to the right of search of premises for stolen property. (It is noteworthy that at the same time, the district attorney asking the prisoner to put on a slouched hat, and his counsel objecting, the request was not pressed.) But whether the defendant in a criminal case can be compelled to expose his person is a very serious question, on which the authorities are conflicting. In Blackwell v. State ^ it was held error for the court to require the prisoner to stand up and show his leg in order to disclose where it had been amputated ; and in Day v. State ^ it was held : " Nor can one by force compel another ' lis Penn. St., 369. = 67 Ga., 76. ' 63 Ga., 667. PRACTICAL TESTS IN EVIDENCE. 23 against his consent to put his foot in a shoe track, for the purpose of using it as evidence against him on the criminal side of the court." In People v Mead^ it was held that a prisoner on trial for crime cannot be required, against objection, to try on a shoe to determine whether tracks found at the scene of the offence were his own ; nor if he objects, can he prop- erly be required to measure the shoe after trying it on. But if he tries it on without objection, the ruling that he must measure it is not prejudicial error, as any witness could do it as well as he. In Stokes v. State ^ it was held that the prisoner was not compellable to put his foot into a pan of mud brought into court. In McGuff V. State,* on a charge of rape, the prosecu- trix being a child of seven and one-half years of age, the court held that it was not error to refuse to compel an examination of the child by physicians, in order to deter- mine if she had been injured. In respect to self-criminating demonstration, it was held, in Cooper v. State,* that the prisoner's refusal to make foot- prints, under a promise of release if the tracks when made did not exactly correspond with those of the suspected party, may not be used against him. The court rely on Stokes v. State,^ and the court say : " The principle of the decision from which we have quoted is that it would have been unlawful to force the witness to give (or make) evi- dence against himself; and the plan adopted and per- mitted accomplished the same result by indirect means. Thus regarded and considered, it is difificult to perceive a difference in its hurtful bearing between making the offer in the court-room before the jury and proving by a credi- ble witness that it had been unsuccessfully made outside of the court-room." ' 50 Mich., 228. ' S Baxt., 619. ' 88 Ala., 147. * 86 Ala., 610; II Am. St. Rep., 84. ' S Baxt, 619; 30 Am. Rep., 72. 24 SHORT STUDIES IN EVIDENCE. In Cupp V. Commonwealth,^ an indictment for assault with a knife, the people's attorney put his hands on the face of the prosecuting witness, and said : " Gentlemen, look at that scar on his face ; is that worth only fifty dol- lars?" This was objected to, but not rebuked by the court, and was held error. The ground seems to have been that it was a departure from the statutory direction of "the mode and order in which testimony may be given to the jury." On the other hand, it has been held that the prisoner may be compelled to furnish personal evidence of his identity by putting his foot in a track.^ And in State v. Ah Chuey ^ the defendant was held compellable to expose his arm to determine whether there were tattoo marks on it as described by witnesses. This case was decided by a majority of one, and there was- a powerful written opinion in dissent. In State v. Garrett* the prisoner was held properly compelled to' exhibit her hand, which she pre- tended to have been burned. In Spicer v. State ^ it was held that the submission by a female defendant of her per- son to a private examination by physicians, is not a con- fession, although the result of the examination was a disclosure of facts of a criminative character ; and such facts are competent evidence against her, although she was induced to submit to the examination through the assurance that " it would be the best thing- for her that she could do." In State v. Prudhomme ® the court said: "The tracks of the murderer were found near the scene of the murder ; and to enable the witness who saw the tracks to state how they corresponded in size with the feet of the prisoner, he was forced to take his feet from under a chair where he had put them. This the prisoner s ; 87 Ivy., 35- "' State V. Graham, 74 N. C, 646; s. c, 21 Am. Rep., 493; Walker 7, State, 7 Tex. Ct. App., 245 ; s. c, 32 Am. Rep., 595. ' 14 Nev., 79; s. c, 33 Am. Rep., 530. ' 71 N. C, 85 ; s. c, 17 Am. Rep., i. ■■ 69 Ala., 159. '25 La. Ann., 523. PRACTICAL TESTS IN EVIDENCE. 25 counsel calls forcing him to give evidence against himself. A mere statement of the facts shows how utterly unten- able the objection is. The witness was required to look at the feet of the prisoner in order to testify to facts which might enable the jury to connect the prisoner with the perpetrator of the crime, and we are unable to perceive how any constitutional right of the prisoner was infringed by compelling him to place his feet where they could be seen by the witness." It seems to me that the better reason is with the cases holding that the prisoner is not compellable to expose his person, and thus furnish evidence against himself; at all events, that the prisoner is not compellable to expose those parts of his body ordinarily concealed ; and cer- tainly that he is not bound to try an experiment which may conduce to his own conviction. The cases holding the contrary liken the exposure to compelling a prisoner to remove a veil or mask. The distinction however is, that there the prisoner tries to conceal evidence which is ordinarily visible, and from which the jury have a right to draw a conclusion, and the removal simply restores that evidence. The prisoner has no more right to hide his face, his foot, or his hand than to secrete his whole per- son. Therefore the Garrett and Prudhomme cases were rightly ruled. The court also liken the ruling to the searching a prisoner and finding false keys or stolen prop- erty upon him. The sufficient answer to that is, that such things are not part of his person, but are circumstances by which he has surrounded himself. When these circum- stances are disclosed, it is not the man who is compelled to give evidence against himself, but the circumstances by which he has environed himself. In Walker v. State,^ counsel acutely argued that " if this prisoner can be com- pelled to make an impression with his foot in order to see if it is similar to the impression made by the foot of the person who committed the crime, then if he were charged with forgery he could be compelled to take a pen, and ' 7 Tex. Ct. App., 245. 26 SHORT STUDIES IN EVIDENCE. write in order to see if his handwriting was similar to that of the party who had committed the forgery." (This he may now by statute be compelled to do in England.) The decision in State v. Ah Chuey, founded on State v. Graham and Stokes v. State, is distinguished on the ground that there "the prisoner was asked in the pres- ence of the jury to make evidence against himself," — a perfectly futile distinction. The worst of this decision is that it permits secondary evidence of incompetent evi- dence, — evidence of ,an experiment out of court, which, if tried in court, might not have been conclusive against the prisoner. The concealment of the hand in the Gar- rett case, and of the foot in the Prudhomme case must be classed with the mask and veil as an instance of an attempt to conceal evidence ordinarily visible. The jury of course have a right to scrutinize patent facts, such as stature, shape, complexion, hair, features, scars, loss or peculiarity of members, etc. These are public matters, which the public cannot be prevented from viewing, and which the prisoner knows are liable to comment and com- parison. Of these, witnesses who observed them may speak, or the jury may look at them in court. So if wit- nesses have observed the patent characteristics of gait and voice, they may testify to them, or the jury may observe the prisoner's gait as he naturally and voluntarily walks, or his voice as he voluntarily speaks. But will it be contended that on a question of resemblance of gait the court can compel the prisoner to get up and walk, or that on a question of voice they can compel him to speak? It is impossible to distinguish the Stokes case. If the court had considered the evidence competent, it would have compelled the prisoner to "make tracks," or in- structed the jury that his refusal might be considered against him. The court said: "In the presence of the jury the prisoner is asked to make evidence against him- self" That is exactly what he was asked in the tattoo case, and what he was compelled to do in the Graham case. It is immaterial whether he is compelled to do it out of court or in court. The distinction drawn by the PRACTICAL TESTS IN EVIDENCE. 27 court in the Walker case against the Stokes case would apply- just as well to the Graham case. Neither Wharton nor Bishop expresses any opinion on this question ; but it seems to me that on principle a prisoner cannot be compelled to say anything, nor do anything, nor submit to any act addressed to his actual person, which may tend to crimi- nate him. I agree with the dissenters in the Ah Chuey case when they say: "My conclusion is that under both the Constitution and the common law, it was error to compel the defendant, at the trial, to make a disclosure, which with the testimony of witnesses, tended to prove him to be Ah Chuey, and indirectly to establish his guilt. I think the error is as great as it would have been had the court compelled the defendant to admit that he was Ah Chuey. It accomplished the same result.- In crimi- nal cases the State must prove guilt without the aid of the accused at the trial, unless the guaranteed rights are waived, when a waiver is permissible." But having voluntarily exhibited a scar on his head to the jury, he may afterwards be compelled to show it to a physician to enable him to testify whether it is old or recent,^ In bastardy cases Whether the child may be exhib- ited in bastardy proceedings to enable the jury to deter- mine its paternity from its resemblance to the putative father, is a mooted question. The child was exhibited without objection in the celebrated Whistelo case.^ The exhibition of a child two years old was allowed in State v. Smith; ^ but in Statb v. Danforth* it was held error for one three months old to be exhibited. The court in the latter case said that all extremely young babies look sub- stantially ahke. (In a " note by the printer," in i Thomp- son on Trials, § 856, It is said: "The judge who made this ruling must have been an old bachelor.") The ' Gordon v. State, 68 Ga., 814. *3 Wheel. Cr. Cas., 194. " 54 Iowa, 104. * 48 Iowa, 43 ; s. c, 30 Am. Rep., 387. 28 SHORT STUDIES IN EVIDENCE. resemblance was deemed competent in Gaunt v. State;^ The court said : " In cases involving handwriting, for instance, it has always been deemed pertinent to have a comparison of hands. Likewise in sales by sample in patent cases, in trade-mark and infringement suits, resemblance is of the essence of the proof Nor can it be said that the tend- ency of recent applications of this rule has been toward restriction, — rather the reverse. In the courts of a sister State, New York, operas have been performed in court, and comic songs sung, plagiarized papers have been read, and the so-called materialization of spirits exhibited, — all within the scope of the doctrine of the relevancy of resem- blance ; while in a case now pending in the courts of Pennsylvania a board of experts have been ordered to inspect a certain contrivance called the ' Keeley Motor,' with a view to the determination of its resemblance or mechanical equivalency to a motor described in plaintiffs partnership bill. Examples of the application of the same rule to family likeness are not wanting. In the notorious Douglas case, House of Lords, 1769, Lord Mansfield allowed the resemblance of the appellant and his brother to Sir John Stewart and Lady Jane Douglas to be shown, as well as their dissimilarity to those persons whose children they were supposed to be ; while as late as 187 1 Lord Chief Justice Cockburn, in the Tichborne case, held that the resemblance of the claimant to a family daguerreotype of Roger Tichborne was relevant, and inti- mated that comparison of features between the claimant and the sisters of Arthur Orton would be permitted. The extension of this rule to cases of family likeness in bas- tardy and other suits of alleged parentage cannot be ques- tioned seriously on principle ; the illusory nature of such resemblances rather imposing a duty on the court in con- junction with the admission of the proof than militating against the relevancy of the inquiry. Such has been the view taken by the courts in this country. * * * ' 50 N. J. Law, 490. PRACTICAL TESTS IN EVIDENCE. 29 There seems to be no good reason why a jury, if the ques- tion of resemblance is to be considered by them, sliould be compelled to base their decision upon a second-hand view. The effect of the substitution of testimony for inspection is to put the subject-matter of investigation one further remove from its responsible judges, and thus to add to the infirmities inherent in proof of this class the additional danger of bias and imposition. Inspection is like admission, in that while not testimony it is an instru- ment for dispensing with testimony, and in a doubtful case the class of testimony it dispenses with might be a con- trolling circumstance. Thus regarded, and in view of the almost utter worthlessness of the testimony of witnesses adduced on the question of the resemblance of a bastard to an alleged parent, it is obvious that inspection is on this account also to be preferred." In Finnegan v. Dugan ^ the child was in court, and the judge, against defendant's objection, charged the jury that they might consider whether there was any resemblance between the child and the defendant. In affirming the judgment the Supreme Court says : " It is a well-known physiological fact that peculiarities of feature and personal traits are often transmitted from parent to child. Taken by itself, proof of such resem- blance would be insufficient to establish paternity, but it would be clearly a circumstance to be considered in con- nection with other facts tending to prove the issue on which the jury are to pass." On the same side are State v. Woodruff- Gilmanton v. Ham,^ State v. Arnold,* Crow v. Jordon.' In Petrie v. Howe® the question did not precisely arise; but the court said : " If this species of physiological evi- ' 14 Allen, 197. " 67 N. c, 89. ' 38 N. H., 108. * 13 Ired. Law, 184. ' 49 Ohio St., 655. • 4 Thomp. & Cook (N. Y. Supr. Court), 85. 30 SHORT STUDIES IN EVIDENCE. dence is admissible in a court of justice, it should not be covertly given." This was an action of crim. con.; and a child, alleged to be the offspring of the adulterous inter- course, was in court, and the plaintiff was permitted to testify that the hair of four other children previously born of himself and his wife was black. This was held error. But the question fairly arose in respect to a child less than one year old, and the contrary view was taken, in Hanawalt v. State.^ The court said : " In the Douglas case Lord Mansfield is reported as saying : ' I have always considered likeness as an argu- ment of a child's being the son of a parent ; and the rather as the distinction between individuals in the human spe- cies is more discernible than in other animals. A man may survey ten thousand people before he sees two faces perfectly alike, and in an army of a hundred thousand men every one may be known from another. If there should be a likeness of feature, there may be a discrim- inancy of voice, a difference in the gestures, the smile, and various other things, whereas a family likeness runs generally through all these, for in everything there is a resemblance, as of features, size, attitude, and action.' This language attributed to Lord Mansfield is taken from Wills on Circumstantial Evidence, p. 123. This author, on the next page, says that in a Scotch case, when the question was, who was the father of a certain woman, an allegation that she had a strong resemblance in the fea- tures of the face to one of the tenants of the alleged father was held not to be relevant as being too much a matter of fancy and of opinion to form a material article of evi- dence. In the case of Jones v. Jones, supra, the learned judge who wrote the opinion refers to the language used by Lord Mansfield in the Douglas case, and disapproves of it as authority, and thinks it has not been followed as a precedent in the English courts ; and he quotes with approval the language of Justice Heath in the case of ' 64 Wis., 84 ; s. c, 54 Am. Rep., 588. PRACTICAL TESTS IN EVIDENCE, 31 Day V. Day, decided in 1797, in which the learned judge stated to the jury ' that resemblance is frequently exceed- ingly fanciful, and he therefore cautioned the jury as to the manner of considering such evidence.' In any case this kind of evidence is inherently unsatisfactory, as it is a matter of general knowledge that different persons, with equal opportunities of observation, will arrive at different conclusions, even in the case of mature persons, where a family likeness will be fully developed if there be any. And when applied to the immature child its worthlessness as evidence to establish the fact of parentage is greatly enhanced, and is of too vague, uncertain and fanciful a nature to be submitted to the consideration of a jury. * * * We daily observe the most striking differences in physical traits between parent and child, while individuals born in different parts of the globe have been mistaken for each other. And even as to malformations, although some remarkable resemblances in this respect have been noticed between father and child, yet we should act unwisely in relying too much on them." The same doctrine was laid down in Clark v. Bradstreet^ in respect to a child six weeks old* The court said : " In a case like this, where the child was a mere infant, such evidence is too vague, uncertain and fanciful, and if allowed would establish not only an unwise but dangerous and uncertain rule of evidence. While it may be a well- known physiological fact that peculiarities of form, feature and personal traits are oftentimes transmitted from parent to child, yet it is equally true, as a matter of common knowledge, that during the first few weeks or even months of a child's existence it has that peculiar immaturity of features which characterizes it as an infant, and that it changes often and very much in looks and appearance during that period. Resemblance then can be readily imagined. This is oftentimes the case. Frequently such resemblances are purely notional or imaginary. What ' 80 Me., 4S4; 6 Am. St. Rep., 221. 32 SHORT STUDIES IN EVIDENCE. may be considered a resemblance by one may not be per- ceived by another having equal knowledge of the parties between whom the resemblance is supposed to exist. It there should be a likeness of features, there might be a difference in the color of the hair or eyes. As was said by the court in People v. Carney, 29 Hun, 47: 'Common observation reminds us that in families of children different colors of hair and eyes are common, and that it would be a dangerous doctrine to permit a child's paternity to be questioned or proved by the comparison of the color of its hair or eyes with that of the alleged parent.' Mr. Justice Heath, in the case of Day v. Day, at the Huntington Assizes in 1797, upon the trial of ejectment, where the question was one of partus siippositio, admitted that resemblance is frequently exceedingly fanciful, and there- fore cautioned the jury in reference to such evidence. And in a trial in bastardy proceedings the mere fact that a resemblance is claimed would be too likely to lead cap- tive the imagination of the jury, and they would fancy they could see points of resemblance between the child and the putative father. As in the case at bar, where the infant was but a few weeks old, such evidence if allowed in determining the paternity of the child would be exceed- ingly fanciful, visionary and dangerous." So in respect to a child six months old.^ The same was held in Risk v. State^ and Reitz v. State.^ In Eddy v. Gray,^ Jones v. Jones,^ Keniston v. Rowe," the court hold that testimony of witnesses that the child looks like or resembles in appearance the person charged to be the father is not admissible ; and in People v. Car- ney ^ it was held error to allow the district attorney to ask ' Overlock v. Hall, 81 Me., 348. ' 19 Ind., 152. = 33,Ind., 187. ' 4 Allen, 435. ' 45 Md., 144. • 16 Me., 38. ' 29 Hun, 47. PRACTICAL TESTS IN EVIDENCE. 33 the mother, as a witness, to look at the child, then in court, and state what the color of its eyes was. In the words of the pastoral poet, nimium ne crede colori. It seems that at any age such evidence is extremely unsafe and untrustworthy. The books are full of well- authenticated cases of mistaken identity. Almost the first thing which two adult strangers do on being presented to one another is to trace resemblances in each other to others of their acquaintance. Another point in which such evi- dence must be regarded as unsafe consists in the fact that no two people will agree on an alleged resemblance, even in the same family. The moment a baby appears in a household the monthly nurse declares him to be the living image of his papa or her mamma, as the case may be, while on the other hand, the most intimate friends of the family see no resemblance to either parent, but think the new-comer " favors " his great-uncle, or discover no likeness to anybody in particular, but only the vacuity and stolidity of countenance general in the infant class. It is my belief that most infant resemblances are due to the imag- ination of the observers or the desire to compliment the parents. I once saw a babe which was the living image of the first Napoleon ; and if it had been born about sixty years earlier, and had been put in a basket and left at his door over night, nothing would have convinced the jealous Josephine that her husband, instead of mounting barbed steeds to fright the souls of fearful adversaries, had not been capering nimbly in a lady's chamber to the lascivious pleasings of a lute, say in the apartment of Madame de Remusat, or the Duchesse d'Abrantes, or some other of the fool-women of the Empire. There can be no doubt that "heaven lies about us in our infancy." There would be as much sense in tracing a resemblance between the voice of the child and that of the putative father as between their faces, or rather more, in fact — for the voice of infants is frequently more mature than the face. Such evidence is not good, Qv&n prima facie. 34 SHORT STUDIES IN EVIDENCE. As to the competency ot photographs to show resem- blance In such cases, we shall consider later. Race. To determine a question of race, however, the jury may look at the person.^ Age. But the jury may not look at an infant for the purpose of determining how old he is.^ This was an indictment for selling intoxicating liquor to an infant ; and the defense was that the seller supposed him to be of age. The infant was well-grown, eighteen years old, and weighed one hundred and seventy-five pounds. The court said: '-Doubtless evidence would have been com- petent to show the appearance of the witness as to age. But we know of no principle of law that would permit the jury to pass upon the age of the witness by his appearance to them." The contrary was held in Com. v. Emmons.^ Human remains. In State v. Wieners,* a murder case, the bones of the deceased were exhibited in court, to explain the relative attitude and position of the deceased and the defendant at the time in question. In Grangers' Life Ins. Co. v. Brown ^ the insurers asked for an exhuma- tion of the body of the insured for the purpose of show- ing that he had suffered a fracture of the skull ; but this was refused on account of the delay of eighteen months. The court intimated that it might be done in a proper case, but said " it would be a proceeding repugnant to the best feelings of our nature." The same view was taken in Knowles v. Crampton," an action for a broken rib, where counsel offered " to show the exact location of the ribs in the human system by means of a section of a human body." The refusal was held discretionary. But on a ' Jones V. Jones, 45 Md., 151 ; Garvin v. State, 52 Miss., 207 ; War- lick V. White, 76 N. C, 175; Whistelo case, 3 Wheel. C. C, 194. ' Ihinger v. State, 53 Ind., 251. ° 98 Mass., 6. * 66 Mo., 13. ' 57 Miss., 308; s. c, 34 Am. Rep., 446. • 55 Conn., 336. PRACTICAL TESTS IN EVIDENCE. 35 recent trial in the Superior Court, at Boston, a skeleton was brought into court and used by the surgical experts to point the plaintiff's bodily injuries in question. The reporter says : " This uncanny object became the butt of irreverent remarks by the lawyers." In McNaier v. Ry. Co.^ the court allowed the exhibition of a skull as a dia- gram, as well as surgical instruments, to explain the opera- tion necessary to relieve the injury, observing that they could not "inflame the passions of the jury." In Com. V. Brown,'-^ an indictment for procuring death by abortion, injured parts of the woman's body, preserved in spirts, were allowed to be exhibited to point expert testimony. In the celebrated case of Com. v. Webster, for the murder of Dr. Parkman, the artificial teeth of the' deceased, identi- fied by the dentist who made them, by fitting them to the plaster mould, were the damnatory evidence. On the celebrated trial of Billings for the murder of his wife, in Saratoga county. New York, in 1880, skulls were pro- duced in court to show the result of experiments in firing at them. In Wehle v. U. S. M. Ace. Assn. the Superior Court of New York held ^ that exhumation would not be allowed, although the policy on which the action was brought provided that " any medical adviser of the asso- ciation shall be permitted to examine the person or body of the insured in respect to any alleged injury or cause oj death, when and as often as he requires." The court cited Gransrer's Ins. Co. v. Brown,* and observed: *&^ " When a body has once been buried, the law, having a proper respect for the dead, a just regard for the sensibili- ties of the living and for the due preservation of the public health, has jealously guarded the grave against ruthless intrusion. Exhumation has been tolerated only upon con- ' 51 Hun, 644. "^ 121 Mass., 69. ' 12 N. Y. Law Jour. * 57 Miss., 308; 34 Am. Rep., 446. 36 SHORT STUDIES IN EVIDENCE. sent of the next of kin, for substantial reasons satisfactory to the family and which appealed to the finest instincts of their nature, or upon permission of the proper municipal authority, in extreme cases, to answer the imperative requirements of justice or some urgent public necessity which overruled the apparent impropriety and made the act legal. Dissection is justified only where other and less objectionable means of ascertaining the cause of death fails. Here the death was evidently by drowning ; the circumstances clearly demonstrated the fact, and the coro- ner's jury so found. An autopsy after burial would have looked like a handing over of the body, as under suspicion, for mercenary ends, for experimental, not scientific or legal purposes ; would have been considered indecent, shocking to the sensibilities of the relatives, and an act ' at the bare idea of which nature revolted.' (King v. Lynn, 2 T. R., 734.) It was unnecessary, and nothing that appears in the case would justify it. It would there- fore have been sacrilege to have disturbed the dead man's grave or mutilated his remains, which, by every notion of propriety, should be allowed to rest in peace." Conduct of arrested person. — Evidence of the flight of one accused of crime is always competent. In Greenfield V. People ^ evidence was held admissible that the prisoner, accused of murdering his wife, shed no tears on account of her death. Mr. S. C. Huntington argued against this evidence as follows : "Do the profoundest sorrow, the strongest and most poignant grief and mental agony, always, with each per- son, under all circumstances, man|fest themselves by tears? If the question can, in accordance with the laws of the human intellect, its passions and emotions, be answered in the affirmative, then said evidence was legal. If the sci- entific answer be in the negative, then such evidence is illegal, and the judgment must be reversed. To answer said question intelligently and scientifically, all that is or ' 85 N. Y., 75. PRACTICAL TESTS IN EVIDENCE. 37 ■can be known of the intellect, the passions and emotions of man must be put in requisition. If the answer to such question be not a universal affirmative, then defendant might be an exception, and the evidence would then be illegal. The record of man proves, the consciousness of man convinces, the experience of all men demonstrates, each known classical writer upon this subject corroborates and verifies, this universal axiom — that the deepest anguish, the most profound and life-consuming grief, the blackest despair, do not manifest themselves in tears. The fiery furnace of grief consumes the foundation of tears. He who suffers most discloses his agony least The strongest natures, the most noble of earth's creatures, control their emotions, nor manifest to human eye one sign of the mental agony preying upon their vitals. Prometheus, chained to the rock, with the vulture gnaw- ing at his vitals, did not utter a cry nor shed a tear. Only the weak manifest the sorrow which they are unable to endure, by the tears which they are unable to restrain. A true man, conscious of his innocence, overwhelmed by a dark ocean of affliction, crushed beneath a volcano of sus- picion, burned to the quick, through every life-strung nerve and organ of the brain by grief agony and fell despair, as was poor Greenfield on that awful day, was never known to shed a tear. The world's history of human misfortunes and agony verifies this assertion. The weak may weep at the loss of a bauble ; the strong shed not a tear thousfh whelmed in a fathomless ocean of irre- pressible (inexpressible ?) grief and unutterable despair. Such was the awful fate of the defendant, the most unfor- tunate of men, upon that fatal day. He must die, if such evidence be legal, because the awful circumstances, the laws of his own nature, the laws of the emotions and the laws of the Eternal Ruler of the universe, and the black demon of despair gnawing at his vitals, rendered it impos- sible that he, during the first crisis of his terrible agony, should find relief in tears. Such is not the divine, atjd such is not the. human law." 'SS SHORT STUDIES IN EVIDENCE. The evidence was held admissible ; but Miller, J., observed : " Innocent persons, appalled by the enormity of a charge of crime, will sometimes exhibit great weakness and terror, and those who have been crushed with the weight of a great sorrow will manifest the greatest composure and serenity in their grief, and meet it without the shedding of a tear." It is probable that the jury laid more stress on Green- field's reply to a witness, who said it was a sad affair that occurred at his house, " Yes, I had a load of oats stolen." In People v. Gonzalez ^ evidence was allowed that when the accused was confronted with the body of the man whom he was accused of having murdered, he " started." This was objected to because it was " like the rule applied to witches in the olden time." In a recent case in the Court of Appeals of Kentucky, on appeal from a conviction of murder, it was held proper to show that the accused, two hours after the murder,, wiped some blood off the body, smelled it and then gave his finger a jerk to throw the blood off The court said : " If the appellant had gotten on his knees, and bellowed over the corpse like a bull, it would have been proper to go to the jury, as showing the condition of his mind." I have for a long time believed this kind of evidence very unsafe, and that if admitted, it should be accompanied by a clear warning from the judge of its inconclusive char- acter. It might well be argued that the omission to show grief should tend to give an impression of innocence, for a cunning wrongdoer would be apt to feign grief Accord- ing to my observation, the waters of deep grief run still. Men who are easily moved by the fictitious sorrow of lit- erature and the stage will sometimes assume strange com- posure when overtaken by great personal sorrow. On the other hand, the widower who knocks his head against the wall, avows that his heart is in the grave, and makes ' 35 N. Y., 49. PRACTICAL TESTS IN EVIDENCE. 39 himself a nuisance to his friends by dwelling on his " dear, lost, sainted Maria," is quite apt to marry again instantly after the lapse of the conventional year, and sometimes sooner. Many men are like Job Trotter, who had " a main in his head as was always turned on." In one of Jean Paul Richter's tales, "Walt and Vult," a testator left his estate fo that one of his relatives who should first shed a tear in his memory on the reading of the will. The struggles of the assemblage to pump up the essen- tial condition precedent are very amusingly described. Great and sincere grief is more apt to stun than to melt, and is far more painful and dangerous to the sufferer than the noisy and demonstrative. The great seer of the human mind said most exquisitely and truthfully, " Give sorrow words ; the grief that does not speak Whispers the o'erfraught heart and bids it break." And again, " Sorrow concealed, like an oven stopped, Doth burn the heart to cinders." Many a juryman is melted to tears by the paid rhetoric and oratory of counsel, and would not shed a tear on finding his wife or child dead on his return home. Photographs. Photographs have been much resorted to in our courts in late years for many purposes, as in questions of per- sonal identity, to show localities, to test handwriting, and the like. In Eborn v. Zimpleman ^ counsel made the following ingenious plea for the introduction of photo- graphic copies instead of original writings : " Until photography was discovered, nothing in nature was exactly like any other thing, except that thing's image reflected in a polished surface, which disappeared when the object was removed. Until this discovery ' 47 Tex., 503; s. C, 26 Am. Rep., 315. 40 SHORT STUDIES IN EVIDENCE. there was therefore reason in the rule which required the production of the original paper writing as the best evidence of its appearance. Science now steps forward and relieves the difficulty, by making permanent, and materializing with minute exactness the reflected image. What reason thus remains why a discovery which destroys the foundation for a rule should not be used as proposed in the ascertainment of right ? Every object seen with the natural eye is only seen because photo- graphed on the retina. In life the impression is transi- tory ; it is only when death is at hand that it remains permanently fixed on the retina. Thus we are secure in asserting that no witness ever swore to a thing seen by him without swearing from a photograph. What we call sight is but the impression made on the mind through the retina of the eye, which is nature's camera.. Science has discovered that a perfect photograph of an object, reflected in the eye of one dying, remains fixed on the retina after death. (See recent experiments stated by Dr. Vogel in the May number, 1877, of the Philadelphia Photographic Journal.) Take the case of a murder committed on the highway ; on the eye of the victim is fixed the perfect likeness of a human face. Would this court exclude the knowledge of that fact from the jury, on the trial of the man against whom the glazed eye of the murdered man thus bore testimony? In other words, would a living eye-witness, whose memory only preserved the fleeting photograph of the deed, be heard, and the permanent photograph on the dead man's eye be excluded ? We submit that the eye of the dead man would furnish the best evidence that the accused was there when the deed was committed, for it would bear a fact, needing no effort of memory to preserve it. It would not be parol evidence based on uncertain memory, but the handwriting of nature, preserved by nature's camera." The photographic copies were held improper in that case, and leaning to the same view is Matter of Foster's PRACTrCAT, TKSTS IN EVIDENCE. 41 Will ; ^ while the contrary view is supported by Re Stephens.^ Photographs of the defendants were received in People V. Smith •' to prove their identity with persons formerly convicted in Philadelphia. In comparison of handwriting magnified photographs are much received, under decisions like that in Marcy v. Barnes,* which holds them admissible " under proper pre- cautions in relation to the preliminary proof as to the exactness and accuracy ; " but they were excluded in Tome v. Railroad Co.,^ the court observing: "Photog- raphers do not always produce exact facsimiles of the objects delineated, and however we may be indebted to that beautiful science for much that is beautiful as well as ornamental, it is at last a mimetic art, which furnishes only secondary impressions of the original, which vary according to the lights and shadows which prevail while being taken." And in Matter of Foster's Will ^ the court leaned to the same view, observing : " It is not always true that every photographic copy would be safe on any inquiry requiring minute accuracy. Few copies can be so satisfactory as a good photograph. But all artists are not competent to make such pictures on a large scale, and all photographs are not absolutely faithful resem- blances. It is quite possible to tamper with them ; and an impression which is at all blurred would be very apt to mislead on questions of handwriting where forgery is claimed. Whether it would or would not be permissible to allow such documents to be used, their use can never be compulsory. The original and not the copy is what the Jury must act upon, and no device can properly be allowed to supersede it." This was said of the proposal ' 34 Mich., 21. " 9 C. P., 187 ; s. c, 8 Eng. (Moak), 481 ; Leathers v. Salvor Wreck- ing Co., 2 Wood, 682. ' 121 N. Y., 578. ' 16 Gray, 161. '39 Md., 36; s. c, 17 Am. Rep., 540. " 34 Mich., 21. 42 SHORT STUDIES IN EVIDENCE. to furnish the jury with photographic copies of a will alleged to be forged. Photographs have been admitted to show premises, as. a highway, Blair v. Pelham;^ a cellar flioor, Cozzens v. Higgins ;^ the grade of a street, Church v. Milwaukee;' the scene of an accident, Dyson v. Railroad Co. ; * and to dispense with a view by the jury, Locke v. Railroad Co.' In Church v. Milwaukee the court said : " Of course, the main thing was to bring before the minds of the jury the location of the plaintiff's lot and improvements and all the surroundings ; and this had to be done by the description of witnesses acquainted with the place, or by pictures or diagrams. If the photograph was a perfect representation of the premises, why should it not be admitted in evidence to aid the jury, in deter- mining how they were affected by the alteration of the grade ? It is said that the premises themselves were the highest evidence, and if the jury could have had a view of them, it would have greatly assisted them in passing upon the question before them. So undoubtedly it would. But as a view was impracticable, the jury had to obtain the best idea they could of the location of the premises with reference to the changed grade. They were compelled to rely upon the description of witnesses, pictures and diagrams, and such means of information as they had before them. And it appears to us that it was no violation of the rules of evidence to allow the photo- graph of the premises to go to the jury with the other testimony." So photographs have been admitted as likenesses of deceased persons.'' ' ii8 Mass., 421. ' 33 How. Pr., 439. ' 31 Wis., 512. * 57 Conn., 9; s. c, 14 Am. St. Rep., 82; Chestnut Hill, etc., Co. V. Piper, Pennsylvania Supreme Court, 1884. ' 46 Iowa, log. ° Udderzook v. Commonwealth, 76 Penn. St., 340 ; Ruloff v. People, 45 N. Y., 213. PRACTICAT. TESTS IN EVIDENCE. 43 We may add the case of Cooper v. St. Paul City Ry. Co.,^ an action for personal injuries by negligence. The court said : " For some months prior to the trial the plaintiff had resided in Chicago, III, and his testimony was taken by deposition. It was claimed that his physical condition was such that he could not be present at the trial. Against the objections of defendant's counsel, a photo- graph, which, according to the testimony, had been taken a few days before the trial, and was ' a true and correct picture and representation of those parts of Mr. Cooper's body that it purports to show,' was received in evidence. This ruling is specified as error. We are assured by counsel, in their brief, that the expression upon the face of a lost soul, as portrayed by the combined imaginations of Dore and Dante, would be extremely jovial in com- parison with that depicted upon plaintiff's face In this work of art. We are not prepared to disagree with counsel In this contention, or their further claim that the expression upon a man's face may be easily changed or distorted, and rendered very misleading, when brought before a camera. But the portrait In question has not been forwarded on this appeal, and we have no means of knowing whether It purported to represent anything more than those parts of plaintiff's body which could not have been affected by temporary effort or exertion, or If the whole figure did appear, that the facial expression was of the hideous character so graphically described by the able counsel for defendant, and could have had the effect upon the jury they insist it had. In Albertl v. Railway Co., ii8 N. Y., "]"], it was held that a photo- graph of a plaintiff — his physician testifying that It was taken in his presence, and correctly represented the plaintiff's limbs — was properly admitted in evidence for the purpose of showing the manner in which these limbs were contracted, as the result of alleged injuries. It was said to be competent on the same principle as a map or ' 54 Minnesotk, 379. 44 SHORT STUDIES IN EVIDENCE. diagram. We believe this to be a correct rule, and it has not been shown here that the court below was not strictly within it when making the ruling complained of. See on the general subject, an article in 31 Cent. Law J., 416." As to the admissibility of the photograph of a de- ceased putative father, in bastardy cases, to show the resemblance of the child to him, there is a conflict of authority. In Farrell v. Weitz, ^ it was held inadmis- sible, especially in the absence of evidence of likeness of the photograph to the original. On the other hand, In Re Jessup's Estate,^ it was held not inadmissible, but of little weight. The court said such evidence would be entitled to much less weight as evidence than jsrofert of the persons themselves, and even the latter would not go far towards establishing relationship, since a marked simi- larity between strangers and great dissimilarity between kindred are matters of almost daily observation. Sub- stantially the same was decided in Shorten v. Judd,'' both as to the competency and the value of the evidence. A photograph of a defendant, taken shortly before his arrest, is admissible to show his appearance then as com- pared with his appearance at the time of the trial, he having grown a mustache and otherwise changed his appearance in the meantime.* The Supreme Court of Illinois, in Cleveland, etc., Ry. Co. V. Monaghan,^ observed : " It is also urged, as a ground of reversal, that the trial court refused to admit in evidence certain photographic views of the locality where the accident occurred, and its surroundings. There are authorities which hold that photographs may be received in evidence, under certain circumstances, to assist the jury in understanding the case, provided they are verified by proof as being true ' 160 Mass., 525. • ' 81 Cal., 408; 6 L. R. A., 594. " 56 Kans., 43. ' State V. EUwood, 18 R. I., 234. ' 140 111., 147. PRACTICAL TESTS IN EVIDENCE. 45 t> representations of the subject. In the present case each photograph was taken two months" after the accident occurred, by a merchant, who was a mere amateur pho- tographer, and had never visited the scene of the occur- rence before he took the photographs. One of the material questions was whether or not the view of the train which killed the deceased was obstructed by box cars then standing on a side track, and by other objects near the crossing. The pictures taken were not of the situation as it existed on the day of the injury, but as it was two months after the injury. At the latter date other box cars had been placed upon the track, and the leaves had fallen from the trees. The party taking the pictures did not know whether the objects arranged for his inspection were of the same size, dimensions, height, etc., as those which were there two months before, or whether they occupied the same position. Under these circumstances, we cannot say that the court below acted arbitrarily in refusing to receive the photographs in evi- dence. The preliminary questions of fact as to the veri- fication of the pictures is addressed to the discretion of the trial judge, and his decision thereon is not subject to exception. Blair v. Pelham, 1 18 Mass., 420 ; Hollenbeck V. Rowley, 8 Allen, 473; Randall v. Chase, 133 Mass., 210; Locke v. Railroad Co., 46 Iowa, 109; Ruloff v. People, 45 N. Y., 213. The exclusion of the photo- graphs could not have done the defendant any injury, as the court permitted it to introduce a colored plat or dia- gram, which showed the .situation of the main and side tracks, of the highway and crossing, of the ditches on the sides of the highway, and of the buildings and other objects at the place where the accident happened.' The Supreme Court of Florida, in Ortiz v. State,^ observed : " The admissibility of a map or diagram or picture, proved to be a correct representation of the physical objects as to which testimony is offered, or to the extent ' 30 Florida, 256. 46 SHORT STUDIES IN EVIDENCE. that it is so proved, for the use of witnesses in explaining their testimony and to enable the jury to understand the case more perfectly, whether such map, diagram or pic- ture be made solely by the hand of man or through the agency of photography, is afifirmed in Adams v. State, 28 Fla., 511, and authorities there cited. See also 2 Rice on Ev., c. 52. Conceding that counsel's purpose was to use the photograph not as independent evidence, but for auxiliary purposes indicated above, or in other words, in connection with other evidence to enable the jury to understand and apply it, still we ar« satisfied that no error was committed by the judge in excluding this pic- ture. Whether or not these pictures are proved to be true representations is a question to be decided, at least primarily, by the trial judge (Blair v. Pelham, 118 Mass., 420) ; and it is certainly not shown that he has erred in this case. The misrepresentation as to the tree affects the very spot of the homicide, bringing the limbs of the tree against the house or veranda, right where it occurred. We are moreover entirely satisfied that this picture could have been of no assistance to the jury in the case, but would have served rather as an agency of confusion. The correctness of the diagram introduced by the State, as explained by the draughtsman, is undisputed, and afforded as full aid as could be deemed necessary to a clear understanding of the oral testimony." In People v. Muller,^ an indictment for selling an obscene photograph, the photograph in question was exhibited to the jury ; but other similar photographs, offered to show the extent to which the business of sell- ing photographs of nude females had been tolerated by the public authorities, were excluded. Photography played an important part in a recent suit in the United States District Court at Cincinnati. The suit was one of long standing, involving the title to 1,500 acres of valuable farm' lands. It was based on a deed ' 32 Hun, 209. PRACTICAL TESTS IN EVIDENCE. 47 made nearly seventy-five years ago by the owners of the land, and turned on the point whether the deed had five signatures or only four In order to test this question it was decided to have the deed photographed, and the clerk of the court was ordered to give the matter his per- sonal supervision. For that purpose it was taken to Washinton and submitted to an expert photographer of that city. The original deed, discolored and yellow with age, showed traces of four signatures and a space where there might have been a fifth, but no trace of it. The photographing was done in the presence of the clerk of the court, who refused to let the deed go out of his sight. The negative revealed traces of the missing signature, and when it was enlarged ten times the entire name became as plain as when first written. The court pro- nounced the evidence conclusive, and the result will be the reversal of a former decision and a change in the ownership of the land. Sketches and drawings representing the premises where a homicide was committed, and showing blood stains thereon, are properly admissible as evidence. The court said : " There was no error in permitting the draw- ings representing the premises to be put in evidence. They were not photographs, but sketches made by an artist showing the locality of the blood stains in the base- ment and on the doors above. He swore to their accu- racy from his own personal knowledge and observation. The learned trial judge was extremely careful about them. He required explicit proof of the accuracy, and where descriptive words were marked upon them stood ready to strike off any to which reasonable objection should be made. They served only to explain localities, and their accuracy was satisfactorily shown." People v. Johnson.^ A composite photograph of several genuine signatures is held in Vanderslice v. Snyder (Pa. Com. PI.) ^ to be ' 140 N. Y., 350. ' 4 Pa. Dist. R., 424- 48 SHORT STUDIES IN F:VIDENCE. Inadmissible for the purpose of comparison with a dis- puted signature. In United States v. Lot of Jewelry^ it was held that it is competent for the purpose of proving the identity of a person alleged to have passed under different names in different places, to show a photograph to witnesses who knew the person passing under the names, respectively, and allow each to testify that It looked like the man he had so known. The court, Benedict, D. J., says on this point : " During the trial It became important for the govern- ment to show that a man named Vollkringer, who had a stock of jewelry In a store in Paris, of which the jewelry proceeded against is shown to have been a part, came to New York, as a passenger, by the steamship New York, under the name of Flamant. In order to prove this, a witness who knew Vollkringer In Paris, was shown a pho- tograph of a man, and he testified that Vollkringer's appearance corresponded with the picture in the photo- graph. Another witness, who had known the man called Flamant at the hotel In New York, on being shown the same photograph, testified that Flamant's appearance corresponded with the photograph. When the photo- graph had been taken, and whether or not It was taken from Vollkringer, did not appear. This line of testi- mony was objected to, but It seems to me, without good reason. It was only another, and more definite, method of proving the appearance of the man Vollkringer, and of the man who called himself Flamant. The resem- blance of feature could surely be proved, to show that the man Vollkringer and the man called Flamant were the same person. Such testimony would not, of course, be conclusive, but In my opinion, it was some evidence pertinent to the inquiry then in hand.'' In a recent English case of Gladys FfoUiott, an actress, against the Nottingham Theater Company, for injuries sustained by falling through a dilapidated stairway in the ' 59 Fed. Rep., 684. PRACTICAL TESTS IN EVIDENCE. 49 theater, the plaintiff had a verdict af $5,000, chiefly at- tributable to the evidence of x-ray pictures of the injured foot, showing serious displacement of the bones. This is said to be the first instance of the introduction of this species of evidence. An appeal is pending, but there would seem to be no more impropriety in this evidence than in the case of ordinary photographs. They are good for what they are worth, and that is a question of expert testimony. Miss Ffolliott seems to have better luck than Miss Seymour, the chorus singer, in her suit against Maddox,^ for injuries sustained by falling through an open trap-door in passing off the stage. The court, in the latter case, were comparatively indiffer- ent to the lady's sufferings, observing that a person ac- cepting employment in such premises, unless the master has contracted to light them, "must make his choice whether he will pass along the floor in the dark or carry a light." That case lays down very doubtful law, was questioned in Ryan v. Fowler,^ and seems contrary to the trend of modern adjudications. Miss Seymour ought to have been a " star," or else to have carried some x-rays with her. In State v. O'Reilly,' the State was permitted, over ob- jections of defendant, to introduce in evidence and to pre- sent to the jury a photograph of the interior of the saloon in which occurred the shooting, for which the defendant was being tried. In this photograph appeared grouped three prearranged figures, to indicate the position of de^ fendant, deceased, and the father of the deceased. De- fendant's counsel objected that it deprived him of the right to cross-examine as to the accuracy of the posi- tions, thus giving undue weight to the theory of part of the witnesses as to the manner in which the homicide occurred. The court followed People v. Jackson,* and held that as the photograph was taken shortly after the ' 16 Q. B., 326. ' 24 N. Y., 410. ' 126 Mo., 597. •in N. Y., 362. 50 SHORT STUDIES IN EVIDENCE. shooting and more than three years before the trial and the positions were accurate as near as could be deter- mined by the witnesses the photograph was admissible upon the same ground that a diagram is admissible to enable witnesses better to locate persons and places. The photograph of a child seven years old at the time of its death alleged to have been caused by defendant's negligence is admissible in evidence to show its physical development, although it was taken two years before the death of the child.' In an action for breach of promise of marriage, photo- graphs were held admissible to support statements as to race and appearance of a family, and to show colored blood.^ In People v. Jackson,^ by consent of defendant, a pho- tograph of the scene of the homicide was put in evidence. A witness who was present when the photograph was taken, and who saw part of the affray from a neighbor- ing window, placed three persons in the highway to rep- resent the positions of the defendant and two others at the time of the affray. His testimony as to that fact was held admissible. In Cowley v. People,* an indictment against the clerical superintendent of an asylum called " Shepherd's Fold," for starving one of the lambs, photographs were held admissible showing the appearance of the lamb when rescued from the ungentle shepherd's hands and his appearance in his normal condition of avoirdupois on entering the fold. And so to show the appearance of the plaintiff's back three days after an assault and battery.^ In his brief in Corcoran v. Village of Peekskill,® com- menting on the admission in evidence of a photograph showing a repair of defective premises made after an ' Taylor, B. & H. R. Co. v. Warner, 88 Tex., 642. '^ VanHouten v. Morse, 162 Mass., 414; 44 Am. St. Rep., 373. ' III N. Y., 362. ' 83 N. Y., 464; 38 Am. Rep., 464. " Reddin v. Gates, 52 Iowa, 213. • 108N. Y., 151. PRACTICAL TESTS IN EVIDENCE. 51 accident, Mr. J. D. McMahon said it "was far more sug- gestive and forcible than the oral testimony which the court declared to be incompetent, and it illustrates the lines of Horace : ' Segnius irritant animos demissa per aurem, Quam quae sunt oculis subjecta fidelibus.' " Which being literally interpreted means : A donkey's eyes are sharper than his ears. Mr. Conington's translation may perhaps be considered more elegant than mine : "A thing when heard, remember, strikes less keen On the spectator's mind than when 't is seen.'' That photography can lie in respect to landscape as Tvell as portraiture, is evident from an incident on the Tichborne trial. A photograph was exhibited of a place called "the grotto," the scene of alleged misconduct between the claimant and his cousin, Miss Doughty. As the chief justice said, it represented the grotto to be a spelunca or cave, a most retired and private spot, whereas in fact it was nothing but a path, about one hun- dred feet long, shadowed by trees, with a public way on one side and a public towing-path on the other. The chief justice and Justice Lush both visited the place, and the former said : "I never was more astonished in my life, after having seen the photograph which was exhib- ited to us ; " and the latter said, " I never supposed a photograph would have so disguised a place." It turned out that the picture had been executed under the direc- tion of a member of parliament who had bet ;^6oo on the claimant's identity with Roger Tichborne, and figured as one of his most prominent supporters.^ Unreliability of photographs. — In his brief in Walsh V. People,^ Mr, A. H. Daily thus protested against the district attorney's exhibiting to the jury, in his open- ' See Mora's " Famous Trials," p. 166. ' 88 N. Y,, 458. 52 SHORT STUDIES IN EVIDENCE. ing, a photograph of the young woman, the victim of the homicide for which the prisoner was on trial : " The poorest observer of human nature will tell us. that the most exalted mind is the constant subject of im-^ pressions, made at the instant that the eye catches a glimpse or the ear a sound. No man looks at the face of another without immediate Impressions, either favor- able or unfavorable, being formed. It is a part o our nature to read character from the form of the head and the facial expression. It is a gift possessed by the brute creation as well as by mankind. A dog will take to a kindly face, and show his teeth at, or fly from, a vicious one. He will often fight a tramp, but fawn at the feet of a man who carries in his person an air of respectability. We instinctively turn away from human deformity, and are ill at ease in the presence of a face brazened by vice. We shun the presence of a man whose face denotes that brutal passion controls his actions. And it is not until man's better nature has been corrupted by sin that he feels at home in the habitations of the wicked. The reverse of the preceding remarks is also true when the impressions are pleasing. Take a face that indicates refinement, purity, and virtue, and impress- ions come like sunlight to the heart, and we carry them away and dwell upon them with benefit to ourselves ; for whatever a man sees, that Impresses him as pure and noble, purifies and ennobles his whole nature. Pictures are the representations of reality, but seldom convey so correct an impression of the characteristics of the origi- nal as the original would if present. Photographs of persons adorn our homes and grace places of the highest art. The subject, particularly if a lady, adorns herself with whatever she can obtain that may tend to add a charm to her natural attractions. She arranges her toilet with consummate skill, and puts on her sweetest smile to increase the beauty of her person. The artist himself, by long experience, has learned to place his subject in. the exact position where deformities, if any, will be con- cealed, and the most harmonious expression "will be ob- PRACTICAL TESTS IN EVIDENCE. 53 tained. When the first impression appears the sitter is astonished to find that the camera has reproduced every freckle, every wrinkle around the eye, and every furrow upon the brow. She is displeased. ' But wait,' says the artist, ' until it is finished ; those will all come out in the dressing.' Kn6. \}i\is.y do come out. He carefully expunges the freckles, wrinkles, and furrows. He darkens the hair and pencils the eyebrows, and traces eyelashes where they never grevvf. From this negative he now reprints and glosses up the picture. His sitter is delighted. She did not know she was so good-looking, nor did any one else. It may look something like the original, but it flat- ters, and hence is pleasing, and is distributed among friends and admirers, to produce a pleasing effect and favorable Impression upon whomsoever shall see It. The picture in question most undoubtedly was not an excep- tion to the general class of photographs. The picture was thrust in the faces of the jury because it would Im- press them that a beautiful, innocent young girl had been ruthlessly stabbed to the heart . by the defendant ; and this at the very outset of the trial roused a dangerous prejudice in the minds of the jury against him. They looked upon a picture of youth, innocence, and loveliness, and as it were, gazed upon the very bosom Into which was plunged a wicked knife. They were roused from the very depths of their souls with indignation. They could not forget that picture if they would. It mattered little after that what evidence was produced to show that the prisoner's mind was unbalanced and crazed until he was an unfeeling madman. That face and form roused their feelings, pity, and vengeance at one and the same time, and they could not, would not, and did not stop to consider the question whether one so beautiful and young could have been so inhumanly killed by any but a mad- man. If It was a competent and proper thing for the prosecutor to present this picture to the jury, he could with the same propriety have embalmed her body, en- cased It in a box, and at the opening of his address have exposed the corpse to the jury," etc. 54 SHORT STUDIES IN EVIDENCE. Then follows Antony's speech over Caesar's body. Mr. Walsh labored under the misfortune of having killed too good-looking a girl or one who had too adroit a photog- rapher. The misrepresenting capabilities of photographs have been vividly set forth in London Tit-Bits, as follows : " The writer has often been asked whether photogra- phy can lie. The fact that it now plays an important part in life renders the question rather a serious one, and one that I am certain many would like to have answered. Well, then, photography can lie and be bad enough to bring a blush to the cheek of the worthiest disciple of Ananias. The wonderful strides made by photography during the past few years have not only enabled men to achieve great things by its aid, but it has also unfortu- nately assisted others to deceive and defraud their fel- low-creatures. Photography assists the forger in so closely imitating bank notes as to deceive the most ex- perienced ; but it also assists the scientist to detect these forgeries, and in some cases has aided justice to discover the offender. An amusing case appeared some time ago in one of the law courts. It was a dispute between two persons about a wall. The plaintiff complained that the defendant's wall obstructed the light to which he had a right. Defendant denied the charge. The jnost amus- ing part of the case, however, was when the complainant handed the judge some photographs of the obstructing wall, and the judge observed that it was 'evident from them that the wall certainly did obstruct the light and was apparently of unnecessary height and size. Then up rose the counsel for the defendant, and with a smile handed the learned judge his photograph of the same wall. In the first set of photographs the wall was of immense size, towering above all the winds ; in the second, however, it was of Lilliputian dimensions, a most insignificant thing, unworthy of any dispute. Now these different effects can all be brought about by using lenses of different angles — that is to say, lenses which collect or throw a PRACTICAL TESTS IN EVIDENCE. 55 more or less amount of view on a plate of given dimen- sions. A wide-angle lens is one that includes a lot of view in a picture, and as the angle is a long way different to that of the human eye, the picture in no way gives a correct representation of the scene. Readers should be- ware of house-agents' photographs of the houses and property they have for disposal. They are nearly all taken with a wide-angle lens. With such an instrument it is possible to make a small London back garden re- semble a large open park. The reason is that it causes all objects near at hand to appear large, and those a little distance away to recede far away in the background. The writer had in his possession a photograph of a man playing chess with himself and looking on at the game. There were of course three figures in the picture, but all of the same person, in different positions. The writer used to do something similar to this in making long pano- ramic views. A little slit runs along th^ sensitive plate and makes the exposure, and it was quite possible to in- clude the same person in the picture in a dozen different, places and in different attitudes. By photographing three ' persons arranged between two mirrors placed in a posi- tion thus (A), a photograph will be produced of thousands and thousands of persons crowded together. Spirit-pho- tography is another form of deception. Photographs are made of a sitter with a figure leaning over him. The fig- ure retires when half the exposure is over, and thus has a misty, weird appearance in the picture. By composite photography almost anything can be done. This is ac- complished by cutting out different parts of several photo- graphs, arranging them together and rephotographing them. The society lady, when she goes to her photogra- pher, would be horrified if she were to see her portrait as it is first produced by photography. The negative is, however, placed in the hands of the retouching artist, whose duty it is to take out all the wrinkles, spots, and blotches in the face, make the mouth a little smaller, the eyes brighter, and perhaps the eyebrows a bit darker, and the nose a bit shorter. Large lumps are then carved out 56 SHORT STUDIES IN EVIDENCE. of the waist, and the figure otherwise improved. When the finished portrait is handed over to her ladyship, she is charmed with it. Perhaps the appearance is not exactly the same as that shown by her looking-glass ; but she consoles herself with the reflection that photography can not lie — oh, dear, no; impossible!" In connection with this subject it is instructive to con- sider a case in the Supreme Court of New York, — Har- ter V. Town of Moravia,^ — an action for personal Injuries sustained by driving Into a dangerous mud-hole of long standing (or lying) in the middle of a highway. To show that it was not much of a hole and not dangerous, the defendant put in evidence a photograph of the locality, which makes it a very harmless place to all appearances, and indeed does not disclose any depression at all. Witnesses however swore that it was from ten to fifteen feet long, four to eight feet wide, and eight to twenty-four inches deep. Justice Rumsey charged the jury as follows in respect to photographs : "In regard to photographs, it Is very true that In cer- tain respects a potograph tells the precise and absolute truth, but yet It will be for you to consider exactly to what extent a potograph precisely delineates the particular thing upon which the camera is pointed. W^hen you look at a thing with your eye, as Mr. Ackerman said, by long practice you have gotten Into the habit of correcting the variation of the lens of the eye, so that the things which you see through your eye give you an accurate picture. The lens of a camera cannot do that. It is like the eye of a baby. All of 3^ou have seen a little child reach for the moon, utterly unable to distinguish how far off it Is, or anything about it. The photographic lens is a thing of the same kind ; It Is a mere Inanimate piece of glass, through which the light goes, and which puts upon the negative what goes through, but It does not faithfully put upon the negative precisely the relative situation or condition of the '25 N. Y. Supp., 1 134. PRACTICAL TESTS IN EVIDENCE. 57 things at which it is pointed. So when you come to ex- amine these photographs, of course you must examine them in view of the condition of affairs as Mr. Ackerman said it was, and judge how accurately the photograph has reproduced the thing which the camera was pointed upon, and which is presented here. I call your attention in that regard also to the fact that it is the testimony of the photographer that the space there, which is six or eight inches across, represents twenty-three feet, as he said, and the space three or four inches long represents one hundred and fifty feet, not by way of throwing any doubt upon the accuracy of the picture, but simply by way of giving you some suggestion as to how you should consider that pic- ture when you come to examine it, in view of the testi- mony which has been given in this case." The trial resulted in a verdict for the plaintiff in spite of the photograph. A correspondent of the Central Law Journal says : "The introduction of clever trickery into photography will doubtless go far toward destroying the confidence in photographs as secondary evidence. It will be recalled that in the early days of the art the courts were seriously averse to admitting photographs, and this because of the original difficulty of securing really good likenesses of the scene or person exposed to the apparatus. But as the art progressed and perfection was more closely approached, the courts relaxed their rules so that it is no longer a legal question as to admitting photographs in evidence upon complementary proof of the correctness of the view, etc. But recent discoveries as to the manipulation of negatives and print-paper so that pictures apparently natural though absolutely false may be made, will nearly destroy confi- dence entirely in the value of photographs as evidence. Given a corrupt motive, a venal photographer and an unconscionable party, and there is no end to the amount of false testimony that may be manufactured. It is a well known trick to photograph the head of one person on to the body of another by a clever manipulation of negatives, 58 SHORT STUDIES IN EVIDENCE. single and composite. We recall a case in New York wherein a photographer had succeeded in producing com- posite photographs of noted society ladies in Black Crook costumes, the faces being true minatures, and the whole appearing genuine. ' Spirit' photographs — where a ghost- like image is introduced as the spirit of a departed friend, or relative, into a picture, are a common fraud. The clever trick of taking back, front and side views of a per- son with but one exposure to the camera is practiced. In fact, there is no end to the tricks that may now be per- formed by the aid of photography, and it would be useless to point out more of them. Suffice it to say that to any person who has seen the various kinds of skillful decep- tions practiced in photography, and who learns that there is practically no limit to the combinations that are possi- ble, it seems that the value of photographs as evidence must greatly depreciate. As an original proposition the camera spoke with verity. Salem Scudder, in ' The Octaroon ' is made to say, ' The apparatus can't lie.' At any rate, like figures, the apparatus may be manipulated to lie. So that unless photographs be identified and proved by abundant and thoroughly credible evidence, they will not have much weight hereafter with persons who have seen some of the latest possibilities of the art." Diagrams and Models. Models are universally admitted in patent cases and many other cases on mechanical questions, and it seems are preferable to the introduction of ponderous machinery or other articles. In Earl v. Lefler,^ an action for breach of warranty of a horse, an impression of his mouth in wax or plaster was held competent. On a question of sur- veying, a witness may illustrate his testimony by a dia- gram made by another. Peters, C. J., said : " Even savages resort to it, in lieu of words, in describing the course of rivers and the lines of seashores."* A diagram ' 46 Hun, 9. ' Shook V. Pate, 50 Ala., 91. PRACTICAL TESTS IN EVIDENCE. 59 of the locality of a homicide is admissible ; ^ and the court did not " see any objection to the diagram ' because part of it was drawn in red ink, as suggestive of the bloody deed, and as calculated to inflame the minds of the jury.' The scene and circumstances attending this terri- ble tragedy in the simple recital of the eyewitnesses is presented in colors of deeper stain than the mere sketches of red lines or other figures upon the diagram exhibited." Merchandise and Materials. In some modern cases specimens or samples of mer- chandise or materials in dispute have been admitted in evidence. Thus in People V. Buddensieck,^ an indictment for manslaughter by negligence in using bad materials in a building, specimens of brick and mortar taken from the ruins, and of brick and mortar properly made, were held to be competent in evidence. In Evarts v. Middlebury,^ on the question whether a horse was properly shod for winter travel, his shoes were allowed to be exhibited. So in City of Philadelphia v. Rule,^ a proceeding to recover pay for paving, the defence being that the paving was bad, the plaintiff offered samples of the stone from the quarry; but this was rejected by the trial court, which held that he must produce samples of the very stone put down in the street. The appellate court pronounced this error, saying he was not bound to tear up his finished work to furnish samples to the jury. In Morton v. Fair- banks,'' an action for fraud in making shingles, a parcel of the shingles was allowed to be shown. In King v. Railroad Co.," an action for injury by the breaking of a hook, part of the broken hook was held to have been properly exhibited to the jury, to point evidence of experts. Folger, J., said: "The eyes of the jury were ' Moon V. State, 68 Ga., 687. ' 103 N. Y., 487; s. c, 57 Am. Rep., 766. ' S3 Vt., 626. '93 Penn. St., 15. '11 Pick., 368. »72 N. Y., 607. 60 SHORT STUDIES IN EVIDENCE. as good to see * * * as the eyes of a witness, and the testimony of their eyes would be as satisfactory to them as that given by a witness. * * * Common observation is allowed in these matters of common occur- rence to give and have its judgment, etc," On the other hand, in Hood v. Bloch,^ such a practical test was refused. The action was in regard to the quality of cheese sold. The court said: "I do not think, how- ever, the court erred in refusing to permit the defendants to produce one of the cheese to the jury on the trial. No matter how bad the cheese may have been in February, when it was delivered, it would certainly have been much worse three months thereafter, when the case was tried. Then if the defendants were allowed to produce one of the worst cheese, as they no doubt would have done, the plaintiff would have the right to produce one of the best; and so the process might be continued until the entire lot of cheese had been brought into the court-room. In all cases of this kind a large discretion must be confided to the trial court as to exhibitions of articles of a bulky nature before the jury, and I do not think that discretion was abused in this particular matter in question." And on the trial of an indictment for carrying on a boxing-match, it was held no error to exclude the gloves offered in evi- dence," the court saying that they furnished no criterion of the character or manner of the contest. In an action for breach of warranty of a watch, the court may refuse to compel the plaintiff to produce it for inspec- tion, although he testifies that he has it in his pocket.'' On an indictment for burglary the burglar's tools may be inspected.* So of surgical tools and a speculum chair on a trial for abortion." So of clothing found on the de- ceased, in a murder trial," even if blood-stained,^ in order ' 29 VV. Va., 244. " State V. Burnham, 56 Vt, 445 ; s. c, 48 Am. Rep., 801. ' Hunter v. Allen, 35 Barb., 42. * People V. Larned, 7 N. Y., 445. 'Com. V. Brown, 121 Mass., 69. ° Gardiner v. People, 6 Parker Cr., 157. 'People V. Gonzalez, 35 N. Y., 64. PRACTICAL TESTS IN EVIDENCE. 61 to show the position of the slayer.^ So of a valise, sup- posed to have contained weights fastened to the body of a person supposed to have been murdered by drowning;^ and a wallet and bank-notes stolen from the person;* and decanters, jugs, etc., in a liquor case ;* and a piece of burnt plank in arson ;' and bullets from the body of the mur- dered deceased,^ the court observing, " they were the voiceless yet nevertheless significant evidences of the in- tent that prompted the slayer when he fired the fatal shot " (!). Also the pistol and cartridges in a murder case.'^ In State v. Crow,^ a prosecution for theft of a cow, pieces of ears, and a dewlap cut from a cow, and a hide sold by defendant, were held admissible to identify the animal stolen and killed, and show that the marks and brands had been mutilated. It has been held that whether articles are too cumbrous for exhibition in court is a question for the decision of the trial judge.* And so, although under the Crow case in Missouri, a cow's ear may be exhibited, it might be a grave question whether those of a donkey would be admissible!. On a prosecution for maliciously placing an obstruction on a railway track, it was held proper to exhibit a crow- bar, left by the side of the track near the place in ques- tion, there being evidence that it was found under the defendant's house after his arrest." It is hard to see how the production and exhibition of the article could be any more conclusive than oral evidence of the facts. The prisoner ought to have put in a plea in bar ! So it was held in People v. Wright," that the clothing of two persons admitted to have been killed by the defendant ' King V. State, 13 Tex. Ct. App., 277. ''Com. V. Costley, ii8 Mass., i. ' Com. V. Burke, 12 Allen, 182. * Com. V. Blood, 11 Gray, 74. ° Com. V. Betton, 5 Cush., 427. ' Moon V. Sute, 68 Ga., 687. 'Wynne v. State, 56 Ga., 113. " 107 Mo., 341 ; 17 S. W. Rep., 745. " Jackson v. Poole, 93 Tenn. 62, 19 S. W. Rep., 324. " Mitchell V. State (Ala.), 10 South. Rep., 518. " 89 Mich., 70; 56 N. W. Rep., 792. 62 SHORT STUDIES IN EVIDENCE. is admissible on his trial for the murder of one of them, to show how near the parties were to one another when the fatal shots were fired. In McGuire v. Joslyn/ an action by a tenant against his landlord for an injury sustained on a common stair- way by reason of defective matting, the court refused the plaintiff's request to charge that if the defendant could produce the matting substantially in the same con- dition, his omission to do so might be considered like his omission to produce a witness ; the court refused, but charged that the jury might give it such weight as they saw fit. Held, no error. The court said : " The matting was In possession of the defendant, and it was admissible as evidence before the jury." In Hays v. Railway Co.,^ an action for running over the plaintiff's foot, it was held error to exclude his boot offered to show the indentations made thereon. The court said: "Physical facts are always admissible ; and when the object itself can be brought into court and exhibited. It is more satisfactory than a description of it by witnesses that have inspected it outside of court." The most effective exhibition of the clothing of a mur- dered person recorded in literature was that of Caesar's toga by Antony, as recorded by Shakspeare : " You all do know this mantle ; I remember The first time ever Caesar put it on : 'T was on a summer's evening, in his tent. That day he overcame the Nervii. Look ! in this place ran Cassius' dagger through : See what a rent the envious Casca made : Through this the well-beloved Brutus stabb'd, And as he plucked his cursed steel away, Mark how the blood of Caesar followed it. * * * then burst his mighty heart ; And in his mantle muffling up his face, Even at the base of Pompey's statue, Which all the while ran blood, great Cagsar fell. Kind souls ! what ! weep you when you but behold Our Caesar's vesture wounded ? " ' 31 N. Y. St. Rep., 990. ' 70 Tex., 602. PRACTICAL TESTS IN EVIDENCE. 63 But in an action of breach of promise of marriage the plaintiff's possession and production of the defendant's signet-ring is no evidence.^ Kay, J., said: "With respect to the ring, it is, to my mind, impossible to treat the pos- session by the plaintiff of the defendant's signet-ring as corroboration of the promise. A man does not usually give his signet-ring in such cases." Possibly it might be different in the case of a wedding-ring on a question of marriage. Animals. In Line v. Taylor,'^ an action for damages by the bite of a dog alleged to be fierce and mischievous, the dog was allowed to be brought into court by his keeper, led with a chain; and the jury inspected him, and gave a verdict for the defendant. In the Crewe County Court, in Powell v. Parker, a fox terrier was in dispute. The dog was brought into court; and as the evidence was conflicting, his honor toward the end of the case had the animal placed beside him on the bench, and the plaintiff went to the far end of the court and called out, "Sam, Sam." No sooner did it hear the voice than it found its way through a crowded court to the plaintiff, and began to gambol around him. The defend- ant had described the dog as partly deaf. The judge said he believed the dog belonged to the plaintiff, and gave a decision accordingly. In Thurman v. Bertram, at nisi prius, before Baron Pollock, an action brought by a young lady to recover damages for personal injuries received through the alleged negligence of the defendant's servants ; it appeared that she had gone in a wagonette to the Alexandra Palace, where the Nubian encampment, with camels, elephants, etc., was then attracting crowds ; and at the conclusion ot the performance a certain quadruped, to wit, a baby ele- phant, came out with his keeper, and frightened the plaint- iff's pony. The pony bolted, and the plaintiff was thrown ' Weideman v. Walpole, Eng. Ct. App., July, 1891. '3 Fost, & Fin., 731. 64 SHORT STUDIES IN EVIDENCE. out of the wagonette, and fractured her collar-bone. On the trial the defendant's counsel made profert of the ani- mal ; and he came into court, with bells on his head, with- out injury to anybody, but with manifest benefit to his side of the case, for an "arrangement" was immediately had. The judge observed in the happiest manner that " the ele- phant had come to offer his apology in person ; " where- upon there was laughter among the bar, as there always is in England at any attempt at a judicial joke, which in this country would make the lawyers look funereal. In the chapter on Inspection, in the new edition of his work on Evidence, Dr. Wharton tells of a case of Mrs. Wolfe, a widow, who sued one Jones, a butcher, for ;^5 damages, for killing a cockatoo parrot belonging to her. The de- fendant insisted that he mistook it for an owl. On the trial the mate of the deceased was brought into court, and afforded great amusement by strongly recommending the parties to "shake hands," "shut up," and asking for "sugar." Wicked men would doubtless say that the par- rot with its garrulity felt more at home among the lawyers than the elephant with his sagacity. Experiments. Experiments may be tried, out of court or in court, to illustrate certain scientific matters. Thus in Sullivan v. Commonwealth,^ evidence was admitted of experiments by shooting at short range with the pistol in question, at substances like the clothing which the deceased wore when killed. So in Dillard v. State, '^ a case of homicide, the jury were permitted to inspect the horse which the deceased was riding at the time of his death, and to ex- periment with a view of ascertaining whether the wounds could have been inflicted by a man on the ground. So in Lincoln v. Taunton Manuf. Co.,^ evidence was allowed of experiments by expert chemists, out of court, as to the ' 93 Penn. St., 284. " 58 Miss., 368. * 9 Allen,' 191. PRACTICAL TESTS IN EVIDENCE. 65 effect of copper on grass, disapproving Ingledew v. North R. Co.,^ where such evidence was excluded in respect to the freezing of milk. Locksmiths have been permitted to give exhibitions of lock-picking in open court. In a case in the United States Supreme Court, on the question whether in a photograph of several persons, sitting in a row, the outer images would be as vivid and correct as those in the centre, the experi- ment was tried on the judges sitting on the bench in open court, by their own direction. In recent English cases, Kay, J., tolerated an exhibition of dancing-dolls, and on a question of patent right between two rival manufacturers of hand-organs, Kekewich, J., ordered both organs played in court. James Payn, in a recent letter to The Independent, says: •' There is a well-known classical story of a gentleman boasting of a leap he had once made at Rome, which seemed to be a little incredible. ' Here is Rome, here is the leap,' observed a bystander — a practical suggestion which put the boaster to shame. A similar attempt was made the other day in a county court to throw doubt upon an athletic performance, but by no means with the same success. A young lady, whose profession was that of raising heavy weights by her teeth, sued for money owed by her employer, whose defence was that she was incom- petent to perform her feats. She showed her shining teeth, and looked round at the shrinking counsel and soli- citors ; she would probably have had one of them by the nape of the neck, had not his honor hastily suggested that an inanimate object would be equally suitable for the ex- periment. A cannon was brought weighing one hundred and twenty pounds, which the young lady lifted with her teeth and held suspended for ever so long ; then she let it fall to the ground with a thud, to prove that it was no 'property' cannon. It is hardly necessary to say that the ' 7 Grajr, gi. 66 SHORT STUDIES IN EVIDENCE. jury, treated to this successful and gratuitous performance, gave her a verdict at once, not ' in the teeth of the evi- dence,' but on the evidence of her teeth." In the English case of Belt v. Lavires, the plaintiff, a sculptor, sued the "Vanity Fair" newspaper for libel in alleging that he was no artist, and that his pretended works were made by talented subordinates. The Law Times says : " This case is probably the first in which it has been suggested that an artist whose skill is impugned should prove it by practical operations in court. The inconvenient results which would probably flow from such a practice are obvious. The practical operation would not be recorded, although it might produce different impressions upon dif- ferent minds. The operator and his friends might con- sider the test conclusive in his favor ; another view might be taken by the other side. How move against a verdict based on this operation on the ground that it was against the weight of the evidence? If the test is to be applied to a sculptor, why not to a prima donna? We have known of a case in which an artiste sought damages for wrongful dismissal, and the justification was that she could not sing. Would a judge have allowed her to sing to the jury? If so, the rule might be extended without limit, with consequences terrible to contemplate." The " suggestion " in the case in question came from the plamtiff on cross-examination, with the observation, " that will end the case." Hereupon the following dia- logue ensued : " Mr. Russell — No, indeed, Mr. Belt, it will not. Baron HuDDLESTON — If the jury express a wish to see Mr. Belt put to the test, I shall certainly not prevent it. (Applause in court, which was at once checked.) Sir H. Giffard — I shall certainly ask for it, my lord. Mr. Russell — And I shall not object at the proper stage of these proceedings." Subsequently, at Carnarvon, in an action for personal injuries against a railway company, the plaintiff's counsel PRACTICAL TESTS IN EVIDENCE. 67 asked the court to allow the plaintiff to walk across the court before the jury, with a view to convince them that his lameness was not assumed. The same learned judge declined to allow this test, and said "that ever since he had been reported to have said, during the hearing of the case of Belt v. Lawes, that he should allow the plaintiff to make a bust of himself (Baron Huddleston) in court, he had been pestered to allow all kinds of tests to be gone through in court before the jury ; and he wished it to be known that the press had entirely misrepresented him in this matter, and that he had never indicated that he should allow such a course to be taken." The difference between this test of skill, and the offer in the railway case is mani- fest ; for the jury could not tell but that the plaintiff then was shamming lameness, while there could be no question if he made a bust. There seems to have been no objec- tion to the exhibition of a bust in court wherj the Athenian Hyperides rent the robe of the lovely Phryne and exposed her beautiful bosom to her judges. The London Law Journal says: " The practice of experimenting before judges is likely to receive a check, if it is often followed by such results as happened in a case before Mr. Justice Pearson last week. Two German firms were disputing the exclusive right in certain patents for improvements ' in the production of coloring matters suitable for dyeing and printing.' The contention of the defendants was that the chemical means described in the specifications were impossible, because if the ' oxyazo naphthalinoine ' were to be united with the ' fuming sulphuric acid ' of the strength therein described, it would be dangerous to human life ; and an experiment coram judice was proposed. In an ungarded moment the judge consented, and adjourned to an empty room, where the baleful mixture was concocted by adding a tea- spoonful of the unpronounceable liquid to an ounce ot fuming sulphuric acid. The result was terrific. ' So dense and poisonous ' were the effects of the fumes which arose, that judge, counsel, witnesses^ and bystanders fled, 68 SHORT STUDIES IN EVIDENCE. ' with the utmost precipitancy, to avoid being asphyxiated on the spot.' Her Majesty's judges are brave men, but even in the search for truth they ought not to be exposed to dangers hitherto reserved for combatants in China ; and the smoking out of the Royal Courts of Justice, as if it were a nest of hornets, is a contempt of court for which none of the penakies provided by the Lord Chancellor's Bill is adequate." The London Law Times says of the same transaction: "We see no advantage in this kind of exhibition; the conditions under which such an experiment has to be made must tend to make it misleading, and a court should be, as a bygone judge described it, ' a machine put in mo- tion by evidence ' of witnesses, not by the exhibition of experiments." In Stockwell v. Railroad Co.,' the court declined to set aside the verdict in an action for injury by fire communi- cated by a locomotive, because on a view of the premises by the jury the railroad employees ran a locomotive over the portion of the track in question, in order to show that it could be done without using steam and so without emitting sparks. This was put on the ground that the experiment did no harm ; but the court said : " Why not employ the experiment to reach the truth, the end and aim of all trials at law ? * * * Suppose experts should differ as to the effect of the union of two chemical bodies ; what objection could exist to an experi- ment before the jury to determine the true result? Sup- pose a question arose in a case as to the weight of a gold coin, the witnesses of the parties giving conflicting evi- dence on the subject. Why not weigh it in presence of the jury ?" Footprints.. — In Johnson v. State, decided by the Supreme Court of New Jersey, in November, \%^^y it was held that impressionsi of footprints, made in a box. of ' 43 Iowa, 470. ^35 Atl. R., 787. PRACTICAL TESTS IN EVIDENCE. 69 ■sand with a boot worn by the prisoner may be exhibited by the State to witnesses who had seen certain foot-prints near the body of a murdered person, for the purpose of comparison. But it seems that the jury, in a murder case on a ques- tion of footprints, may not experiment out of court in mak- ing tracks with an old shoe worn away like the prisoner's.^ So in Smith v. St. Paul City Ry. Co.," it was held not error for the trial court to refuse to allow the jury to witness experiments with cars upon a railway track outside the court-room, on the question of the possibility of an alleged collision. The court pronounced the matter one of dis- cretion. The same ruling was made in People v. Sevine (Cal.), where it was held that the trial judge is not bound to stop proceedings in order to try an experiment in open court as to the length of time it would take a candle to burn down to the point of those discovered in defendant's saloon after a fire, for setting which he is indicted. "It was a matter resting entirely in the discretion of the court," It would probably have admitted similar proof on the part of the defendant, if any had been offered ; but the court was not bound to stop the proceedings in the court, and try the experiment in open court, as proposed. In Reg. V. Hesseltine,'' an indictment for arson, evidence was allowed of experiments made by members of the fire brigade, out of court, with candles of different lengths, prepared similarly to the candle-ends found in the debris of the fire. In Ulrich v. People,* an indictment for rape, charged to have been committed in a wheat-field, the girl having tes- tified that the defendant dragged her over the fence, the defendant's counsel offered evidence of experiments made in attempting to lift girls over the same fence, in order to contradict her ! The court rather curtly held the exclu- ' State V. Sanders, 68 Mo., 202 ; s. c, 30 Am. Rep., 782. ^ 32 Minn., i. " X2 Cox Cr. Cas., 404. '39 Mich., 245. 70 SHORT STUDIES IN EVIDENCE. sion proper. In Com. v. Twitchell,^ a case of murder by- blows with a poker on a skull, the prisoner was not per- mitted to prove experiments made out of court with other pokers on other skulls. But in the Billings murder case, in Saratoga county, N. Y., in 1880, panes of glass and' skulls on which the effect of bullets had been tried out of court were used in evidence to point the testimony of experts. In a very recent English case at the Bromsgrove Petty Sessions, where a woman was charged with stealing some apples, it was alleged against her that the stems of the fruit "fitted" the trees from which they were said to have been stolen. In State v. Smith,^ it was held discretionary to refuse to allow an expert to carry out of court and experiment with the pistol of the deceased and that of the defendant, in order to determine which caused the fatal wound in question. And in Polin v. State,^ it was held that the court did not err in refusing to order the sheriff to dis- charge some of the cartridges remaining in the defend- ant's revolver with which the deceased was killed, with a view of its liability to go off at half-cock. The court said the experiment could be just as well tried after the cham- bers of the revolver had been emptied Applause. — A literal example of this may be found in Ellis V. Denman Thompson.* That was an action by a playwright against the celebrated actor for breach of con- tract to act his play, "Rich and Poor." The defendant had contracted to produce the play in proper form and "to play it continuously if there was a reasonable success attending its production," and to pay the plaintiff a cer- tain amount. The defendant played it only twice, and then abandoned it on the ground that it failed of success. On the trial the plaintiff offered evidence as to how the play ' I Brewster (Penn.), 551. '49 Conn., 376. ' 14 Neb., 540. * 93 Hun, 606. PRACTICAL TESTS IN EVIDENCE. 71 was received by the audiences and the newspapers, and of the character of the criticisms, and as to whether the actors were called before the curtain and how many times, and whether the audiences applauded and how often. All this was excluded, and defendant had judgment. This is now reversed by the Supreme Court on the ground of the exclusion of this evidence. The Court say: "This was clearly proper evidence." Of course it was, just as clearly as would have been evidence that the audiences hissed and the newspapers jeered at the play. Stage costume. — Miss Fay Templeton, of the Gaiety Theatre, London, obtained an interim injunction restrain- ing the manager and lessee of the theatre from preventing her playing Fernand in "Monte Christo," and keeping him from employing any one else to take that part. There was a contract that she should act as Fernand ; but the mana- ger attempted to justify his refusal on the ground that Miss Fay wore her dress improperly. The lady denied the charge, and said she wore the dress with which the manager had supplied her, that when the Lord Chamber- lain (the highty and mighty official who gets $10,000 a year for looking after these and divers other matters) objected to the costume as being rather loud, she had asked for another, but had not got it. Sashes, however, were provided, and she insisted that she had always worn one. The management replied that she did not wear the sash properly; the fair plaintiff rejoined she did, and this was the important question for the learned judge to decide.^ The judge could easily have settled the point by requesting Miss Templeton to put on the dress and the scarf, so that the. court could see how she looked. Fit of clothes. — In the Brighton (Eng.) County Court a decade or so ago, a dressmaker sued a lady for work done. Mrs. Taylor had refused to pay, alleging that the dressmaker had spoiled her garment. The reporters record the following passage-at-arms during the trial : ' 35 Alb. L. Journ., 262. 72 SHORT STUDIES IN EVIDENCE. " Indignant Plaintiff — I did make the dress properly, but the lady has no natural figure whatever. She said she was suffering with her liver, and could not be squeezed ; and how could I make her look like a Venus when it was all wadding? " Irate Defendant — I did not want you to make it tight ; I like my dresses loose. " Plaintiff— You should say how very deformed your arms are. " Defendant (excitedly) — I am not deformed, I am a better figure than you. I have no deformity. My hus- band is in court ; ask him. " Plaintiff — Will you allow me to try the dress on in court ? " Defendant — Yes: before all these gentlemen. " His Honor — You must put the dress on, and I must see It. The parties retired to the solicitor's robing-room (so- licitors exeunt omnes, we hope). After the plaintiff had put on the dress, the judge was informed by a bailiff that she refused to come into court. His Honor, therefore, went into the robing-room, and on his return said the work was very indifferently done, and gave a verdict for the defendant. At the Liverpool County Court there was a dispute with a dressmaker about the fit of a certain bodice. The plaintiff, who refused to take it, alleged it was too short and too much padded. The dressmaker stated that bodices were now cut short on the hips, and that as to the padding it was necessary, on account of the lady being deficient in the place where the padding was placed. The plaintiff did not desire to have her figure improved by the dressmaker ; she was quite satisfied with it as it was. The question of misfit or fit appeared to be incapable of decision, till at length the dressmaker de- manded that it should be put on. The plaintiff at length consented to do so, and adjourned for that pufpose. On PRACTICAL TESTS IN EVIDENCE. 73 her return the judge and court proceeded to criticise the fit. The judge at last made a suggestion — such a sugges- tion, just Hke a man ! — that surely the fault of the bodice being too short might be remedied by bringing the dress higher up ; but then his honor appears to have forgotten all about the ankles. The matter was, however, at last settled. So in Brown v. Foster,^ on a question of the fit of a suit of clothes, the defendant put the clothes on in court at the plaintiff's request. In People v. Hope," a case of burglary, a witness for the people was permitted to experiment before the jury with a small steel bar which he had made for the purpose of screwing on it certain couplings or sockets, one of which was found in a hole over the bank-vault in question, and the other in the defendant's trunk. On the trial of the Davis will case, in Montana, in 1891, in answer to the claim of the contestants that the will was written in Nigrossin ink (which was not known of until many years subsequent to the date of the will), it was shown by tests in court that it was written in logwood ink, which has been in use for forty years. In a case in 1886, before "Tom" Hughes, who was a county judge, the question was who had won a foot-race ; and being in doubt, he ordered it to be run over again in his presence. The Law yournal comments on this as follows : ''The course taken by Judge Hughes in the case of the walking case recently before him shows how difficult it is even for the judge to subdue the instincts of the natural man. As an old hunter put to hack work pricks up his ears, and perhaps jumps over the hedge at the sound of the voice of a pack of hounds ; so the author of ' Tom Brown,' at the mention of a foot-race, throws off his wig, and is ready to hurry to the ash-path. When the evidence on the question who won the race is not clear, to order it to be run over again is the newest form ' 113 Mass., 136 ; S. c, 18 Am. Rep , 463. ' 62 Cal., 291. 74 SHORT STUDIES IN EVIDENCE. of new trial. It is not an effective form, because the man who wins the race to-day is not necessarily the man who would have won it three months ago ; and we fear it is not contemplated by the practice of any court of law,, whether county court or other. For the judge of law to turn himself into the judge of the course, besides being a little undignified, might lead to an action being brought against himself in his own court. These methods are less suitable for this prosaic time than for the mythical days of Sancho Panza or Haroun Alraschid." It is probable that " Tom " is fond of a joke as well as race. In Leonard v. So. Pac. Co.,^ it was held that the charge that a scar upon the outside of the bottom flange of a railroad rail was made by a wheel on an engine on the rail across the track, may be disproved by producing a similar wheel, although somewhat smaller than that on the engine, and rolling it upon a section of a similar rail- road rail across which was laid another similar section in order to show that the wheel could not strike the flange as claimed, it being also shown that the larger the diam- eter of the wheel the farther it would avoid striking such flange. The court cited Eidt v. Cutter,^ an action for injury to a house, where it was disputed whether the injury was caused by fumes and gases from the defend- ant's copperas works or by emanations trom a neighbor- ing sewer ; and experts were allowed to testify as to experiments upon other premises exactly similar, except- ing the sewer ; also Brooke v. Railroad Co.,^ where wit- nesses were allowed to testify as to experiments in placing their feet between rails in order to show how they might be caught. The court remarked : "There seems to be some hesitation in receiving evi- dence of experiments or demonstrations ; and from the liability to misconception and error, there can be no ' 2 1 Oreg., 555; 28 Pac. Rep., 887; 15 Lawy. Rep. Ann., 221. ' 127 Mass., 522. ° 81 Iowa, 504. PRACTICAL TESTS IN EVIDENCE. 75 doubt that the experiments or demonstrations should be made under similar conditions and like circumstances. In all cases of this sort very much must necessarily be left to the discretion of the trial court ; but when it appears that the experiment or demonstration has been made under conditions similar to those existing in the case in issue, its discretion ought not to be interfered with." As to experiments in the jury-room, it was held error for the jury to send the constable out of the room, and have him talk in a somewhat loud tone, to test the accu- racy of testimony given on the trial ; and so in respect to experiments by them to ascertain whether the impres- sion made by a man's foot was shorter in running than in walking.^ In Cash Register Co. v. Blumenthal,^ the cash register, for the price of which the suit was brought, was exhibited and worked before the jury, and explained by a witness. In a recent murder case in New Jersey, "the defence was that the deceased fractured his skull by a fall during the altercation. To prove that this was probable. Dr. Andress was called as an expert. He had a large pack- age which he fondly handled, and while telling his story, unwrapped. He said that on January 9 he visited New York, and procured a head taken fresh from the body of a man sixty years old. Returning to Sparta, he fastened it on an apparatus resembling a human body, the whole weighing about ninety pounds. This was dropped from an angle of forty-five degrees, the skull striking a round stone. It was fractured worse than that of Morris, although he .weigked one hundred and eighty pounds. The prosecution were so surprised they forgot to object ; and before any one knew what was coming, the shrunken and ghastly trophy of medical experiment rolled on the floor. The effect was electrical. Women shrieked, men shrunk backward, and the court turned pale. One woman ' Jim V. State, 4 Hump., 290. ■' 85 Mich., 464. 76 SHORT STUDIES IN EVIDENCE. fainted, and for a few moments the room was filled with uproar, the persons in the rear striving to get a view, while those in front retreated from the grinning skull. When order was restored, the head was taken from the court, and on an objection the whole evidence was stricken from the records. The court said that the prin- ciple involved was unsettled in this State, and somewhat resembled the evidence on which the McPeek Case was taken to the Supreme Court." On the trial, at Hamilton, Ont, of an action of dam- ages for an injury sustained by the falling of a derrick, the plaintiff, Alfred Green, testified that since the acci- dent whenever he shut his eyes he became dizzy and fell down. The defence claiming that Green was shamming, Mr. Carscallen, with the judge's consent, decided to test the man in the presence of the jury. Green had sworn that when he shut his eyes, usually in thirty seconds or less he would become so dizzy that he would fall to the ground. Mr. Carscallen drew a stop watch, and pro- ceeded to try the experiment. The judge directed Green to step back three paces, then walk forward three paces, stop, and then close his eyes. Green, as he came delib- erately forward, stopped and shut his eyes. In a mo- ment he changed color, reeled back, and clutching the rail of the witness-stand, swung round and fell in a heap on the steps at Judge McMahon's feet. A daily paper said : " The scene was too real to doubt the genuine character of the man's affliction." Mr. E. A. Angell, of Cleveland, Ohio, writes me : " In the case of Peoria Target Company v. Cleveland Target Company, for alleged infringement of a patent granted to Fred Kimble, for a target composed of pitch and plaster-of-paris, in the proportion of 'one hundred parts of pitch to seventy-five of plaster-of-paris, heard before Judge Ricks, U. S. Circuit Judge for the North- ern District of Ohio, at Cleveland, in November of 1889, the court allowed us, representing the defendant, against objection, to manufacture in court a target similar to the - PRACTICAL TESTS IN EVIDENCE. 77 target described in the patent sued upon, but composed of the same materials in different proportions ; namely, five parts of plaster-of-paris to four parts of the pitch. This target was manufactured by us in the presence of the court as a part of the argument of counsel, not claim- ing, of course, that it was evidence. This composition,, namely, five parts of plaster-of-paris and four of pitch, was described in a previous patent issued in 1880, to one Woodward. Our contention was that the properties of the two compositions were essentially the same, and that there was no material difference between them." Mr. Albert H. Gladding, of Norwich, N. Y., writes me : "In 1878 John W. Church, Esq., was district attorney of this county ; and he put upon trial, at a court of ses- sions held by Hon. W. F. Jenks, county judge, a pris- oner under indictment for burglary. The prisoner's counsel was the late Isaac S. Newton, one of the brightest and ablest lawyers in this part of the State. The testi- mony upon the part of the people was to the effect that the defendant broke into and entered the dwelling in question through a certain cellar window. The defence produced in court the frame of the very window in ques- tion, and showed that its dimensions were nine inches by thirteen inches. The defendant was a man of full age, and appeared to be of ordinary size though rather slim and spare. At the close of the evidence the de- fendant's counsel moved for a direction to acquit, upon the ground that it was utterly impossible for the defend- ant to have committed the burglary as alleged and proved, to wit, through that cellar window. Any one looking at the man and the window-frame would have jumped to the conclusion that the prisoner had estab- lished a perfect defence. The court inquired of the district attorney If he claimed that entrance was effected in any other manner, or if he claimed that this was not the identical window-frame ; which questions were an- swered in the negative. When the court seemed about 78 SHORT STUDIES IN EVIDENCE. to give the direction for acquittal, the district attorney arose suddenly, and in a stern and commanding voice told the prisoner to 'stand up.' He quickly and meekly complied. The district attorney with increased energy said to him, ' Hold up your right hand, sir, as high as you can reach.' It was done. ' Reach your left, hand down by your 'side.' He did so ; and having got him into that position, and while his counsel was looking on with amazement and curiosity, wondering what the un- usual proceeding meant, the district attorney seized the window-frame, and throwing it over the prisoner's up-ex- tended arm, drew it down to his arm-pit, and giving it a sudden jerk it came over his left shoulder, and then with both hands he stripped it down over his body with such force as to take two or three buttons off his waistcoat and produce an exclamation of anger or pain or both, while the window-frame lay around his feet on the floor un- broken. Everybody was taken by surprise, but none more so than the prisoner's able and usually alert counsel. It is needless to say that the court declined to direct an acquittal. The jury found the prisoner guilty, and he served his term in State's prison. Any one having the curiosity to try the experiment will find that he can ' crawl out of a much smaller hole ' than he would expect, by taking the position Mr. Church put the prisoner in." Judge Loran L. Lewis, of the New York Supreme Court, has given me -two interesting instances of experi- ments in or out of court in his practice. Manke was on trial for murder. A witness testified that he saw him from behind, ascending a hill, facing the sun, wearing a pepper and salt suit. Mr. Lewis experimented at the same place, under exactly similar conditions, with persons wearing cloths of the color described, and of various other colors, and proved by observers that It was impos- sible to tell the color of any suit, on account of the sun- light. He also experimented with variously painted boards, with the same result. On the trial of Schell, for arson, a witness testified that he went with the defendant PRACTICAL TESTS IN EVIDENCE. 79 into the cellar of the house in question, in the evening ; that the defendant put a thin layer of shavings in a box, sprinkled them with kerosene, set in the midst a lighted candle projecting above them, and fitted another box on the top so closely that no ray of light was visible from the outside. The fire broke out some hours after the time fixed by the witness. Mr. Lewis brought boxes, shav- ings, and candles into court, and conducted experiments under the conditions described. The result was that when the boxes were close together the candle went out in nine minutes ; the upper box being very slightly raised — the thickness of a cent — the time was increased to some sixteen minutes. The wider the space and the more air admitted, the longer the candle burned ; but so great was the space required before the candle could have burned down sufficiently to ignite the shavings that the fire would have been easily visible through the cellar windows. The witness's story was thus demonstrated to be false. Music. — In Reed v. Carusi,^ an action tried before Chief-Justice Taney, at Baltimore, concerning copyright of a musical air, a professional singer was sworn and sang the two songs to the jury. The poem was " The Old Armchair." On Home Tooke's trial, Lord Campbell informs us that "a witness having said that a treasonable song had been sung at a public meeting, Tooke proposed that it should be sung in court, so that the jury might ascertain whether there was anything treasonable, resembling Ca ira or the Marseillaise Hymn, in the tune." It does not appear that the test was adopted. This would seem to be an instance where, contrary to Shakspeare, those who had music in themselves were fit for treason, etc. Of the renowned case of State v. Linkhaw,*^ in which the defendant was indicted for disturbing a religious meeting by very bad but well-intended singing, and on ' 8 Law Reporter, 410 ; 20 Fed. Cases, 431. ' 69 N. C, 214; s. c, 12 Am. Rep., 645. 80 SHORT STUDIES IN EVIDENCE. the trial of which a witness was allowed to imitate it, I have given the readers of the "Green Bag" a rhymed version (vol. i, p. 209), on the fidelity of which to the prose report I greatly pride myself. On a recent hearing in the New York Supreme Court upon the application of Henry E. Dixey, the comedian, for an injunction against the singer of a song which he claimed to be an infringement of his copyright in the song, "It's English, you know," Mr. Dixey upon the witness-stand was asked by the defendant's counsel to sing the song; but his own counsel objected. On an appeal to the court for a ruling on the admissibility of this evidence, the defendant was allowed to ask for a repetition of the words of the song. Mr. Dixey evi- dently did not want to sing the song ; and before he could do so Judge Allen said that a copy of the words would be more satisfaction to him, and a recess was then taken while Mr. Dixey wrote out the words. After the recess, Mr. George Purdy, leader of the Boston Museum orchestra, was called and sworn. He took his violin, and placing the score of Mr. Dixey's song against a di- rectory, played the tune to his honor. The music caused both the court and spectators to relax their features. The other song, " Quite English," was then played on the violin by the witness, and the resemblance was so close that all recognized it. A score was then presented of "When the Band begins to Play," and that also was rendered by the witness. Mr. Purdy did not think that there was any resemblance between the " English " songs and " When the Band begins to Play," at least to the ear of a musician. Several experts testified to the simi- larity of the songs. The unwonted echoes of the music through the court-house attracted a large audience, which apparently enjoyed the lively concert. Memory. — In Innis v. State,' a witness having testi- fied that he committed to memory part of the play of Punch and Judy, while certain facts to which he had " 42 Ga., 477. PRACTICAL TESTS IN EVIDENCE. 81 sworn were transpiring, the court allowed counsel on cross-examination to require him to repeat the dialogue in question. In Libby, etc. v. Sherman (Illinois), it appeared that the plaintiff was working in a packing-house alongside large piles, of barrels full of pork. One of the barrels located about the centre of one of the piles leaked and the foreman of defendant knocked in the head of the barrel and had its contents removed, leaving the empty- barrel in its place in the pile. Shortly thereafter the pile gave way at this place and one of the falling barrels injured plaintiff. Defendant offered to prove by wit- nesses who made experiments that an empty barrel located as the one in question could be taken out without causing the pile to give way and that the head of a barrel located relatively the same as the one in ques- tion, could be knocked out and its contents removed without affecting the stability of the pile. — Held, that the court properly rejected the proffered testimony. The court said : " We are clearly of the opinion that experiments of that character, and their results, and inference drawn from them by witnesses, were mere collateral matters which could have no legitimate bearing upon the issues before the jury. Besides the impossibility of showing that the conditions under which these experiments were made were in all respects identical with those existing at the time the plaintiff was injured, and the multitude of collateral issues which an attempt to prove identity of conditions would raise, the fact that one experiment had been conducted to a successful issue would have little if any tendency to show that in another case precisely like it, an accident might not happen. A thousand men may pass an impending wall with safety, or at least without injury, but the next man who attempts to pass it may be crushed by its fall. The question is not whether a pile of barrels might not stand with an empty barrel situated as was the one in this case, but whether leaving 82 SHORT STUDIES IN EVIDENCE. such barrel In the condition shown rendered the support of the barrels above it less secure, and that to such a degree as to constitute negligence, and whether the plaintiff's injury occurred as the result of such negli- gence." In an action against a carrier for injuries to a pas- senger and his clothing from the breaking of a bottle containing a fire extinguisher placed above plaintiff's seat, an experiment in court consisting of breaking a bottle of the extinguisher and putting the liquid upon scraps of cloth, to show that it would not soil or ruin cloth, is properly excluded.^ Permitting an experiment in the presence of the jury with a correct model of a coal bucket, by defects in which an employee was alleged to have been injured, for the purpose of showing how the bucket operated when in use, which the Court says is permitted simply as an illustration of how the accident could have happened, — is not erroneous when no prejudice could result there- ■ from.^ An offer to show that liquor is not intoxicating, by permitting the jurors to taste and test the same, is prop- erly refused, where the issue is not whether it is actually intoxicating, but whether or not it contains more than one per cent, of alcohol.' In Osborne v. City of Detroit,* an action for injuries occasioned by a defective sidewalk, where the plaintiff claimed to be paralyzed by the fall, and it was held not error to permit her madical attendant who had not been sworn, to demonstrate her loss of feeling to the jury by thrusting a pin into the side which plaintiff claimed to be paralyzed. The Court said : 'Alabama G. S. R. Co. v. Collier (Ala.), 14 So., 327. ' Pennsylvania Coal Co. v. Kelly (111.), 40 N. E., 938 ; afF'g 54 111. ,App., 622. 'Com. V. Brelsford, 161 Mass., 61. ' 32 Fed. Rep., 36. PRACTICAL TESTS IN EVIDENCE. 83 " Objection was made to this upon the ground that the ■doctor was not sworn as to the instrument he was using, nor was the plaintiff sworn to behave naturally while she was being experimented upon. It is argued that both the doctor and the plaintiff might have wholly deceived the court and jury without laying themselves open to a charge of perjury, and that plaintiff was not even asked to swear whether the instrument hurt her when it was \ised on the left side, or did not hurt her when used on the right side ; in short, that there was no sworn testi- mony or evidence in the whole performance, and no practical way of detecting any trickery which might have been practiced. We know however of no oath which could be administered to the doctor or the witness touch- ing this exhibition. So far as we are aware, the law recognizes no oaths to be administered upon the witness- stand except the ordinary oath to tell the truth, or to interpret correctly from one language to another. The pin by which the experiment was performed was exhib- ited to the jury. There was nothing which tended to show trickery on the part of the doctor in failing to insert the pin as he was requested to do, nor was there any cross-examination attempted from the witness upon this point. Counsel was certainly at liberty to examine the pin, and to ascertain whether in fact it was inserted in the flesh, and having failed to exercise this privilege, it is now too late to raise the objection that the exhibi- tion was Incompetent. It is certainly competent for the plaintiff to appear before the jury ; and if she had lost an arm or a leg by reason of the accident, they could hardly fail to notice it. By parity of reasoning, it would seem that she was at liberty to exhibit her wounds if she chose to do so, as is frequently the case where an ankle has been sprained or broken, a wrist fractured, or any maiming has occurred. I know of no objection to her showing the extent of the paralysis which had super- vened by reason of the accident, and evidence that her right side was insensible to pain certainly tended to show this paralyzed condition." g4 SHORT STUDIES IN EVIDENCE. Height of man. — When I was preparing a rhymed ver- sion of " The Giant Brakeman," ^ in which the plaintiff contended that while sitting on the top of a freight-car, he struck with his head the roof of a tunnel four feet eight inches above the top of the car, and it was left to the jury to say, by looking at him, whether this was possible, and they said it was, it occurred to me that it would have been a shrewd move on the part of the defendant's coun- sel to offer to have him measured as he sat in court. This, I am informed, was done on the new trial, and he proved to be one inch shorter than the average. But he rose to the occasion, and concluded that he was not sitting, but was walking forward, and the result of his change of base (if such it can be called) was an increased verdict. Reading sealed letters. — In United States v. Ried* the defendant was indicted for an unlawful use of the mails, by swindling people by offering to send replies to their letters addressed to their spirit friends, the price of the reply varying according as the letters were gummed, sewed or sealed. The defendant's offer to read the con- tents of sealed letters in open court was refused. Reading. — In Ort v. Fowler' it was held not error to require the defendant to read in court, the defense being that he signed a note without reading, because he was unable to read. This seems rather indecisive, because the defendant might still pretend that he could not read. Handwriting. — In respect to handwriting the holdings are practically not harmonious. Thus in Commonwealth V. Allen,* the defendant's writing being in question, it was held proper to refuse to allow him to write in court, and submit it to the jury for comparison. But this was permitted in State v. Henderson,® the court observing : ' Hunter v. Railroad Co., ii6 N. Y., 615 ; 3 Green Bag, 543. ° 42 Fed. Rep., 134. ' 31 Kan., 478; s. c, 23 Am. Law Reg. (N. S.), 569. * 128 Mass., 46 ; s. c, 35 Am. Rep., 356. " 29 W. Va., 147. PRACTICAL TESTS IN EVIDENCE. 85 " The objection urged to this is, that it is a comparison of handwriting by the jury, which it is alleged it not allowable; and the following authorities are cited: Rowt's Adm'x V. Kile's Adm'r, i Leigh, 216; Burress' case, 27 Gratt. 946 ; Clay v. Alderson's Adm'r, 10 W. Va., 50. It is true, as these cases hold, that it is not allow- able to lay other proved but not admitted specimens of the party's handwriting before the jury for the purpose of permitting them to judge by a compar- ison thereof with the signature in question, whether the said signature is not genuine. But here no such thing was permitted. The jury was not asked to compare different signatures of Leonard with his name signed to the alleged forged receipt. The witnesses were only asked to write an ' L ' as they thought Leon- ard wrote it, so that the jury could the better understand the testimony. If a jury do not have a clear idea of the location of a place where an act is alleged to have been done, no one doubts the right of a party to have a wit- ness describe the place, and by a word-painting of it and its surroundings make its location clear to the minds of the jury. What objection then can there be to the permit- ting of the witness to make in the presence of the jury a diagram of the place, to enable the jury the better to understand the witness ? There can then be no valid objection to the permitting of the witnesses in their attempt to describe how Ebenezer Leonard wrote the letter ' L,' to illustrate their meaning by writing the letter themselves, so that the jury could see whether or not it was in fact different from the alleged simulated ' L.' " In Sprouse v. Commonwealth,^ on a trial for forgery of Gibson's name, evidence was allowed that when the prisoner was brought before the mayor he was asked to write the name " Gibson," and that reluctantly, but with- out threat or promise, he w'rote it, and misspelled, it ' 81 Va., 378. 86 SHORT STUDIES IN EVIDENCE. " Gipson," as in the forged writing. This was held com- petent. In Amos' " Great Oyer of Poisoning," p. 20, it is said : " We learn from the letter of an eyewitness to the Earl of Somerset's trial, that the Earl was desired to write his name, in order that his handwriting might be compared with that of certain letters ; but the Earl contended it was contrary to law to require him to furnish proof by comparison of handwriting for his own condemnation ; neither the manuscript nor the printed report of the trial contains the slightest allusion to this circumstance." An expert on a question of handwriting may illustrate his testim^ony by drawing on a blackboard.^ Where a witness has testified that the color of ink has been affected by a blotting-pad, he may be allowed to illustrate it with such a pad.** A witness having testified that he wrote certain disputed words, on cross-examination may be required to write in presence of the jury.' In Gulf, etc., Ry. Co. v. Dutcher (Texas Supreme Court)* it was said: "The writer of this opinion very much doubts the existence of the power of compulsion in such cases, or to enforce the examination of the person of an individual without his or her consent, the effect of which would be, where the person to be examined is a female, to authorize the physicians to commit acts which otherwise would amount to an aggravated assault. . The constitutional guaranty may be inconsistent with the exercise of the power, and we do not understand that the Supreme Court has yet determined this question." In Siberry v. State (Indiana) " it was held that where a revolver has been identified as being the one with which the homicide was committed, it is proper to show the revolver to the jury, and to allow a competent wit- ness to testify how it could be discharged. ' McKay v. Lasher, 121 N. Y., 477. ' Farmers & Merch. Bk. v. Young, 36 Iowa, 44. ' Huff V. Nims, 11 Neb., 363. * 18 S. W. Rep., 586. ' 33 N. E. Rep,, 68i. PRACTICAL TESTS IN EVIDENCE. 87 Grief. — In Western Union Tel. Co. v. Carter (Texas),^ an action of damages for non-delivery of a telegram, the court said : " The first error assigned is that the court erred in permitting evidence to be introduced showing the acts and conduct of plaintiff, Mrs. M. E. Carter, the daughter of the deceased, Gorsuch. The evidence objected to was that of witnesses who stated the conduct and grief exhibited by Mrs. Carter when she learned that the notice of her father's death had not reached her in time for her and husband to take the morning train in order to be present at the funeral ; and when she was informed that her father was buried without her being present, she expressed her sorrow and grief by crying and moaning, and appeared unable to stand without assistance. The evidence objected to does not appear to be the conduct and acts of Mrs. Carter, accompanied by the grief and sorrow naturally resulting by reason of the death of her father, but appears to be acts and conduct showing grief and sorrow, accompanied by the facts that she was deprived of the right and privilege to be present at her father's funeral. The physical effect of this fact upon her that was observed by bystanders is admissible. It is permissible for them to say what effect this fact occa- sioned, if they observed it. The evidence was ad- missible." In conclusion I may say that in comparison with such evidence, ordinary evidence assumes something of the character of hearsay, and the eyes of the jurors consti- tute the best channel of evidence. It is true that the eye itself may be deceived. It is often cheated by avowed jugglery. There are some eyes that are not good witnesses, as those that are short- or far-sighted or color-blind. The same is true of the ear, as where it is deceived by ventriloquism, or when it is insensible to music. When Raleigh overlooked the affray from the " 20 S. W. Rep., 835. 88 SHORT STUDIES IN EVIDENCE. Tower window, he was surprised by the discrepancy between the accounts given by other spectators; but what would have been the result if only hearsay evi- dence had been accepted ? The rule laid down by Shak- speare for love-cases, and the non-observance of which proved so disastrous in the case of Henry Eighth and his " Flanders mare," is good for law-cases: " Let every eye negotiate for itself. And trust no agent." Note. — I do not vouch for the authenticity of the fol- lowing, which I find in a magazine of recent date, but it sounds plausible : " When Rufus Choate was a new (sic) beginner, he had to defend a young man who was a Boston broker's clerk, charged with seduction of a rather mature maiden under promise of marriage. There appeared to be little defense, but, on the day of trial in Suffolk County, Choate, seeing how extremely youthful his client was in face and size, had him dressed in low shoes, short trous- ers, jacket, and wide rolling childish collar over a black ribbon, and sat him down inconspicuously in the court. The prosecutor had concluded his case, and had pro- duced much evident impression on the jury against the accused, when Choate rose to open, and, beckoning to his client, placed him on a chair and said, ' I open with an exhibition of the gay Lothario.' The burst of laugh- ter was only a preface to the verdict of acquittal that soon followed." I have also seen in a late issue of the New York Times an account of a Pittsburg burglar who was detected by means of a copy in plaster from the impres- sion of human teeth in a pie found on the premises in question, and which corresponded to his mouth. This exposes a new danger lurking in that article of diet, and at the same time furnishes an answer to Ralph Waldo Emerson's question to his guest who refused pie for breakfast: "What is pie for?" But in this case there must have been a forcible comparison of the cast with PRACTICAL TESTS IN EVIDENCE. 89 the burglar's mouth, and thus he was compelled to fur- nish evidence to convict himself, which I conceive to be unconstitutional. Perhaps the court deemed that it did not lie in his mouth to object. 90 - SHORT STUDIES IN EVIDENCE. Theology on the Witness=Stand. There is no doubt that at common law an atheist was not competent as a witness. It is very reasonable that when a man professes to call God to witness his pledge, he should believe that there is such a being. Christianity is part of the common law — at least some courts have so held. But in the elder days courts were disposed to go further, and adjudge that Calvinism is part of the com- mon law. (I use the word Calvinism for convenience to denote theological doctrines generally so known? although other than Calvin's.) There was a time, at least in this country, when a per- son was held to be disqualified as a witness not only if he did not believe in the existence of God, but if he did not believe that God punished false swearing in a future state of existence. Some of the early cases went so far as to exact a belief in a future state of rewards as well as pun- ishments. This doctrine was thus expressed {obiter how- ever, because the witness was an atheist), in Jackson v. Gridley,^ by Spencer, C. J. : " By the law of England, which has been adopted in this State, it is fully and clearly settled that infidels who do not believe in a God, or if they do, do not think that he will either reward or pun- ish them in the world to come, cannot be witnesses in any case, nor under any circum,stances ; because an oath cannot possibly be any tie or obligation upon them." Citing Omi- chund V. Barker.* This doctrine, of course, shut out that portion of Universalists who did not believe in any future punishment, although they believed that God punished sin in this life. This is the doctrine of the Supreme Court of Connecticut, in Curtiss v. Strong,* (but here the ' i8 Johns., 98, 103. " WiUes, 549. ' 4 Day* SI. THE.OLOQY ON THE WITNESS-STAND. 91 witness did not acknowledge the obligation of an oath) ; Atwood V. Welton,^ and of Tennessee, in State v. Cooper.* Story held that " persons who do not believe in the exist- ence of a God, or of a future state, or have no religious belief, are not entitled to be sworn as witnesses. The administration of an oath supposes that a moral and religious accountability is felt to a Supreme Being" — which falls somewhat short of the stricter rule of Jackson V. Gridley.' But it was held later in New York, in Butts v. Swart- wood,* that a Universalist who believes in limited future punishment is competent.® The Massachusetts Supreme Court also, in 1813, held that the witness's disbelief in a future state of existence went only to his credibility. Greenleaf says (i Ev., § 369) : " It may be considered as now generally settled, in this country, that it is not mate- rial whether the witness believes that the punishment will be inflicted in this world or the next. It is enough if he has the religious sense of accountability to the Omniscient Being who is invoked by an oath." So in Brock v. Milli- gan," belief in a future state of rewards and punishments was considered unessential, the court observing that " it may at this time be considered as pretty generally settled, both in England and in the United States, that whoever believes in the moral influence and control of an overruling Providence in this life, and that an oath is binding on his conscience, is competent to testify ; " for aside from the penalties imposed by civil enactments, if the witness believes in the moral obligations of an oath, the rewara of good and the punishment of evil actions by some superior power is irresistibly implied." The court further suggested that even this requirement should be discarded by legislation. So the Supreme Court of Vermont, in ■ 7 Conn., 66. ' 2 Overton, 96; 5 Am. Dec, 656. ' Wakefield v. Ross, 5 Mason, 16. * 2 Cowen, 431. * See also, ibid., 572. * 10 Ohio, 121. 92 SHORT STUDIES IN EVIDENCE. Arnold v. Arnold's Estate^ (1841), held that no person who believes in the existence of God or a Supreme Being, who is the just moral Governor of the Universe, who will, within this life or the next, reward virtue and punish vice, and who feels that an oath will be binding on his con- science, may be excluded as a witness. This is a very learned and admirable opinion by Redfield, J., who exam- ines the subject historically, theologically and legally, and concludes: "There does not seem any more propriety in requiring the witness to believe in a future state of exist- ence, even, much more of punishment in the future life than in any other, or include all the articles of the Chris- tian faith." So in Cubbison v. McCreary^ (1841), the test was said to be "whether he believe in the existence of God, who will punish him if he swears falsely." (Dis- approving the Connecticut and Tennessee rule.) In sev- eral courts the case of Atwood v. Welton is regarded as the only one necessarily exacting a belief in a future state of rewards and punishments. (One judge there dissented.) All this narrowness of the law was imported through a wrong report of the language of Chief Justice Willes in the report of the case of Omichund v. Barker,^ where his language is given : " I am clearly of opinion that if they do not believe in a God or future rewards or punishments, they ought not to be admitted as witnesses." His lan- guage, as given in Willes' Report, was: "I am clearly of opinion that such infidels (if any such there be) who either do not believe in a God, or if they do, do not think that He will either reward or punish them in this world or m the next, cannot be witnesses in any case," etc. Also: " Nothing but the belief of a God, and that He will reward and punish us according to our deserts, is necessary to qualify a man to take the oath." Chancellor Walworth shows, in the report of a case decided by him as circuit judge,* that although Atkyns first reported the case, yet ' 13 Vt, 362. ' 2 Watts & Searg., 262. " I Atkyns, 45. * 2 Cowen, 433. THEOLOGY ON THE WITNESS-STAND. 93 the report in Willes was copied from the manuscript notes of the Cliief Justice fifty years after his death, and pub- lished by Durnford. The latter therefore must be the correct version, (Of Willes' Reports, Mr. Wallace says, in " The Reporters," p. 438 : " These reports, though pos- thumous, are admitted to be highly authoritative. They appear to have been prepared by the Chief Justice him- self, and were carefully revised by Mr. Durnford, their reputable editor. Willes and Wilson are probably the most authoritative reports of the reign of George II." On the other hand, we learn from the same source that Atkyns was a bad reporter. The King's Bench once for- bade counsel to cite him, and he was denounced by sev- eral English judges as incorrect and slovenly ; by Judge Green, of Virginia, as "blundering and confused," and by Mr. Wallace as "jejune" and "defective.") It is evident from a comparison that Atkyns' report is much less full than that in Willes, and it is probable that it was made from memory or hasty notes. The opinion of the Chief Justice in Atkyns covers less than three pages, in Willes it covers thirteen. The case is also reported in a dozen lines in i Wilson (K. B.), 84, with the remark, "so that at this day it seems to be settled that infidelity of any kind doth not go to the competency of a witness." Behold therefore "how great a matter a little fire kindleth ! " As Walworth says, this misreport was " the foundation of all the error on this subject." Judge Cowen made this point the subject of a learned note, in 2 Cowen, 435, in which he supports the views of Walworth. The Chief Justice's opinion, in Willes, is one of the noblest to be found in the law books, and more liberal in sentiment than the opinions of Coke, and indeed of many lawyers who lived a century later than Willes. The construction which the English courts put on Willes' views is found in Attorney- General v. Bradlaugh,' — the celebrated contest concerning the defendants' admission to the House of Commons. The Master of the Rolls adopts ■ 14 Q. B. Div., 697 (189s). 94 SHORT STUDIES IN EVIDENCE. the version in Willes' Reports, and says : " Therefore there is no necessity that the person taking the oath should be- lieve that he will be liable to be punished in a future state. If there be any belief in a religion according to which it is supposed that a Supreme Being would punish a man in this world for doing wrong, that is enough, but if he does not believe in a God, or if believing in a God he does not think that God will either reward or punish him in this world or the next, in either case, according to the law of England as here declared, a man cannot be a witness in any case, or under any circumstances." So Cotton, L. J., says, "it is immaterial whether it," i. e., the punishment, " is in this or in a future world." This dispute has been set at rest in many States by constitutional or legislative enactment in comparatively recent years, as for example, in New York, where it is provided by constitution that " no person shall be rendered incompetent to be a witness on account of his opinion on matters of religious belief." Such is the law of Arkansas, Iowa, Missouri, Wisconsin, California, Indiana, Kansas, Michigan, Nebraska, Nevada, Ohio, Maryland, Florida, Oregon, Virginia. See note, 92 Am. Dec, 473, Hough's Am. Court. Under this rule, in Smith v. Brown, 8 Kans., 608, an Indian was allowed to testify, although he simply thought that he would be hanged for telling a lie. So men have at last accepted the enlightened Chief Justice Willes' declaration: "It is a little, mean, narrow notion to sup- pose that no one but a Christian can be an honest man." It seems however that religious scepticism may still be shov/n by cross-examination and urged against the wit- ness' credibility.^ The judge here observes : " I have no fears that this rule will encourage parties to scandalize truly religious witnesses by imputations that they profess the worst of creeds. For so long as no religious test shall be required for judges and jurors, parties will be loath to cross-examine witnesses as to their opinions on ' Stanbro v. Hopkins, 38 Barb., 265. THEOLOGY ON THE WITNESS-STAND. 95 matters of religious belief, unless they are well assured the opinions of the witnesses are very obnoxious to the sentiments of citizens who say with Pope : ' For modes of faith let graceless zealots fight, His can't be wrong whose life is in the right.' " But while the ancient rule has thus been relaxed as to adults, there still seems to be a disposition in some juris- dictions to hold children to a Sunday school knowledge and profession, and to gauge their intelligence by their Calvinism. In the very latest and most authoritative case on the point this was not insisted upon, for the youth was orthodox, although extremely young. In that case,^ it was held that a child five and a-half years old was not necessarily incompetent to testify as to the circum- stances of a homicide which occurred when he was four years and eleven months old. Mr. Justice Brewer deliv- ered the following opinion on this point : " The remaining objection is to the action of the court in permitting the son of the deceased to testify. The homicide took place on June 12, 1894, and this boy was five years old on the 5th of July following. The case was tried on December 21, at which time he was nearly five and a-half years of age. The boy, in reply to ques- tions put to him on his voir dire, said among other things that he knew the difference between the truth and a lie : that if he told a lie the bad man would get him, and that he was going to tell the truth. When further asked what they would do with him in court if he told a lie, he replied that they would put him in jail. He also said that his mother had told him that morning to ' tell no lie,' and in response to a question as to what the clerk said to him, when he held up his hand, he answered ' don't you tell no story.' Other questions were asked as to his residence, his relationship to the deceased, and as to whether he had ever been to school, to which latter inquiry he responded in the negative. As the testimony is not all preserved in ' Wheeler v. United States, 159 U. S., 523. 96 SHORT STUDIES IN EVIDENCE. the record we have before us no inquiry as to the sufficiency of the testimony to uphold the verdict, and are limited to the question of the competency of this witness. " That the boy was not by reason of his youth, as a matter of law, absolutely disqualified as a witness, is clear. While no one would think of calling as a witness an infant only two or three years old, there is no precise age which determines the question of competency. This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photo- graphed into the record the decision of the trial judge will not be disturbed on review unless from that which is pre- served it is clear that it was erroneous. These rules have been settled by many decisions, and there seems to be no dissent among the recent authorities." The knowledge and fear of "the bad man" seems to be regarded by most of the courts as more decisive of the infant witness' competency than his knowledge and fear of the Lord. Thus in State v. Belton,' it was held that a boy who habitually repeated the Lord's Prayer, and had heard that the bad man caught those who lied, cursed, etc., but had never heard of God or the devil, or of heaven or hell, or of the Bible, and had no idea of what became, of the good or of the bad after death, was not a competent witness. (A celebrated English judge once said, when a boy thus interrogated, admitted that he did not know what became of the bad after death, " No more do L Swear the witness"). So in Carter v. State,^ a negro girl of nine, who did not know what the Bible was, had ' 24 S. C, 185 ; 58 Am. Rep., 245. " 63 Alabama, 52; 35 Am. Rep., 4. THEOLOGY ON THE WITNESS-STAND. 97 teen to church but once and then at her father's funeral, had heard tell of God but did not know who it was, and knew of no punishment for false swearing but imprison- ment, was debarred from testifying. In Draper v. Draper,^ a child of nine was suffered to testify, having shown her orthodoxy by saying that she "understood the nature of an oath, and that if she did not swear the truth she would go into hell-fire." In McGuire v. People,* a child of six or seven was allowed to testify without disclosing any religious fears, so far as the report shows, and so in State V. Richie.* In McGufif v. State,* a girl of seven, complain- ing of rape, was permitted to testify, having shown her belief "that falsehood was not only morally wrong, but would be severely punished in the future." In State v. Michael,^ a grossly ignorant girl of five, complaining ol rape, was admitted to testify on stating that "the bad man gets little girls that tells stories," and the court "puts them in jail," but knew nothing of God or Christ, except that " God makes babies and throws them down to the doctors ; " but this was reversed on appeal. But an igno- rant colored child of thirteen or fourteen is competent if she knows she "would go to the bad world" if she swore falsely, Vincent v. State ; ® and so of a child of eight who knew he " would go to the big fire " in the like case. Com. v. Carey ; ^ so the fear of the " bad place " will make a boy of thirteen competent, Partin v. State (Texas) ; ^ and so a belief in hea!ven and hell will constitute a girl under ten competent." Some courts are so lenient that they allow an adjournment even in a criminal case to allow a ' 68 Illinois, 17. " 44 Mich., 286 ; 38 Am, Rep., 265. ° 28 La. Ann., 327 ; 26 Am. Rep., 100. * 88 Ala., 147; 16 Am. St. Rep., 25. ' 37 W. Va., 565 ; 19 L. R. A., 605. ' 3 Heisk., 120. ' 2 Brewst., 404. ■ 30 S. W, Rep., 1067. ' Grimes v. State, 105 Ala., 86, 98 SHORT STUDIES IN ;EVIDENCE, course of theological instruction to the child.^ But" they will not do this in Texas.^ The wise Chief Justice Buckley, in Moore v. State,^ observed:. "It is not requisite that they should know what becomes of one who swears to a falsehood or the effects of an oath. If they know their own ignorance concerning those great, mysteries and candidly avow it, there is the more reason, to think that they have some clear knowledge on other subjects and will be candid in communicating it." Here a boy of ten did not know what becomes of one who swore to a falsehood, had not been taught the Bible, and did not go to Sunday school, but was sure " God made me," and this was held a safe basis to allow him to swear that he saw F. go to M.'s house and return with a bottle of whisky. In State v. Doyle,* a witness nine years old, who did not know the nature of an oath but knew people were sworn to make them tell the truth, and said that he would tell the truth, was held competent in the discretion of the trial court. In State v. Juneau,^ a child of four years and nine months was allowed to testify, and this ' was held to be a matter in the discretion of the trial court. Note. — From a recent decision of the United States Supreme Court (Carver v. U. S.), it appears that dying declarations may be discredited by proof that a declarant did not believe in a future state of rewards or punishment. Citing State v. Elliott, 45 Iowa, 486. But it is error to exclude them because the declarant disbelieved in "a hell or a hereafter," and believed that "all the punishment a man got was in this world," although such proof was com- petent to affect his credit. Hill v. State, 64 Miss., 431. ' Com. V. Lynes, 142 Mass., 577; 56 Am. Rep., 709. ' Taylor v. State, 22 Tex. Ct. App., 530; 58 Am. Rep., 656. = 79 Ga., 498. * 107 Missouri, 36. ' 88 Wis., 180; 43 Am. St. Rep., 877 ; 24 L. R. A., 857. EVIDENCE, ETC., AS TO PRIVATE BOUNDARIES. 99 Evidence of Declarations and Reputation as to Private Boundaries. The question of the admissibility of reputation to prove doubtful boundaries is not harmoniously decided by the courts of England and this country. The common-law doctrine seems to admit such proof in cases of public boundaries, but not in respect to private estates. Thus in England this species of evidence has been approved in respect to "boundaries of parishes, manors, and the like, which are of public interest and generally of remote antiquity/ yet by the weight of authority and upon the better reason, such evidence is held to be inadmissible for the purpose of proving the boundary of a private estate, when such boundary is not identical with another of a public or quasi public nature." " The expressions of the English judges on the point are generally very meagre. Lord Kenyon, for example, says: "Although a general right may be proved by traditionary evidence, yet a par- ticular fact cannot." ^ The most extended passage on the subject perhaps is the following by Lord Ellenborough : "The admission of hearsay evidence upon all occasions, whether in matters of public or private right, is somewhat of an anomaly, and forms an exception to the general rules of evidence. The question here is whether this is a case of a public or merely private right ; and supposing it to be merely a private right, whether according to the habit and practice of the circuit on which it was tried, ' Greenl. Ev., § 145; Rex v. Mytton, 2 E. & E.., 557; Nicholls v. Parker, 14 East, 331; Reg. v. Bedfordshire, 4 El. & Bl., 535; With- nell V. Gartham, 6 T. R., 388 ; Doe v. Sleeman, 9 Q. B., 298 ; Beau- fort, v. Swansea, 3 Ex. 413; Ford v. Lacy, 2 F. & F., 354- ' I Greenl. Ev., § 145 ; Thomas v. Jenkins, 6 Ad. & EL, 525 ; Reed V. Jackson, i East, 357 ; Doe v. Thomas, 14 East, 323 ; Outram v. Morewood, 5 T. R., 121 ; Weeks v. Sparke, i M. & S., 679. ' Outram v. Morewood, supra. 100 SHORT STUDIES IN EVIDENCE. reputation can be received. I confess myself at a loss to understand upon what' principle, even in matters of public right, reputation was ever deemed admissible evidence. It is said indeed that upon questions of public right all are interested, and must be presumed conversant with them ; and that is the distinction taken between public and private rights ; but I must confess that I have not been able to see the force of the principle on which that distinction is founded, so clearly as others have done, though I must admit its existence ; and it has not been controverted in argument to-day, that in the case of public rights reputation is to be received in evidence." ^ Again, Lord Kenyon says : " Evidence of reputation upon general points is receivable, because all mankind being interested therein, it is natural to suppose that they may be conversant with the subjects, and that they should discourse together about them, having all the same means of information. But how can this apply to private titles, either with regard to particular customs or private pre- scriptions ? How is it possible for strangers to know anything of what concerns only their private titles?"* The reason given or recognized for this distinction be- tween public and private boundaries is that the former are permanent and unalterable, the second temporary and easily changeable. The cases cited in the references above are not all of boundaries, but the others are analo- gous and based on the same principles and reasoning. They present a striking example of the ease and certainty with which principles become fixed in the common law of evidence without any very direct or extended discussion of the particular point. The English doctrine, as we have seen, is commended by Greenleaf, and it also meets the approval of Wharton, ' Weeks v. Sparke, supra. ' Morewood v. Wood, note^ 14 East, 327. In this case two of tht judges approved the admission of such, evidence, and it appeared tliat the practice of tlie circuits differed. The reporter says.: " The admissi- bi'.ity of evidence of this, description has be^ vexatia quesHo for many 3'eayT i:i Westminster Hall." EVIDENCE, ETC., AS TO PRIVATE BOUNDARIES. IQl who says : ^ " Such declarations should only be received when made coincidentally with pointing out boundaries, and by parties either performing business duties at the time or having no interest to subserve in making the declarations." He also essays, rather fancifully, to recon- cile the manifest conflict of decision between this country and England, on the ground that "our boundaries go back, in the main, to proprietary or government grants or to purchases from the Indians," the interior as well as the exterior lines of which are shifting or imperfectly described, and in regard to which " the community took such an inter^ est as made its common opinion of value as exhibiting not merely what the parties understood the boundaries to be, but what they really made the boundaries" — and hence the reputation relates to matters of public interest. The English view is accepted by the influential courts of Massachusetts, New Jersey and Maine, but by these alone of the American States, I believe. In Long v. Colton, ii6 Mass., 414, the court said: "In Bartlett v. Emerson, 7 Gray, 174, it is held that to be admissible such declarations must have been made by persons now deceased while in possession of land owned by them, and in the act of pointing out their boundaries, and when it appears to show no interest to deceive or misrepresent. The declarations offered and rejected at the trial do not come within the exceptions thus defined to the rule by which hearsay is excluded. The decisive objection to their competency is that they do not appear to have been made while in the act of pointing out the boundaries of the declarant's land. This is an element which cannot be disregarded, especially when the question is one of private boundary. The declaration derives its force as evidence from the fact that it accompanies an act which it qualifies or gives character to. The declaration does not appear to have been offered for the purpose of establishing a boundary by traditionary evidence or reputation. Such evidence has sometimes been said by American courts to ^ Whart. Ev., § igi. 102 SHORT STUDIES IN EVIDENCE. be admissible; and in the cases from New Hampshire, cited by the defendant, it seems to be held that declara- tions of deceased persons, who from their situation appear to have had the means of knowledge, and who have no interest to misrepresent the facts, are admissible to estab- lish private boundaries, although not made on the land. Smith V Forrest, 49 N. H., 230, 237; Great Falls Co. v. Worster, 1,5 N. H., 412, 437. But by the current ot authority, and upon the better reason, such evidence is inadmissible for the purpose of proving the boundary of a private estate, where such boundary is not identical with another of a public or quasi public nature, i Greenl. Ev., § 145; I Phil. Ev. (N. Y. ed., 1849), 241, 242; Cowen & Hill's Notes; Hall v. Mayo, 97 Mass., 416." This case is cited and followed in the Supreme Court of New Jersey, in Curtis v. Aaronson, 49 N. J. L., 68; s. c, 60 Am. Rep., 584. The court there said: " In some of the American States the rule excluding hearsay testi- mony is, in this line of fact, to some extent departed from, and traditionary evidence is received to establish private boundary. It has been permitted, under color of making proof by ancient reputation, to give the declarations of third persons, strangers to the title, made when not en- gaged in any provable act, such declarations being recitals of past acts and doings of the declarant, or expression of opinion on matters exclusively pertaining to the rights of others. The reception of such evidence is confessedly in derogation of the established rules of evidence under our system, and is justified only on the ground of an alleged necessity. It is needless to cite these cases, as they are fully referred to in the, text-books in common use. But the decided weight of authority in the country, and upon the solid ground of reason and principle, is against the admissibility of evidence of this character. The cases de- cided in the courts of Massachusetts illustrate and enforce what is believed to be the true rule. There traditionary proof is received in matters of private lines only when EVIDENCE, ETC., AS TO PRIVATE BOUNDARIES. 103 the boundary in question is a public o'r quasi public one, with which the private right is coincident. " Proof of declarations of persons since deceased, in respect to private boundaries, to be admissible in evidence, must have been made by a declarant in possession as owner at the time, and while engaged in pointing out the boundary in question, and such declarations need not be against interest or in disparagement of title ; they are received when nothing appears to show an interest to deceive or misrepresent." Citing the Massachusetts cases. "The rule in Massachusetts is approved in the Federal courts. Hunnicutt v. Peyton, 102 U. S., ■y^-^T^, 'h^'h-^ " In such cases, recitals of fact not made by one in possession as owner and qualifying such possession, not made by an owner against interest, not made by one in the performance under proper authority of some provable act in respect to such boundary, and qualifying and char- acterizing such act, but being the mere voluntary state- ment of a stranger, not under oath or in presence of parties, cannot, under any rule or reason of safety, be ■regarded as competent testimony upon which to determine private title to lands, and whether made ante or post litem inotain, are equally objectionable and illegal ; and while the courts of some States have, as it would seem, been willing to receive such testimony. In this State we have not gone so far." In Chapman V. Twitchell, 37 Me., 59; 58 Am, Dec, "J J 2,, the court cite with approval the doctrine of Green- leaf's section 145, given above, adding: "It would be a new element in the law of evidence to admit the diagrams or declarations of deceased persons for the purpose of proving the limits or boundaries of lots between individ- uals, when those persons were never the owners or pos- sessors of them." In Hunnicutt v. Peyton, cited by the New Jersey court above, a distinction is drawn between proof of reputation and proof of declarations. As " one swallow does not 104 SHORT STUDIES IN EVIDENCE. make a summer," so the declarations of one witness do not constitute reputation. The court said: "Again, Moore's declarations had no reference to reputation in the neighborhood. They are not to be confounded with proof of reputation — proof of what the community thought, believed or said. As repeated by the witness,, they were mere hearsay, the unsworn declarations of a deceased person respecting a particular fact not of a public nature. We do not question that such declarations of reputation respecting ancient public boundaries are admissible, and they have sometimes been admitted in controversies re- specting private boundaries. But they are admissible in only a limited class of cases — a class much more limited than that in which such evidence is offered to prove reputa- tion of public boundaries. Proof of reputation is open to rebuttal by witnesses. Not so with declarations of a par- ticular fact respecting a private boundary. They are there- fore receivable only when made coincidently with pointing out the boundaries and generally as part of the res gestm. "In EUicott et al. v. Pearr(io Pet., 412), we find a case which bears strongly on the present. In that case, which was a writ of right for a tract of land in which the loca- tion of a survey was a matter in controversy, a witness was offered to prove that one Moore, who was dead, but whose name was put down as one of the chain-carriers in making the original survey, and who was subsequently present when lines were run on the same land, had de- clared that a certain corner was the corner made by the surveyor when the original survey was made and the line was run for that survey. The evidence was rejected, and this court ruled, correctly rejected, though the declara- tions offered were made by one who was proved by other evidence to have assisted in running the line. This case is instructive, and we believe it is in harmony with the rule generally enforced in this country. It certainly is in accord with the ruling of the English courts. " It is true that in several States of the Union decisions have been made recognizing the admissibility of declara- EVIDENCE, ETC., AS TO PRIVATE BOUNDARIES. 105 tions of deceased persons, even though they were state- ments of particular facts and in regard to mere private boundaries ; but many of them, perhaps most of them, were admissible on other grounds, either as parts of the res gestce or declarations of parties in possession. We think such is not the preponderant weight of decision. In Massachusetts where the subject has been much dis- cussed, it is held, that to be admissible, such declarations must have been made by persons in possession of land and in the act of pointing out their boundaries. Bartlett V. Emerson, 7 Gray (Mass.), 1 74 ; Daggett v. Shaw, 5 Mete. (Mass.), 223. And again, in Long v. Colton (116 Mass., 414), when it was said that it is an element not to be disregarded, especially where the question is one of private boundaries, that the declaration was made while in the act of pointing out the boundaries, on the declarants' land. The declaration derives its force froni the fact that it accompanies and qualifies an act, and is thus a part of the act. A similar ruling was made in Bender v. Pitzer, 27 Pa. St., 333. " We will not undertake to review the vast number of decisions of State courts upon this subject. It would greatly protract this opinion. Some things may be deduced from them, which though not universally recog- nized, are the conclusions to which, we think, a great majority of them lead. In questions of private boundary* declarations of particular facts, as distinguished from reputation, made by deceased persons, are not admissible unless they were made by persons who, it is shown, had knowledge of that whereof they spoke, and who were on the land, or in possession of it when the declarations were made. " To be evidence, they must have been made when the declarant was pointing out or marking the boundaries or discharging some duties relating thereto. A declaration which is a mere recital of something past is not an excep- tion to the rule that excludes hearsay evidence. Still, if a different ruling has been made in the State of Texas, 106 SHORT STUDIES LN EVIDENCE; ■ and has become a rule of property there, applicable to the determination of controversies respecting disputed bound- aries, we should feel constrained to apply the Texas rule to this case. We have therefore carefully examined all the decisions of the Supreme Court of that State which relate to the subject. The result has been to convince us that there is no essential difference betweefi the rule as there held by the American courts. Hearsay evidence is admitted in questions of boundary to establish old bound- ary lines, even when private ; but it is under restrictions, and the restrictions appear to be the same as those which are recognized elsewhere." The distinction between proof of reputation and proof of declarations is recognized in Bender v. Pitzer, 27 Pa. St., 333, as stated in the case last quoted from. The court there say : " It did not amount to general reputa- tion, for one man's declaration of the existence of a fact does not prove that the allegation is generally reputed to be well founded." After commenting on the weak- ness of declarations as evidence, the court conclude : " If the question was an open one, it probably would be well to consider whether hearsay evidence respecting bound- aries should not be confined to general reputation. We will however stand by the former decisions of this court" ■ — admitting declarations when made by surveyors or by owners or adjoining proprietors in pointing out bound- aries — " taking good care not to extend the rule here- tofore laid down, or to enlarge the decisions already made." But the English doctrine is generally discarded in this country, and the prevailing American doctrine may be thus stated : " The boundaries of a private estate, when in doubt by the deeds, may be proved by reputation, and by the declarations of disinterested persons made before legal controversy had arisen." "^ "If no certain monu- 1 Whitehurst v. Pettipher, 87 N. C, 179; 42 Am. Rep., 520; Smith V. Headrick, 93 N. C, 210; Bethea v. Byrd, 95 N. C, 309; 59 Am. Rep., 240; Kinney V. Farnsworth, 17 Conn., 355; Nieman v. Ward,, EVIDENCE, ETC., AS TO PRIVATE BOUNDARIES. 107 merits can be found, nor any data to determine courses and distances, a lesser degree of testimony made be resorted to, and long continued occupancy and acquies- cence, even reputation and hearsay as to boundaries, may have weight." ^ "That boundaries may be proved by hearsay testimony is a rule well settled." ^ In Sasser V. Herring, supra, Henderson, C. J., after declaring such evidence competent upon authority, said: "And if the propriety of the rule was now res Integra, perhaps the necessity of the case, arising 'from the situation of our country, and the want of self-evident terminii of our lands, would require its adoption. For although it sometimes leads to falsehood, it more often tends to the establishment of truth. From necessity we have in this instance sacrificed the principles upon which the rules of evidence are founded." The most extensive and most excellent consideration of this question, upon principle, may be found in a Texas case.^ The court there said : " It is well settled by our decisions that the declarations of disinterested parties, since deceased, who were in a position to know a boundary line, are admissible in a controversy about such a line." But it appeared that the statements were made while the declarant was pointing out posts placed by the surveyor who ran the disputed line. But in Hurt v. Evans, 49 I W. & S., 68 ; McCausland v. Fleming, 63 Pa. St., 36 ; Sasser v. Her- ring, 3 Dev. L., 340; Beard's Lessee v. Talbot, i Cooke (Tenn.), 142; Smith V. Nowells, 2 Litt. (Ky.), 159; Great Falls Co. v. Worster, 15 N. H., 412 ; Martin v. Atkinson, 7 Ga., 228 ; 50 Am. Dec, 403 ; Wood v. Willard, 37 Vt., 386 ; Child v. Kingsbury, 46 Vt., 47; George v. Thomas, i6 Tex , 74; 67 Am. Dec, 612; Ralston v. Miller, 3 Rand., 44; 15 Am. Dec, 704; Nixon v. Porter, 34 Miss., 697; 69 Am. Dec, 408; Gibson v. Poor, 21 N. H., 440; 53 Am. Dec, 216; Sexton v. HoUis, 26 S. C, 236; City of Racine v. Emerson, 85 Wis., 80; 39 Am. St. Rep., 819; Coate v. Speer, 3 McCord (S. C), 227; 15 Am. Dec, 627. (So under government surveys : Thoen v. Roche, 57 Minn., 135 \ 47 Am. St., 600.) ' Nys V. Biemeret, 44 Wis., 104. " By McLean, J., Boardman v. Lessees of Reed, 6 Pet., 328. " Tucker v. Smithj 68 Tex., 473. 108 SHORT STUDIES IN EVIDENCE. Tex., 311, it was held, without discussion, that declara- tions after suit, by a party never interested in the lands, are not competent to prove boundaries. In Stroud v. Springfield, 28 Tex., 649, the court said : " Evidence of this character, except where it was a part of the original res gestcs was not admissible at common law to prove the boundaries of a private estate. Its admission was re- stricted to cases involving questions of a general or public nature. The admissibility of this character of evidence seems to have turned upon the nature of the reputed fact, whether it were of interest to one party only or to many. If the latter, it was admissible, if the former, it was excluded. The tendency of American decisions has been to break in upon the rule of the common law, in reference to questions of private boundary, and to re- move the restrictions which exclude evidence of this character in such cases. This has been the result of necessity. Our landmarks are usually of perishable materials, and by the settlement and improvement of the country, and from other causes, they are constantly being destroyed. It is therefore indispensable in many cases that hearsay or reputation should be received to establish old boundaries. * * * There is a strong array of authorities which seem to support the common-law rule. But the courts of a majority of the States, it is believed, hold the same doctrine asserted in the cases I have cited from ISTorth and South Carolina. Sample v. Robb, 16 Pa. St., 305 ; Sasserv. Herring, 3 Dev. L., 340. * * * The rule that old boundaries may be proved by the com- mon reputation and understanding of the neighborhood where the land lies, would seem better established, and to stand in principle on higher ground than the one we have been considering, which admits the declarations of deceased persons of competent knowledge and having no interest as evidence. The admission of evidence of common reputation as to old boundaries, which frequently cannot possibly be proved by positive testimony, is based on the extreme probability of the truth of a fact received, assented to and acted on as true, by the common con- EVIDENCE, ETC., AS TO PRIVATE BOUNDARIES. 109' sent of a community having peculiar means for correct information, and no interest to warp their judgment in forming a correct conclusion. In the absence of positive and direct testimony, which when they are ancient can- not usually be had to establish boundaries, common reputation is perhaps as little liable to error as any other species of evidence that can be resorted to for the pur^ pose, and indeed is frequently the only resort. The general rule is undoubted, that common reputation is admissible as evidence in questions of boundary, but there is much diversity of opinion as to its proper applica- tion. Boardman v. Lessees of Reed, 6 Pet., 341. The unrestricted admission of this species of evidence would be fraught with the most dangerous tendencies, and violative of the best dictates of experience. The admis- sibility, as well as the value and weight of general rep- utation, must from its nature depend very much upon the circumstances of the case in which it is offered. It cannot of course be received as to title. It is admissible only as to the locus in quo of the boundary, a fact of which the community or neighborhood around it is sup- posed to be peculiarly well informed. The boundary must be an ancient one, and its supposed locality must be of sufificient interest or note in the neighborhood or community to have been the subject of observation and conversation among the people. The reputation or understanding must be general and concurrent. There, weight of opinion or neighborhood report is not common reputation. The reputation or understanding must have been formed and in existence before the controversy commenced in which it is used as evidence. Men are not presumed to be indifferent in regard to matters of actual controversy, for when the contest has begun, peo- ple generally take one side or the other, and if they are disposed to speak the truth, facts are or may be seen by them through a false medium. For this reason, it is necessary that proof of common reputation must have reference to a time ante litem motam." ll'Q SHORtSTUDIES IN EVIDENCE. In Bethea v. Byrd, supra, the court said : " Such evi- dence is not of a very high type, and may not ordinarily be very satisfactory, still it is found that it subserves the ends of justi-ce." The Pennsylvania court, in Nieman v. Ward, supra, consider that "such evidence is entitled to respect in cases of boundary, where the lapse of time is so great as to render it difficult, if not impossible, to prove the boundaries by the existence of the primitive landmarks, or other evidence than that of hearsay." In the early Tennessee case cited above, the court adopt the rule applicable to pedigree and prescriptions, found- ing on the ancient English case of Athol v. Asburnham.-' In the Kentucky case cited above, the court admit the testimony from necessity, "because an old boundary can- not in general be proved by direct and positive proof." The same view was taken in the Georgia case, but it was held that such evidence was not admissible if better evidence existed. So in the Virginia case the court observed : " Ancient reputation and possession in respect to the boundaries of the streets are entitled 'to infinitely more respect in deciding upon the boundaries of the lots than any experimental survey that can now be made." (This particular boundary however was of a public na- ture.) In Gibson v. Poor, the New Hampshire court examine the subject in a learned manner, and approve the admission of " statements of deceased individuals, who from their situation had the means of knowledge and no interest to misrepresent." The Vermont court, in Wood V. Willard, supra, approve the admission of declarations of deceased disinterested persons, "made when upon or in the immediate vicinity of the boundary referred to, and pointing It out," adopting the Massachu- setts rule ; but in a later case,* the same court said : "We do not understand why its admissibility should depend upon the fact that the declaration was made upon the land, and in connection with actually showing or pointing it out. The principle is the same. That he ' BuU. N. P., 295. ' Powers V, Silsby, 41 Vt., 288. EVIDENCE, ^ETC, AS TO PRIVATE BOUNDARIES. HI could do off and away from the premises, as well as upon or near them, and the ancient line, boundary, or monu- ment could be made equally certain by reference or description, as to its locality, and as situated with refer- ence to their known' existing lines or monuments, as by actually showing or pointing out where it was." The great extension of the rule in this country is pointed out and approved by the South Carolina court in Sexton v. HoUis, supT'a. It is probably true that a majority of the cases require neither personal knowledge onthe part of the declarant nor that the declaration should have been made while he was on or pointing out the boundary, but admit proof of bare reputation among those likely to have been in- forjned on the subject.^ In a very recent case* it is said : " The rule that testi- mony by reputation was competent, under any circum- stances, to locate the boundaries of land, was admitted to be a departure from the English doctrine, which is still adhered to in many of the States, notably by the court of Massachusetts ; but the fact that the country had been recently settled, and was still but sparsely inhabited, and that consequently monuments of title could not be so well known or firmly established as in an older country, seems to have been ample justification for a modification which adapted the rule to the reason. The fact that the courts of Tennessee and of Kentucky, where the conditions were similar, followed the rule in this State, is additional evidence of the necessity for the change." This case emphasizes the condition, which is applied in all the cases, that the person whose statement it is proposed to prove, is dead. Experience seems to have demonstrated the superior convenience of the broader doctrine thus sanctioned in this new country, where the application of the English rule would often amount to a defeat of justice, and where ' Miller v. Wood, 44 Vt., 378 ; Kinney v. Farnsworth, 17 Conn., 355 ; and cases under ref. 7, supra. ' Shaffer v. Gaynor, 117 N. C, 15. 112 SHORT STUDIES IN EVIDENCE. private boundaries, so far as monuments are concerned, are often as vague as the boundary line between Rhode Island and Massachusetts according to Rufus Choate's famous description : " It is like starting at a bush, thence to a blue jay, thence to a hive of bees in swarming time, thence to three hundred foxes with firebrands in their tails." The element of convenience should govern rules of evidence, according to the habits of men and the con- ditions of their habitations. " The Sabbath was made for man, not man for the Sabbath," and this should be the principle in respect to modes of ascertaining facts upon judicial inquiry. PAROL EVIDENCE TO ADD A WARRANTY. 113 Parol Evidence to Add a Warranty to a Writ= ten Sale. One of the most delicate questions of evidence is whether parol evidence is competent to add an oral war- ranty to a sale evidenced by a writing. If it can be done at all, it can only be on the familiar theory of completing an incomplete agreement, by adding a collateral under- taking. I have stated this principle ^ elsewhere as fol- lows : " Where the instrument does not express the en- tire agreement, and does not appear to express the entire agreement, or there is a collateral agreement not em- braced therein, parol evidence is competent to show the omitted part, whether contemporaneous or antecedent, if it does not conflict with the instrument." And in another place :^ " As a rule of evidence a written warranty may not be changed or added to by parol, and so of a formal written contract or formal bill of sale silent on the sub- ject of warranty, but not so of a mere receipt for the price or an informal bill of parcels or an informal or incomplete contract." I have thus implied that the in- completeness need not be manifest ; that it is enough if completeness is not manifest. Some authorities hold the contrary — that "if it is not apparent from the writ- ing itself that something is left out to be supplied by extrinsic evidence, parol evidence to vary or add to its terms is inadmissible." ' But the rule as I have expressed it is substantiated by Greenleaf, who says :* "Nor does the rule apply in cases where the original contract was verbal and entire, and a part only of it was reduced to ' Browne on Parol Ev., § 50. ° Browne on Sales, p. 135. ' Freeman's note, 5 Am. St. Rep., 194 ; Hei v. Heller, 53 Wis., 415 ; Jones' Construction Trade Contracts, § 184. * Evidence, § 284a. 114 SHORT STUDIES IN EVIDENCE. writing." (Italics his.) And in Thomas v. Scutt,^ the rule is expressed thus : " The writing must not appear upon inspection to be a complete contract," etc. So the evidence is inadmissible if the writing "shows that it was meant to include the whole bargain." ^ So then the primary question is, when does a writing appear upon its face to be complete ? As a celebrated giver of " opinions as is opinions " phrased it, " the bearings of this obserwa- tion lies in the application of it." No precise and gen- eral rule can be laid down, but every case must be judged by itself. But probably one invariable test may be given : if the writing speaks at all upon the subject, its speech must be deemed complete ; and perhaps the converse may be adopted : if it does not speak at all upon the subject, what was agreed may be supplied by parol if not contradictory or inconsistent. For example, on a lease of "a hotel and the furniture therein," oral evidence of an agreement to put in more furniture would not be admissible, for it would be inconsistent with the appar- ent intention to lease the hotel with its present furniture alone ; but on a lease of a hotel containing furniture, but without mention of furniture, parol evidence of an agree- ment to lease the furniture therein would be admissible, upon parol evidence of an agreement to include the fur- niture, or of a purpose to let and hire the premises as a hotel, and showing no intention to exclude or reserve the furniture. It is generally admitted that if the writ- ing contains any warranty no other warranty can be added, because as the writing speaks on the subject it must be assumed that it expressed the entire agreement of the parties on that subject, and adding evidence of other warranty would contradict or vary the writing. Thus in Smith v. Williams,' where there was a bill of sale of a slave, containing a warranty against the claims of others to him, evidence of warranty of quality was ' 127 N. Y,, 133. " Lindley v. Lacey, 17 C. B. (N. S.), 578. ' 1 Murphey, 426 ; 4 Am. Dec, 564. PAROL EVIDENCE TO ADD A WARRANTY. 115 excluded. Rice v. Forsyth,^ Mullain v. Thomas,^ Shep- herd V. Gilroy,' Rodgers v. Perrault,* De Witt v. Berry,^ Costello V. Eddy,^ McQuaid v. Ross,'' Nichols, etc., Co. V. Crandall,^ are cases of this character. These and simi- lar cases are cited by judges and text-writers to establish the general proposition that parol evidence is not admis- sible to add a warranty ; but there is a clear distinction between adding a warranty where none exists and adding a warranty to a warranty. And yet in one case," on a written sale of a slave, parol evidence was admitted to show a warranty of health and soundness, because this "does not contradict or vary the bill of sale." I am of opinion that by far the larger number of cases cited to the doctrine that parol eviednce is incompetent to add a warranty are simply decisions that parol evidence is in- competent to add to a warranty, to enlarge a warranty that is expressed. The difficult question to determine is when a document is so far complete as a contract, that it must be deemed to express all that the parties finally agreed to and determined on, and so parol evidence in addition would be contradiction of it, and therefore inad- missible. In other words, when does the paper become "formal" and "complete?" There is little difficulty about adding parol evidence where the writing is a mere receipt for the price or does not constitute a contract. So in the leading case of Allen v. Pink,'" the paper read : " Bought of G P a horse for the sum of ^725, 6d, G P." Lord Abinger admitted parol evidence of a warranty, characterizing the memorandum as "an informal receipt for the money, not as containing the terms of the con- ' 41 Md., 389. '43 Conn., 252. ' 46 Iowa, 193. * 41 Kans., 385. ' 134 U. S., 312. ' 128 N. Y., 650. ' 77 Wis., 470. ' 77 Mich., 401 ; 6 L. R. A., 412. ° McFarlane v. Moore, i Overton, 174; 3 Am. Dec, 752. "4 Mees. & W., 140. 116 SHORT STUDIES IN EVIDENCE. tract itself." In Filkins v. Whyland,^ the same was held of a writing worded : " F bought of W one horse, $150," the court observing : " It admitted that a sale had been had, but does not effect one." This was followed in New Jersey,** So in Herson v. Henderson,^ Atwater V. Clancy,* and Adams v. Gray,^ parol evidence was ad- mitted to add a warranty to a receipted bill of sale of chattels. So if the purpose of the writings is merely to transfer title, " in execution of an agreement they do not profess to show," a parol warranty may be added, as in the case of a written assignment of a note and mortgage — Hahn v. Doolittle ^ The same principle is established in regard to similar documents as to analogous additions, but not of warranty — Cobb v. Wallace,'' Blossom v. Grif- fin.^ In Reed v. Van Ostrand,* however, the case of a sealed assignment of a patent, Savage, C. J., obiter, said : " Suppose one man sells to another a horse ; he repre- sents him sound, gentle, and useful ; but a bill of sale is given in writing, which contains a bare transfer of the animal, but without any warranty or engagement as to the soundness or good qualities of the horse ; could the purchaser In that case go back and prove the representa- tions and assertions made before the execution of the bill of sale? I think not." The Court of Appeals po- litely endeavored to distinguish this case In Filkins v. Whyland, supra. Some courts however exclude parol evidence of warranty even In regard to mere documen- tary transfers of title. So in Osgood v, Davls,^" it was held incompetent to add by parol a warranty of title to ■ 24 N. Y., 338. " Perrine v. Cooley's Exr's, 39 N. J. L., 449. See Harris v. John- ston, 3 Cranch, 311 ; Linsley v. Lovely, 26 Vt., 123. ' 21 N. H., 224; 53 Am. Dec, 185. ■■ 107 Mass., 369. "8 Conn., 11 ; 20 Am. Dec , 82. ° 18 Wis., 196; 86 Am. Dec, 757. ' 5 Coldw., 539 ; 98 Am. Dec, 435. ° 13 N. Y., 569; 67 Am. Dec, 75. ' I Wend., 424; 19 Am. Dec, 529. " 18 Me., 146 ; 36 Am. Dec, 708. PAROL EVIDENCE TO ADD A WARRANTY. 117 a written assignment on the back of a stock certificate, distinguishing the case of a bill of parcels. The same has been held of the assignment of a mortgage.^ This is supported by Dean v. Mason, ^ and Reed v. Wood.^ In Eighmie v. Taylor,* the instruments were an assign- ment of a lease of oil lands, and an assignment and guaranty of a mortgage in payment therefor. The assignee assumed all the conditions of the lease, and all debts and liabilities arising therefrom, and the assignor conveyed the " lease, business and fixtures." It was held that an oral warranty as to the present production of the wells, its value, the character of the machinery and the amount of the debts was inadmissible. In O'Hara v. Hall,' it was held incompetent to add a parol guaranty to a written assignment of a bond, and so in Jones v. Alley,® of a sealed deed of a patent. In respect to leases of land it is generally held in this country that the writing is conclusiv-ely deemed to tell the whole contract as to all particulars.'' So of fitness of the premises. The case of Naumberg v. Young ^ con- tains an exhaustive review of the authorities, and disap- proves Morgan v. Griffith, Erskine v. Adeane, and Mann V. Nunn, infra, and holds that oral evidence of a war- ranty of machinery on the demised premises was incom- petent. The court cite Dutton v. Gerrish, supra, and Brigham v. Rogers,^ where it was held that " no action lay on a parol promise made by the- lessor at the time of executing the lease, that the water on the premises would be good, and that there would be enough of it, and if not be would make it so." The general question of the admis- ' Nally V. I>ong, 71 Md., 585; 17 Am. St. Rep., 547. " 4 Conn., 428 ; 10 Am. Dec, 162. ' 9 Vt., 285. ' 98 N. Y., 288. ' 4 Dallas, 340. * 17 Minn., 292. '' Dutton V. Gerrish, 9 Cush., 89 ; 55 Am. Dec, 45 ; Wilcox v. Cate (Vt.), 26 Atl. Rep., 1x05. ' 44 N. J. L., 331 ; 43 Am. Rep., 380. "17 Mass., 571. 118 SHORT STUDIES IN EVIDENCE. sibility of parol evidence to add conditions to leases is ex- amined in Tracy v. Union Iron Works.^ In Diven v. John- son,- it was held that parol evidence was not competent,, in the case of an apparently complete lease, to show an agreement to make ditches on the premises. In Morgan V. Griffith,^ and Erskine v. Adeane,"* the proposal was to show an oral undertaking on the part of the lessor to keep down rabbits, and it was allowed. In Mann v. Nunn,^ on a lease of unfurnished premises, the lessee was allowed to show an oral promise to put in a new water-closet. These three English cases have been greatly relied on in the few American decisions adopting the more liberal rule as to ctdding oral warranties. In Lewis v. Seabury,** the lease contained no agreement on the part of the lessor as to fixtures, but bound the lessee to make all improvements and repairs during the contin- uance of her term, and leave them on going out. The lessee however was allowed to show that the lessor orally agreed for an independent consideration, that certain fix^ tures should remain on the commencement of the lease, but that the outgoing tenant removed them, and the les- see was allowed for the expense of replacing them. The court said : " The case is undoubtedly very near the line,"^ but supported the admission of the evidence on the ground that the oral promise was upon an independent consideration and as to a collateral matter. There is a conflict in the decisions as to the admissibility of parol evidence to establish a contemporaneous agreement, on the part of a lessee, on leasing real estate, not to engage in a rival business in the same town ; ^ and the same ' 104 Mo., 193. ' 117 Ind., 512 ; 3 L. R. A., 308. 'L. R., 6 Ex., 70. * L. R., 8 Ch. App., 756. ^43 L.J. C. P. (N. S.), 241. ° 74 N. Y., 409 ; 30 Am. Rep., 311. 'Welz V. Rhodius, 87 Ind., i; 44 Am. Rep., 747; Scholz v. Dan- kert, 69 Wis., 416. The former however is limited in Diven v. John- son, 117 Ind., 512; Singer M. Co. v. Forsythe, 108 /did:, 334; "if not PAROL EVIDENCE TO ADD A WARRANTY. 119 conflict exists in the case of a sale of lands and a store of goods.^ In the case of a deed it has been held that where on deeding a mill it was orally agreed by the ven- dor that he would put in a new wheel if the old one was not satisfactory, it was provable in assumpsit by the pur- chaser for the expense of a new wheel. The court said : "There was nothing in the deed on the subject to alter or change. The evidence was not offered to affect the deed as a conveyance, but to prove an independent agree- ment collaterally connected with the sale of the mill, as evidenced by the deed." It is sufficient to say of deeds, that the common doctrine is that parol evidence is incom- petent to add, enlarge or contradict a covenant.^ But yet in some cases evidence of parol agreements by way of inducement has been allowed in regard to deeds.^ This exception is recognized in a Wisconsin case,* where it is said : " As a general rule when the contract of the parties is reduced to writing and is apparently complete, the written instrument is supposed to contain the whole contract, and it cannot be varied by parol. This perhaps is the universal rule in respect to contracts relating to personal property. But contracts in respect to the con- veyance and sale of land form an exception to this gen- eral and statutory rule. It might be more proper to say that such contracts do not come within the general rule. Preceding the conveyance there is of course always an agreement of sale. The deed may contain a very small part of such contract. The deed is made only in execu- tion of such contract. It does not attempt to state the entire agreement in respect to the subject-matter, but is merely adopted to transfer the title in part execution of entirely overthrown : " Conant v Nat, St. Bank, 121 /foV/., 323; "so far modified by later decisions," not more "to be regarded as unques- tioned authority; " West Paving, etc., Co. v. Citizens' St. R. Co., .128 Ibid., 525. ' Fusting v. Sullivan, 41 Md., 162 ; Doyle v. Dixon, 12 Allen, 576. "^ Browne Par. Ev., § 104. ' Durkin v. Cobleigh, 156 Mass., 108; 32 Am. St. Rep., 436. * Green v. Batson, 71 Wis., 54; 5 Am. St. Rep., 194. 120 SHORT STUDIES IN EVIDENCE. the contract, and is manifestly incomplete." And so a parol warranty of the quality of land conveyed was held provable.^ Some of the cases make a distinction between a bill of parcels and a bill of sale, holding that the former is not a contract and that the latter is. In Harris v. Johnston^ there was a bill of parcels, headed, "Mr. T. H. bought of Dunlop & Johnston," etc., and at the foot of it was a receipt in full by a note, describing it. Chief Justice Marshall said : " The written memorandum was not the contract, and was only given to show to what object the receipt at its foot applied." So parol evidence was allowed to prove that the goods belonged to John- ston instead of Dunlop & Johnston. Of a precisely similar document it was said in Linsley v. Lovely:^ "The bills were given not to express a contract, but in consequence of one having been previously made. ' So in Hazard v. Loring,* parol evidence was admitted to show that a bill of parcels was a mere pledge. The dis- tinction seems very shadowy, consisting merely in form and phraseology. The bill of sale may and generally does express no more than the bill of parcels, but on account of its more formal character some courts deem it to constitute the original contract rather than a mere memorandum of one previously made. It by means fol- lows that a man is more serious because he pulls a longer face ; and so if the parties employ a lawyer to draw up a document covering a page of legal-cap, merely to con- vey title to goods, it means no more than the customary memorandum, "A. bought of B." The fact that the paper also specifies kinds, quantities and terms of pay- ment is not of itself indicative, much less conclusive, that no warranty was stipulated, and is not inconsistent with it. • See Mr. Freeman's criticism of this evasive doctrine, 5 Am. St. Rep., 199. "3 Cranch, 311. = 26 Vt., 123. ■" 10 Cush., 267. PAROL EVIDENCE TO ADD A WARRANTY. 121 As the writing grows more verbose, however, the courts seem to become stricter in the inhibition of parol evidence of warranty, although the writing is a mere vehicle to transfer title, and does not conclusively express the entire agreement. So of a contract for the sale of a fishery and appliances.^ So of an agreement to accept certain goods, specifying terms and mode of payment and providing for freight.^ So of a seller's memoran- dum describing price, kind and quantity.^ On a bill of sale of a vessel an oral warranty that she is copper- bottomed was excluded.* To printed conditions of an auction sale of growing timber an oral warranty of quan- tity by the auctioneer may not be added.^ To a deed of a patent it has been adjudged incompetent to add an oral warranty that the machines patented would work well.^ Where parties exchanged memoranda of sale of a vessel, naming price and time of payment, "full pack- ages of beef, etc., to be taken out by the owners, all other small stores belonging to the vessel," this was held a complete contract, not to be supplemented by proof of warranty that the vessel was of white oak.'' So where there was a contract to " furnish and set up machinery for a one hundred barrel mill," specifically describing it, evidence was disallowed to show a warranty that it would manufacture three designated grades of flour.® In most of the recent cases it is adjudged- that it is incompetent to prove an oral warranty of chattels sold by a writing. This is the doctrine of Mast v. Pearce,'' founded on the ' Etheridge v. Plain, 72 N. C, 213. " Frost V. Blanchard, 97 Mass., 155. ^ Hamor v. Groves, 15 C. B., 667 ; Wetherill v. Neilson, 20 Pa. St., 448. ' Kain v. Old, 2 B. & C, 627 ; Mumford v. McPherson, i Johns., 413; 3 Am. Dec, 339. ° Powell V. Edmunds, 1 2 East, 6. ' Galpin v. Atwater, 29 Conn., 93. ' Randall v. Rhodes, i Curtis, C. C, 90. ' Conant v. Nat. St. Bank, 121 Ind., 323. • 58 Iowa, 579; 43 Am. Rep., 125. 122 SHORT STUDIES IN EVIDENCE. opinions of Benjamin and Parsons, the court observing : "We feel quite sure no authority can be found holding a contrary doctrine." The same doctrine is also laid down, obiter, in De Witt v. Berry,' the real decision being that an express warranty could not be varied by parol. So where there was a written contract for the sale of goods, evidence that it was by sample and that the goods delivered were inferior to the sample, was ex- cluded.^ In Seitz v. Brewers' Refrigerating Co.'' it was held that to a contract for the manufacture of a machine, and silent as to warranty, a parol agreement of warranty could not be added. The court do not discuss the question, but " are clear that evidence tending to show the alleged independent collateral contract was inadmis- sible," citing among other cases, Naumberg v. Young, Mast V. Pearce, Conant v. National State Bank. This was the precise docrine of McCray R., etc., Co. v. Woods* (two judges dissenting), and Milwaukee Boiler Co. v. Duncan.^ In Diebold Safe Co. v. Houston (Kan- sas),^ it was curtly held that parol evidence was inad- missible to prove a warranty of a safe purchased by a written order describing it as a " fire-proof safe." On the authority of Reed v. Van Ostrand, parol evidence was excluded in Willard v. Ostrander,'' to add a war- ranty to a bill of sale of sheep. So of a sale of chattels evidenced by writing, where the parties agreed that the warranty should not be inserted in the writing j'^ and so of a sale of book accounts ;^ neither case exhibiting much consideration. So of a writing as follows : ' 'Agreement, Hastings, Minn. June i, 1883. I have this day sold to R. C. Libby, all my logs marked ' H. C. A.,' cut in the ' 134 U. S., 312. '' Harrison v. McCormick, 89 Cal., 327 ; 23 Am. St. Rep., 429. '141U. S., 510. ' 99 Mich., 269; 41 Am. St. Rep., 599. '87 Wis., 120; 41 Am. St. Rep., 33. " 28 L. R. A., 53. ' 46 Kans., 591. 'Smith V. Dallas, 35 Ind., 255. ° Robinson v. McNeil, 51 111., 225. PAROL EVIDENCE TO ADD A WARRANTY. 123 winters of 1882, 1883, for $10 a thousand feet, boom scale at Minneapolis. Payment cash, as fast as scale bills are produced. John H. Thompson, R. C. Libby."^ In the last case the court said : " But in what manner shall it be ascertained whether the parties intended to express the whole of their agreement in writing ? It is sometimes loosely stated that where the whole contract be (sic) not reduced to writing, parol evidence may be admitted to prove the part omitted. But to allow the party to lay the foundation for such parol evidence by oral testimony that only part of the agreement was reduced to writing, and then prove by parol the part omitted, would be to work in a circle, and to permit the evil which the rule was designed to prevent. The only criterion of the completeness of the written contract as a full expression of the agreement of the parties is the writing itself. If it purports on its face to be a com- plete expression of the whole agreement — that is, con- tains such language as imports a complete legal obliga- tion — it is to be presumed that the parties have intro- duced into it every material item and term ; and parol evidence cannot be admitted to add another term to the^ agreement, although the writing contains nothing on the particular one to which the parol evidence is directed." (Founded on Naumberg v. Young, and Hei v. Heller.) To which it may be retorted : how are we to know that the paper "imports a complete expression of the whole agreement," or why, if it does "import a complete legal obligation," should we conclusively assume that there was no collateral obligation left unexpressed ? If the parties did make a contract containing a warranty and omitted it, why should it be conclusively presumed that they intended to omit it ? It is very seldom that the paper on its face shows, as it showed in Nat. Cash Reg. Co. v. Blumenthal, 85 Mich., 464, where it was provided that " this contract covers all agreements between the parties hereto," that it is intended to embrace the whole ' Thompson v. Libby, 34 Minn., 374. 124 SHORT STUDIES IN EVIDENCE. agreement. Such a rule of the sovereignty of the writ- ing would shut out a subsequent oral modification, which the authorities are unanimous in admitting.^ In this case it is admitted that " a warranty is in a sense collateral to a contract of sale, for the title would pass without a warranty," and breach is no ground for rescission ; but although " a warranty is part of the contract of sale," that does not prevent the warranty from relating " to a sub- ject distinct from that to which the writing relates." Many of the cases heretofore cited, excluding parol evi- dence, were founded on Reed v. Van Ostrand and other New York cases, and the opinions of text-writers based on those cases, which have been overruled in that State, In many of them, especially in Michigan, the court find it difficult to distinguish some of their own previous decisions on analogous points, and hardly undertake the task. In some of them stress is laid on the formality of the writing, and from that is deduced the intention to have it embrace all the agreement. This distinction is made by Mr. Bennett in his notes in Benjamin on Sales (pp. 625, 626), where he says : " If the article is sold by a formal written contract, or a regular bill of sale, which is silent on the subject of warranty, no oral warranty made at the same time, or even previously, can be shown, since the" writing is conclusively supposed to embody the whole contract. * * * g^j. ^j^jg ^^jg does not apply to an informal bill of parcels, as it is called." In marked contrast to Smith v. Dallas, supra, is the holding of Redfield, C. J., in Winn v. Chamberlin,'^ that " a written memorandum of a transaction will never exclude proof of stipulations not contained in the writ- ing, where both parties agree that the writing shall not contain the whole contract, unless the additional matters are inconsistent with the writing." The leading, if not the only authority in contravention of this apparent consensus of text-writers and judges, is ' Browne Par. Ev., p. 99; Farrington v. Brady, 11 App. Div. (N. Y.), I. = 32 Vt., 318. PAROL EVIDENCE TO ADD A WARRANTY. 125 Chapin v. Dobson.^ This was an attempt to add to a written contract for the sale of machinery a guaranty that it should work successfully, and it was successful. The writing was as follows: "Philadelphia, July 9, 1868, We agree to furnish John Dobson with the following machinery, on terms stated: sixteen 48-inch and seven 60-inch First Breaker Feeders, at three hundred dollars each, delivered at depot at Pawtucket, R. I., to be sent by steamer from Boston to Philadelphia, and allow- ance of three dollars to be made on each machine for freight. Man's time and expenses from Philadelphia to be charged extra for applying the machines. Terms^ cash on delivery, 5 per cent commission to be allowed on each machine. Five 60-inch and four 48-inch to be delivered as soon as possible, the balance in thirty days thereafter. Harwood & Quincy, agents for Chapin & Downes. I agree to this John Dobson." The decision was put on the broad ground that the exclusion "does not apply where the original contract was verbal and entire and part only reduced to writing." The English cases of Morgan v. Griffith, Erskine v. Adeane and Mann v. Nunn, supra, were much relied on. Emphasis was laid on the fact that the guaranty was collateral and not inconsistent with the written contract. The court said : " The written con- tract and the guaranty do not relate to the same subject- matter. The contract is limited to a particular machine as such. The guaranty is limited to the capacity of the machine. It is one thing to agree to sell or furnish machines of a specific 'kind, as of a patent, or of a partic- ular description, and another thing to undertake that they shall operate in a particular manner or with a certain effect, or as in this case, that they shall do the buyer's work satisfactorily." " The guaranty as made does not contra- vene the written contract, and is not inconsistent with it. If the fitness of the machine is implied, the guaranty is in harmony with it and adds nothing ; if it is not implied, the paper contains no declaration that the machine shall " 78 N. Y., 74; 74 Am. Rep., 512. 126 SHORT STUDIES IN EVIDENCE. be taken with all faults and insufficiencies, or at the de- fendant's risk. The parol evidence therefore contradicts no term of the writing nor varies it." The decision was unanimous. There have been some criticisms of this de- cision, and some attempts to reconcile it with others on the ground of the "informality" of the writing. The writing was pronounced " informal" and as " not in its face pur- porting to contain the entire contract of the parties," but the decision was not disapproved, in Naumberg v. Young, and the writing is deemed " informal " by Mr. Jones in his treatise on Construction of Trade Contracts.' It is appar- ent that the writing was not expressed in legal and pro- fessional phraseology ; that it was not drawn by a lawypr, that it was drawn by laymen. In this sense it unques- tionably is "informal." But it was not inexplicit nor ambiguous. So far as it went it was very explicit. It would be difficult to conceive one more explicit. It can- not be that oral evidence is competent to add to a con- tract merely because it was not drawn by a professional person nor couched in legal language. This is not the "informality" meant by the law. The law here refers to imperfect contracts. This contract was perfect so far as it professed to go, and no charity can reasonably be claimed for it on the score of "informality." The decision must be taken as a deliberate ruling that though a contract may be complete on its face, yet an addition may be made to it by parol if not inconsistent with it, and this involves the fundamental question whether a warranty is inconsistent or merely collateral ; and on this point the reasoning above quoted seems quite convincing. Mr. Freeman disapproves the decision,^ and Mr. Jones deems that it utters unsound dicta, although he approves the decision of the point involved.' The Michigan court obiter criticised it as go- ing " beyond any authorities cited to support it." * The ' Sees. 142, 143, 153. '^ Note, 5 Am St. Rep., 198. Construe. Trade Cont., § 142. ■* Nat. Cash Reg. Co. v. Blumenthal, 85 Mich., 464. PAROL EVIDENCE TO ADD A WARRANTY. 127 decision, however, has always been recognized and fol- lowed in New York, and in Eighmie v. Taylor,^ the court say of it. "If the case be near the border line in the application of the exception to the facts, there can be no question of the soundness of the doctrine asserted." The court, however, there distinguished it, as well as Erskine v, Adeane and Morgan v. Griffith, on the rather impalpable ground that the warranty in those cases was not as to the contemporaneous state of things, but as what should be the future conditions, and therefore collateral. Mr. Tiede- man, in his recent treatise on Sales, p. 291, states that the decision in Chapin v. Dobson was based on a distinction "between warranties relating to future condition and use." It will be vain to try to find any such distinction in the opin- ion of the court, although the warranty was unquestion- ably as to future condition and use. (In a note to this pass- age the author misstates the decision in Galpin v. Atwater and Naumberg v. Young, and cites both cases by incorrect tides.) But Mr. Tiedeman points out, citing Mr. Jones, that the latter species of warranty is just as much an in- ducement to the sale as the former, and this is unquestion- ably true. Both warranties are collateral because they are unnecessary to constitute a valid sale. In Aultman v. Clifford,^ the Minnesota Supreme Court approved parol evidence of the quality and capabilities of a machme sold under the following writing : " I have of this day ordered of Aultman, Miller & Co., one seven-foot Buckeye binder for which I agree to pay one hundred and forty dollars — ■ note for one hundred "and ten dollars and his old McCor- mick binder ; three fall payments at eight per cent. The binder to be delivered on or before July 25th, 1891." This the court pronounced " incomplete on its face and not purporting to give the whole of the mutual executory en- gagements of the parties." In Thomas v. Barnes,^ an oral warranty was added to a written contract under the ' 98 N. Y., 288. = 55 Minn., 159; 43 Am. St. Rep., 478. ' 156 Mass., 581. 128 SHORT STUDIES IN EVIDENCE. guise of a subsequent modification. The contract was executory and bi-lateral, one part only was signed, and the court held it might have been intended merely as specifica- tions, and not as containing the whole agreement, and this was a question of fact I do not find that Chapin v. Dob- son has been explicitly followed in any other State, nor do I find that it has been explicitly disapproved in any other State in any case involving the same question. Mr. Ben- net makes no direct reference to it in his excellent notes to Benjamin on Sales. So far as discussion of the princi- ples involved is concerned — leaving out of view Naiim- berg V. Young, which was the case of a lease, and Thomp- son v. Libby, the case of a sale of chattels — it must be conceded that it is worth more than all the opposing decisions combined, for they mainly content themselves with assumptions and parrot echoes of what other courts have said, and frequently are grounded on decisions which have ceased to be of authority even where they were pro- nounced. Even the well argued case of Thompson v. Libby, although it was decided six j^ears after Chapin v. Dobson, makes no reference to it, although it is referred to in Naumberg v. Young, upon which that case is founded, and is there pronounced a case of an " informal" contract. Upon that reasoning the decision in Thompson v. Libby ought to have been to the contrary, for the contract there was much less " formal." As I started out, I conclude, that the sole debatable question is whether the warranty is intrinsically contradictory of or inconsistent with the expressed provisions of the writing. This theory can never be upheld except on the ground that where goods are sold without warranty the rule oi caveat emptor applies, and if the writing contains no warranty the purchaser buys at his risk. So for example, it was held in Van Winkle v. Crowell, 146 U. S., 42, that where one contracts in writing merely to manufacture goods at a fixed price, and makes and delivers them, he may not show by parol that it was part of the agreement that title should not pass until payment, because the legal inference, in the PAROL EVIDENCE TO ADD A WARRANTY. 129 absence of contrary provision, is that title passes on de- livery. (And so in Louisville, etc., R. Co. v. Wilson, 119 Ind., 352, 4 L. R. A., 244, it was held that where a bill of lading failed to state the amount of freight charges, a reasonable amount was implied by law, and could not be varied by parol.) But the vice of this reasoning is that it begs the question. The very question is, did the purchaser agree to take his risk? did he agree to "beware?" That he did so agree is a mere presumption of law, always re- buttable — at least so it seems to me — and rebutting a mere presumption is not contradicting a contract. There- fore I think that Chapin v. Dobson rests upon the better principle and reason, that its doctrine is in the interests of trade and unskilled negotiation, and that ultimately it must prevail. Stephen expresses the rule in accordance with these views as follows: "The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the court infer that the parties did not intend the document to be a complete and final statement of the whole transaction betv/een them " may be proved. 130 SHORT STUDIES IN EVIDENCE. Parol Admission of Contents of a Writing. There is no rule of evidence more familiar than that which requires the production of a written instrument, where it exists, as proof of its contents, rather than oral testimony as to what it contains, on the ground that the writing is the better evidence. A somewhat recondite and rather unfamiliar exception to this is established in Eng- land by the leading case of Slatterie v. Pooley,^ which holds that a parol admission, out of court, by a party to a suit, is evidence against him, although it involves the con- tents of a written instrument, which is not produced nor called for, and the contents of which are directly in issue. The fact thus proved in that case was the identity of a debt mentioned in the declaration with one mentioned in a schedule attached to a composition deed, inadmissible of itself because not stamped. Parke, B., admitted that the authority of Lord Teuterden was to the contrary,^ but concluded that there were many decisions to sustain the holding,^ and observed that it was the constant practice at nisi prius to admit such evidence. " Indeed," he said, " if such evidence were inadmissible, the difficulties thrown in the way of almost every trial would be almost insuper- able. The reason why such parol statements are admis- sible, without notice to produce, or accounting for the absence of the written instrument, is that they are not open to the same objection which belongs to parol evi- dence from other sources, where the written evidence might have been produced, for such evidence is excluded from the presumption of its untruth, arising from the very nature of the case, where better evidence is withheld ; whereas what a party himself admits to be true may reas- ' 6 Mees. & Wels., 664. " Bloxam v. Elsee, Ry, & M., 187. ^ Citing Dickinson v. Coward, i B. & Aid., 679. PAROL ADMISSION, ETC., OF A WRITING. 1,31 ■onably be presumed to be so. That will vary according to the circumstances, and it may be in some cases quite unsatisfactory to a jury. But it is enough for the present purpose to say that the evidence is admissible." Abin ger, C. B., "considered it as clear law, that a party's own statements were in all cases admissible against himself, whether they corroborate the contents of a written instru- ment or not." This decision is supported by the general concurrence of the English cases.^ The conclusion of Slatterie v. Pooley is adopted by Stephen.^ It must be observed that some of the cases commonly cited to sup- port this doctrine are not much in point, and that the value oi nisi prius decisions on evidence is not very high. Almost anything can be established by English nisi prius decisions, and I am often inclined to think that the legal world would have been better off if they had never been reported. That the doctrine of Slatterie v. Pooley has not always commended itself to the English judicial mind is evident from remarks of Maule, J., on the argument of Boulter v. Peplow, 9 M. G. & Scott, 501 : "It certainly is not very satisfactory in its reasons. The decision was founded on a passage in Phillips on Evidence, 8th edit., • vol. I, p. 364, which in itself does not seem to me to be very sound. What the party himself says is not before the jury, but only the witness' representation of what he said. What a man says is generally and very properly evidence against him ; but a verbal representation by a third person is quite another thing." In Bloxam v. Elsee, ' Burleigh v. Stibbs, 5 T. R., 465 ; Roe v. Davis, 7 East, 363 ; Paul V. Meek, 2 Y. & J., 116; Woodward v. Larking, 3 Esp., 286; Single- ton V, Barrett, 2 C. & J., 368 ; Gibbon v. Coggon, 2 Camp., 188 ; Doe V. Steel, 3 Camp., 115 ; Greenway v. Hindley, 4 Camp., 52; Pasmore V. Bousfield, I Starkie, 236 ; Aldeison v. C\a.y,id., 327 ; Harvey v. Kay, 9 B. & C, 344 ; Newhall v Holt, 6 M. & W., 662 ; Ashmore v. Hardy, 7 C. & P., 501 ; Reg. v. Basingstoke, 14 Q. B , 611 ; Henman V. Lester, 12 C. B. (N. S.), 774 ; Earle v. Picken, s C. & P., 542 ; Pritch- ard V. Bagshawe, 1 1 C. B., 459 ; Howard v. Smith, 3 Mann. & G., 254 ; Heane v. Rogers, 9 B, & C, 577 ; aijd cases cited in Whajrt. Ev., § 1090. ° Ev,, art. 64. 132 SHORT STUDIES IN EVIDENCE. supra, Abbott, C. J., at the trial said: "You cannot ask a witness what a plaintiff has said as to the contents of deeds executed by such plaintiff without giving such plaintiff notice to produce the deeds, or accounting for their non-production." Byles, J., dissenting in Henman V. Lester, supra, was of opinion that the doctrine of Slat- terie v Pooley could not be extended to " parol admis- sions of the contents of written documents extorted from parties under the pressure of cross-examination ; " and so as to direct and re-direct examination : " The document must be produced and must speak for itself." He ap- proves the Irish attack upon the English doctrine. Chan- nell, B., in Sanders v. Karnell,^ said that the doctrine of the case in question "is one not to be extended." Taylor in his work on Evidence pointedly condemns it. Mr. Chamberlain says," "whether Slatterie v. Pooley is law in this country is in dispute." Mr. Greenleaf cites it "as the leading English case on this point," observing that it "has not been universally accepted as law," citing some Irish and New York cases.' The New York doctrine is apparently opposed to the English, although the question is nowhere much consid- ered, but seems substantially to be taken for granted.' In Welland Canal Co. v. Hathaway the court speak of the doctrine as there laid down as " an undeniable propo- sition," and of the contrary docrine as " a dangerous innovation." But in none of the New York cases is any •notice taken of the English doctrine. In a rather recent case^ the court said : "It seems to be the rule in this State that the admissions of a party are competent evi- dence only when parol evidence of the fact sought to be shown by such admissions would be competent;" and so ' I Post. & Fin., 356. ' Best on Ev., notes, p. 216. ^ Ev., § 96. Lawless v. Queale, 8 Irish L., 385 : " a most danger- ous proposition." * Jenner v. Joliffe, 6 Johns., 9 ; Welland Canal v. Hathaway, 8 Wend., 480. ' Sherman v. People, 13 Hun, 575. PAROL ADMISSION, ETC., OF A WRITING. 133 the defendants' admission that his house was mortgaged was held incompetent. In Kain v. Larlcin ^ it was held thac the testimony of a party taken in the form of a de- position, subscribed by him, must be proved by the depo- sition, and that proof of it by the referee before whom the deposition was taken was error. Of this the court said there was "no question." The test was the sub- scription by the party. The court said : " This evidence violated the rule which requires a party to produce the best evidence of which the case in its nature is suscepti- ble. The rule is intended to prevent fraud and mistake, and is essential to the pure administration of justice. It forbids the introduction of substitutionary or secondary evidence when the original or primary evidence can be had. Where statements are formally reduced to writing for the express purpose of making a record of them, and they are subscribed by the parties, the writing thus sub- scribed is the primary evidence, and when it is in the pos- session of a party, or can be produced, it alone furnishes the competent evidence of its contents." (Citing People v. Hinchman, 75 Mich., 587.) The New York doctrine was adopted in Alabama," where it was held that the ad- missions of a party, out of court, of the contents of a judgment against him, were inadmissible. The court said : ' We have looked through the books in vain for a precedent to justify us in affirming this case," etc. This was followed in that State as to the contents of an exist- ing deed.^ And in North Carolina,* where the declara- tions of the president of a corportion were adjudged inad- missible to prove the contents of a letter written by him as to the authority of another officer, the letter not being produced nor its absence accounted for. In Petree v. Wilson'^ it was decided that an attested chattel mortgage ' 131 N Y., 312. ° Ware v. Roberson, 18 Ala., 105. " Fralick v Presley, 29 Ala., 457 ; 65 Am. Dec, 413. * Rumbough v. South. Imp. Co., 112 N. C, 751 ; 34 Am. St. Rep., 528; Threadgill V White, n Ired. L., 592. ' 104 Ala., 157. 134 SHORT STUDIES IN EVIDENCE. could not be proved, as evidence of title, by admissions by tlie mortgagor of its execution, without laying the proper predicate. The court said, "No rule is better settled." The New York rule has also been approved in Arkansas and Florida.^ The ablest and most cogent argument against the English doctrine is in Threadgill v. White, supra, where the court said : " It seems to be in direct opposition to principle, the evidence being received as primary, and the production of the deed, and notice to produce it, and direct proof of its execution being dis- pensed with. For if it be attempted to prove the contents by a person who has read it, the law will not hear him, even after proof of execution, unless the non-production of the deed be accounted for ; and the reason is that the law will not trust to the frail memory of any man upon that point, when the higher grade of evidence, constituted by the instrument itself, is kept back. There is evidently the same reason for refusing the evidence of a person who deposes upon his recollection of what the party said of the contents. That is, indeed, going a step farther than in the former instance, since there is not only danger that the witness may have misunderstood or not fully remembered what the party said, but also that the party may not have remembered and understood the terms and effect of the deed correctly. The incongruity will be the more readily seen if we suppose the same witness, who is called to prove the party's admissions of the contents of a deed, to state also, upon further examination, that he, upon his own knowledge and remembrance, could state the contents, and that they were entirely different from those stated by the party, so as to show that the party by mistake understood the deed to operate more strongly against him than in fact it did. Would it not seem as strange a thing as can be, that the better recol- lections of the witness, as they may be, of the contents of the instrument — which perhaps he attested — should not be admissible, while his recollections of the ^party's ' Bivins v. McElroy, ii Ark., 23 ; Bellamy v. Hawkins, 17 Fla., 758. PAROL ADMISSION, ETC., OF A WRITING. 135 declared and mistaken recollections as to the contents should be sufficient to establish them ? There is clearly in each case the danger that the court and jury may be misled ; on which the rule of evidence rests, which rejects inferior evidence because better may be had, and upon that ground requires the production of deeds as the best proof of their contents. In this country that view seems to have been generally taken of the question." The doctrine of Slatterie v. Pooley has been also very pointedly condemned in New Jersey^ by the Court of Errors and Appeals, the Chief Justice observing : " But these decisions are all of modern date, originating in the year 1840, and have not received anything like universal approval by the courts of this country, and it is certain that they are opposed to the immemorial administration of the law in this State." " With us, the ancient, and as it is deemed, the safe principle has prevailed, that the document is the primary evidence and the admission of its contents secondary evidence, and that the latter cannot be resorted to as long as the former is available." But the court held that the admission by an insured party in his proofs of loss was competent to prove the existence of the policy, being " so formal as to put it on a level with an admission in a course of law." Greenleaf distinguishes between an admission of the formal execution and of the existence of a writing, exclud- ing the former and admitting the latter.'^ The doctrine of Slatterie v. Pooley, however, is gen- erally prevalent in this country, having been explicitly adopted in Massachusetts, Maine, Ohio, Pennsylvania, Virginia, Iowa and Connecticut,* in decisions which nearly ' Cumberland M. F. Ins. Co. v. Giltinan, 48 N. J. L., 510. ' Ev., § 96. ^ Loomis V. Wadhams, 8 Gray, 557 ; Smith v. Palmer, 6 Cush., 513; Blackington v. Rockland, 66 Maine, 332 ; Edgar v. Richardson, 33 Ohio St., 581 ; 31 Am. Rep., 571 ; Edwards v. Tracy, 62 Penn. St., 374; Widdifield v. Widdifield, 2 Binney, 245 ; Taylor v. Peck, 2 1 Grattan, II ; Morey v, Hoyt, 62 Conn., 542 ; 19 L. R. A., 615 ; Gay v. Lloyd, I Greene (Iowa), 78. ,136 SHORT STUDIES IN EVIDENCE. all cite that case, but in only one of which is there much discussion on expressed examination of the point or prin- ciple. In Widdifield v. Widdifield, cited above, it was held that a partnership was provable by acts or declara- tions, although it was formed by written articles, the court observing: "It does not appear that there was any inten- tion to give proof of the contents of the articles of part- nership. * * * How are the world to know anything about instruments of writing made in secret between per- sons in trade ?" This was cited and applied on the precise point, as between creditors and the partners, in Vermont.^ (The head note in that case misstates the decision, as being, that " if the question be inter se, the only competent evi- dence of partnership would be the articles themselves." The court simply said: "Though it should be conceded that," etc., as above, " yet the same principle will not apply when the suit is by a creditor of a partnership," etc.) The same doctrine is laid down in Minnesota.^ In Morey v. Hoyt, supra, the question was carefully considered. The court said : " The rule that the oral admissions of a party against himself and those claiming under him, although relating to the contents of a writing, are primary evidence, seems to be well established, what- ever we may think of its wisdom. So far as we are aware, this court has never had occasion to consider this rule, but elsewhere the weight of authority is in its favour. It is etablished in England, as shown by the authorities cited. ' Primary evidence means the document itself, pro- duced for the inspection of the court, * * * or an admission of its contents, proved to have been made by a party whose admissions are relevant.' Stephen Dig., art. 64 ; Earle v. Picken, 5 Car & P., 542 ; Slatterie v. Pooley, 6 Mees. & W., 664; Reg. v. Basingstoke, 14 Q. B., 611; Taylor Ev. Par., 410. It seems to be the prevalent rule in this country : i Greenl. Ev., 1 5th ed., par. 98 ; Smith v. Palmer, 6 Cush., 513; Loomis v. Wadhams, 8 Gray, Cutler V. Estate of Thomas, 25 Vermont, 73. ' McEvoy V. Bock, 37 Minn., 402. PAROL ADMISSION, ETC., OF A WRITING. 137 557; Blackington v. Rockland, 66 Maine, 332; Wolver- ton V. State, 16 Ohio, 173; 47 Am. Dec, t^jt^: Edgar v. Richardson, 2)2) Ohio State, 581; 31 Am. Rep , 571; Ed- wards V. Tracy, 62 Pa. St., 374 ; Taylor v. Peck, 2 1 Gratt., II. The wisdom of this rule is questioned by Judge Tay- lor in his work on Evidence, and from the cases cited in note a to the paragraph from Greenleaf cited above, it would seem that the courts in Ireland dissent from it, a? do also the New York courts. The weight of authority, however, as before stated, seems to be in its favour, and we see no reason why it should not be applied in a case like the one at bar" — the case of the contents of a letter. Considerable attention was bestowed upon the author- ities in the Ohio case above cited, in which admissions of a wife that she had procured a divorce were held admissible, and which cites* Slatterie v. Pooley, and quotes from Reg. v. Basingstoke, supra : " Such an ad- mission is like an estoppel, and as is well put in a note to the case of the Duchess of Kingston, in Smith's Leading Cases, it is used ' not to supply the absence of the ordinary instruments of evidence, but to supersede the necessity of any evidence by showing that the fact is already admit- ted.' " This sounds plausible, and would be unobjection- able if it related to a formal admission in the pleadings or on the trial, but how can an admission out of court be established except by evidence ? And as that is an impos- sibility, the bottom of that theory falls out. There seems to be no question that parol evidence is competent to establish ownership of chattels, although the owner got title by a writing still existing.' It has been held however that the conversations of one on trial for passing a counterfeit bank-note, after passing it, on the subject of its genuineness, are not admissible to prove \h&fact that it was counterfeit, without production of the bill or proof that it was destroyed." The court admit that the conversation was admissible to show that ' Gallagher v. London Ass. Corp., 149 Pa. St., 25. ' Com. V. Bigelow, 8 Mete, 235. 138 SHORT STUDIES IN EVIDENCE. he passed it believing that it was counterfeit, after legat proof that it was counterfeit. Notwithstanding the large numerical majority of the American courts holding in harmony with Slatterie v. Pooley, it seems that a good deal may be said in favor of the doctrine of the minority. It seems a rather startling proposition that a mortgage or a judgment may be proved in any other way than by the production of the instru- ment or the record, in a case where there is no necessity for dispensing with the production of the best evidence. In modern times, when parties may be witnesses on their own behalf, there is one serious objection to this doctrine which did not attach to the early cases, namely, the pos- sible creation of a collateral issue as to the making of the admission. If for example it is proved that a man ad- mitted out of court that his house was mortgaged, he is now generally a competent witness to deny that he ever made such an admission, and thus may be raised an issue which is entirely unnecessary, because the party alleging the admission could easily prove the mortgage by the record if a mortgage existed. Moreover all the authori- ties agree that this species of evidence is not entitled to great weight, because " it frequently happens not only that the witness has misunderstood what the party said, but that by unintentionally altering a few of the expres- sions really used, he gives an effect to the statements completely at variance with what the party actually did say." ^ The party's admission is regarded as primary evidence, but in intrinsic value it is only secondary, and obtained by the means of a second person's testimony it is in effect only tertiary evidence. The toleration of this kind of evidence is a marked instance of the sacrifice of principle to covenience, which is more tolerable in the domain of evidence, which simply relates to the tools of the law, than in that of the essential principles of juris- prudence. ' Greenl.' Ev., § 96, citing Earle v. Picken, supra ; Smith v. Palmer, 6 Cush., 513. DEGREES OF SECONDARY EVIDENCE. 139 Degrees of Secondary Evidence. It is commonly said to be settled in English jurispru- dence that "there are no degrees of secondary evidence," but where a party is entitled to give it, he is not restricted to the best species, but may give any species in his power. This is the doctrine of the leading, case of Doe v. Ross, 7 Mees. & W., 102. The document of which proof was there attempted was a deed of settlement. An attested copy was offered, but was rejected because it was not stamped. Counsel then offered a short-hand writer's notes of the proceedings on a former trial of the action, on which it had been produced and proved, from which it appeared that counsel had stated the purport of the deed. This was allowed by Lord Denman. This ruling was unanimously condemned by the Court of Exchequer on appeal because the parties to the two actions were not the same. Lord Abinger, C. B , said: "If indeed the party giving such parol evidence appears to have better secondary evidence in his power, which he does not produce, that is a fact to go to the jury, from which they might sometimes presume that the evidence kept back would be adverse to the party withholding it. But the law makes no distinction between one class of secondary evidence and another." Alderson, B., said: "If one species of secondary evidence is to ex- clude another, a party tendering parol evidence of a deed must account for all the secondary evidence that has existed. He may know of nothing but the original, and the other side, at the trial, may defeat him by showing a copy, the existence of which he had no means of ascer- taining. Fifty copies may be in existence, unknown to him, and he would be bound to account for them all." All this seems obiter, for the question was immaterial, the parties in the two actions being different ; and Parke, B., still further detracts from its force by saying : "Supposing 140 SHORT STUDIES IN EVIDENCE. what was read by the officer would have been admissible, if the parties to the suit had been the same {a proposition which is very questionable), here the parties were not the same." There seems very little other English authority on the point, and it is observable that one of the judges of the King's Bench, in one of the cases cited to support this doctrine (Doe v. Wainwright, i Nev. & Per., 8), considers that the abstract of the deed in question would not have been evidence if it had been shown that there was an ■extant copy of the deed, — which is the American doctrine ; and so in the nisi prius case, cited by Parke, J., and re- ferred to by him in Doe v. Ross as not having been ques- tioned, his ruling was that one may prove a lost letter received by him, by parol, although he has a copy of it, but "if there had been a duplicate original it might have been different." Doe v. Ross being cited by counsel in argument (Hall v. Ball, 3 M. & G., 247), Tindal, Ch. J., said : "After that case it is difficult to say that the applica- tion for a new trial is not answered ; " and the decision assumed that doctrine to be correct. Sir James Fitzjames Stephen approves this English doctrine in his Digest of the Law of Evidence, observing that subject to certain provisions, " any secondary evidence of a document is admissible." The English rule is approved in a few American juris- dictions. Thus in Massachusetts,^ it is said : " The admissibility of evidence offered for this purpose must depend upon its legitimate tendency to prove the facts sought to be proved, and not upon the comparative weight or value of one or another kind' of proof. The jury will judge of its weight and give due consideration to the fact that a more satisfactory one exists and is withheld, or not produced when it might readily have been obtained. But there are no degrees of legal dis- tinction in this kind of evidence.'' Citing Doe v. Ross. ' Goodrich v. Weston, 102 Mass., 362 ; 3 Am. Rep., 469 ; Com. v. Smith, 151 Mass., 495 ; Smith v. Brown, ibid., 338. DEGREES OF SECONDARY EVIDENCE. 141 And so it was held that a sworn copy of a letter-press, copy of a lost letter was admissible. This was followed in a case of a lost assignment, of which a copy was on , public record, and of which a letter-press copy was prof- fered.^ This is the rule in Indiana,^ New York ^ (proba- bly), Connecticut,* Maine* and Michigan,^ and it has been sanctioned by the Federal Supreme Court.^ In the last case it was admitted that a copy of a copy was not com- petent, but the court restricted it to the case where the original was still extant. Story, J., there said: "The rule properly applies to cases where the' copy is taken from a copy, the original being still in existence and capable of being compared with it ; for then it is a second remove from the original ; or where it is a copy of a copy of a record, the record being in existence, by law deemed as high evidence as the original ; for then it is also a second remove from the record. But it is quite a different ques- tion whether it applies to cases of secondary evidence where the original is lost, or the record of it is not in law deemed as high evidence as the original ; or where the copy of a copy is the highest proof in existence. On these points we give no opinion, because this is not, in our judgment, the case of a mere copy of a copy verified as such ; but it is the case of a second copy verified as a true copy of the original." In the Maine case it was held that where the record of a partition had been destroyed by fire, the partition was provable- by oral evidence, with- out requiring the demandant to show that no " authenti- cated copy," authorized by statute, was in existence. In 'Smith V. Brown, 151 Mass., 338. " Carpenter v. Dame, 10 Ind., 125, citing Doe v. Ross. ^Robertson v. I^ynch, 18 Johns., 451. See, however, an obiter ex- pression to the contrary in Scott v. Slingerland, 44 Hun, 259 ; and Reddington v. Oilman, i Bosw., 235, in which the admission of a copy of an account from a ledger was held improper. ' Cameron v. Peck, 37 Conn., 555. ' Nason V. Jordan, 62 Me., 480. ' Eslow V. Mitchell, 26 Mich., 500. 'Winn V. Patterson, 9 Pet., 663. 142 SHORT STUDIES IN EVIDENCE. a recent California case^ It was held that proceedings of a meeting of a board of directors of a corporation may be shown by the testimony of persons present thereat, where no record thereof was made in the regular minutes oi record book, although rough minutes were kept, where such minutes are as much secondary evidence as the testimony. But this does not seem to be the general American doctrine. Greenleaf says : " The American doctrine, as deduced from various authorities, seems to be this — that if from the nature of the case itself It is manifest that a more satisfactory kind of secondary evidence ex- ists, the party will be required to produce It ; but where the nature of the case does not Itself disclose the exist- ence of such better evidence, the objector must not only prove Its existence, but must also prove that It was known to the other party in season to have been pro- duced at the trial." ^ So where a copy of a lost note is shown to exist, it must be produced.^ This view is sanc- tioned by a considerable number of authorities in differ- ent jurisdictions.* So a photographic copy of a public record in another State is incornpetent.' The United States Supreme Court say : " The principle established by this court as to secondary evidence in cases like this is, that it must be the best the party has it in his power to produce. The rule Is to be so applied as to promote ' Boggs V. Lakeport A. P. Ass'n, iii Cal., 354. '' Citing Hilts v. Colvin, 14 Johns., 182; Battles v. Holley, 6 Greenl., 145; Cook V. Wood, I McCord, 139; Lyons v. Gregory, 3 H. & Munf., 237 ; Lowry v. Cady, 4 Vt., 504; Doe v. Greenlee, 3 Hawks, 281 ; Harvey v. Thomas, 10 Watts, 63 ; Renner v. Bank, 9 Wheat., 587- ' U. S. V. Britten, 2 Mason, 468. ' Harvey v. Thorpe, 28 Ala., 250; 65 Am. Dec, 344; Graham v. Campbell, 56 Ga., 258; Illinois, etc., Co. v. Bonner, 75 111., 315; Na- son v. Jordan, 62 Me., 480; Stevenson v. Hoy, 43 Pa. St., 191 ; Co- man V. State, 4 Blackf., 241; Ford v. Cunningham, 87 Cal, 209; People v. Dennis, 4 Mich., 609 ; 69 Am. Dec, 338 ; Bowden v. Achor, 95 Ga., 243 ; Collins v. Ball, 82 Tex., 259.- " Eborn v. Zimpelman, 47 Tex., 503; 26 Am. Rep., 315. DEGREES OF SECONDARY EVIDENCE. 143 the ends of justice, and guard against fraud, surprise and imposition. * * * -pj^jg court has not yet gone the length of the English adjudications, which hold, without qualification, that there are no degrees in sec- ondary evidence."^ The rule of that court is that oral evidence of the contents of a deed may not be given if a counterpart or an examined copy is extant. So where books were kept at the Albany almshouse, showing the names of paupers, and quarterly returns thereof were made to the city, and the books were bound up, it was held that the returns must be produced, rather than parol evidence of their contents.^ So a copy of a letter-press copy of a letter was held properly rejected.^ The origi- nal record of a partition having been destroyed by fire, parol proof of the fact was allowed, without requiring the proponent to show that there was no extant authen- ticated copy thereof, authorized by statute to be re- corded.* " Where the original is lost, and a copy can be produced, of course this would be better than parol evidence of the contents, and its production should be required. If the existence of other and better evidence is not disclosed, then the contents may be proved by parol."® "We confess that the American rule seems to us more reasonable than the English ; and we see great propriety, if there was an examined copy of an instru- ment in the possession of a party, in refusing to allow him to prove it by the uncertain memory of witnesses. A copy of a letter, taken by a copying press, would un- questionably be better evidence of the original than the recollection of its contents by a witness ; and the same reasons which would require the production of the origi- nal, if in the control of the party, would operate in favor of the production of the fac-simile, or of the examined ' Cornett v. Williams, 20 Wall., 246. See to the same effect, Riggs V. Tayloe, 9 Wheat., 487; Stebbins v. Duncan, 108 U. S., 43. ' Niskayuna v. Albany, 2 Cow., 537. 'Stevenson v. Hoy, 43 Pa. St., 191. ' Nason v. Jordan, 62 Me., 480, ^ Higgins V. Reed, 8 Iowa,, 298. 144 SHORT STUDlli^S IN EVIDENCE. copy. But in all these cases the strength of the propo- sition consists in the fact that there is secondary evi- dence, in its nature and character better than that which the party offers, and that it is in his power to produce it." ^ So a lost will may not be proved by oral testi- mony when a copy of it is extant.^ "If therefore an instrument is to be proved, the original, if in the posses- sion or control of the party, is to be produced ; if the original be lost or destroyed, or in the possession of the opposite party, who refuse to produce it, an examined copy, if any such exists and can be found, is the next best evidence and must be produced. If no such copy exists, then the contents may be proved by parol evi- dence, by witnesses who have seen and read it, and can speak pointedly and clearly to its tenor and contents." ' "To admit secondary evidence, it rriust, under the cir- cumstances, not only appear to be the best, but it must be the best legal evidence.* Oral evidence of a lost public document is competent unless a, copy is shown to exist.^ Oral evidence of the testimony of a witness on a former hearing is incompetent where it was reduced to a deposition and is present in court." But not so, unless a deposition is required by law, and unless it ap- pear that one was made.' Press copies of letters are the best evidence, next to the originals, and where such copies are shown to exist, it is error to allow oral evi- dence as to their contents* {obiter). " It will hardly be contended, I think, that a witness would be allowed to prove the contents of a lost paper by recollection, when he had in his pocket a sworn, or even an unsworn copy made by him at the time the paper in question was writ- • ' Harvey v. Thorpe, 28 Ala., 250. ' Illinois, etc., Co. v. Bonner, 75 111., 315. " Story, J., in U. S. v. Britton, 2 Mason, 468. * Philipson v. Bates, 2 Mo., 116 ; 22 Am. Dec, 444. ' Higgins V. Reed, 8 Iowa, 298 ; 74 Am. Dec, 305. ' People V. Hinchman, 75 Mich., 587; 4 L. R. A., 707. 'State V. Gibbs, 10 Mont, 213; 10 L. R. A., 749. ° Ford V. Cunningham, 87 Cal., 209. DEGREES OF SECONDARY EVIDENCE. I45 ten." ^ Where the original record books of a mining district are proved to be lost, a copy of such records, made by a deputy recorder, under a law requiring rec- ords to be filed in the county recorder's ofifice, is better -evidence than the bare memory of witnesses.^ " When it is certain, or even probable, that more conclusive or satisfactory evidence exists, and is in the power of the party to produce, the mind is not satisfied with slight and doubtful circumstances, and hence the rule that the best evidence of which the case is susceptible is always required."^ Mr. Chamberlayne seems to prefer the English rule,* that the production of the inferior degree of secondary evidence only goes to the weight of the evidence. Thus one is not bound to call a more credible living witness ;^ and so evidence may be given of words spoken, although the speaker is in court and not produced." But he admits the " strong tendency " toward the distinction made by the so-called "American rule" above stated.^ I am inclined to accept the English view. The only object of evidence is to satisfy the mind of the tribunal. To exact any particular kind or degree of legitimate evidence in any case seems a technical refinement. When the original document is lost, secondary evidence be- comes legitimate, and the proffer of an inferior degree of it should go only to its effect on the mind of the ' Reddington v. Gilman, supra. ' Belk V. Meagher, 3 Mont., 65. ' Hunter v. Glenn, i Bail., 542. ■* Belk V. Meagher, 3 Mont., 65; Notes to Best on Ev., p. 88. " State V. Cain, 9 W. Va., 559; Stevenson v. State, 83 Ga., 575; Governor v. Roberts, 2 Hawks, 26 ; Green v. Cawthorn, 4 Dev. L., 409. "Badger v. Story, 16 N. H., 168; Featherman's Adm'r v. Miller, 45 Pa. St., 96. ' Citing additionally, in illustration : Holmes v. Coryell, 58 Tex., 680 ; Jaques v. Horton, 76 Ala., 238 ; Parlman v. Young, 2 Dak., 175 ; Wimer V. Smith, 22 Oreg., 469; West. Un. Tel. Co. v. Stevenson, 128 Pa. St., 442; State v. Halstead, 73 Iowa, 376; Powell v. Wallace, 44 Kans., 656; Jackson v. Vail, 7 Wend., 125 ; Gilbert v. Moline P. Co., 119 U. S., 491. 146 SHORT STUDIES IN EVIDENCE. tribunal. Probably the future tendency will be in this direction, for the law of evidence is essentially elastic, giving way to motives of convenience, and reason, and disembarrassing itself of ancient and artificial dogmas, such, for example, as that of Lord Bacon's distinction between ambiguitas patens and ambiguitas latens, which so long held the judges in a blind and senseless slavery, and of which even now there is occasionally heard a faint echo in the courts. UNOFFICIAL ENTRIES BY THIRD PERSONS. 147 Unofficial Entries by Third Persons. One of the most interesting questions of evidence, and one tliat is very inadequately treated by the text- writer, is the admissibility of declarations or written entries, made by persons having peculiar means of knowledge, as evidence between third persons after the death of the declarant. This doctrine is one of the nearest approaches to hearsay that the law tolerates. The English rule favors its admissibility in cases where the declaration or entry was against the interests of the declarant. This species of evidence is included by Ste- phen under his article concerning " Declarations Against Interest." The leading English case, containing, as Stephen says, " the best statement of the law upon this subject," is HIgham v. Ridgway.^ The question there was whether a certain person was born on a certain day, and the following entry in the book of a deceased man- midwife was admitted in evidence : " W. Fowden, Junr's Wife. Films circa hor. post merid. natus H. W. Fow- den, Junr. App. 22, filius nahis, Wife, ^i, 6s. 2d. Pd. 25 Oct. 1768." In Doe v. Beviss,^ the question was whether a gate on land In dispute was repaired by A, and the account of a deceased steward, in which he charged A for such repair, was held irrelevant, although it was conceded that it would have been otherwise if it had appeared that A had admitted the charge. In Williams v. Geaves,^ the question was whether A had received rent for land, and the account of a deceased steward, charging himself with such receipt, was admit- ted, although the balance of the whole account was in favor of the steward. In Reg. v. Heyford,* on the ques- ' lo East, 109. = 7 C. B., 456. ^8C. &P., 592. • ' Smith L. C, 333, 7th ed. 148 SHORT STUDIES IN EVIDENCE. tion whether certain repairs were made at A's expense^ a bill therefor receipted by a deceased carpenter was deemed competent ; there being no other evidence of the repairs or that the money had been paid. This was fol- lowed by Jessel, M. R., in Taylor v. Witham,^ dissenting from the contrary conclusion of Doe v. Vowles.* But in Sussex Peerage Case,^ it was held that on a question of the celebration of a marriage, the statement of a deceased clergyman that he had performed the ceremony, under circumstances that would have rendered him liable to criminal prosecution, was not competent as a statement against interest. And in Haden v. Burton,* entries in the books of a deceased tradesman, of charges for build- ing a cottage, and showing payment by the lord of the manor, were rejected. The evidence was admitted in Higham v. Ridgway, on the ground, as stated by Lord Ellenborough, "that the entry was made in prejudice of the party making it." Le Blanc, J., "would not be bound at present to say that they are not evidence " even if not against interest, but declined very sensibly to express an opinion on that question. The decision was based in great degree on Warren v. Greenville,* and comments on it by Lord Mansfield in Goodtitlev. Duke of Chambers,^ but it would answer no useful purpose to go back of Higham v. Ridgway, which stands as the present law of England, except to explain that in Warren v. Greenville, the book of a deceased attorney was admitted to prove the surrender of a life estate, and in Patteshall v. Tur- ford,'' a memorandum of service of a notice to quit, made by a deceased attorney on a duplicate, was held compe- tent. So in Price v. Earl of Torrington,^ a book kept by ' L. R., 3 Ch. Div., 605. ' I Mo. & Rob., 261. '11 CI. & F., 108. SC. &P., 254. ' 2 Strange, 11 29. ° 2 Burr., 1072. ' 3 B. & Ad., 890. ° I Salk., 285. UNOFFICIAL ENTRIES BY THIRD PERSONS. 149 a clerk, in which he set down at night an account of beer delivered by draymen during the day, and to which they put their names, according to the usual way of the plaintiff's dealing, was held good evidence of delivery to the defendant, the draymen who delivered the beer in question being dead. In some cases attorneys' entries in their business have been admitted, though not against interest, and though there was no duty to make them, because made in the usual course of business.^ Higham V. Ridgway is cited and its doctrine approved by Green- leaf,^ and is substantiated by Hosford v. Rowe,* Bird v. Hueston,* Holladay v. Littlepage,^ Peck v. Gilmer,** Hinkley v. Davis. '^ " If there is anything settled, it is that the rule excluding hearsay evidence does not apply to oral or written declarations of deceased persons made against their interests."** Cases involving the precise principle of Higham v. Ridgway, and relating to declara- tions or non-official entries by third persons, not claiming any ownership or interest in the matter, are not common in this country. Mr. Wallace, in his note to Higham v. Ridgway,® says : " But although there are dicta in favor of the point of Higham v. Ridgway, it is believed that there is no adjudged case in the United States which establishes it as a principle that admissions or entries by a third person against his interest are admissible evi- dence after his death." But he is wrong. Wharton cites Higham v. Ridgway with reference to a number of au- thorities which are not in point, and Prof. Thayer includes it in his valuable " Cases on Evidence." The tendency ' Reece v. Robson, 15 East, 32 ; Clark v. Wilmot, i Y. & C. C. C, 53 ; Marks v. Lahee, 3 Bing. N. C, 408. " Ev., § 147. ' 41 Minn., 247. * 10 Ohio St., 428. ° 2 Munf., 316. ° 4 Dev. & Bat., 249. "6 N. H., 210. ' Taylor v. Gould, 57 Pa. St., 152. ° 2 Stn. L. C, 291, 150 SHORT STUDIES IN EVIDENCE. in this country is to eliminate the condition that the entry- was against interest. Story in Nicholls v. Webb,' the case of a notary's entry, cites Higham v. Ridgway, and says of that condition : " This seems very artificial rea- soning, and could not apply to the original entry in the day-book, which was made before payment ; and even in the ledger the payment was alleged to have been made six months after the service. So that in truth, at the time of the entry, it was not against the party's interest." He continues : " We think it a principle that memoran- dums made by a person in the ordinary course of his business, of acts or matters which his duty in such busi- ness requires him to do for others, in case of his death, are admissible evidence of the acts and matters so done." In Leland v. Cameron," the entry by an attorney in his register, in the proceedings in an action, of the issuing of an execution which could not be found, the attorney being dead, was held to be competent evidence of the fact that the execution was issued. This was put on the ground that the entry was in the usual employment and without any motive or interest to misrepresent. In Livingston v. Arnoux,^ a receipt signed by a deceased sheriff, of redemption money after sale on execution, was held admissible to prove redemption, on the authority of the last two cases cited above, on the ground of those decisions, and also on the separate ground that it was against interest. In Augusta v. Windsor,* a physician's entries were admitted on a question of settlement of a pauper, to prove that he had performed surgical service at a certain time, the court explicitly holding that it need not appear that they were against interest, and citing the earlier English cases. In White v. Chouteau,* an action by a broker for the price of goods claimed to to have been purchased and paid for by him and delivered to the " 8 Wheat., 334. "31 N. Y., 115. ' 56 N. Y., 507 ; same effect, Field v. Boynton, 33 Ga., 238. * 19 Me., 317. ° I E. D. Smith, 497. UNOFFICIAL ENTRIES BY THIRD PERSONS, 151 defendant, the declaration of the former owner, deceased, that he had received payment therefor from the plaintiff, was admitted on the authority of Higham v. Ridgway. One judge dissented. In Arms v. Middleton,^ an entry was admitted in circumstances not imposing the duty, and where it was not against interest, but was simply in accordance with the business habit of the person making it, namely a register of births kept by a physician in his own practice, the court observing : " It is not necessary, as appears by several of the cases, that there should be an absolute duty, on doing an act, to make an entry of it, to render the entry admissible after the death of the person making it ; it is sufficient that it is a proper case for making an entry of the act, and that such is his usual practice," citing Augusta v. Windsor, supra. In Bald- win V. Hall,^ the court approved the general principle, but deemed it essential that the entry should be against interest. This decision is cited, obiter, with approval, in Porgay v. Atlantic M. Ins. Co. ;* but in Matter of Paige,* it was said, obiter, that a memorandum in the handwrit- ing of a physician, in an account book kept by him, of the time a child was born under his attendance, is inad- missible as evidence of the time of the birth, after the death of the physician, unless it is " supported by proof of its truth." The entry charged $3 for the services, and on the opposite page it was marked " settled." This seems clearly wrong within all the cases, no authorities are cited, and the judge simply observes that he " knows of no rule of evidence which would allow such a mem- orandum," etc. In New Hampshire,^ to show the character and extent of an injury to a wagon wheel alleged to have been caused by a collision with the defendant's locomotive, plaintiff proved that several spokes had been broken as '23 Barb., 571. ' 131 N. Y., 160. ' 2 Robt., 96. ' 62 Barb., 476. ' Lassone v. Boston & L. R. Co., 24 Atl. Rep., 902 ; 46 A. L. J., 273. 152 SHORT STUDIES IN EVIDENCE. though by a blow, and that a person since deceased had repaired the wheel. The account book of the deceased person was offered in evidence. It showed a charge against the plaintiff for sixteen spokes, together with a stated price. The court held the evidence admissible to prove that the injuries were caused by the collision. This is a very exhaustive treatment (after the New Hampshire manner) of the subject. Higham v. Ridge- way was chiefly relied on, and many other English cases were cited ; also Nourse v. McCay,^' where to prove that a deed was forged, the account book of a deceased mag- istrate, showing charges for taking acknowledgments of three other deeds on the same day, and none for the acknowledgment of the deed in question, was held admis- sible. Also State v. Phair,^ an indictment for the murder of Mrs. Freeze. After the murder the prisoner had pawned a watch. To identify the watch as hers, a book kept by Parmenter, a deceased jeweler, containing a description of watches repaired by him, -wfas offered in evidence. It contained the following entries : "Dec. ii, 1871, Mrs. Freeze, gold anchor, Freeres (maker). No. 56,376, cleaning screw, repairing jewel, $1.50. Jan. 17, 1873, Mrs. Freeze, gold anchor, Freeres, No. 56,376, cleaning and jewels, $2.00." It was held admissible, although it does not appear that the charges were marked paid, or in any other way that they had been paid, and although counsel urged, on the authority of Higham v. Ridgway, that it must appear that the entries were against interest. This is a very satisfactory case on the facts, although there was little discussion of the point expressed in the opinion, the court simply citing Price v. Torring- ton and Welsh v. Barrett, infra, and observing : " The jDrinciple seems to be founded in good sense and public convenience." It is quite amusing to note the difference in stress deemed necessary on the different sides of the Connecticut River, for New Hampshire dismisses in six lines what Vermont expends as many pages upon. ' 2 Rawle, 70. '48Vt., 366. UNOFFICIAL ENTRIES BY THIRD PERSONS. 153 The doctrine is universally applied in cases of official or quasi official entries ; as for example : the church record of a baptism to prove the date of the baptism ; ^ so of a notary's entries.^ In Hunt v. Order of Chosen Friends,* the court observed : " Those baptismal registers serve a purpose equivalent to that served by family records. In this country they are fairly to be dealt with as equivalent to corporation records, which are generally evidence of such matters as are recorded in the usual course of affairs. There is not much authority on the subject here, but all the analogies which apply to other presumptively correct documents apply to these." Citing Hutchins v. Kimmell* (marriage); Durfee v. Abbott,® (baptism but not age) ; Lewis v. Marshall" (burial). The court continues : " The rejection of such proofs would be disastrous. They are relied on by the whole commu- nity." So held, on a trial for abducting a girl under sixteen, of an entry made by a school teacher of the age of pupils on entering school.^ So of entries made by a bank messenger In his book of demands on and notices to makers of notes left in the bank for collection.* The learned annotator of Higham v. Ridgway* is of opinion that that case lays down "the true principle" that entries made in a private business must be against interest, and that the absence of that condition is only excused in cases of official entries, but he admits that "the American cases appear to have melted these two into one, and to have settled the very reasonable and useful rule that all entries made in the regular course of ' Whitcher v. McLaughlin, 115 Mass., 167. ° Spann v. Baltzell, i Fla., 301; 46 Am. Dec, 346. See Sitler v. Gehr, 105 Pa., 577; 51 Am. Rep., 207. '64 Mich., 671; 8 Am. St. Rep., 855. *3i Mich., 126; 18 Am. Rep., 164. "61 Mich., 471. ' s Pet., 470. 'People V. Brow, 90 Hun, 514. 'Welsh V. Barret, 15 Mass., 379. ' 2 Sm. L. C, 271. 154 SHORT STUDIES IN EVIDENCE. business, public or private, are admissible though not against interest." The doctrine is applied to oral declarations as well as to entries. The only authority to the contrary seems to be a dictum in Lawrence v. Kimball,^ an action against an owner for selling property for taxes, on the ground that they had been paid to a deceased collector, where Shaw, Ch. J., excluded oral declarations, observing : " It was argued that this was within another exception to the rule respecting hearsay, viz. : that the admission was made by the collector, in a matter against his interest at the time, inasmuch as it rendered him liable to the town as for so much money collected. Higham v. Ridgway, lo East, 109. But we think this has been confined wholly to the case of entries made in books, or other receipts, documents, or written memoranda, made by a person deceased, in relation to a matter contrary to his interest at the time, and which went to charge him with some debt or duty. 10 East, ubi sup.; De Rutzen v. Farr, 4 Adolph. & Ellis, 53. This distinction was taken and relied on, and made the ground of decision in Framing- ham Manufacturing Co. v. Barnard, 2 Pick., 532. It was founded mainly on the consideration of the clearness and certainty of such written memoranda made by a party, against his interest, in contradistinction to the looseness and uncertainty of verbal statements, or even of letters. We think, upon a view of the authorities, that the evi- dence was not admissible on that ground. It was evi- dence of the statements of the collector, not in writing, made to third persons, in the course of casual conversa- tion, and not in the exercise of his authority as collector." This distinction is disapproved in Livingston v. Arnoux,'* the court saying " there is no principle upon which it can be supported." The entry must be substantially contemporaneous with the fact.^ ' I Mete, 524. " Supra. ' Kinglake v. Beviss, 7 C. B., 456. UNOFFICIAL ENTRIES BY THIRD PERSONS. 155 It is a mooted question whether such entries as we have been discussing are admissible where the person who made them is not dead, but living and insane, or beyond the jurisdiction of the court. This question and the conflict In respect to It are exhaustively considered In VInal v. Oilman.' In Bridgewater v. Roxbury,^ the principle was extended to the case of, entries by a person who had subsequently becom.e insane and incompetent to testify, and It was held that they need not be against interest. This was a settlement case, and the entries were those of a physician charging the town for his attendance upon the paupers. Citing Ashmead v. Colby"' and Abel v. Fitch.* It is undoubtedly true, however, as stated in that case, that such entries are only admissible when made in the course of business, either private or official, and that mere private memoranda or entries, dis- connected from any business or professional practice, are Incompetent to affect the rights of third persons. For example, a diary of a mere observer, even though so detailed and accurate as that of Mr. Samuel Pepys, would be mere hearsay, and therefore inadmissible, as indepen- dent evidence, however competent It might be to refresh the memory of a living witness. So an entry by a master in his private book, 'showing the nature of the hiring of a servant, was rejected In a settlement case.^ ' 21 W. Va., 301; 45 Am. Rep., 562. See also Culver v. Marks, 122 Ind., 554; 17 Am. St. Rep., 377; Brewster v. Doane, 2 Hill, 537, In the last case it is laid down that they are admitted only from the neces- sity of the case, and if the declarant is living that necessity does not exist. "54 Conn., 213. ^ 26 Conn., 289. * 20 Conn., 96. ■• Reg. V. Worth, 4 Q. B., 132. 156 SHORT STUDIES IN EVIDENCE. The "Excess and Deficiency Clause" in Bills of Lading, There can be no doubt that the bare recital, in a bill of lading, of the receipt, quantity, value or condition of the property may be contradicted as between the parties by parol.'^ But it is equally true that this doctrine is confined to mere recitals, which amount to no more than receipts, and so far as the language constitutes a contract, it is not open to contradiction by parol evidence, even as between the immediate parties. An excellent illus- tration of this doctrine arises in cases of what is com- monly known as the " excess and deficiency clause," de- signed to protect shippers and consignees of grain or other produce from those mysterious diminutions in quantity which frequently occur, apparently without the carrier's fault, during the transit. (Excess very seldom occurs, but it is not unprecedented.) There are very few cases in the books involving this- somewhat important doctrine, and they are, with one exception, cases arising between carrier and consignee, and not between carrier and consignor. The clause in question is to the effect that for any deficiency in cargo the consignee will be entitled to deduct from the freight money, and any excess shall enure to the benefit of the carrier. The particular question now to be considered is whether the carrier is entitled to show by parol evi- dence that by reason of a mistake of fact between him- self and the consignor he did not receive the full amount or quantity recited, or whether the language constitutes an absolute contract not variable by parol. The earliest of the cases is Meyer v. Peck,^ where the language was that "any damage or deficiency in quan- ' Browne on Parol Ev., p. 349. ■^ 28 N. Y., 590. THE "EXCESS AND DEFICIENCY CLAUSE," ETC. 157 tity the consignee will deduct from balance of freight due the captain." The court held that this language did not constitute a guaranty that the whole quantity of goods specified had been received, but related to the property actually shipped. Ingraham, J., said: "De- ficiency from what ? From the quantity referred to in the bill of lading. This must be understood to mean the quantity received. It is no more a guaranty that the captain received the whole quantity than the former part of the bill, which he is allowed to explain and to some extent contradict. It can only be understood as an agreement to pay for that portion, if any, which shall be found to be deficient of what he has received." Denio, Ch. J., gave an opinion to the same effect, but he laid some stress on the association of the word "damage" with the word "deficiency," as the former "plainly has reference to delinquencies attributable to the carrier. No doubt it might be made a matter of an express con- tract that the carrier should account for the precise quan- tity acknowledged in the Instrument, and that no other evidence on that point should be received. There are no words here Indicating that suCh a stiputation was de- signed to be attached to this contract." Selden, J., dis- sented. (The deficiency was 124 bushels.) The next decision is Abbe v. Eaton, ^ in the (Commis- sion of Appeals. There the provision was : " All dam- ages caused by boat or carrier, or deficiency of cargo from quantity, as herein specified, to be paid by the car- rier and deducted from the freight, and any excess on the cargo to be paid for the carrier by the consignee." It will be noticed that this language is peculiarly strong by reason of the expression, "as herein specified." In this action by the carrier for freight, it was held that if the carrier delivered all that he received, his liability was discharged. Earl, Com., observed : " Here is on^ agree- ment that the carrier will be bound by the quantity 'SI N. Y., 410. " Clearly a misprint for " no." 158 SHORT STUDIES IN EVIDENCE. specified, or that the bill of lading shall furnish the only evidence of the quantity. Such an agreement might doubtless be made by a carrier ; but the language used would have to be quite clear and explicit to preclude the carrier from showing by parol a mistake in the quantity." Citing Meyer v. Peck. " There is another view of the language used in this case which strongly favors the construction of the plaintiff. He did not agree to pay absolutely for any deficiency from the quantity specified. He simply agreed to pay all damage caused by the de- ficiency. Now so long as the carrier delivered at its destination all the cargo he received, there could be no damage in any proper sense of the term." This seems to me a strained grammatical construction, but I am not set to teach the Court of Appeals grammar. (The defi- ciency here was 72 bushels.) The next decision is in Merrick v. Certain Wheat, 3 Fed. Rep., 340, by Wallace, D. J. The provision there was : "All the deficiency in the cargo shall be paid for by the carrier, and deducted from the freight, and any excess in the cargo shall be paid for to the carrier by the con- signee." This was a libel for freight. The court cited Meyer v. Peck and Abbe v. Eaton, and did not dissent from the former, but disapproved the latter, and charged the carrier with the deficiency in cargo. The court gave little attention to Com. Earl's grammatical construction of the words "all damage." Wallace, D. J., observed: " In the present case, however, the stipulation shows that the parties had in contemplation the cargo described in the bill of lading, and not the cargo which might have been actually received, because the stipulation provides that the consignee shall pay the carrier for any excess in the cargo. ' Excess ' and ' deficiency ' in the stipulation refer to the same ' cargo,' and what excess could there be except as to the cargo recited in the bill of lading ? There could be no excess in the cargo actually received. This consideration appears to have been overlooked in the case of Abbe v. Eaton," etc. Subsequent language shows that the court had in mind only the rights as THE " EXCESS AND DEFICIENCY CLAUSE," ETC. 159 between carrier and consignee : " It was a contract well calculated to prevent the constant disputes and litigation arising with reference to shortage between carrier and consignee. The carrier has an ample opportunity to guard against mistakes, and so has the shipper ; but the consignee is entirely in the dark as to whether the cargo agreed to be delivered has been actually laden or whether it has disappeared on the trip. It is just that the con- signee should pay for what he actually receives, whether more or less in quantity than is expressed in the bill of lading, and it is just that the carrier should be held con- cluded by his admissions as to facts completely within his own knowledge, and of which the consignee is igno- rant." (The deficiency in this case was 827 bushels.) The next case is Rhodes v. Newhall,^ where the pro- vision was: "All the deficiency in cargo to be paid by the carrier and deducted from the freight, and any ex- cess in the cargo to be paid for to the carrier by the consignee." This was an action against the consignee for freight. Of Meyer v. Peck and Abbe v. Eaton, Ruger, Ch. J., said : " The rule acted upon in those cases, as stated in the head-note of Meyer v. Peck, is that ' an ordinary bill of lading is not conclusive, as between the original parties, either as to the shipment of the goods, or the quantity ; as to those matters, It operates merely as a receipt, and is open to explanation on the trial by parol evidence.' We feel no disposition to question the authority of those cases, or to disregard the principle there laid down ; but think that this case is distinguish- able in its facts from those considered in the cases refer- red to." But the court do not distinguish it from Abbe V. Eaton, nor allude to the grammatical distinction raised by Com. Earl in that case, upon which alone it is distin- guishable. Judge Earl concurred, perhaps relying on his grammatical distinction, but as the court held the carrier liable for a deficiency, it would seem to the un- initiated that the court flatly overrule at least Abbe v. ' 126 N. Y., 574. 160 SHORT STUDIES IN EVIDENCE. Eaton, under a polite pretence of distinguishing it. In the opinion of the court, by Ruger, Ch. J., there is no new argument adduced except that the parties anticipated the case imagined by Chief Justice Denio in Abbe v. Eaton, and made an " express contract," to all the lan- guage of which effect could not be given without adopt- ing the rule laid down by the court. All these cases, it will be observed, arose between car- rier and consignee, and the question as between carrier and consignor seems never to have arisen until a later time, and very recently. In the cases cited above some expressions are used which seem to indicate that a differ- ent rule might be adopted as between the latter parties, and that the clause in question should not be construed as a guaranty or hard and fast contract. The language of Judge Wallace, above quoted, might bear this construc- tion. So Ruger, Ch. J., expresses the purpose of the pro- vision as follows, in the Rhodes case : " The provisions fixing the quantity of grain received and providing a mode by which any deficiency or excess in quantity shall be dealt with, do not seem susceptible of any other effect than to prescribe a rule by which the consignee can deter- mine the amount affreight payable by him to the carrier. For this purpose, the provision has a legitimate and natural office to perform, which also accords with the plain signi- fication of the language used. It seems reasonable that parties should agree upon the quantity of grain shipped, when it is designed for transportation to distant markets, with a view of avoiding controversies between carrier ana consignee upon the subject." On principle, I am of opinion that under such a pro- vision the carrier would still be at liberty, as against the shipper, to show a mistake in the quantity recited, that there was a shortage, and that he delivered all that he received. The clause is apparently inserted for the benefit of the consignee alone, to expedite delivery, to prevent libels of cargo or boat, and a contract on the part of the carrier to waive mistake or fraud on the part of the ship- THE " EXCESS AND DEFICIENCY CLAUSE," ETC. 161 per would require clearer and explicit language. Let it be especially observed that the clause does not purport to be for the consignor's benefit. It is limited to the protec- tion of the consignee, and apparently is not designed to give to the consignor the advantage of any mistake made by the carrier. The contrary however has been very recently held in Sawyer v. Cleveland Iron Mining Co.,^ United States Circuit Courc of Appeals, second circuit, in which all the cases are reviewed, and the court approve the doctrine of Rhodes v. Newhall, apply it to the relation of consignor and carrier, and hold that " the carrier may agree that he shall be bound by the quantity specified, or that the bill of lading shall furnish the only evidence of the quantity;" that the special agreement shall " apply to mistakes in weighing," and that this is conclusively agreed by the car- rier by such a bill of lading. The weakness of this rea- soning is in assuming that the word " cargo '' covers not only what the carrier received, but what he did not receive. The bill of lading should furnish only prima facie evi- dence of the amount received, and in cases of mutual mistake, at least, the carrier should be allowed to show that the " cargo " was less. In the case of a foreign judg- ment, the record may be impeached for lack of jurisdiction or fraud, on the ground that in such cases, it is not a "judgment." So the word "cargo" extends only to what was actually put on board, and the stipulation as to excess or deficiency applies only to that amount. There may be good reason for holding the clause in question conclusive in favor of the consignee as to the amount specified, on the ground of estoppel, but as between carrier and con- signor there can be no estoppel, for the circumstances lack the essential element of injury to the consignor. The consignee may be injured by reason of his payment for the amount specified, and thus the carrier is estopped as to him, but the consignor could only be benefited by that circumstance, and thus there could be no estoppel as to 69 Fed. Rep., 211. 162 SHORT STUDIES IN EVIDENCE, • him. Indeed, such a construction as is here put on this clause would enable the consignor to take advantage not only of the carrier's mistake, but of his own fraud or wrong, which is manifestly against the policy of the law. It would seem that Judge Lacombe, in the Sawyer case, recognized the necessity of finding an estoppel in order to make this clause work in favor of the consignor. This he essays to do as follows: "Accepting the receipts of the carrier on the bills of lading as correctly representing the cargo as laden on board under the carrier's supervision, relying on their accuracy and on the clause in the contract, he gave up to the warehouseman, at the elevator, receipts of the latter for a quantity of grain equal to that which the carrier represented that he had received on board." The short answer to this argument is that this was a mistake which he could correct on settlement with the warehouse- man, for the latter was not entitled to benefit from the carrier's error. The court also argue that the consignor made no mis- take. If that were so, it would be all the worse for him. The court say : " So far as appears, he was entirely unrep- resented, except by the carrier, at the weighing from ele- vator to propellor on West Superior." But he was enti- tled to be represented, and cannot equitably claim that because he chose not to be he was entitled to take advan- tage of the carrier's mistake. He did in fact make a mis- take ; he accepted the carrier's mistaken account, enuring to his own advantage, and in this sense there was a mutual mistake. But there was no necessity of mutual mistake. The carrier is entitled to relief from his own mistake unless it has conclusively prejudiced the consignor, and thus created an estoppel in his favor. The trial court in this case found as a fact that all the grain that was received on board was delivered to the consignee, and it appeared that the discrepancy was 1,502 bushels ! This was attributed by the trial court to errors in tallying. It would seem to be a serious perver- sion of justice to charge the carrier for an omission to THE "EXCESS AND DEFICIENCY CLAUSE," ETC. 163 deliver such a material amount, which clearly he never received, simply by reason of his mistake in the recital of the amount received in connection with contractual lan- guage not applicable to the consignor, and in circum- stances which cannot have legally prejudiced him. I can not understand the reasoning of the court when it says : " The language of the contract is broad enough to protect the shipper as well as the consignee against the carrier's mistake." The language about "freight " shows that it is intended to apply only as between carrier and consignee ; it does not purport to be for the protection of the shipper; he is capable of protecting himself, and there is no con- ceivable reason why he should not do so, nor why he should be accorded protection through the carrier's contract with the other party. The parties are not on the same footing. The consignee is necessarily ignorant ; the shipper is igno- rant only because he prefers to be. The decision in ques- tion would give the consignor the benefit of a deliberate fraud on the carrier as well as of an innocent mistake. If the decision in question is not equivalent to that, it is practically as bad, for it allows him to take advantage of an innocent and unquestioned mistake. As one gets a new and striking impression of a land- scape or portrait by viewing the reflection of it in a mirror, so a very good test of the soundness of this decision may be made by reversing the circumstances, and supposing that there had been by mistake an excess in the cargo. Would the carrier have been entitled to that excess, as against the consignor by reason of the alleged conclusive effect of the stipulation in the bill of lading? It would be difficult to imagine such a construction, and yet "it is a poor rule that will not work both ways." The question so supposed has actually arisen and been decided by a Canadian court, in Murton v. Kingston and Montreal For- warding Co.^ The clause there read : "All deficiency in cargo to be paid for by the carrier and deducted from the freight, and any excess in the cargo to be paid for to the ' 32 U. C, C. P., 366. 164 SHORT STUDIES IN EVIDENCE. carrier by the consignee." There was an excess of 50a bushels, for which the defendants had accounted to the shipper, and it was held that the plaintiff, the carrier, was not entitled to recover it from the defendants as his own. The trial judge charged that " the first part of the clause in question would mean a deficiency in cargo caused by the act or defect of the carrier. If he did not receive the full cargo he would not be liable as long as he delivered all he received. And it would be open to him under this bill of lading to prove that there was a mistake, aUhough he had signed a bill of lading which acknowledged he had received a smaller " (larger ?) " number of bushels." " The second clause does not mean that the carrier is to get the money for the excess and keep it for himself; he is to account for that to the shipper." On appeal the court observed : " The bill of lading is conclusive only as between the master or person who signs it and the consignee or indorsee for value. It is conclusive in no other cases or between any other persons. The facts have only to be stated to show the absurdity and unreasonableness of the claim. The forwarder ships (as was illustrated by the learned Judge at the trial) twenty-one horses, when he should have sent twenty only. The carrier says he is entitled to keep the extra horse, although it is proved, and he himself admits it was sent by mistake. In like manner, if half a dozen carriages with a pair of horses for each car- riage were shipped, and five only should have been sent, the carrier is to keep the extra carriage and horses. There is no kind of doubt the shipper can show the mis- take and recover the property, which is not covered by the bill of lading, and so also can the actual owner of it." In the nature of things this question can never go to the Supreme Court, but it would be interesting to see how that tribunal would deal with it. DISQUALIFICATION OF PARTIES AS WITNESSES. 165 Of the Disqualification of Parties as Witnesses. (From the American Law Register, March, 1857. j " The I>aw that is the perfection of reason, cannot suffer anything that is inconvenient." — Coke. "Truth, which only doth judge itself, teacheth, that the inquiry of truth, which is the love rnaking or wooing of it; the knowledge of truth, which is the presence of it; and the belief of truth, which is the enjoying of it; is the sovereign good of human nature." — Bacon. No rule of evidence is better settled than that which excludes parties from being witnesses in their own suits. All the writers, from Baron Gilbert down to Greenleaf, agree in saying that any immediate legal interest in the event of an action renders the interested party incompe- tent as a witness in that action. "When a man,"^ says Gilbert, the first writer on evi- dence, who flourished about the time of Queen Anne's reign, "who is interested in the matter in question, comes to prove it, it is rather a ground for distrust than any just cause for belief; for men are generally so short-sighted as to look at their own private benefit, which is near to them, rather than to the good of the world, which is more remote ; therefore, from the nature of human passions and actions, there is more reason to distrust such a biased testimony than to believe it. It is also easy for persons who are prejudiced and prepossessed, to put false and unequal glosses upon what they give in evidence ; and therefore the law removes them from testimony, to prevent their sliding into perjury ; and it can be no injury to truth to remove those from the jury, whose testim-ony may hurt themselves, and can never induce any rational belief" The only writer who entertains any doubt as to the soundness of this doctrine, is Jeremy Bentham, in whose ' I Gilb. Ev., 224. 166 SHORT STUDIES IN EVIDENCE. work on "Judicial Evidence " may be found a long and able discussion of the question, taking the position that the regulation is against nature and sound sense. It is also a rule of the common law, that no party to a suit shall be compelled to give testimony for the opposite party. Both these rules seem to have sprung from the civil law. The cardinal maxims of the Roman jurists upon this subject were: "Nullus idoneus testis in re sua intel- ligitur ;" '■''Omnibus in re propria dicendi testimonii fucultatem jura submoverunt ; " "Nemo tenetur seipsum prodere." It is our object to examine the grounds of these rules, and to inquire whether they are founded in justice ; and, more particularly, to investigate the propriety of the ex- clusion of parties as witnesses in their own suits at law. We must not suppose, however, that those arbitrary rules have always had sway. In the earliest times, before the humanizing influences of Christianity and civilization had dawned upon the world, the settlement of litigations was a matter of comparatively small importance, and the sim- plest means were taken to dispose of these troublesome affairs. If one man fancied that he had sustained an injury from another, the parties, by mutual consent, went before the sovereign of the country, the governor, the judge, appointed to hear and decide such questions, or even some disinterested neighbor : they told their respective stories, the arbitrator decided between them ; and by his decision the parties were in law and in honor bound to abide. In those days, the scales of justice were unencumbered with the infinitesimal weights of modern rules of evidence. But as men became more refined, and as the arts and trades increased in value and importance, and as Com- merce extended her white wings over the ocean, and as the barbarities of war were softened, and as nations grew to regard each other in more friendly aspects, it would seem as if man's faith in man grew less in geometrical proportion. It would seem as if when man grew rich, DISQUALIFICATION OF PARTIES AS WITNESSES. 167 he became dishonorable ; as if when he became civil- ized, his word could no longer be trusted ; as if when he received Christianity, he became more exposed to the temptations of perjury ; in short, it would seem as if the human race, instead of growing in wisdom and virtue, had degenerated into iniquity, and that all the advantages and privileges which we possess over our ancestors, have only sufficed to make us their inferiors in honesty. The restraints of technical rules have been thrown up as bar- riers against the admission of parties on their own behalf in suits at law. The simplicity, brevity, and we may say, the equity, of legal proceedings, have been in a manner destroyed. The individuals who were once considered the most natural and proper witnesses to prove the charge of the parties, are now rejected as the most dangerous and un- reliable, and their testimony is scrupulously shut out. The only persons who knew all the facts and circumstances connected with the subject-matter of the law suit, are now the only persons who are not competent witnesses in that suit. The only conceivable objection that can be urged against a repeal of these rules, is the pretended inducement to the commission of perjury that it would afford. ' And yet as things now stand, a wicked or designing man can easily accomplish his purposes by the subornation of perjury. A man who will himself swear falsely, can generally find others who will do the same thing, and thus he may accomplish his end indirectly, and that without rendering himself liable to the same danger of exposure that would be attendant upon false swearing. So great has this evil become, that the same punishment is now inflicted upon the perjurer and the suborner of perjury. Again, there are numerous cases in which the law is forced to waive these rules, from motives of necessity, or of public policy, as the writers on evidence say. There are many instances in which a man may be his own wit- ness ; as where the party against whom the oath is offered 168 SHORT STUDIES IN EVIDENCE. has been guilty of some fraud, or of some tortious and unwarrantable act of intermeddling with the complainant's goods; ^ in many cases of bailment as to prove the con- tents of a trunk lost during transportation by a common carrier." A party may become a witness to prove the loss of a deed or other paper, preparatory to the offering of secondary evidence to show its contents.^ So, to procure a continuance of a suit, in order to obtain testimony * Also, to prove entries in books, under certain circum- stances.' So, too, his affidavits are admissible to establish the materiality of a witness ; to show diligent search for a witness, and in some other instances preparatory to and attendant upon the trial of an action.^ The answer of a defendant in equity, so far as it is responsive to the bill, is admitted as evidence in his favor as well as against him.'^ The oath of an inventor, made prior to the issuing of let- ters patent, that he was the first and true inventor, may be opposed, in a question concerning originality of the invention, to the testimony of witnesses produced to prove that the invention was not original.^ In an action of malicious prosecution for causing the defendant to be in- dicted, proof of the evidence given by the defendant on the trial of the indictment, is admissible to show probable cause.' An account of sale rendered by a consignee is sometimes evidence in his favor against the consignor.'" In some States, in a defence of usury, the defendant may be sworn to prove the usurious transaction." ' I Tait on Ev., 280. ' I Greenl. R., 27. ' I Peters, 591. * I Greenl. Ev., § 349. ° 12 Mete, 44. ° I Greenl. Ev., § 349. ' 9 Cranch, 160 ' I Story, 336. "6 Mod., 216. '° 4 Cranch, 163. " R. S. Mass., c. 35, § 4 ; Maine, c. 69, § 3 ; Kentucky, c. 37, art. 2, § 38. DISQUALIFICATION OF PARTIES AS WITNESSES. 169 In actions of a criminal nature, the same exceptions are made from the same motives. It may perhaps be con- tended that in these cases the complainant can have no interest. It is often true that he may have no immediate pecuniary interest, but where that is lacking he may have a moral interest, entirely paramount to any paltry con- sideration of gain or loss. Thus, one who ha^been robbed or assaulted, may, by his own oath, prove the robbery or assault.' In proceeding under the filiation laws, the mother of a bastard may always swear as to the paternity of her child.^ In actions of a qui tarn nature, the com- plainant may always be a competent witness on behalf of the people.^ And this is an instance where the witness has a pecuniary, as well as a moral, interest ; for often the establishment of his claim to receive part of the fine may depend altogether upon his own oath. In an action for rape the complainant is a competent, and generally, the only witness for the prosecution.* And as regards this last class of cases, it seems to us that an application of Sancho Panza's rule might be generally conducive to the development of truth. That immortal personage, during his gubernatorial dignity, when a woman came before him, complaining that a rape had been committed upon her person by the prisoner, asked her if she had any money about her. On receiving an affirmative answer, he com- manded the defendant to take it away. After a long and desperate struggle, the man acknowledged to the governor that he was unable to do it. " Go, woman," said the sage: "hadst thou been as careful of thy chastity as thou art of thy money, thou wouldst never have lost it ! " The maxim, "Nemo tenetur seipsum, prodere," also, is not universally applied, as an extract from Greenleaf will show: ■ I Bull. N. P., 187, 289. ^ T Greenl. Ev., p. 463, note 4. " 16 Peters, 203. ■•3 Greenl. Ev., § 212. 170 SHORT STUDIES IN EVIDENCE. " In some cases at law, and generally by the course of proceedings in equity, one party may appeal to the con- science of the other, by calling him to answer interrogato- ries upon oath. But this act of the adversary may be regarded as an einphatic admission, that, in that instance, \}a.& party is worthy of credit, and that his known integrity is a sufficient guaranty against the danger of falsehood!' ' Other instances might be cited in which the law has abated its rigor in respect to the exclusion of the parties from testifying, but we have already quoted enough to establish the fact. The law, therefore, plainly admits, that in many cases the enforcing of these rules would occasion great inconvenience, and often a total failure of justice. But if the principle is right, no exception should be allowed,, It either is, or is not, right. If it is right and equitable, not even the smallest departure from it should be tolerated by courts. It should be strictly carried into effect, and if occa- sional injustice should thereby be done, still, the inconve- nience should be borne, with the reflection that the smaller evils which might arise from its enforcement must in the end be less oppressive than the greater ones which would cer- tainly be consequent upon its relaxation. Every departure from a recognized and established rule or principle of law, necessarily weakens its authority, and subjects it to the criti- cisms of those interested in the administration of justice. Most of the received maxims of evidence are simple, just, and incontrovertible ; they have withstood the assault of ages, and have been embellished and illustrated by the dicta of judges and the learning of sS,ges. But the rule under present consideration seems to us unjust, inconsist- ent, and impracticable. It has worked much injury in past times to the rights of deserving men, and has retarded the due course of justice in a greater degree than any other canon to be found in the books. We propose to consider briefly some advantages which would arise from its repeal. ' I Greenl. Ev., § 329. DISQUALIFICATION OF PARTIES AS WITNESSES. 171 In the first place, then, we claim that its repeal would promote the elucidation of truth in our courts. The prin- cipal ground of belief is faith in human testimony. There is of necessity more truth than falsehood in the world. If it were otherwise, we should be unable to place any reli- ance upon the commonest representations of everyday life. There are, it is to be feared, many who "love and make a lie ; " but the number of those who would commit deliber- ate perjury, is probably, in comparison with that of the truthful, no greater than the number of convicts in our State prisons, compared with the great mass of sober and industrious and upright citizens. But it may be said that this is not a fair comparison ; there are many rascals still at large. We answer, that there are many innocent per- sons in confinement. As every individual at large in the world is not pure, so every person in our penetentiaries is not vile. The probability is, that ninety-nine out of every one hundred plaintiffs and defendants would tell the truth if put upon the witness stand. Again, how inconsistent is, sometimes, the working of the rule which we are -considering. We can conceive of a man, pure and unblemished in reputation, of sober and regular habits, of disinterested benevolence, of high moral aims, of elevated philanthropy ; one whose good deeds are in every man's mouth ; one whom the world honors, whom God loves, and whom even villains respect. We can also conceive of another man, sunk and steeped in vice and crime ; a gambler, a libertine, a blasphemer ; one whose "conscience is seared as if with a hot iron ; " whose moral sense is blunted by wickedness ; one who is despised by his fellows, and whose existence is an offence in the eyes of his Maker. We may suppose these two men to know precisely the same state of facts in reference to a litigation. The former, if he has the interest of two shillings in the event of the suit, cannot open his mouth in court ; but the latter, because he has no pecuniary interest, is a compe- tent witness, and his evidence goes to the jury. The former is excluded through fear of his " sliding into per- 172 SHORT STUDIES IN EVIDENCE. jury ; " but the latter, who perhaps has not spoken the truth within the memory of men now living, is freely admitted. A repeal of this rule would tend to the elucidation of truth ; first, because the parties who, alone of all men, have a full and complete knowledge of the transactions in dis- pute, would be confronted and sworn, and their stories compared and weighed by twelve disinterested men. How many a cause has been lost for the want of proof of a fact which lay in the knowledge of one of the parties alone ! There is no remedy in such a case. Justice is misled. According to old Baron Gilbert's doctrine, such an anomaly as an honest lawsuit was never known ; for he says : " It is not to be presumed that a man who com- plains without cause, or defends without justice, should have honesty enough to confess it." ^ But in our times a more enlightened belief is inevitable. Again, the parties would be subject to the same tests as ordinary witnesses. They would take the same oath — an awful and solemn promise before God and man. They would submit to the same cross-examination — at once the most perfect and effectual system for the unraveling of falsehood ever devised by the ingenuity of mortals. The minutest circumstance, the smallest fact would be forced upon the mind of such a witness. There could be no escape from the vigorous sifting of his testimony. If he is refrac- tory, he will be met by a determination equal to his own. If he is equivocal, he will be pushed to the wall, and made to declare himself explicitly. Conscious that everything depends upon his own story and appearance, he will be scrupulous in his statements, not deviating from the exact truth. His voice, his eyes, his manner, will be remarked and commented on by the jury. If in spite of all these guards, he lies successfully, he must be a shrewder man than most of his fellows ; for he must not only deceive the opposing counsel, but the judge on his bench and the jury in their box. ' I Gilb. Ev., 243. DISQUALIFICATION -OF PARTIES AS WITNESSES. 173 Another advantage which would flow from the reform proposed, would be discoverable in the shortening of law- suits, and the simplification of questions of evidence. It is notorious that our laws are tardy in their operation. It takes one-tenth of the active business community all the time to try the lawsuits of the rest. This is a moderate estimate, if we consider the time occupied in our courts, references, and arbitrations, by parties* witnesses, judges, juries, and counsel. At our circuits, it is seldom that more than one suit is daily disposed of, on the average. [Our judges of the Supreme Court in this State ' long ago dis- covered this, and recently passed a rule requiring counsel to stand, and to refrain from taking notes while examining witnesses. This was a reform, but not the reform. It does not answer the object sought.] So long as parties are shut out as witnesses, so long our litigations will be tedious. An incalculable amount of extraneous and cumu- lative testimony is now admitted, and hours are consumed at the circuits in arguing nice and difficult questions of evidence, which owe their rise and existence entirely to the present state of things. If the law were changed in this respect, in many cases no other testimony than that of the parties would be necessary ; the labors of counsel and judges would be lightened, jurymen would not be kept away from their employments ; the cause of truth would be advanced, and all parties would be better satis- fied with a litigation free from the burdens of our present system, and equally answering it in every desirable respect. Lawyers would have an increase of business, for more suits would be brought ; and with this triple appeal to head, heart, and pocket, we may hope to obtain their influence in accomplishing this most desirable of all legal reforms. Much of the stigma which is now thrown upon our profession by the mass, would be removed. We should no longer have the reputation of obstructing the course of justice to fi.ll our coffers, and our clients would pay our reasonable demands with a better grace. There could no ' New York. 174 SHORT STUDIES IN EVIDENCE. longer be any semblance of reason in the saying of Cor- nelius Agrippa, that, "the calling of advocates is to pre- vent equity." We rejoice to see that the spirit of reform is at work, and that many important movements have been made towards bringing about this desirable object. It is an innovation upon old established and honored customs, and like all other reforms, must be gradual. " Reformers, generally, have to draw upon posterity for their reward."^ But says Lord Bacon, "surely every medicine is an in- novation, and he that will not apply new remedies, must expect new evils ; for time is the greatest innovator ; and if time, of course, alter things to the worse, and wisdoni and counsel shall not alter them to the better, what shall be the end l""" There are many prejudices to be over- come before a way can be clear for our design. The initiate step in this matter was taken in England, in 1844, by the passage of "Lord Denman's Act," by which all disqualifications of witnesses, by reason of any interest in the event of the suit, were removed. The same enactment was adopted in our State by the Code of Procedure.^ Neither of these statutes, however, goes the length of allowing a party to testify in his own behalf. In several States any party may compel his adversary to testify. In Michigan this can be done, but the applicant ' must first make affidavit that the desired testimony is material, and known to the adverse party, and that there is no other means of obtaining it.* In New York the adverse party may be called as a witness, and may testify in his own behalf, as to the matter in regard to which he is examined in chief ; and if he testifies to any new mat- ter, the party calling him may also testify to such new matter.^ This is considered a great step in the right path, and is a good indication of the spirit of our legislators. ' Judge Edmond's address on the Code of Procedure, 1848. " Bacon's Essay on " Innovations." ' New York Code, § 398. '' R. S., 1S46, c. 102, § 100, " New York Code, § 395. DISQUALIFICATION OF PARTIES AS WITNESSES. 175 The law is precisely the same in Wisconsin.^ In Mis- souri, parties may summon each other as witnesses in justices" courts, and if the party ' summoned refuse to appear or testify, the other may give his oath in litem."-' In Massachusetts, the parties in civil actions may require of each other, upon written interrogatories, the discovery upon oath of any facts or documents material to the support or defence of the action ; but neither party is bound to make any disclosure tending to criminate him- self, or to discover his title to any other property not material to the issue, or to disclose the names of his own witnesses, or the intended mode of proving his case.^ But it was left to the State of Connecticut to complete this great reform, and to set an example to her sister States and the world. It is somewhat singular that this little commonwealth, where a century ago it was unlaw- ful for a man to kiss his wife on Sunday, or to drive to church in a gig, should be the first to adopt this most liberal doctrine. This is now the settled law of that State, as appears from the following enactment : " No person shall be disqualified as a witness in any suit or proceeding at law or in equity, by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crim.e ; but such interest or conviction may be shown for the purpose of affecting his credit."* By a subsequent statute this enactment was confined to civil actions. The same provision was en- acted in Ohio, in 1853, with the exception, that where one party is an executor or administrator of a deceased person, and the subject of the suit concerns matter orig- inating in the life-time of that person, the other party cannot be sworn as a witness therein.^ These instances are sufficient to show that the cur- rent of opinion in this country and in England is ■ R. S., 1849, c. 98, §§ s7-6o. ' R. S., c. 93, §§ 24, 25. » R. S., 1851, c. 233, §§ 98, 106; R. S., 1852, c. 312, §§ 61-69. • R. S., 1854, p. 95, §§ 141, 148. *R. S., 1854, c. 87, tit. 10, § 3to. 176 SHORT STUDIES IN EVIDENCE. favorable to throwing aside all the old disqualifications of interest. No reform can be nearer to the heart, or more espe- cially commend itself to the right reason of every high- minded and intelligent lawyer. It has for its object the simplification of legal proceedings, the advancement of truth, and the good of mankind. We do not despair of seeing it adopted all over this land during our life-time. Greater reforms even than this have been effected almost instantaneously. Once a man indicted for felony in England, was not allowed to have any counsel, but was dependent upon the mercy of his judge. Once a crimi- nal was hung for stealing sixpence. Once confessions were wrung out of unwilling lips on the rack. These abuses have been banished from our criminal codes, and now is proposed a reform equally important to the inter- ests of suitors in civil actions. It is proposed to clear our common law of a maxim whose effect is to defeat justice, and which pre-supposes that there is no honesty in the human race. It is proposed to let every man, good or bad, speak freely in our courts, and to submit the task of deciding between the adverse parties to a jury fully conversant with every fact in each case. It is one of our boasts that we have the privilege of submit- ting our disputes to the arbitration of a jury of our peers. Let it also be our boast that we can stand up in open court, and under the sanction of a solemn oath, tell our grievances freely and without fear of reproach. Where juries are now in the dark, and grope blindly after truth, they will be enabled to see the truth face to face ; and where justice was once dimly guessed at, it will be grasped with certainty and brought palpably to view. Those who would otherwise be debarred from prosecuting their just demands will have opportunity to present their claims for adjudication. The effect of the whole will be, instead of promoting perjury, to force men to become more hon- est ; for where a contract is made each will be upon his guard, knowing that at any moment his adversary may step forward and expose any attempt at iniquity or fraud. DISQUALIFICATION OF PARTIES AS WITNESSES. 177 We hope to see the time when not only all these restrictions as to parties shall be abolished, but when every person, however infamous, may be a competent witness ; when no peculiar form of religious belief should shut out any one from testifying ,^ and when all men, in the possession of their reasoning faculties, understanding the nature and believing in the sanction of an oath, shall be permitted to speak that which they do know. Then only will our system of jurisprudence be perfect. Then only will be established the great idea that man, formed in the image of his Maker, should cherish faith in his fellow. Then only will arrive that epoch prophe- cied by a golden poet of a golden age : ^ " Jan fides, # * # # * * * * et neglectaredire Virtus Audet." And then only will be vindicated the majesty and splendor of that law, whose "seat is the bosom of God; whose voice is the harmony of the world." ^ ' It has recently been decided by Judge Manly, in North Carolina, that by the laws of that State, Universalists are not competent witnesses. ' Hor. Carm. Sec. ' We do not entirely concur with our correspondent, but we present his well-written paper to our readers for their consideration. 178 SHORT STUDIES IN EVIDENCE. Testimony of Parties in Criminal Prosecutions. {From the American Law Register, January, 1866 J Some eight years have elapsed since the writer pub- lished in these pages some reasons, which presented themselves to his mind, in favor of repealing the rule of evidence which prohibited parties to lawsuits from testi- fying in their own behalf. This was a subject then strongly agitating the mind of the legal profession in the State of New York, and in the spring of 1857 the contemplated change was effected, and ever since parties to civil suits have stood on the footing of other witnesses in the courts of our State. It is confidently claimed that the change worked a great reform. Occasionally an ex- judge or lawyer of a very old school may be met who, although he sees the manifest convenience and justice of the new enactment in every suit that he tries, yet is so wedded by habit and association to the old rule that he experiences a pang at parting with it. He feels at best like an invalid who has obtained a release from a chronic tumor or wen — a strange sense of freedom, a constrained sort of relief. He misses the accustomed exercise of his ingenuity in the picking up of shreds of fact from those but remotely connected with the subject of the litigation, and having but an imperfect knowledge of it, and the dexterous weaving of a thousand threads together into a web (how often " of the whole cloth "), while in the bosom of his client all the time rested the complete and perfect knowledge which he was not permitted to dis- close. He is terribly tried about "total depravity," and man's natural bent towards falsehood. And therefore he gravely shakes his head (not that there is anything in that, as an eminent British advocate once said of an an- tagonist who indulged in the like dumb show) and sighs — acti temporis laudator — for the good old times of chancery, common-law pleading, and pay by the folio, TESTIMONY IN CRIMINAL PROSECUTIONS. 179 and everybody as witnesses except those who knew something about the subject-matter; — the days when law was an expensive and narrow monopoly, rather than the great conservator of order and the champion of truth. He will not give you any reason for his faith : he has none. He simply runs into the formal rut of cant, and rehearses phrases to you such as the judges use when they decide without a reason : "the exercise of a sound discretion," " the danger of innovation," or, "man is at best but a fallen and unreliable creature." There is not a great deal of this idolatry of the dead rule, for the pub- lic opinion is overwhelmingly in favor of the present practice. It is seldom that an acting judicial officer can be found who does not heartily approve the reform, and unhesitatingly avow that it has saved the time of the court and of parties, has simplified the trial of causes, has discouraged dishonest litigation, and has promoted the elucidation of truth. And if a vote could be taken to-day upon the subject among our profession, at least nine out of ten would hold up their hands for a continu- ance of the rule as now administered. Indeed we doubt whether any sane man can be found in our State who would be willing to return to the old system. But reform is progressive, and the active mind of the nineteenth century is already agitating the inquiry : " If we make parties to civil suits witijesses for themselves, why not permit the defendant in criminal proceedings to testify on his own behalf ? " There was some show of reason in a rule which enacted that both parties are disqualified from testifying on their own behalf ; there was some faint sense of justice in it ; it seemed at least impartial. But it must be remembered that in criminal actions only one of the parties is disquali- fied. The people may always be heard ; vox Populi vox J)et in courts of justice ; but the defendant is infamous — let his mouth be closed. And so we see presented the extraordinary spectacle of an interested man testify- ing against his neighbor who cannot open his mouth in •exculpation. Who can tell how often revenge or aver- 180 SHORT STUDIES IN EVIDENCE. ice may impel to perjury or prevarication, and the conse- quent punishment of innocent men ? In every criminal proceeding the prisoner is set up as a mark for the arrows of the public prosecutor, with all his crowd of clients behind him, while the accused is compelled to be dumb.^ ' A recent case in England having attracted much attention, we give a statement of it, condensed from the London Law Times of September 30th, 1865, and subsequent numbers, as a strong illustration of the re- marks in our text. A Madame Valentin had lived for thirty years with a merchant of Bordeaux, who, on his death, gave her, as she alleged, certain railway shares of considerable value. His heir, one Madame Bouillon, disputed the validity of this death-bed gift, charged Madame Valentin^ with obtaining the shares surreptitiously, prosecuted her before one of the tribunals at Paris, obtained a conviction and a sentence of six months imprisonment. The railway stock having been brought to England, the question was again raised there in the form of an action in the Court of Exchequer. The trial lasted five days, and Madame Valentin suc- ceeded in practically reversing the decision of the Paris court and establishing the validity of the gift to herself. While these proceedings were pending Madame Valentin went to England for the purpose of selling a portion of the stock, accompanied by a man called Lafourcade. After a while she quarrelled with him, and he then allied himself with the other party. He made an affidavit alleging that Madame Valentin intended to leave England. She was arrested under the Absconding Debtors Act, and not being able to find bail, was committed to prison, where she lay for five months, until the trial by the Court of Exchequer and the verdict in her favor discharged her. She then prosecuted Lafourcade for perjury in the affidavit that had obtained her arrest. He was convicted and sentenced to eighteen months imprisonment. Upon this the other party took ths like proceeding against her, and prosecuted her for perjury for having, in her evidence at the trial, sworn that she had never threatened to leave England, as Lafourcade had alleged. She was in turn convicted, and thus was exhibited the extraordinary spectacle of two persons convicted and punished for perjury in a trans- action in which it is quite certain that both could not be guilty. In the one case, the prosecutor being heard and the prisoner's lips sealed, the story of the former is believed. In the other they have changed places; the prosecutor is now the prisoner, and the prisoner is prosecutor; the story of the latter is heard but not that of the former, and again there is a conviction, although utterly inconsistent with the former conviction, when the position was reversed. There being no court of appeal or other legal mode of righting such a case in England, resort was had to the clemency of the Crown, and ' Madame Valentin received not an acquittal, to which she was of natural TESTIMONY IN CRIMINAL PROSECUTIONS. 181 Now is there not a manifest discrepancy between the theory and the practice of the law ? The theory is, that every person accused of crime is to be presumed inno- cent until convicted. But the practice too often is to consider him as both guilty and infamous until he shall satisfactorily establish his innocence. In pursuance of this corruption of the theory in many of our States (but not in our State, thank Heaven !), if one is accused of selling liquor without a license, or smuggling a few pounds of tobacco across the frontier, he is put in a pen surrounded by a spiked railing, and a sulky individual is stationed at its door, with a long pole, to frown upon his counsel when the accused whispers suggestions in his ear, and to say, in effect, to the public : " Look upon this malefactor." And yet, Law, in the person of the grave and learned judge upon the bench, will say, upon request of the prisoner's counsel : " Oh yes, to be sure ; gentle- men of the jury, the burden is on the district attorney to prove the prisoner's guilt ; the law presumes his inno- cence ; you must have no reasonable doubt that he com- mitted the crime ; " and then the jury turn their eyes from his honor to the prisoner, and in his humiliating position they see a practical contradiction of the law's benignant theory. The writer never enters a country court-house and sees one of these detestable pens, without a strong desire to huddle our legislators into it, and try them for inconsistency, inhumanity, and indecency, without a pre- sumption in their favor ! And is not the rule we are considering just as effectual a contradiction of the theory of the law ? They have come down to us together from darker ages, and they both deserve the name of barbarisms. It must be remembered that the writer is appealing only to those communities which have abrogated the common-law, rule in regard to parties in civil suits, for his remarks can have no application to those localities right entitled, but a pardon for a crime of which nobody believed her guilty, and of which she, in all probability, would never have been con- victed had she been allowed to be heard in her own defence. 182 SHORT STUDIES IN EVIDENCE. where the rule is unchanged. But in the former, is it not the topmost height of inconsistency to let John Doe testify in his own behalf, when sued by Richard Roe to recover the value of a pair of chickens sold and deliv- ered, and yet prohibit him from testifying, when Richard Roe complains that he stole the aforesaid chickens ? John may say anything he chooses to avoid paying a few paltry shillings, but when the charge is of larceny, and disgrace and dishonor are threatening himself and his family, and the penitentiary stares him in the face, the tender and benignant law says : " Oh no, John, that would never do. We cannot allow you to say that you were not there, or that you had bought the chickens, and merely went to fetch them away, or anything else tending to clear yourself ; for you see, John, it would be against public policy and the old and well-established rule of evi- dence, and would work great injustice, and tend to pro- mote perjury ; for you, being complained of for stealing a pair of chickens, cannot be expected to speak the truth under oath, so great is the depravity of human nature. We are sorry for you ; you are unfortunate ; but the law is inexorable ; and as for your family, if they shall be- come needy, we have in our tenderness provided an asylum for them in the almshouse." And so it goes — John to the jail and his family to the poor-house ; — and the judge pulls down his spectacles and calls the next case, with a severe dignity and an unimpassioned voice, appareritly and really unconscious that he has been as- sisting in the perpetuation of a great error and accessory to a monstrous injustice. A judge of New York — no less an historical personage than he whom Irving has immortalized as the "great congressman" — was once called on, in the discharge of his official duties, to sen- tence a negro slave owned by one of his neighbors and whom his honor had known from boyhood, for some trifling offence. "Stand up, Zingo," said his honor; "what have you to say why the sentence of the law should not be pronounced upon you ? " The criminal, frightened out of what little wit nature had given him„ TESTIMONY IN CRIMINAL PROSECUTIONS. 183 commenced stammering in a painfully confused manner : "Why — massa — massa— Knickerbocker — " "Not a word, Zingo ! " interrupted his honor, " not a word ! " and sentence was pronounced. And so it is every day. The law demands of us to prove our innocence but shuts our mouths when we essay to speak it. That which we here complain of is that the law has not upon this point the merit of consistency. We are not now considering the question in the aspect of policy. The only theory upon which the testimony of a party to a civil action was excluded, was that it was taken for granted that if he stated anything favorable to himself it must necessarily be perjury ; and that can be the only theory upon which to base the exclusion of his testimony in a criminal proceeding. There is no hesitation in courts in receiving admissions or confessions of persons charged with crime ; we are always ready to accept a plea of guilty ; we are never skeptical about a man's story when it bears against him ; it is only when he tells us something which makes for him that we hesitate, and the reason can be no other than that which we have in- timated. But having discarded the theory in the one case, we must also do it in the other if we are to be called consistent. The reason of the exclusion having ceased any longer to commend itself to our minds in the former instance, we ought no longer to allow it to pre- vail in the latter. But we assert that the law has never been consistent in its administration of the rule as to criminals, even if it be admitted that the rule is just and expedient. There is one instance in which the criminal is permitted to tell his own story, and that is before the examining and com- mitting magistrate. " Zingo " may here say why sentence should not be pronounced upon him ; but he must be carefiil, for the privilege is two-edged and cuts both ways, and oftener in the hands of officials is turned against him than against his accusers. Here then he may state — not testify, for his testimony of course would be a lie — but .y/a/^ whatever he has to say in exculpa- 184 SHORT STUDIES IN EVIDENCE. tion. And what he says is gravely written down, and this statement may be read in evidence upon the trial against him if the district attorney pleases ; and as it contains all that he stated, some things favorable to him- self or intended by him to be so, must necessarily come out before the jury who sit to try him, and that without the sanction of an oath. So that after all, the law does not permit the prisoner, in this second-hand manner, to present his exculpatory statements to the jury upon his trial, and these exculpatory statements are received with- out possessing even in form the sacred character of state- ments made under oath. Now if the prisoner may be heard, unsworn, before the examining magistrate, why not before the jury, after having taken the oath ? If he is to be in the least credited before one judge, will the presence of twelve additional judges corrupt him ? Or is it the oath itself that inspires him with deceit and falsehood? If he is to be heard at all, why not at all times and places? If his statements are receivable to influence the magistrate in holding or releasing him, why should they not be received in the form of legal tes- timony to influence the jury in convicting or acquitting him ? Is there any objection to the jury's judging for themselves from the bearing and demeanor of the ac- cused, under oath, of the probable credit due to his state- ments before the magistrate ? Can it be true that the real object of the law in permitting prisoners to make their statements before the magistrate, is to set a trap to catch unwary, unadvised, ignorant or confused defend- ants, by giving the district attorney the right to use the statement on the trial and not giving the same privilege to the accused ? In any view we urge that here is a great absurdity. The law sees the injustice of striking the accused utterly dumb, and therefore tolerates an excep- tion to its rule. Precisely so did the law make many exceptions to the rule in civil suits from the necessity of things, and a rule to which so many and such important exceptions are necessary or expedient must itself be un- necessary and inexpedient. TESTIMONY IN CRIMINAL PROSECUTIONS. 185 But this is not the only practical Inconsistency of which we have to complain in this regard. Let us remember that the object of the law is to develop truth, and that the reason assigned for the exclusion of the accused is, that the accusation itself renders the accused unworthy of credit. Now there happen to be two indicted for the commission of a joint offence. The public prosecutor finds it impossible to convict either of them by extrane- ous evidence, and therefore offers one, that if he will confess the crime and inculpate his accomplice, he shall go free and his accomplice alone shall pay the penalty. Here is a very strong temptation for an honest man, wrongfully accused, and what rogue could withstand it ? Legal grace does its work, and the scoundrel of the spiked pen Is translated to the witness-box, and we send his accomplice to prison on his testimony. Here the testimony of a man is received, not only when charged with crime, but when confessedly guilty. True, here and there the books say he must be corroborated, but in prac- tice this is more matter of form than substance, and a jury seldom falls to convict on such evidence. Is the law quite as punctilious here as in the case under consid- eration ? The object ought to be to ascertain the truth. But suppose the prisoner appealed to for "state's evi- dence " should offer to give a narrative consistent only with the innocence of both himself and his fellow-pris- oner ; would the district attorney produce him, think you ? Oh, no ; the depravity of human nature then sug- gests Itself to Mr. Attorney's mind, and he declines min- istering to It. It will be noticed that the witness is de- praved if he claims to be innocent, but pure if he con- fesses his guilt. The law will not listen to either of the accused as prisoners, because they are not to be believed ; but It will select one of them and offer him a premium, if he is really innocent, to become a perjurer at the ex- pense of his companion. In the one case, it per- chance refuses to hear the truth ; In the other it offers inducements to men, possibly honest, to degrade them- selves. 186 SHORT STUDIES IN EVIDENCE. The rule of which we are speaking sometimes pro- duces in practice very ridiculous and amusing results. Noakes and Stiles have a quarrel in the street ; they come to blows ; each supposes his antagonist in fault ; each starts instantly for the police justice to prefer a complaint for assault and disorderly conduct ; Noakes, having longer legs or better wind, arrives first and pro- cures a warrant against his adversary, who comes panting into court shortly after, just in season to find himself in the custody of the constable, an infamous man, and not allowed to raise his voice in his own behalf ; and so he is fined. Next day the parties meet again and have a repetition of the quarrel, and each supposes the other to blame as before ; again they start for the temple of jus- tice, but this tirne Stiles, having improved by his training or discovered some short cut, turns the tables on the agile Noakes and renders him infamous and unworthy of credit ; and therefore this time the fine is imposed on Noakes. Thus a man's credibility may sometimes de- pend upon the length of his legs or the soundness of his lungs. But let us suppose that in the case we have men- tioned Noakes now brings a civil action against Stiles for the same cause, even after his conviction ; then both Noakes and Stiles are competent witnesses on their own behalf, and it is entirely competent for the civil tribunal to render a decision entirely at variance from that of the criminal tribunal. So, in the first instance, the law, re- fusing to hear Noakes on account of his infamy, punishes him on the testimony of Stiles ; in the other, having heard both the parties, it refuses to, punish him at all, but subjects Stiles to damages and costs for the very same transaction, and that after Noakes has been ren- dered " Infamous and unworthy of belief," on account of the criminal proceedings, charge and conviction. But to take a more serious, but not more possible view, the practical working of this rule will be found equally objectIonable,In a variety of instances, in regard to which there is hardly room for controversy. A case of very frequent occurrence in our courts Is the accusa- TESTIMONY IN CRIMINAL PROSECUTIONS. 187 tion of rape. In many, and perhaps a majority of in- stances, the allegation is made by ignorant or obscure women against men of fair reputation, who, up to the hour of accusation, have stood as persons of probity and respectability. In this kind of proceedings there can generally be but one witness, and that the complainant, and as a general rule it may be said that there can ordin- arily be but one question, and that of consent, for the accuser usually has, the first necessary element to the offence substantially undisputed and acknowledged. But the question of consent is a- close one, depending upon nice shades of action and meaning, and it behooves the law, where there is such an ample field for the operation of fraud and conspiracy, to exercise extraordinary cau- tion. Here then it would seem there is an example of great hardship in the enforcement of the exclusion. Can there be any doubt that in at least half these cases the statement of the accused would materially modify the narration of the prosecutrix and reasonably shake her credit In the minds of the jury ? But it is not permitted, and the life or the liberty of the unfortunate accused is at the mercy of a designing, a revengeful, or a corrupt woman. There is yet another class of cases in which it would seem eminently proper to admit the testimony of the accused, and that Is when the corpus delicti depends upon the animus of the defendant, or rather upon his knowl- edge of extrinsic circumstances and the reasons that operated on his mind at the time of the transaction. Perjury sometimes presents an example of this descrip- tion. Here the jury are often expected to peer into the mind of the accused, and form an opinion as to whether or not he knew the falsity of that which he averred under oath. What objection can be raised against allowing him to testify concerning his knowledge and his belief at the time of his original testimony, and subjecting him to a critical cross-examination upon the subject ? Again, in cases where the accusatory evidence is strictly circumstantial. It is an old dogma that " circum- 188 SHORT STUDIES IN EVIDENCE. Stances cannot lie," but experience has shown that they sometimes do "lie" as grossly as "figures." Although not an every-day occurrence, yet once in a while, an m- nocent and reputable man has been environed by a net- work of circumstances, apparently damning, and yet time has developed a theory entirely consistent with his inno- cence. We care not how seldom it occurs ; it is sufficient if it can ever occur. The law ought to guard as far as practicable against the possibility of injustice. It is bet- ter that a thousand guilty should go unpunished than that one innocent man sho.uld suffer. If the testimony of such a man under such circumstances can throw any light upon the transaction, surely the jury ought to hear it and judge of it. We can imagine — many of us have seen — frequent instances in which court, jury, witnesses, officers and spectators would unite in saying that the prisoner ought to be allowed to testify. If there is or can be one such instance, the exclusion should be done away in all. The law draws no distinctions as to circumstances in this respect. The law " is no respecter of persons." Its rules are for all men, in all places, and at all times, or ought so to be. The test should therefore be credibility. And the question of credibility should always be sub- mitted to the jury. If the accused is unworthy of credit, they will not believe him ; but if his testimony and bear- ing commend themselves to their belief and respect, they ought to and will believe him. And here let us add, that in our opinion, the cross-examination of an accused per- son would greatly tend to the development of the truth. If innocent, he will not be shaken or confused. If guilty, to use the expressive words of Chief Justice Appleton in speaking of this subject : "His truths and his falsehoods are alike perilous. H e is pressed by question upon question. He evades or is silent. Evasion is suspicious. Silence is tantamount to confession." And thus, instead of promot- ing error, we enlist a new agent in the service of truth. We are aware of the great prejudice in the minds of men on this subject. So great is this prejudice that they TESTIMONY IN CRIMINAL PROSECUTIONS. 18& are not disposed to give fair scope for the experiment. Thus in Connecticut, where the legislature in enacting a law authorizing parties in civil actions to testify on their own behalf, inadvertently made the provision so broad as to cover criminal proceedings, the legislature repealed the obnoxious portion of the enactment the very next year. And yet the member for Fairfield, while on his way to the station to take the cars for the capital, where he should in his seat vote for this repeal, might have seen the well-preserved whipping-post on Fairfield Com- mon, directly in front of the ancient and honored temple of justice, and drawn from the sight a useful lesson on reform. Then in our State, where the legislature last winter modified the pre-existing law on this subject, which allowed parties to civil actions to be sworn, so that to-day it clearly embraces criminal proceedings as well as civil suits, yet judges are found so timid as to reject the proffered testimony of the accused in criminal cases, and for no better reason than that the legislature "could not have intended to do such a dreadful thing." In the State of Maine, where the sun rises, the law- makers in 1859 passed an act enabling the respondent in any criminal prosecution for libel, nuisance, simple assault, or assault and battery, by offering himself as a witness, to testify; and in 1863, the provision was extended to all criminal proceedings whatsoever. This extension of the rule is a strong argument in its favor, derived from practical experience. And Chief Justice Appleton, in his admirable letter on this subject (published in these pages in August last), which deserves to be written in letters of gold, says of these changes : " So far as I can judge, they are favorable to the ascertainment of truth — the great end forwhich judicialproceedings are instituted." " I anticipate from the change proposed a greater cer- tainty of correct decisions in criminal proceedings. The guilty will be less likely to escape. The danger of the unjust conviction of the innocent will be diminished." A great many other reasons might be advanced to show the expediency of establishing a new practice on 190 SHORT STUDIES IN EVIDENCE. this subject. But perhaps to adduce them would answer no useful purpose. And after all, we are advocating no new thing. It is a remarkable fact that argument on this topic is needed in no language save the English. In no civilized countries on the face of the globe save those where the English language is spoken, is a person accused of crime prohibited from testifying in his own behalf. In all countries, except those which boast the superior civilization and culture which have given the Anglo-Saxon his merited supremacy in the affairs of the world, the accused is allowed, and even required, to sub- mit to the tribunal before which he stands for trial, his own version, explanation or denial, and these are received and considered, and are awarded such credit as they are worth. How is this? Is the English tongue peculiarly " to falsehood framed " ? Or is it because our law reform has not kept pace with that of other coun- tries ? Have we not confined ourselves too closely to narrow reasonings upon human depravity and the unre- liability of human testimony, and lost sight of the fact that we have provided a competent tribunal to judge of its reliability ? But it is not too late to reform our prac- tice. Error is not any more respectable because it is hoary. "The eternal years of God" belong to truth alone. It will not do to say that the men of the nine- teenth century have no conscience. It now lies with the lawyers of our country to agitate and consummate this needed amelioration. They have always been the rec- ognized champions of men's rights and the redressers of their wrongs, and to them the world looks, and on them it calls, to establish just, consistent and equal laws, to administer them faithfully and conscientiously, and ever to lend a willing ear to every suggestion of possi- ble injustice and probable reform. It rests with our profession now to blot out this abuse from our statute books, and to make our laws, in this respect, equal in justice and policy, as we believe they are in most re- spects superior, to those of the other civilized nations of the earth. PAROL EVIDENCE IN RESPECT TO WRITINGS. 191 Parol Evidence in Respect to Writings under the Statute of Frauds. The statute of frauds has always been a pons asino- rum of the courts. Whenever Justice has looked at it she has been peculiarly blind. It has been the parent of more judicial folly, inconsistency and stupidity than all other statutes put together. There is no idea or phrase in it that has not been the subject of contradictory decisions by the judges. So it has long constituted a formidable argument against any attempt at general codification or statutory expression of the law. In fact, as Napoleon became a force so strong as to be regarded as the " out- law of the nations," so this statute has proved so unman- ageable as to have become almost the defiant outlaw of the courts. What it evidently needs is codification. In no respect has the warfare of the courts to prevent the effectuation of its evident purposes been so noteworthy as in regard to parol evidence. The statute was enacted expressly to exclude parol evidence, and it would naturally seem that the courts would have recognized that purpose, but on the contrary they long and strenuously sought to defeat it by bringing it under the rules that govern con- tracts outside the statute, and to render elastic and malle- able that which the legislature intended to make rigid. It may be useful to review the conduct of the courts in respect to the admission of parol evidence in the construc- tion of the statute, and for this purpose it will be conve- nient to consider the decisions, first, in regard to the estab- lishment of the contract ; second, in regard to the modifi- cation of the contract ; third, in regard to the discharge of the contract. I. Establishment OF THE Contract. Parol evidence is allowed a little play in the establishment of the contract, as to explain ambiguities and identify the subject-matter. 192 SHORT STUDIES IN EVIDENCE. But the courts are very guarded in their relaxation of the principle on which the statute Is founded. Connecting writings. Thus although in respect to con- tracts, outside the statute, contained in several writings, it is a familiar doctrine that parol evidence is receivable to show their connection, yet it is almost universally held in respect to contracts in writing within the statute, that they must connect themselves by references, and that parol evi- dence is not admissible to connect them, although it may be given to identify them.^ This is the doctrine of the English cases — Peirce v. Corf,^ — where Mr. Justice Quain said : "On the document itself there must be some refer- ence from the one to the other, leaving nothing to be sup- plied by parol evidence, except the identity, as it were, of the document." Mr. Justice Archibald, in the same case, observed: "No doubt the reference may be made in various ways, but it must be of such a nature as to make it clear that the one does'refer to the other." In Potter v. Peters,^ an attempt was made to satisfy the requirements of the statute by connecting a letter written by the ven- dor's agent to the vendor's solicitor with previous letters also written by the agent or his clerk, with his authority, to the vendor. There was nothing on the face of the last letter to show that the agent was referring to the earlier letters, and the judge, in fact, concluded that the intended reference was rather to the parol agreement which had been made, and dismissed the action. A writer in the Lon- don Law Journal says : " This decision seems to go back to the stricter rule, which was perhaps a little trenched upon by the dicta rather than the decisions in Studds v. Watson,* and Oliver v. Hunting.^ In the former case, Mr. Justice North expressed his opinion, though it was unneces-. sary to decide the case on this ground, that where two ' I Greenl. Ev., § 268. "L. R. 9 Q. B., 210. = 64 L. J. Rep. Ch., 367. * L. R. 28 Ch. Div., 305. 'L. R. 44 Ch. Div., 205. PAROL EWE'llKCffi IN RESPECT? T© WBSfTINGS. 11^3! dteasamsiaitls: both. rreSsar to thie sasine parol AgreenmM, uliafE is^enefflfh to GOoneGt them. In OHiver v, Huntln'^, Mn. Jiflsdee- Kekewieh, afer a careful review of flhe eases,. said': " It is difificult, perhaps, to say where parol evidence is to stopi * * * Perhaps; the real principle, is ihat you are allways entitled in regarding the construction' and meajning of a, written document to inquire into theeircum- stances under which it was written, not in- order to find an interpretation by the writer of the language, but to aseer- taijiii from the surrounding, fa«ts and circumstances witk refenenee to what, and with' what intent, it must have beeni written. I think myself thaC must be the. principle on- which paTol evidence of this kind is admitted." In Brodie v. St. Paul,' an agreetaentforaleaserefierreti t®' 30 paper containing the term-s,. and a diecree for specific penfonauance according to such clauses as were proved' by patfol to have been read- to' the plaintifif was refused. BuUer, J.,, said;, this " would be- directly in the- teeth of the staUuteof frauds." It wasi held in Cave' v. Hastingis,^ that where the plaintiff had! signed a memorandum* of contract, and the defendant in a) subsequent letter to> himi referred to^ "our arrange-, men* for the hire of your ' carriage," parol evidence was competent to connect the two- papers. This was^ founded on. Ridgeway v. Wharton,* where parol evidence was ad- mitted' tO' identify " instructions " referred to with certain instructions in writing ; and reference is also made to Long The general rule is correctly stated in McConnell v. Brillhart,^ as follows : " The writings, notes or memoranda shall contain on their face, or by reference to others, that are traceable, the names of the parties, vendor and vendee, a sufficiently clear and explicit description of the thing, ' I Ves. jr., 326. •7 Q. B. Div., 125. '6 H. L. C, 238. •4C. P D., 450. '17 111., 354; 65 Am. Dec, 661. 194 SHORT STUDIES IN EVIDENCE. interest or property, as will be capable of identification and separation from others of like kind, together with the terms, conditions, and price to be paid, or other considera- tion to be given." ^ In Hewes v. Taylor,^ it was held that parol evidence was competent to correct a mistake in the date of a letter, and in order to connect writings to prove that a letter dated the 9th was in answer to one dated the loth of the month: "The agreement would be good without a date, or even with an impossible date. The date is a circum- stance of identification as to time only ; proof of it does not add to, alter or change the terms of the agreement." Pennsylvania, however, has always been ultra liberal in admitting parol evidence. In Osborn v. Phelps,' it was held that equity would not correct a mistake by which, where an agreement for the sale of'land was in two separate papers, one of sale and the other of purchase, and each party signed the wrong one, and the papers did not refer to oneanother nor ex- press the mutual intention. One judge dissented. This was founded on Clinan v. Cooke,* and Attorney-General V. Sitwell.'^ In the latter, Baron Alderson said: " In the case of an executory contract, first to reform and then to decree an execution of it would be virtually to repeal the statute of frauds." The decision seems technical, and the argument of the dissenting judge is very convincing. The general rule excluding parol evidence to connect writings finds support in Parkhurst v. Van Cortlandt,' ' Citing Barry V. Coombe, i Pet., 647; Blagden v. Bradbear, 12 Ves., 466; Dock V.Hart, 7 W. &. S., 172; Mactier's Adm'rs v. Frith, 6 Wend., 103 ; 21 Am. Dec, 262 ; Bean v. Burbank, 16 Me., 458; 33 Am. Dec, 681 ; Hill v. Roderick, 4 W. & S., 221 ; Sherburne v. Shaw, i N. H., 158 ; 8 Am. Dec, 47 ; Fowler v. Lewis, 3 A. K. Marsh., 443 ; Dor- sey V. Wayman, 6 Gill., 66 ; Ide v. Stanton, 15 Vt., 685 ; 40 Am. Dec, 698. ' 70 Pa. St., 387. ° 19 Conn., 63. * I Sch. & li., 22. ' I Y. & C.,ss9. ' I Johns. Ch., 280. PAROL EVIDENCE IN RESPECT TO WRITINGS. 195 (" too reasonable and too well settled to be now disturbed," says Kent); Alba v. Strong,' Fowler Elevator Co. v. Cottrell.^ The general rule. In general the memorandum or agreement must contain, either in itself or by clear refer- ence, all the terms of a complete contract, and if any essential term is absent it is insufficient and cannot be mended by parol evidence.^ So an agreement for a lease of land without stating price or term is void.* In Fry v. Piatt,* a receipt read: "Received of J. B. Fry, fifty dollars for part payment of purchase-money for section i, T. 25, R. 14, Woodson County, Ks. T. M, Eads, agent for Alex. Piatt." Specific performance was refused because of the uncertainty as to consideration, purchaser, and character of instrument to be executed. In Lee v. Hills," parol evidence was refused to supply the omission of the word "sold" in a memorandum of goods. So in Ridgway v. Ingram,^ the sheriff indorsed on an order of foreclosure sale of land : " Sold to A. B. for $2,400," dated and signed. This was held insufficient and incurable by parol. In North v. Mendel,' parol evidence was adjudged in- admissible to explain the following entry it a pork broker's or agent's order book : " Sold account C. N. North v. Co., Mendel, five bellies, 8." The court remarked that this entry was unintelligible " without explanation, or rather '94 Ala., 163; 10 So. Rep., 242. = 38 Neb., 512; 57 N. W. Rep., 19. 'Abeel v. Radcliff, 13 Johns., 297; 7 Am. Dec, 377; Wardell v. Williams. 62 Mich., 50 ; 4 Am. St. Rep., 814 ; Hazard v. Day, 14 Allen, 487 ; 92 Am. Dec, 790 ; Ticg v. Freeman, 30 Minn., 389; Fry v. Piatt, 32 Kan., 62; Peck V. Vandermark, 99 N. Y., 29; Grace v. Denison, 114 Mass., 16; Hope v. Dixon, 22 Grant Ch. (U. C), 439; Baker v. Glass, 6 Munf., 212 ; Grafton v. Cummings, 99 U. S., 100 (disapproving -Salmon F. M Co. v. Goddard, 14 How., 446). ' Abeel v. Radcliff, supra. '32 Kan., 62. '66 Ind., 474. ' 50 Ind., 145. "73 Ga. 400; 54 Am. Rep., 879, 1% SH0/R3I SUUDBES IN. E^ID>EN€E. translation by a nesorti to parol; evitience, and tbis was, the very thing the statuCa- was enacted; to prevent, in order to take away all temptation to commit either fraud or perj,ury." In Banks v. Harris Mfg. Co;,' parol evidence was held; incompetent to supply the defects, of an- order addressedi by a traveling agent to his principal: " Send to W. S.. Banks, net thirty days,, freight allowed," signed by hiraj, and accompanied by a list of goods with prices, signed by the buyer. "To hold what is on its. face an order may be shown to be intended as a. sale, or that an acceptance of ani order necessary to make, a sale may be supplied: by parol, would be to disregard the plain provisions of the statute." It has been held, however,, that the reference in one paper to another need not be explicit, but that it is suf- ficient if it is traceable. Thus- in> Beckwith, v. Talbot,^ a letter spoke of " the- agreement," simply, and this.. was- held a sufficient reference to a written, agreement signed by the other party alone. Mr. Justice Bradley, speaking of the rule excluding parol evidence to connect such: writings,, said: " But the. rule i&> not. absolute. There may be. 'cases in which, it would; be a violation- of reason and common, sense to, ignore a reference whicb derives; its significance from such proof" Founded, on this doctrine is. White vs.. Breen,^ in which the court said: "We are of opinion that when all.the writings adduced,, viewed together in the light of the situation and circumstances, of the parties at the time they were written, show unmistakably that they relkte to the same matter and constitute several parts of one connected transaction, so that the mind can come to no other reasonable conclusion, from the evidence so afforded^ than that they were each written with reference to those concurrent or preceding, then there is such a reference of the one to the other as satisfies the rule, although refr ' 20 Fed. Rep., 667. = 95 U. S., 289. " (Alabama), 32 L. R. A., 127. PAROL EVIDENCE^'N RESPECT TO WRITINGS. 197 «rence in express terms 'floes not appear. The rule 'k one feuniaed in reason; and when, as practical 'men, we 'look at the writings, and see, inhering in tihem, evidence which entirely satisfies the mind that they all relate to one gen- eral transactian, there is no reason why they should not Tse so ■considered. There is *in such case a direct reference of the one to the other, within the meaning of the law."' As lo the parties. Parol evidence is not admissible to supply the omitted name of the vendor in a contract for fiaJe of iand.^ Nor the .name of the party guaranteed.' There is some .difference of opinion whether jparol evi- jdence is competent to distinguish buyer from seller in case of doubt, the weigJot of authority apparently being in the affirmative.* In Vanderbergh v. Spooner,* the imemorandum read : '' S. .agmees to purchase tke whole of the lots of marble, purchased by V. now lying at Lynn Cobb, at i.s^ per foot." A subsequent writing, drawn up by S. and signed by V., •contained the same details, but added "and a bill at one month," but the former was found by the jury to be the true contract. It was held that the .first memorandum !w;as insufficient for not statimg the name of the seller, and ill -effect the second paper was hdd not to supply this de- ficiency. Tills decision was distinguished and criticised as *' an extreme case," in NeweTl v. Radford.* There on a purchase of flour by N., J. W., the defendant's agent, made the following entry in N-'s book : " Mr. N., 32 sacks " See Tullman v. Franklin, infra. "Potter V. Duffield, L. R. 18 Eq., 4; Mentz v. Newwhter, 122 N. Y.^ 491 ; 19 Am. St. Rep., 514; 11 I.. R. A., 97; Ross v. Allen, 45 •Kan., 231 ; 10 L. 31. A., 835 ; Shei'burne v. Shaw, 1 H. N., 157 ; '8 Am. Dec, 47; McGovern v. Hern, 153 Mass., 308; 25 Am. St. Rep., 632. ' Williams V. Lake, 2 Ell. & Ell., 349. ''Sa;lmon Falls Man. Co. v. Goddard, 14 How., 45-8 (by a bare ma- jority of the court) ; Sanborn v. Flagler, 9 Allen, 474 ; Coate v. Terry, 24 U. C. C. P., 571 ; contra, Bailey v. Ogden, 3 Johns., 399; 3 Am. Bee, 509. 'L. R. I Ex., 316. -L. R. 3C. P., 31. 198 SHORT STUDIES IN EVIDENCE. culasses, at 3 9 j., 280 lbs. to wait orders. J. W." In an* action by N. for non-delivery, evidence was allowed that N. was a baker and defendant a flour merchant, and a subsequent correspondence relating to the delivery of flour by defendant to N. was adduced. It was held that inde- pendently of the correspondence the evidence and the memorandum constituted a valid contract. If the party to be charged on a sale of goods signs the memorandum, this is sufficient ; the other party and his acceptance may be shown by parol.^ Justice v. Lang was doubted on the second appeal, but has always been fol- lowed. In Wilkinson v. Heavenrich,* the authorities /n> and con are cited, and the court say the conflict of au- thority upon the point " is truly bewildering and the cases are incapable of being reconciled with each other;" " reconciliation impossible." The same rule applies in sales of land. The assent of the purchaser may be proved by parol.* As to price and consideration. If agreed it must be stated.* If not agreed, a reasonable price is implied and ' Laythoarp v. Bryant, 2 Bing. N. C, 735 ; Justice v, Lang, 42 N. Y., 493 ; I Am. Rep., 576 ; 52 N. Y., 323 ; Sanborn v. Flagler, 9 Allen, 474; Williams V. Robinson, 73 Me., 186; 40 Am. Rep., 352; Mason V. Decker, 72 N. Y., 595; 28 Am. Rep., igo; Smith v. Smith, 8 Blackf., 208; Lowber v. Connit, 36 Wis., 176; Ivory t. Murphy, 36 Mo., 534; Lowry v. Mehaffy, 10 Watts, 387 ; De Cordova v. Smith, 9, Tex., 129; 58 Am. Dec, 136; Gartrell v. Stafford, 12 Neb., 545 ; 41 Am. Rep., 767 ; Sabre v. Smith, 62 N. H., 663 ; EUswoith v. So., etc., Co., 31 Minn., 543 ; Douglass v. Spears, 2 Nott. & McC, 207 ; 10 Am. Dec, 588; Old Colony R. v. Evans, 6 Gray, 25 ; 66 Am. Dec, 394; Ives V. Hazard, 4 R. I., 14; 67 Am. Dec, 500. Contra: Thomas v. Trustees, 3 A. K. Marsh., 298 ; 13 Am. Dec., 165 ; Wilkinson v. Heav- enrich, 58 Mich., 574; 55 Am. Rep., 708; Corbitt v. Salem G. S. Co.» 6 Oreg., 405 ; 25 Am. Rep., 541. ' Supra. ' Ives V. Hazard, 4 R. I., 14; 67 Am. Dec, 500; Worrall v. Munn, 5 N. Y., 229; 55 Am. Dec, 330; McCrea v. Purmort, 16 Wend., 460; 30 Am. Dec, 103 ; Gartrell v. Stafford, 12 Neb., 545; 41 Am. Rep., 767, and cases cited ; Lee v. Cherry, 85 Tenn., 707 ; 4 Am. St, Rep., 800. * Fry V. Piatt, 32 Kan., 62 ; Goodman v. Griffiths, i H. & N., 574. PAROL EVIDENCE IN RESPECT TO WRITINGS. 199 may be shown by parol.^ Where the agreement provided that the valuation of land in question should be subse- quently agreed upon, this could not be effectuated.^ In Ellis V. Bray,^ the memorandum read : " Received of Daniel Ellis the sum of $165 to apply as purchase-money on a half interest in the following described lands." It was held that parol evidence was admissible to show the full amount of the consideration, and when payable. This was put on the ground that the contract was on its face incomplete, and the evidence was competent to complete it, because it was not contradictory but simply explana- tory. It may be doubted that this is a defensible applica- tion of the doctrine of the admissibility of parol evidence to complete a contract, and indeed the cases on which it was founded are overruled in Ringer v. Holtzclaw.* There the agreement gave the parties certain numbered lots in a . certain block (without more definite description), the party selhng to have " all the commission, and each party has the privilege to sell each lot at $250, which shall satisfy Mr. Ringer in full for said lots," and if sale was not made within a certain time, Holtzclaw was to pay Ringer " the original price agreed upon between them." This was held too vague, and void. In O'Neil v. Crane, 67 Mo., 250, there was an entire omission of the price, and it held that it might be supplied by parol, as ' ' the memorandum of a contract does not purport to be a complete expression of the entire contract." Lash v. Parlin, 78 Mo., 392, fol- lowed that decision (the evidence being admitted to show the authority of one signing for the purchasers), but both are disapproved and overruled in Ringer v. Holtzclaw, on the ground that the court had overlooked the distmction between a common-law contract and one under the Stat- ute of Frauds. ' Hoadly v. McClaine, 10 Bing., 482 ; Argus Co. v. Albany, 55 N. Y., 495 ; 14 Am. Rep., 296; Norton v. Gale, 95 111., 533; 35 Am. Rep., 173. " Waidell V. Williams, 62 Mich., 50; 4 Am. St. Rep., 814. ° 79 Mo., 227. * 112 Mo., 519. As to the rteoessky for stating tbe cQasLdenatiprn liaa a guaranty, th^jre is a rotable oonaflictt orf auithexrity. Ttoe point of difference is whether the .eb.ia;siderati'on as pant (©f (the "agreeme'nt".©r "promise." AccoudiiiBg to the Eng- lish doctrine it must be stated in the •writirag.^ Iim iMs country some of the statutes explicidy a^uiiK ttike state- ment and some expHcitly dispemse watJa it. According tbo Mr. Browne,^ the doctrine of Wain v. Waritars is repu- diated in the following States, latere the statute (utses tthfc word "agreement": Mai'iae, Vfermont, Conneotiout, Ma«- sach.usetts. North CaroEna, OJaio, amd Missouuni^ but is s,anotii0;neid in N-ew Haaaapsiiiiine, New York, New Jersey, Maryland, South Carolina, Georgia, liodiana, Miahttgaai and Wiscosnsin. Mr. BrO'wne adds that in ttihe Sitabes eonapling the word " promise " with ' ' agreemeint, " tine .cownirts "hawe generally dispensed wiith tibs statemeiiait of itfee con- sideration on the ■gr&vmd lof daat difference." It seeaas "that Mr. Browne ranks Vermont &a the wrong side, asid idhajt the point is regtuiaJted by statute in Mainie, Maasa- "daiusetts. New Jersey, aad Micihagajn. See Skeeby w. Adarene,'' and a nemarkaWy learned review an Packard v. Ridiardson.* In Walrath v. Tborapson,'' parol evidence was adimitted to show that the words •" your a,ccoumt " in a guaranty o*f being made ©ut.'^ An instructive recent ca-se is Nelson v. Shelby, etc., Co.* A meniGran'dum for ■sale of laad a.c- knowledged receipt of a certain -sima, "Iseing one-^ilaiTid (casli payment on lot," etc., '^ bond for title to «aM lot -wiill flse 'delivered -on execution of n-otes for balamce of purchase nssn^r This was held insufficient because ifee terms of die notes were not sftated. The court said : " The rule ttliat parol evidence may be introduced to supply defects and omissions in written instruments, -whicfh do not vary or contradict its terms, applies only to contracts which are valid; but parol evidence is not admissible to render valid undertakings w'hich are void by reason of tlie statute oi frauds."* "To (perjanjit parol evidence to be introduced to supply the omission would break down the safeguards in- ' 4 Sandf., 31. ' Nelson v. Shelby, etc., Co., 96 Ala., 515 ; 38 Am. .St R£,p.,, 116; Kiapp V. ^«iter, 14.6 Bl., 437,; 37 Arm. St. Rep., 156 ; iRinger v. Hdltz- •olwar, 112 Ml®.,, S'l.g. ' 96 Ala., 515 ; gS Am. St. He^., i»fe. * The Alabama statute pronounces agreements " void unless,'" etc. 202 SHORT STUDIES IN EVIDENCE. tended to be secured by the statute in all contracts for the sale of lands." ^ As to delivery of goods. If agreed upon, the time and place must be stated in the writing.^ But these are not essential, and if not agreed the time is on demand,^ and cannot be varied by parol.* But Neil v. Cheves'' is to the contrary. Approval and warranty. A condition that goods were to be subject to approval or like sample or warranted may not be added by parol." Description of property. There is some difference as to the extent to which parol evidence is admissible to identify the subject-matter. But the better opinion is that if there is an apparent but insufficient attempt to describe the property, and the writing furnishes data from which it may be ascertained, it may be pieced out by parol. The rule is well expressed in McGuire v. Stevens: ^ " It is well settled both in England and in this country, that there can be no specific execution of a contract in respect to land^ unless the parties have described and identified the par- ticular tract which ,is to pass from the one to the other, or unless the contract furnishes the means of identifying with certainty the land to be conveyed." "Every agreement which is required to be in writipg by the statute of frauds must be certain in itself, or capable of being made so by reference to something else, whereby the terms can be ascertained with reasonable precision." " Oral evidence is inadmissible for the purpose of supplying an omission ' Ross V. Allen, 45 Kan., 231 ; 10 L. R. A., 835, is instructive on this point. ^ Smith V. Shell, 82 Mo., 215 ; 52 Am. Rep., 365. ' Hawkins v. Chace, 19 Pick., 502. * Williams v. Robinson, 73 Me., 186; 40 Am. Rep., 352, containing a very good general statement of the requisites. 'iBail. L.,537. ' Boardman V. Spooner, 13 Allen, 353; 90 Am. Dec, 196.; Peltier V. Collins, 3 Wend., 459; 20 Am. Dec, 711 ; McMuUen v. Helberg,. 6 L. R. (Ir.), 463; Pitts v. Beckett, 13 M. & W., 724. ' 42 Miss., 724. PAROL EVIDENCE IN RESPECT TO WRITINGS. 203 in an instrument where written evidence is required by law, because to admit it would virtually be to give to oral the superior force of written evidence, and occasion that to pass by parol which by law ought not to pass but by writing." So in that case, receipts "in part payment for a house and lot," without more were held insufficient. Thus in Barry v. Coombe,^ parol evidence was approved to identify "your half E. B. wharf and premises," in a memorandum of sale of land. In White v. Core,^ where a receipt was given to White of "one hundred dollars on land purchased of Core," with an agreement therein to " let White have the lower half of said land for nine hundred dollars," parol evidence was allowed to identify the land and to show that it was the only land ever purchased by White from Core. "A con- tract to sell ' my farm,' or ' the mill ' is sufficiently certain if it appears that the vendor has 'but one such building or tract of land." In Shardlow v. Cotterell,^ a house was put up for sale at auction under printed conditions which did not describe the premises except as "property; " the auctioneer signed a memorandum at the foot thereof stating that the " prop- erty " was sold to A. S. and " deposit paid ; " and gave a receipt to him for "deposit on property purchased. G. C, owner." It was held by Jessell, Baggallay and Lush, re- versing Kay, J., that parol evidence was admissible to show what the property was, and thus explained the papers constituted a sufficient memorandum under the statute. Jessell and Baggallay thought the papers alone sufficient. Lush, J., very pertinently inquires: "Suppose a horse dealer having a great number of horses offers one of them for sale ; the horse is trotted out and approved of, but the parties differ about the price. Suppose the next day the seller writes and says : ' I will let you have that horse for ;!^50,' and the buyer writes to accept the offer, ' I Pet., 640. ' 20 W. Va., 272. ' 20 Ch. Div., 90. ■SfM .SHORT 'STUTOIIES IN EVIBEaSTCE. ■WRDtniH not iparol cwiidsraice be laAmissilale fto show wshait ikoiae •was meant ? " in Oobeity v.. Hill/ A. iplaoed .a. /house and lot iia the ihands of am ageat for sale, who telegTra^pJaed t® A. asiki-ng" a:t what price he would sell,, to which A. .telegraphed his price. Two .days Jater A. wrote iso (the agent; "As I .tele- ■grapJaed you,, I will sell fAe 'house for " the -suim inaiin.ed in the tetegraph. After riecei'vin;g this letter, the agent accepted a sum of money from B. and executed aiadR.T stumes- im e"^i.D'ENCE, Ufe sCatute " is 3 we-aipoo! ©f dcfemcev not ©^nce--" ^ Sc» parol evidence is competent to- eonlJraidrGt the' instrumefliC: as a whole, or to show that some material' agTreed sttrpulai- tion is omitted and thms render" it inefectiaial as atmemorani- dum of die agreement. As wkere price- was agreeid ora.lbut omitted ; ^ or where on a sale of woxsl by sampte it was agreed that it shouM be diiry, but thiis-was^ lacking, '^^ oir wliere sale was by sample but that fact was a&t mentioned imthe writing.' So'in Kalamazoo Novelty M. Co.- v.. McAlKster,-'' it is said: "In order to exclude oral evidence; ®f a eBnitra^t k? must first b« settled that there is a* subsistinrg written con*^ tract between the parties, and where the immediate issue i» whether there is or was a writing coveriffig the contract, iitt is n'ot competent to exclude oral CestiTnony bean nig on. tkaC issue, upon an assumption of such writirog";' to- do so- is- to beg the question.'' Iff like manner, parol evidence is competent to^ ghx5w that there was no agreement because of a mutual mistake as to the sB-bject-matter. As in the very interesting ease of Sherwood v. Walker;*' wheire a cow was sold by weight as- beef, oa the' mutual understanding' that she was: barren^ and' she proved to* be with ca'lf. 2. Modification of the Contract. In England there is generally thought to have been a serious conflict of judicial opinion in this regard. It is, however, more ap- parent than real and grows out of the circumstance that the leading case on the point has but little if any following. Lord D'enman, in Goss v. Lord Nugent,' undbubtedly ex- pressed the- rule of the common law, which I have sub- stantially reiterated in my book on Parol Evidence,^' as^' foUov/s : "Evidence of a parol' agreement is admissible to ' See Benj. Sales, §§ 208, 209. " Goodman v. Griffiths, i H. & N., 574. ' Pitts V. B-eukett;. 13 M'. & W.,. 743. ' McMullen v. Helbery, 6 L. R. (Ir.), 463. ' 40 Mich., 84. "66 KTich-., 568-;- n Am-. Sf. Rep:, S3T. ' S B. & Ad., 58. ' Sec. 45, PAROL EVIDENCE IN RESPECT TO WRITINGS. 209 extend the time or change the place or manner of perform- ance of a prior unsealed written contract, and before breach thereof and for a new consideration, to waive, vary, discharge or annul it or any provision of it." But Mr. Benjamin is unquestionably correct in saying: "But this principle of the common law is not applicable to a contract for the sale of goods under the Statute of Frauds No verbal agreement to abandon it in part, or to add to, or omit or modify any of its terms is admissible. Thus parol evidence is not admissible to change the place of delivery fixed in the writing, nor the time for the delivery ; nor to prove partial waiver of a promise to furnish a good title ; nor a modification of a stipulation for a valuation ; nor a change in any of its terms ; for the courts can draw no distinction between stipulations that are material and those that are not." The leading text-writers are of opinion that contracts within the Statute of Frauds may not be varied or modi- fied by parol in respect to any matter that is of the essence. In this view Addison, Chitty, Bishop, Fry, Browne, and Lawson are unanimous. The leading English case on this point is Cuff v. Penn,^ decided by Lord EUenborough in 1813. There " the defendant agreed, by a written contract, to purchase of the plaintiff three hundred hogs of bacon, to be delivered at fixed times and in specified quantities, and after a part of the bacon had been delivered, requested the plaintiff, as the sale was dull, not to press the delivery of the resi- due." This was held to be only a parol dispensation of the performance of the orignal contract in respect to the time of delivery,' and not affected by the statute, and the defendant was held liable for not accepting the residue within a reasonable time afterwards. The court said : " It is admitted there was an agreed substitution of other days than those originally specified for the performance of the contract ; still the contract remained. Suppose a delivery of live hogs instead of the bacon had been sub- '1 M. &S., 21. 210 SHORT STUDIES IN EVIDENCE. stituted and accepted, might not that have been given in evidence as accord and satisfaction ? So here the parties have chosen to take a substituted performance." In Goss V. Lord Nugent,^ a contract for sale of land covenanted to make a good title, and it was held that parol evidence of a waiver of this was incompetent, on the ground, as stated by Denman, Ch. J., that, "the written contract is not that which is sought to be en- forced, it is a new contract which the parties have entered into, and that new contract is to be proved partly by the former written agreement and partly by the -new verbal agreement ; the present contract therefore is not a con- tract entirely in writing." Distinguishing and not con- demning Cuff V. Penn, observing that it was " decided on the ground that the original contract continued, and that it was only a substitution of different days of per- formance." In Marshall v. Lynn,^ Cuff v. Penn was disapproved, and Stead v. Dawber followed. Parke, B., said : " Eve- rything for which the parties stipulate, as forming par-t of the contract, m.ust be deemed to be material. Now in this case, by the original contract, the defendant was to accept the goods provided they were sent by the first ship, the parties afterwards agreed by parol that the de- fendant would accept the goods if they were sent by the second ship, on a subsequent voyage ; that appears to me to be a different contract from what is stated before. Such was my strong impression independently of any decision on the point ; but the case of Stead v. Dawber,* is precisely in point with the present, and on looking at the judgment, it does not appear to proceed altogether upon the time being an essential of the contract, but on the ground that the contract itself, whatever be its terms, if it be such as the law recognizes as a contract, cannot be varied by parol." ' S B. & Ad., s8. ' 6 M. & W., 109. ' 2 Per. & Dav., 447. PAROL EVIDENCE IN RESPECT TO WRITINGS. 211 In Stowell V Robinson/ it was held that the day spe- dfied in a written contract for purchase of land for the completion thereof cannot be waived by parol agreement and another day substituted. Tindal, Ch. J , said that to hold otherwise " is virtually and substantially to allow an action to be brought on an agreement relating to the sale of land partly in writing signed by the parties, and partly not in writing but by parol only, and amounts to a contravention of the statute of frauds. Such was the opinion expressed by Lord Chancellor Hardwicke in Par- tricke v. Powlett,^ of Sir W. Grant, Master of the Rolls, in Price v. Dyer."^ In Stead v. Dawber,^ there was a written contract for delivery of goods "on the 20th to the 22d,"but the latter day being Sunday, plaintiff, at defendant's request, orally agreed to enlarge the time to the 23d or 24th. It was held that this materially varied the contract, substituting a new contract and not being merely a dispensation from performance on a particular day. Goss v. Lord Nugent was preferred to Cuff v. Penn. Lord Denman.. Ch. J., said : " It cannot be said that the time of delivery was not originally of the essence of this contract ; the evi- dence shows that the value of the article was fluctuating ; and the time of payment was to be calculated from the time of delivery. Where these circumstances exist, it cannot in strict reason be argued, as was said by Lord Ellenborough in the case of Cuff v. Penn, that the con- tract remained, although there was an agreed substitu- tion of other days than those originally specified for its performance." All this line of cases was discussed by Blackburn, J., in Ogle V. Lord Vane.® The contract bound defendant to deliver 500 tons of iron by the 25th of July. He de- " 3 Bing. N. C, 928. » 2 Atk., 383. ' 17 Ves. jr., 356 ; citing Goss v. Lord Nugent, and ignoring Cuff v, . Penn. * 10 Ad. & Ell., 57. • L. R. 2 Q. B., 281. 212 SHORT STUDIES IN EVIDENCE. livered none up to the next February, and in an action for damages the plaintiff sought to recover the difference between the contract price and the February price. Parol evidence led to the inference that the delay was at the defendant's request. Held, that there was not a new contract but only a voluntary forbearance by plaintiff, and he might recover the full measure of damages. But this was put on the ground that "there is no evidence that the plaintiff ever bound himself to wait for a later delivery, or that he ever made a fresh contract, and the court lay stress on "this distinction between waiting and not binding one's self to wait." " Here there was no substitution of one contract for another.' This decision was affirmed expressly on this distinction in 3 Q. B., 272. Hickman v. Haynes,^ was precisely similar and the result was the same, the Ogle case being relied upon, and the Ogle case was distinguished In Tyers v. Rosedale, etc., Co.,^ where the doctrine of Moore v. Campbell,^ Goss v. Lord Nugent, Stead v. Dawber and Marshall v. Lynn, '' overruling Cuff v. Penn," is reiterated. » In Noble v. Ward,* a recovery was allowed upon the original agreement for sale of goods, although the time for delivery had been extended by parol, the latter not being good for any purpose, either as a rescission or a substitution. Referring to Goss v. Lord Nugent and Stead V. Dawber, Bramwell, B., said: they "only show that the new contract C. cannot be enforced, not that the old contract B. Is gone. I think it was not." In this state of the English decisions I cannot see that the authority of Cuff v. Penn is restored, as is intimated in a note in Benjamin on Sales, by the cases of Ogle v. Lord Vane and Hickman v. Haynes. The leading case in this country agrees with Cuff v. Penn. In Cummings v. Arnold,*^ defendant agreed in ' L. R. 10 C. P., 598. 'L. R. 8 Ex., 316. ' 10 Ex., 323. * L. R. I Ex., 117 ; 2 idid., 134. '3 Mete, 486; 37 Am. Dec, 155. PAROL EVIDENCE IN RESPECT TO WRITINGS. 213 writing to furnish and deliver printing cloths to the plaintiff at a certain price per yard, on eight months' credit, and the plaintiff sued for breach of this contract. Defendant was allowed to prove that plaintiff agreed by parol, after the writing was signed, to pay cash on the delivery of the cloths, deducting eight per cent. The reasoning of Cuff v. Penn was adopted, and the court added : " If the defendants on their part had refused to perform the verbal agreement, then indeed it could not be set up in defence of the present action ; for the party who sets up an oral agreement for a substituted perform- ance of an oral contract, is bound to prove that he has performed or been ready to perform the oral agreement. This distinction avoids the difficulty in some of the cases cited, where it is said that to allow a party to sue partly on a written and partly on a verbal agreement would be in direct opposition to the requisitions of the statute ; and it undoubtedly would be ; but no party having a right of action can be compelled to sue in this form. He may always declare on the written contract, and un- less the defendant can prove performance according to the terms of the contract or according to the agreement for a substituted performance, the plaintiff would be en- titled to judgment." So in Stearns v. Hall,^ it was held that parol evidence was receivable to show an enlargement of the time of performance of a written contract within the statute. This was founded on Cummings v. Arnold ^ and Cuff v. Penn, and the court observed : The statute " does not say that such a contract shall not be varied by a substi- tuted oral agreement for a substituted performance. This is left to be decided by the rules and principles of law in relation to the admission of parol evidence to vary the terms of written contracts." In Reed's Heirs v. Chambers,' it was held that a post- ponement of the time of payment in a contract for sale ' 9 Cush., 31. ■ '3 Mete, 486; 37 Am. Dec, 155. ' 6 G. & J., 49°- 214 SHORT STUDIES IN EVIDENCE. of land might be shown by parol, because it "was no variation or change of the written contract for the sale of the land, but only indicated the mode in which the title was to be secured. It was in effect to carry the contract into execution, and not to add to, vary or change j(. * * * -pj^g principle is well settled, that even where the time of payment is of the essence of the con- tract, a strict compliance at the day may be waived by the vendor." This was followed, in the case of an exe- cuted agreiement, in Marsh v. Bellew.^ In Stark v. Wilson,^ it was held that on a contract for sale of land a.parol consent to substitute other values for those mentioned in the writing was valid, as it " did not alter the rights of the parties under the written contract, but only related to and regulated the manner of ascer-- taining the value of the land." Without any expressed reference to the statute, it was held in Keating v. Price,^ that the time of performance of a written contract for the sale of 50,000 pipe staves might be enlarged by parol. The most carefully considered case to the contrary of Cuff V. Penn in this country seems to be Ladd v. King,* where it was adjudged that parol evidence was inadmis- sible to enlarge the time of performance of a contract for sale of land. The court, commenting on CufT v. Penn, said : " But it appears to us that there is a wide differ- ence between a substituted performance, accepted by the purchaser, as of live hogs accepted and delivered instead of bacon, and a substituted executory agreement to sell and deliver live hogs. Could such an agreement have been enforced? If originally by parol it clearly could not. Does it derive any force from^ the fact that the parties had made a written contract for the sale of bacon any more than if they had made a contract for the sale of wheat? If an agreement for a substituted perform- '45 Wis., 52, S3. "^ 3 Bibb., 476. ° I Johns. Cas., 22. * I Rhode Island, 224; 51 Am. Dec, 624. PAROL EVIDENCE IN RESPECT TO WRITINGS. 215 ance is different from the written contract, then the party- charged therewith is charged with a parol contract, which the statute says shall not be done. The essence of an executory contract is the thing agreed to be done, and an agreement for a substituted performance is an agi-ee- ment to do a different thing, and if this is required by the statute to be in writing, we do not perceive how the party can be charged by parol, if the agreement be sub- stituted for a written contract, any more than if origin- ally by parol." Speaking of Cummings v. Arnold, the court said : " This reasoning does not appear to us to be satisfactory. If the agreement for substituted perform- ance has been performed by the one party and received by the other, then undoubtedly it is an accord and satis- faction of the written contract. But a tender of perform- ance of the substituted agreement, not accepted by the other party, is no accord and satisfaction, and if not re- ceived it is then executory, and performance can only be enforced by suit. In such a state of things, which is in force, the original written or the substituted verbal con- tract ? * * * Upon the principle adopted by the Supreme Court of Massachusetts, the purchaser under a written contract may be deprived of the land he agreed tor, and compelled upon the strength of a subsequent verbal agreement, of which performance has been ten- dered, to accept other land. We think if the perform- ance is changed the contract is changed ; that where there is a substituted performance agreed upon, whether as to time or subject-matter, there is a substituted con- tract, and if it relates to land it must be in writing." In Packer v. Steward ' the doctrine of Stead v. Dawber is obiter approved, but held inapplicable to the case of a contract not reduced to writing and effectuated by pay- ment of 'earnest money. In Emerson v. Slater,* it was said obiter, that " perhaps the better opinion according to the weight of authority is that a written contract within the statute of frauds '34Vt., 127. ° 22 Howard, 42. 216 SHORT STUDIES IN EVIDENCE. cannot be varied by any subsequent agreement of the parties unless such new agreement is also in writing."' The same was reiterated in Swain v. Seamens,^ but was conceded to be obiter, because the agreement "was fully executed." In Carpenter v. Galloway,* it was held that a written agreement under the statute may not be modified by parol, "not simply as to the manner of its performance, but in its terms." In Devling v. Little,* it was adjudged , that a stipula- tion for a clear title in a contract for sale of land might be waived by a subsequent parol agreement. But in Espy V. Anderson ® it was said : " A written agreement respecting the sale of land cannot be altered by parol testimony If it could the statute of frauds and perjuries would be of no practical use nor answer any beneficial purpose. What was said and done by the parties, at and about the time the written agreement was entered into, may be given in evidence, in explanation or to cor- rect a mistake of the scrivener, but a subsequent parol agreement cannot be received in evidence to alter the terms of a written agreement for the sale of land." In Blanchard v. Trim,® the court cited and approved the doctrine of Cuff v. Penn and Cummings v. Arnold as " sound and .supported by numerous authorities," but this was admitted to be obiter, and the decisions in that State are the other way. So in Blood v. Goodrich,^ it was held that the time for performance of a contract to convey land cannot be extended by parol. Savage, Ch. J., observing : " There are cases where the time of perform- " Citing Marshall v. Lynn, 6 M. & W., 109, and Goss v. Lord Nugent, 5 B. & Ad., 58 ; "but it is unnecessary to determine that point at the present time." " 9 Wall., 272. " 73 Ind., 418. * 26 Pa. St., 502. ' 14 ibid., 311. ' 38 N. Y., 225. ' 9 Wend., 63 ; 24 Am. Dec., 121. PAROL EVIDENCE IN RESPECT TO WRITINGS. 217 ance ot a written contract may be enlarged by parol, but I apprehend that doctrine does not apply to contracts for the conveyance of land, or to any other contract -where the contract itself would not have been valid if made by parol " In Hasbrouck v. Tappen,' the vendee, in an agree- ment for the sale of lands to be conveyed by a certain day, was held not to be bound by his oral declaration that he would take no advantage of the omission of the vendor to have it surveyed by that day. The court ■deemed this not an agreement to extend the time, and not a waiver of the covenant. An agreement absolutely void can never be considered as altering, revoking or modifying a valid contract. In all the cases referred to, where the term has been extended, the subject-matter was such as might be embraced by a parol agree- ment." In Schultz V. Bradley,* it was held that the quantity of goods called for by a memorandum of sale could not be increased by proof of a parol agreement. In Hill V. Blake,^ where there was an agreement to sell and deliver a certain kind of iron at a certain time, there was not only an omission to deliver at that time but to furnish the stipulated kmd of iron. The court held that an oral consent to waive the stipulation as to the time of delivery did not cure the breach of the con- tract to furnish the specific kind of iron. '' I do not think it necessary to inquire whether the mere time of perform- ance might be waived by parol, for that is not the ques- tion. The only one before us relates to a substantial matter, one affecting the identity of the thing sold, and ■without, mention of which there could have been no con- tract, and which, although agreed upon, would have been invalid if not in writing." * ' 15 Johns., 200. ' 57 N. Y., 646. '97 N. Y., 216. * See also Clark v Fey, 1 2 1 N. Y., 470. 218 SHORT STUDIES IN EVIDENCE, In Dana v. Hancock/ it was held that where a contract for sale of land provided that it should be surveyed by A., parol evidence was not admissible to show that being; unable to procure him the parties orally agreed upon another surveyor. " If any of the terms of such contract are altered by contract not in writing, the entire contract is thereby reduced to the grade of a mere unwritten con- tract, upon which the statute expressly declares that no action shall be sustained."* In Abell v. Munson,^ it was held, following the Goss, Stead and Marshall cases, that the time of performance cannot be extended by parol. In Brown v. Sanborn,* where the writing was for sale of flax straw to be free from weeds, it was held that a parol waiver of that condition could not be shown, " as the effect of admitting the evidence was to allow the plaintiff to prove by parol a contract which to be valid must be in writing." In Doar v. Gibbes,^ it was held that the time fixed for the performance of a written contract to sell land could not be extended by parol. 3. Discharge of the Contract. It would not seem, except by the exercise of undue refinement, that the rea- son which in general excludes parol evidence in respect to the establishment and modification should apply tO' the discharge of the contract. The statute says in effect that the contract shall not be formed except in writing,, and this clearly excludes parol evidence in that regard. But the statute does not enact that the contract may not be abandoned or discharged like a contract not within the statute, and the latter class of contracts, there is no . doubt, may be abandoned or discharged by parol. The doctrine of abandonment and discharge of such contracts ' 30 Vt., 616. ° Citing Goss v. Lord Nugent, Stowell v. Robinson, and Harvey v.. Grabham, 5 Ad. & Ell., 61. ' 18 Mich., 306; 100 Am. Dec, 165. ■■ 2 1 Minn., 402. 'i Bail. Ch., 371. PAROL EVIDENCE IN RESPECT TO WRITINGS. 219 however is not very explicitly distinguished in the books on evidence from that of contracts not-within the statute, and some cases hint at a stricter rule for getting rid of these contracts than that which prevails in other cases. Lord Denman unquestionably lays down the general rule as to discharge correctly in Goss v. Lord Nugent, and it now remains to be seen whether his enunciation does not apply to contracts under the statute. It is generally held that agreements under the statute, like others, may be shown by parol to have been aban- doned, released or discharged.^ A common way of effecting this result is by the substitution of a new parol agreement in place of the written agreement. But it must appear that there was a substitution of performance and not the formation of an essentially new agreement.^ And the parol agreement must be executed.* If execu- tory, the new, contract is just as objectionable as the old one would have been if by parol. There are to be found a few cases hinting at the con- trary rule or limiting the general rule as indicated above. Thus in Goucher v. Martin,* it was said that although an agreement as to personalty may be discharged by parol, yet not so of a contract for sale of land partly exe- cut'ed, 2is, it is an agreement "concerning land." " I hold it to be a very clear proposition that he cannot be de- prived of his estate on the pretext that the agreement had been waived by an oral contract." But this was conceded to be obiter. . But on the authority of that case ' Goss V. Lord Nugent, 5 B. & Ad., 58, 65 ; Howard v. Gresham, 27 Ga., 347; Morrill v. Colehour, 82 111 , 618; Long v. Hartwell, 34 N. J. L., 116; Pratt V. Morrow, 45 Mo., 404; 100 Am. Dec, 381; Stevens v. Cooper, i Johns. Ch., 425; 7 Am. Dec, 499; Guthrie v. Thompson, i Oreg., 353; Lauer v. Lee, 42 Pa. St, 165; Phelps v. Seely, 22 Grat., 573 ; Ward v. Walton, 4 Ind., 75 ; Beach v. Covillard, 4 Cal., 315. 'Sanderson v. Graves, L. R. 10 Ex., 234. ° Mathison v. Wilson, 87 111., 51; Long v. Hartwell, 34 N. J. L., 116; Phelps V. Seely, 22 Grat., 573. * 9 Watts, 106. 220 SHORT STUDIES IN EVIDENCE. that doctrine was decided in Cravener v. Bowser,^ the court observing that " no case could be found in the books where the vendee was in actual possession, had paid purchase-money and made valuable improvements, where a rescission by parol was adjudged sufficient to divest him of his estate and revert it in the vendor." In Espy V. Anderson ^ however it was said that in equity a written agreement for sale of land may be rescinded by parol before possession, but the parties must be placed in statu quo ; but this was obiter, for there was no proof " that any act was done in pursuance of the alleged re- scission." In Huffman v. Hummer* it is said : " A writ- ten contract, especially one required by statute to be in writing, cannot be waived or discharged by parol at law nor in general in equity. But in equity this case is one of the exceptions to that rule. When the complainant has by parol waived or discharged a contract, and the defendant has entered into obligations inconsistent with its performance, it is an equity that will bar the remedy by specific performances."* In Dial v. Grain ° it was curtly held that " any contract for a rescission would be as much obnoxious to the provisions of the statute of frauds, and would require the same evidence under the statute to set it up as was required for the sale," etc. Mr. Browne deems that the doctrine of parol total waiver or rescission is " firmly established ; " Mr. Reed comes to the same conclusion ; Phillips and Greenleaf and Bishop are of the same opinion ; but Sugden is to the contrary, and Mr. Wood says "it is not quite clear. '^ A learned treatment of the subject may be found in Long V. Hartwell,' where it is said • " It has been the accepted law in this State ever since the decision of ' 4 Pa, St., 259. " 14 ibid., 308. " 18 N. J. Eq., 83. 'Citing Stevens v. Cooper, i Johns. Ch., 429; 7 Am. Dec, 499; Baldwin v. Salter, 8 Paige, 473. '10 Tex., 444. •34N.J. L., 116. PAROL EVIDENDE IN RESPECT TO WRITINGS. 221 Perrine v. Cheeseman, by Chief Justice Ewing,i that an executory agreement in writing not under seal may, be- fore breach, be discharged, abandoned or rescinded by a subsequent unwritten agreement. The letter of the stat- ute of frauds simply defeats an action upon an agreement relating to land ; it does not expressly forbid a defence under the parol contract, nor deny its virtue as a rescind- ing act, and therefore the only ground upon which a writ- ten contract not under seal for the sale of land can be taken out of the rule in Perrine v. Cheeseman, is that by the written agreement the vendee has acquired an interest in lands which he may enforce in equity, and it would be against the spirit of the enactment to permit that inter- est to be taken away by oral testimony. Whatever force this view may have, it is difificult to perceive how the policy of the statute would be violated by parol proof establishing not an abandonment or surrender of the stipulation, but an execution of it by a substituted per- formance accepted and enjoyed by the vendee. To dis- regard the execution in this case would enable the vendee to enforce the letter of the writing after placing the ven- dor in a position where it is impossible for him to fulfill it. * * * In none of these cases, so far as my inves- tigation has reached has it ever been doubted that a substituted performance, actually executed and accepted, would dispense the defendant from liability on the con- tract. Whatever may be thought of the correctness of the rule in Stead v. Dawber and Marshall v. Lynn, it may be safely said that if the substituted performance in those cases had been actually executed and accepted, the result would have been different." In Phelps V. Seely^ the court held the same doctrine, observing : "If part performance of an original parol contract be sufficient in a court of equity to withdraw the case from the operation and influence of the statute of frauds, as it unquestionably is, no good reason is per- ceived why part or full performance of a subsequent dis- ' 6 Halst., 174. " 22 Grat., 585. 222 SHORT STUDIES IN EVIDENCE. tinct and independent parol contract, rescinding the former contract for full consideration and substituting another in its place, should not in like manner withdraw the latter contract from the influence of the statute. • The principle of the two cases would seem to be precisely the same.'' ^ Now to draw together these scattered threads, and if possible formulate some concise and general rules, I will offer the following conclusions : 1. Parol evidence is admissible, in respect to writings under the statute of frauds, to explain any ambiguity in words or phrases and to identify the subject-matter, and also to show any lawful and reasonable custom with ref- erence to which the parties must be supposed to have contracted ; but the writing, either in itself or by trace- able reference to other and sufficient writings, must con- tain all the essential elements of the agreement, and these cannot be supplied by parol, nor can insufficient writings be connected by parol. 2. Parol evidence is not admissible to show any change of any essential term of the contract indicated by the writing, either by addition, or omission, or modification, or partial abandonment, or partial waiver. 3. Parol evidence is competent to show that there was no binding agreement, as in cases outside the statute, and so to show that the contract has been wholly aban- doned or waived, or discharged by the execution of a substituted agreement. ' Citing Dearborn v. Cross, 7 Cow., 48 ; Goss v. Lord Nugent, and Cummings v. Arnold. SELF-SERVING DECLARATIONS. 223 Self=Serving Declarations. It is an elementary principle of evidence that self- serving declarations are inadmissible. A party or a wit- ness is not permitted to manufacture or corroborate evidence in his own behalf by showing that he had pre- viously told others the same things to which he himself testifies. It is said in the books that any other rule would be subversive of justice. Not only is a party not suffered to corroborate the witness' testimony by prov- ing that he has made consistent statements out of court, when he is not contradicted, but " It is undoubtedly the general rule that when a witness has been proved to have made contradictory statements, his evidence cannot be. supported by proving that at other times he had made statements in harmony with the evidence."^ To this familiar rule however there is a recognized exception in the case "where the witness is charged with giving his testimony under the influence of some motive prompting him to make a false or colored statement, it may be shown that he made similar declarations at a time when the imputed motive did not exist." ^ In the case last cited it was said : " So in contradiction of evi- dence tending to show that the account of the transac- tion given by the witness is a fabrication of late date, that the same account was given by him before its ultimate operation and effect arising from a change of circum- stances could have been foreseen." This is the leading American decision on this point, but the expression is obiter, because a new trial was granted on account of the admission of self-serving, corroborative evidence of an- other kind. The exception thus recognized in the last case has been clearly adopted in subsequent cases in that State.* 1 In Matter of Hesdra's Will, 119 N. Y., 615. ' Robb V. Hackley, 27 Wend., 50. " Gilbert v. Sage, 57 N. Y,, 639 ; Matter of Hesdra's Will, supra. 224 SHORT STUDIES IN EVIDENCE. The expression in the last case was obiter, because the evidence in question there was admitted to sustain a will, charged to have been fabricated by a deceased person, who had witnessed it, and who had made declarations that the alleged testator died intestate. In like manner, where on a trial for murder, declarations of the deceased had been admitted, and the defence attempted to show his bad character and thus destroy their effect, the State was allowed to prove that the deceased made other similar statements a few minutes after the stroke.' This was founded on another case in the same court,^ where the court said : " Where the credibility of a witness is at- tacked, from the nature of his evidence, from his situa- tion, from bad character, from proof of previous incon- sistent statements, or from imputations directed against him in cross-examination, the party who produced him may prove other consistent statements for the purpose of corroborating him." This it will be seen goes further than the rule recognized in Robb v. Hackley. The same however was held as to corroboration by proof of previous consistent statements merely to rebut proof of previous inconsistent statements.* But this is not the general doctrine, for it is held by the great weight of authority that such proof is not competent to rebut impeaching evidence unless the witness had testified under a charge of some peculiar bias or relation to the party or the cause.* This principle has also been ap- proved in several cases in the Supreme Court of New York.^ In the last case the court said : " The testimony thus rejected is correctly said to be dangerous, and is to be accepted only under circumstances special in charac- ter." " If a motive or imputation be asserted or charged, ' State V. lliomason, i Jones I.. (N. C), 274. ' March v. Hawell, ibid., 329. ^ Brookbank v. State, 55 Ind., 169; Hobbs v. State, 133 Ind., 404; 18 L. R. A., 774. 'Conrad v. Griffey, 11 How. (U. S.), 491, and other cases cited in I Greenl. Ev., § 469. ° Hotchkiss V. Germania F. Ins. Co., 5 Hun, 90 ; Herrick v. Smith, 13 ibid., 446. SELF-SERVING DECLARATIONS. 225 and the parties are substantially the only witnesses to a particular, important and necessary fact, the former statement in corroboration may assist in the administra- tion of justice." The Massachusetts court approve the admission of the kind of evidence in question in the circumstances stated in Robb v. Hackley, and add : "Another similar class of decisions resting on a like principle, is also to be distin- guished from the case at bar, namely, when an attempt is made to impeach the credit of a witness by showing that he formerly withheld or concealed the facts to which he has now testified. In such cases it is competent to show that the witness, at an early day, as soon as a dis- closure could reasonably have been made, did declare the facts to which he has testified."^ So in Georgia,^ this kind of evidence was admitted to rebut the charge that the witness swears under the influ- ence of a bribe, by showing that about an hour after the occurrence in question, and before any opportunity for bribery, he related the facts in the same manner to other persons. Bleckley, Ch. J., recognized the "inherent soundness " of the doctrine, and deemed the evidence admissible, not for the purpose of showing directly that the testimony is true, "but for the purpose of showing that the witness did not have the motive of bribery to induce him to invent it." Citing State v. Parish,* where the court said : " The rule is that when the witness is impeached — observe, when the witness is impeached — it is competent to support the witness by proving con- sistent statements at other times, just as a, witness is supported by proving his character, but it must not be considered as substantive evidence of the truth of the facts any more than other hearsay evidence. The fact that supporting a witness who testifies does indirectly support the facts to which he testifies, does not alter the ' Corn. V. Jenkins, lo Gray, 489, citing Com. v. Wilson, i Gray, 340. See Hewitt v. Corey, 150 Mass., 445. ' McCord V. State, 83 Ga., 533. '79 N. C, 614. 226 SHORT STUDIES IN EVIDENCE. case. This is incidental. He is supported, not by put- ting a prop under him, but by removing a burden from him, if any has been put upon him. How far proving consistent statements will do that must depend upon the circumstances of the case. It may amount to much or very little." In Illinois the evidence is admitted to rebut the impli- cation of fabrication or motives of fear or interest, but not to sustain impeached character.^ "And perhaps in other peculiar cases. "^ To rebut contradictory state- ments ^ To rebut motive.* When the witness is im- peached." Or is charged with fabrication.^ To show constancy in accusation of rape.' The opinion of the United States Supreme Court is contained in the following observations by Story, J., in Ellicott V. Pearl :^ " When witness proof has been offered against the testimony of a witness under oath, in order to impeach his veracity, establishing that he has given a different account at another time, we are of opinion that in general evidence is not admissible, in order to confirm his testimony, to prove that at other times he has given the same account as he has under oath ; for it is but his mere declaration of the fact, and that is not evidence. His testimony under oath is better evidence than his confirmatory declarations not under oath ; and the repe- tition of his assertions does not carry his credibility further, if so far as his oath. We say in general, because ' there are exceptions ; but they are of a peculiar nature, not applicable to the circumstances of the present case ; as where the testimony is assailed as a fabrication of a recent date, or a complaint recently made ; for there in 'Stolp V. Blair, 68 111., 541. ' People V. Doyell, 48 Cal., 91. ° Hayes v. Cheatham, 6 Lea., 2. * State V. Petty, 21 Kans., 60. ' Henderson v. Jones, 10 S. & R., 322 ; State v. Grant, 79 Mo., 133. "Hester v. Com., 85 Pa. St., 158. ' State V. De Wolf, 8 Conn., 92. ' 10 Pet., 439. SELF-SERVING DECLARATIONS. 227 order to repel such Imputation, proof of the antecedent declarations of the party may be admitted." So in a later case,^ the same court held such evidence inadmissible to rebut proof of contradictory statements, where the confirmatory declarations were made subsequent to the contradictory statements. The court give the following very good review of the authorities : " The practice on this subject seems to differ much in different States, and has occasionally changed in the same State. It is sometimes modified, also, as applied to different classes of cases and witnesses. Thus in some places, as in New York, such evidence is, as a general rule, now treated as inadmissible. Rob- ertson V. Caw, 3 Barb., 410 ; Robb v. Hackley, 23 Wend., 50 ; Dudley v. Bolles, 24 id., 465. So in Vermont Gibbs V. Linsley, 13 Verm., 208. Though at one time in New York it was allowed, and particularly in certain criminal cases. The People v. Vane, 12 Wend., 78 ; Jack- son V. Etz, 5 Cowen, 320. But in some other States this kind of evidence has been deemed competent. As in Massachusetts, in a criminal case, where an accomplice was a witness. Commonwealth v. Bosworth, 22 Pick., 397. And in Maryland, if the statements were prior in point of time. Cook v. Curtis, 6 Har. & John., 93. In Pennsylvania, also, such statements have been admitted, ■ without reference to their priority. As In Parker v. Gonsalus, i Serg. & Rawle, 536 ; Henderson v. Jones, 10 Id., 322. So In Indiana. Coffin v. Anderson, 4 Blackf., 398, 399. And In some other States, which need not be repeated, a similar practice appears to prevail. " But in other places, as in England, though at one time considered competent, and especially In criminal cases (Gilb. Ev., 135; McNally's Ev., 378, 381; Bull. N. P., 294 ; Sutterell v. Maynell, i Mod., 282), is now •even there excluded. See Parker's case, 3 Doug., 242 ; 10 Peters, 440 ; Phil. Ev., 2 and 3, and 230, note ; i Starkie's Ev., 187, and note ; 23 Wend., 55 ; 2 Phil. Ev., ' Conrad v. Griffey, 10 How., 490. 228 SHORT STUDIES IN EVIDENCE. 445 ; Brazier's case, i East. P. C, 444 ; 2 Starkie N. P.^ 242. " While the rule was otherwise in England, some of the state decisions already cited were expressly grounded on the rule there (see 10 Serg. & Rawle, 332) and other cases adopting that rule (4 Blackf., 398). But since the rule became changed in England, or from being doubt- ful became well established against the introduction of such testimony, the practice in some States, as in New York and Vermont, has been settled so as to correspond ; and in this court, also, it has taken the same direction.. In this court it has been held that such evidence is not admissible, if the statements were made subsequent to the contradictions proved on the other side. Ellicott v. Pearl, 10 Peters, 412, 438. " So far as regards principle, one proper test of the admissibility of such statements is, that they must be made at least under circumstances where no moral influ- ence existed to color or misrepresent them, i Greenl. Ev., § 469 ; 2 Pothier on Oblig., 289 ; i Stark. Ev., 148 ; 1 Phil. Ev., 308. " But when they are made subsequent to other state- ments of a different character,- as here, it is possible, if not probable, that the inducement to make them Is for- the very purpose of counteracting those first uttered. 10 Peters, 440. " This impairs their force and credibility, when, if made before the others, they might tend to sustain the subse- quent evidence corresponding with them. 23 Wend., 52 ; 2 Phil. Ev., 446; I Greenl. Ev., § 469. " When made in either way, they are admissible only to sustain the credit of the witness impugned, and not as per se proof of the facts stated, and hence if made under oath, as here, but not in legal form as a deposition between these parties, they are none the more admissible, except, if prior in date, they might help to sustain' the witness' credit. 10 Peters, 412 ; King v. Eriswell, 3 D. & E., 707. SELF-SERVING DECLARATIONS. 229 '"In this case, then, not having been made prior in time, they do not appear on principle or precedent to be -competent." In Vermont,^ to weaken the force of testimony of identity, the prisoner gave evidence that on a preliminary examination of the defendant, the witnesses testified less positively, and the court allowed proof of their statements, directly after the occurrence, positively asserting the iden- tity. The court admitted this because "the evidence given by the respondent had a tendency to establish that these witnesses had been operated upon by some influence to strengthen their testimony," and this evidence tended to remove that impression. But in that State such evidence was refused in answer to impeaching evidence of bad character.^ In New Hampshire,^ it was held that such evidence is not competent unless it shall distinctly appear that there has been some change In the relation of the witness to the party or cause since such early statements were made. The court say, quoting from Robb v. Hackley, that the incompetency of any party in his own favor in general Is "too well settled to need any citation of authorities," but admit the exceptions laid down by Greenleaf. Mr. Chamberlayne, in a note In Berry on Evidence, p. 604, correctly expresses the doctrine: "Where evi- dence has been offered tending to show bias. Improper motive, or recent fabrication on the part of a witness, calculated to account for the testimony given, prior simi^ lar statements, made before such bias or motive could have actuated the witness, may be given on redirect ex- amination or in rebuttal. In general however prior con- .sistent statements cannot be introduced." In Louisiana the rule is that a witness impeached by evidence of bad character may be sustained by proof of his former consistent statements ; * but not so where the ' State V. Dennin, 32 Vt, 158. ° Gibbs V. Linsley, 13 Vt., 215. 1 ' Reed v. Spaulding, 42 N. H., 114. ''State V. Fontenot, 48 La. Ann., 283. 230 SHORT STUDIES IN EVIDENCE. impeaching proof consists m.erely of former contradictory- statements/ The latter rule prevails in Georgia.^ In Texas former consistent statements are admitted to rebut a charge of fabrication ; ^ and so in California,* but in the latter State such evidence is not admissible in rebuttal of direct evidence of bad reputation,"^ the court observing : " When a witness is discredited by showing that he is not disinterested, but is testifying under an inducement to misstate the facts, there is some plausibil- ity in the claim that statements to the same effect as his testimony, made before he became interested, tend in some degree to show that his testimony was not affected by this interest. Here the question was whether Glea- son was a truthful man, and the evidence had no bearing on that issue." (True, that was the question, but it was not the issue. The issue was upon the facts to which Gleason testified, and the evidence should have been admitted to that issue, for Gleason might possibly have been testifying truthfully, although he was of bad character.) In Alabama this evidence has recently been held inadmissible in rebuttal of mere proof of contradictory statements, overruling the former doctrine of that court,® and reasserting the doctrine of Nichols v. Stewart,^ where the question was carefully considered, and Adams v. Thornton.^ In the recent case of Graham v. McReynolds,^ the court, after a very careful review, conclude : "Whatever may be the rule in other States, and whatever might be our view of the question as an original question, the rule " State V. Cady, 46 ibid , 1346. " Furnell v. State, 93 Ga., 450. ° English V. State, 34 Tex. Cr. App., 191. ■" Barkley v. Copeland, 74 Cal., i ; 5 Am. St. Rep., 413. ° Mason v. Vestal, 88 Cal,, 396; 22 Am. St. Rep., 310. ° McKilton V. State, 86 Ala., 594. ' 20 Ala., 358. ' 82 Ala., 260. " 90 Tenn., 697. SELF-SERVING DECLARATIONS. 231 in this State is, that previous consistent confirmatory statements, made before the impeaching statement, are admissible in all cases where the evidence given in court is impeached by proving former contradictory state- ments." This is admitted to be in conflict with Story v. Sanders.^ In the latter case however the "special cir- cumstances " doctrine was conceded. Without going more into detail, or further following up the decisions of the several States, the foregoing re- view will suffice to show how contradictory and incon- sistent the law on this subject is in this country, and how fluctuating it has been in several of those States. Phillips says (i Ev., ch. 8, p. 307, ed. 1839) : " It may be observed, on this kind of evidence in general, that a representation without oath can scarcely be considered as any confirmation of a statement upon oath. It is the oath that confirms ; and the bare assertion, that requires confirmation. The probability is, that in almost every case the witness who swears to certain facts at the trial, has been heard to assert the same facts before the trial ; and it is not so much in support of his character that he has given the same account, as it would be to his dis- credit, that he should ever have made one different. The imputation on his veracity results from the fact of his having contradicted himself, and this is not in the least controverted or explained by the evidence in question. If a witness has made a statement a hundred times in one way, and a hundred times in another way directly contrary, the only inference must be, that he is utterly destitute of all title to credit. In one point of view, a former statement by the witness appears to be admis- sible, in confirmation of his evidence ; and that is, where the counsel on the other side impute a design to misrep- resent from some motive of interest or relationship; there indeed, in order to repel such an imputation, it might be proper to show, that the witness made a similar statement at a time when the supposed motive did not ' 8 Humph., 666. 232 SHORT STUDIES IN EVIDENCE. exist, or when motives of interest would have prompted him to' make a different statement of the facts." The exceptional doctrine in question, as is evident from the foregoing review of the authorities, has received much greater examination and development in this coun- try than in England. As to that country it rests chiefly in the opinion of the text-writers on Evidence, probably because the matter is dependent on the practice of trial judges, and such cases on Evidence have not been largely reported. The question does not seem to have received examination by an authoritative and superior court, and in the few decisions cited there is no well considered discussion. There can be no question that the exception, as ex- pressed in Robb v. Hackley, is founded in justice, but it is an insufficient step toward complete justice. When- ever the narration or character of the witness is attacked, merely by evidence of bad character or untruthfulness, he or the party calling him should be allowed to corrob- orate the one and defend the other by proof that he has told the same story before his appearance as a witness. The issue is not the character of the witness but the truth of his story. If his character for veracity is assailed, it is immaterial, if it can be shown that he has never given any different account, for even a bad and untruth- ful man may testify truly. His bad character only raises a suspicion that he may not testify truly. Therefore I agree with the doctrine of those States, such as North Carolina, Kansas and Missouri, that this class of evidence is properly admitted in answer to a mere attack on char- acter by proof of bad reputation for veracity. As to its admission when there is mere evidence of contradictory statements, there is more plausibility in the exclusion. It may plausibly be argued that if the witness had six times before stated the contrary, it does not support him or corroborate his testimony to allow it to be shown that he has six or a dozen times stated the same. It is said, in effect, that it merely makes the guess SELF-SERVING DECLARATIONS. 233 as to which is true the more uncertain. This idea is best expressed in State v. Parish, supra, as follows : " It can scarcely be satisfactory to any mind to say that if a witness testifies to a statement to-day under oath, it strengthens the statement to prove that he said the same thing yesterday when not under oath. If the prop- osition were reversed, as if one make a statement to-day not under oath, it strengthens the statement to show that he said the same thing yesterday under oath, it would be conceded because of the sanction of the oath. And yet it must be conceded that it is settled by the weight of authority both of text-writers and decided cases that when a witness testified to a statement under oath, and the witness is impeached, he may be supported by prov- ing that on a former occasion he had made the same statement, although not under oath. As first admin- istered the rule was sensible and useful. A witness was called and testified and impeached upon the ground of some new relation to the cause or to the parties, and then other witnesses were called to prove that he had made the statement prior to such new relation or sup- posed influence, or where from lapse of time his memory was impeached it was proved that he made the same statement when the memory was fresh. All that was sensible and useful. But the idea that the mere repeti- tion of a story gives it any force or proves its truth, is contrary to common observation and experience that a falsehood may be repeated as often as the truth. Indeed it has never been supposed by any writer or judge that the repetition has any force as substantive evidence to prove the facts, but only to remove an imputation upon the witness. It is like to evidence of character which only affects the witness." " So for example the soundness of the decision in Mary- land,^ that if a witness swear he was present at the birth of a child, and the opposite party adduces evidence that he was not present, such proof is adduced substantially ' Cooke V. Curtis, 6 H. & L, 93. 234 SHORT STUDIES IN EVIDENCE. to defeat the credit of the witness, and his testimony may be corroborated by proof of his former declarations, may well be doubted. It is true that the testimony may tend to show that he has sworn falsely, but his prior declara tions do not tend to change the fact, but only to show his consistency, and he may always have been a consist- ent liar on the subject. The fact is to be judged by weight of evidence and not by consistency of witnesses with themselves. There is great force in the observa- tions of Story and Phillips on this point. But suppose a case where the witness is not shown ever to have made any different statement, but his char- acter for veracity is assailed, which of course is done to raise the implication that his testimony is untrue ; it cer- tainly would raise a strong implication that it is true, to allow him to show that he had always, perhaps frequently, given precisely the same account. He might perhaps be unable to support his character for veracity, and yet be able to induce credence in his testimony by showing such uniform and consistent declarations out of court. Espe- cially would this be so if they had been made near the time of the occurrence and before judicial controversy had arisen. The exclusion of this species of corrobora- tion against attack on veracity might well work mischief and defeat justice, especially in causes of a public nature, as for example in the case of a murder witnessed by only one third person and he a man of vulnerable character. The foregoing review is restricted to cases of wit-" nesses who are not parties to the action, and does not profess to go over the familiar ground of declarations by a party complaining of a rape, nor of those by one complaining of a physical injury wrongfully inflicted or caused, and causing pain. This doctrine is not relevant to the present discussion, and I only allude to it in order tO' draw attention to the doubt thrown upon the admissibility of this class of declarations in New York,^ by Allen, J., oa ' Reed v. N. Y. C. R. Co., 45 N. Y., 574. SELF-SERVING DECLARATIONS. 235 the ground that they are now rendered improper by the fact that the party himself may testify in his own behalf, and the necessity under which they were admitted no longer exists. This doctrine was not adopted by the court, and was later disavowed,' although it was admitted by the court that the necessity is not so great as formerly And finally, it is settled,^ that although such declarations are still admissible as part of the res gestcs, or when they are the natural concomitants and signs of suffering, they are not competant when they are mere statements, not res gestce, nor made to a physician in professional attendance. ' Hagenlocher v. Coney Island, etc., R. Co., 99 N. Y., 136. " Kennedy v. Rochester, etc., R. Co., 130 N. Y., 656. INDEX. PAGE. ACTUAL EVIDENCE 3-89 ADMISSION, PAROL, OF CONTENTS OF WRITING 130-138 general American doctrine 135-138 New York doctrine 132-135 doctritie of Slatterie v. Pooley 130-132 AGE, jury may not look at person to determine 34 ANIMALS, brought into court 63, 64 horse ridden by deceased 64 parts of, to identify 61 APPLAUSE, evidence of, in respect to a play 70 BASTARDY CASES, exhibition of child in 27-33 child may be shown to jury 27-29 child may not be shown to jury 30-33 testimony that child resembles putative father inadmissible, 32 BENTHAM'S " REAL " EVIDENCE 3 BILLS OF LADING, excess and deficiency clause 156-164 as between carrier and consignee 156-163 consignor and carrier 1 64 BILL OF PARCELS, whether parol warranty may be added 120 BIRTH-MARKS, may be proved and shown 21 BODY. See Human Body. BOUNDARIES, proof of declarations and reputation 99-1 1 2 declarations and reputation — English doctrine 99, 100 general American doctrine 1 06-1 1 2 Federal doctrine 103, 106 Maine doctrine 103 Massachusetts doctrine loi New- Jersey doctrine 102 CLOTHING as evidence 61, 62 CONDUCT of arrested persons 36-39 238 INDEX. PAGE. COSTUME for the stage, in evidence 71 CONFRONTING prisoner with body of murdered person, 38 CUMBROUS ARTICLES may be excluded 61 DECLARATIONS, as to private boundaries 99-100 self-serving 223 in general inadmissible 223 exceptions to general rule, excluding 223 admissible to remove implication of bias 223 whether admissible in explanation of former contra- dictory statements 223 whether admissible to rebut impeachment 223 DEED, whether parol warranty may be added 119 DEGREES OF SECONDARY EVIDENCE 139-146 DEMONSTRATIVE EVIDENCE 3-89 DIAGRAMS in evidence 58 DRAWINGS of premises admissible 47 DYING DECLARATIONS discredited by disbelief in future punishment 98 EAR, complainant may exhibit maimed to jury 20 ENTRIES, unofificial, by third persons 147-157 doctrine of Higham v. Ridgway 147 doctrine applies to oral declarations 154 EXCESS AND DEFICIENCY CLAUSE in bills of lading 156-164 EXHUMATION OF HUMAN BODY not allowed.. 34, 35 EXPERIMENTS 64-70 taking barrel out of pile 81 burning candles 69 as to length of time that candle would burn 79 chemical 64, 67, 68, 74 as to color of clothing 78 fitting clothes 7i~73 with model of coal bucket 82 dancing dolls 65 man shutting eyes and becoming dizzy 76 fire-extinguisher in court 82 placing feet between rails 74 fitting stems of stolen fruit to trees yo measuring height of man in court 84 with ink y^ lifting; girls over fence 69 lifting weights by teeth 65 INDEX. 239 EKPERlMKUTS—fConfmuedJ .■ page. tasting liquor by jury 82 lock-picking 65, 73 running locomotive 68, 69 manufacturing target of plaster 76 showing paralysis by inserting pin in body 82 photographing in court 65 footrace 73, 74 requiring man to read in court 84 reading sealed letter 84 with cash-register 75 in sculpture in court 66, 67 shooting 64, 70 with human skull in court 75 blows of poker on skull 70 with wheel in court 74 with voice . . . •. 75 showing that man could get through a window 77 writing in court 84-86 FEET, prisoner may show to jury 20 prisoner compellable to show 24 FLIGHT of accused provable 36 FOOT, prisoner may not be compelled to put in pan of mud ... 23 prisoner may not be compelled to put in shoe 23 FOOTPRINTS, prisoner may make in court 20 made in box of sand, exhibited to jury 68 may not be made out of court 69 prisoner compellable to make 24 GRIEF, lack of, of prisoner accused of murder of his wife 36-38 showing that one exhibited, at not receiving a telegram . . 87 HAND, complainant may exhibit maimed to jury 20 prisoner compellable to show 24 HUMAN BODY, jury may not look at, to determine age 34 exhibition of 4-36 exhibition of, in civil cases 4-20 voluntary exhibition of, in civil cases 4, 5 compulsory exhibition of, in civil cases 5-18 exhibition of child in bastardy cases 27-33 240 IXDEX. HUMAN 'QOT)Y—( Continued) . page. voluntary exhibition of, in criminal cases 20-22 compulsory exhibition of, in criminal cases 22-27 in divorce cases ' ^° in rape cases 1 1 > 23 exhibition of defendant as too immature to seduce a woman 88 compulsory exhibition of, in slander cases 10, 11 jury may look at person to determine his race 34 de ventre inspiciendo 9, 10 IMMEDIATE EVIDENCE 3-89 IMPLEMENTS as evidence 60 LEASE, whether parol warranty may be added 1 18, 1 19 LEG in evidence 4- MATERIALS as evidence - 59 MEMORY, exhibition of, in court 8t> MERCHANDISE as evidence 59 MODELS in evidence 5^ MUSIC in court 79. 80 OATHS. See Witnesses- PAROL ADMISSION OF CONTENTS OF WRITING 130-138 PAROL EVIDENCE, in respect to writings under Statute of Frauds 191-222 to add warranty to written sale 1 1 3-1 20 to show warranty — doctrine of Chapin v. Dobson 124-129 PARTIES AS WITNESSES, disquahfication of 165-177 PHOTOGRAPHS 39-58 correctness must be verified . 44-46 of deceased putative father in bastardy cases 44 of deceased persons 42 of ancient deed 46, 47 to prove identity of person 41, 44, 48 obscene, when admissible 46 to show corporeal injuries 43 to show premises and scenes 42 with human figures inserted 49, 50 to show subsequent repair of premises 50 to show race 50 to show starvation 50 of dead child, alleged to have been killed by neglect 50 on comparison of handwriting 41 INDEX. 241 PHOTOGRAPHS— f ContinuedJ .- page. composite, of signatures inadmissible as comparison 47 of writings, as copies 39-4' unreliability of S 1-58 X-ray, admitted to sho* corporeal injuries 48, 49 PRACTICAL TESTS IN EVIDENCE 3-89 PRISONERS, as witnesses in their own behalf 178-190 RACE, to determine, jury may look at person 34 REAL EVIDENCE 3-89 RECEIPT, warranty may be added 145 REMAINS, human, exhumation not allowed . . . ^ 34 of female preserved in spirits, admitted to point testimony of abortion 35 REPUTATION, as to private boundaries 99-112 RIBS, human, to point location, refusal discretionary 34 RING, not admissible to show engagement of marriage .... 63 SALE, by writing — adding parol warranty. , 1 13-120 SANCHO PANZA'S TEST 3 SCAR, on complainant's face — prosecution may not call atten- tion to 24 prisoner having voluntarily shown to a jury, compellable to show to physician to enable him to testify to its age, 28 SECONDARY EVIDENCE, degrees of 139-146 degrees — general American doctrine 142-146 English doctrine 139-143 SELF-SERVING DECLARATIONS 223 SKELETON, human, competent as a diagram 35 SKETCHES of premises admissible 47 SKULLS admitted to show effect of bullets 35 SOLOMON'S TEST 3 STATUTE OF FRAUDS, parol evidence as to writings under 191-222 establishment of contract 191-20S three rules regulating subject 222 connecting writings 192-197 as to approval and warranty 202 as to the consideration 198-201 as to delivery of goods 202 as to description of property 202-207 modification of the contract 208-218 doctrine of Cuff v. Penn 209-2 1 3 general American doctrine 214-218 242 INDEX. STATUTE OF FRAUDS— fConimued J .■ page. to correct mistake 194 to show that there was no contract 207, 208 as in case of mistake 208 as to the parties 197-198 as to terms of payment 201 as to discharge of the contract 218-222 TATTOO MARKS, prisoner compelled to show 24 TEETH, artificial, and mould, exhibited 35 prints of, in pie 88 THEOLOGY ON THE WITNESS-STAND 90-98 THUMB in evidence 4 TICHBORNE TRIAL, thumb shown on 4 photographs on 51 VOICE, prisoner may not voluntarily exhibit 21, 22 WARRANTY, adding to a written sale 113-120 WEAPONS, as evidence 61, 86 WITNESSES, accused persons as, in their own behalf 178-190 children as 95-98 disqualification of parties as 165-177 dying declarations discredited by disbelief in future pun- ishment 98 what religious belief essential in 90-98 doctrine of Omichund v. Barker 92-94 identified as 90 infidels as 90 belief in future punishment not essential 92-94 skepticism may be shown on cross examination as to credibility 94 Universalists as 90, 91 KF 8935 B88 Author Vol, Browne, Irving Title Copy Short Studies in Evidence