(Jorttell IGaui £dprol Htbranj 
 
Cornell University Library 
 KF 8935.C44 
 v.1 
 A treatise on the modern law of evidence 
 
 3 1924 020 154 310 
 
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/cu31924020154310 
 
A TREATISE 
 
 ON THE 
 
 MODERN 
 
 LAW OF 
 
 Read — Important. 
 
 To understand the object and scope 
 of the present work, it is essential that the 
 Introduction, immediately succeeding the 
 Table of Contents, should be carefully read 
 throughout. 
 
 An encyclopaedic Synopsis at the beginning of 
 each chapter will serve as a guide to the contents 
 of the present volume. With the appearance of 
 Volume II, will be submitted an Index to the con- 
 tents of Volumes I and II, 
 
 ALBANY, NEW YORK: 
 MATTHEW BENDER AND COMPANY 
 
 LONDON, ENGLAND: 
 SWEET & MAXWELL, LIMITED 
 
 I9II 
 
A TREATISE 
 
 ON THE 
 
 MODERN 
 
 LAW OF 
 
 EVIDENCE 
 
 BY 
 
 CHARLES FREDERIC CHAMBERLAYNE, ESQUIRE 
 Of the Boston and New York Bars 
 
 American Editor of Best's Principles of the Law of Evidence, 
 American Editor of the International Edition of Best on Evidence, 
 American Editor of Taylor on Evidence. 
 
 VOL. I 
 ADMINISTRATION 
 
 ALBANY, NEW YORK: 
 MATTHEW BENDER AND COMPANY 
 
 LONDON, ENGLAND: 
 SWEET & MAXWELL, LIMITED 
 
 I9II 
 
3/s-/ 
 
 Copyright 191 i 
 By CHARLES FREDERIC CHAMBERLAYNE 
 
 All rights reserved 
 
 J. B. LYON COMPANY 
 
 PRINTERS AND BINDERS 
 
 ALBANY, N. Y. 
 
To 
 
 Mr. CHARLES LEWIS PRINCE 
 
 This work is respectfully and affectionately 
 
 dedicated. 
 
THE 
 
 MODERN LAW OF EVIDENCE 
 
 VOLUME I 
 
PREFACE. 
 
 The modern law of evidence owes its inception (if this 
 may properly be predicated of a stage in continuous evolu- 
 tion) to the combined efforts of an English judge and an 
 American jurist. Surely, much may be hoped for the 
 world-power of Anglo-Saxon jurisprudence from a circum- 
 stance so auspicious! The Englishman is the Honorable 
 Sir James Fitzjames Stephen. The American protagonist 
 is Professor James Bradley Thayer of the Law School of 
 Harvard University at Cambridge, Massachusetts. The 
 fundamental contribution of Stephen lies in the conception 
 of logical relevancy as the underlying, limiting and yet har- 
 monizing element in the law of evidence. Through him first 
 came the clear announcement that reason, the logic of ex- 
 perience, is the true test of admissibility. In this deep- 
 reaching suggestion is to be found the characteristic basis 
 of the modern stage of the law of evidence. Its instant ac- 
 ceptance, both in England and America, constitutes the 
 surest guarantee for the scientific development of this 
 branch of law. 
 
 But the fact of such a recognition goes further. It gives 
 assurance of the enhanced usefulness of judicial adminis- 
 tration in meeting the reasonable requirements of advanc- 
 ing civilization. Transcendent above all other forces to 
 this, end is the social power of truth. Litigants may be in- 
 terested to suppress it. Witnesses may prefer to be ex- 
 cused from revealing it. Historical developments or mori- 
 bund lines of political thought may even, in a way, cast a 
 glamour from the torch of Liberty over the right to silence 
 which defeats it. But the price society is called upon to 
 pay for all such concessions is unmistakably heavy. Hu- 
 
 [vii] 
 
viii Pbeface. 
 
 inanity to the unfortunate, reformation of the perverted, 
 are of high consequence indeed; but no object, however ex- 
 cellent, can gain by being sought upon the basis of a lie. 
 
 On the other hand, in view of the educational influence 
 of legal institutions, enhanced, as this is, by the power 
 of the press, it is of no small consequence that the law of the 
 land should openly announce that a citizen may be justified 
 in concealing the truth for his own protection, that the pun- 
 ishing of guilt or the redressing of wrongs may rightly be 
 rendered impossible by excluding rational proof of the real 
 occurrences, or that the mechanical enforcement of a gen- 
 eral rule of law is deemed by courts, even of last resort, of 
 higher importance than specific justice. It is within the 
 power of Stephen's insistence upon the use of reason to 
 prevent much of this mischief, to provide that judicial 
 administration, in an age where science in every direction 
 is seeking the truth as its single object, should thus be made 
 to come more closely in touch with other forms of human 
 activity. 
 
 Splendid in achievement as is the work of the English- 
 man, the American contribution to the modern law of 
 evidence has been by no means meagre. Stephen's genius 
 is essentially that of the pioneer. He blazes, as it were, a 
 practicable path through a tangled jungle. His road, how- 
 ever, is not always smooth; nor are its grades easy. In 
 broad outlines, it is found to be well planned and eminently 
 serviceable. Details of construction, however, must fre- 
 quently be altered or even, at times, altogether supplied. 
 Such corrections Professor Thayer has, in many instances, 
 been able to suggest. He has, for example, formulated 
 qualifications necessary to perfect Stephen's broad doc- 
 trine of relevancy. In a field which he has made his own, 
 the alert and discriminating mind of Thayer has pointed 
 out various meanings in which the legal profession is con- 
 stantly using many of the most familiar terms known to 
 evidence. The fellow-worker with Stephen has even been 
 privileged to throw into clear relief against the background 
 
Preface. ix 
 
 of the early law the historical development of the jury and 
 of the various rales of procedure or administration by 
 which it was sought to guide it. 
 
 Seeking to build upon the broad and generous founda- 
 tion thus deeply laid by the Englishman, with materials in 
 large measure provided by his American associate, the au- 
 thor of the present treatise has had two main objects. His 
 first purpose has been to erect, so to speak, a storehouse 
 which might be practically adapted to the needs of his pro- 
 fession. In orderly arrangement and with easy accessi- 
 bility it should readily furnish all the contents which it 
 might well be expected to supply. The second, though by 
 no means subordinate, objective has been that the building 
 should present so much of precision in design and sym- 
 metry of arrangement as might supplement, and in a sense 
 increase, its utilitarian advantages. To attain one of these 
 results without the other would be greatly to impair the 
 desired usefulness of such a structure. 
 
 To these ends, it has been necessary to sacrifice much that 
 it would have been pleasant to keep. For example, to pre- 
 sent at once to the busy practitioner whose time may be 
 assumed frequently to be scant, the latest case in any Amer- 
 ican, English or Colonial jurisdiction upon any appropriate 
 subject, has been felt to be inconsistent with any consider- 
 able indulgence in the delightful work of tracing historical 
 developments or establishing true perspectives. The 
 reader must bluntly be introduced into the present and the 
 specific. The past and the general, so far as they are stated 
 at all, are as a rule left to him to examine or not, as he 
 may see fit. He is not led to seek the present through the 
 past or approach the specific by way of the general, as 
 might, under other circumstances, be deemed preferable. 
 This is the less to be regretted by reason of the fact that the 
 extremely valuable material collected by the industry of 
 scholars like Pollock, Stubbs, Maitland, Thayer, or Wig- 
 more is readily accessible in treatises whose aim, in this 
 particular, is not so severely practical as is that of the work 
 here presented. 
 
X Pkeface. 
 
 Another concession to this necessity for extreme econ- 
 omy in the use of time has been a reluctant indulgence in 
 repetition and the employment of a high degree of con- 
 densation. In a work of this kind, used often for purposes 
 of reference merely, the sustained attention of the reader 
 to an extended discussion can scarcely be expected. A sin- 
 gle section or, at best, two or three, is the most that the 
 reader can reasonably be required to examine if his press- 
 ing need is to be served. The attempt has been made to 
 relieve this situation by comprehensive chapter headings 
 and the submission of a copious index covering both text 
 and notes. With the same object, an indication has usually 
 been given in the opening sentence or two of each section 
 as to the result at which it arrives. The inquirer is thus 
 left to find, in a strongly inverted way, the reasoning upon 
 which the conclusion is based or the authorities by which it 
 is supported only after he has already been made ac- 
 quainted with the outcome itself. ' The hope, of course, is 
 that it may thus be made possible for the seeker to avoid 
 reading whatever may fail to concern his immediate pur- 
 pose. It has been felt, however, that even with these and 
 similar aids it was further necessary to make each section, 
 so far as practicable, complete in itself. The consequence, 
 as seems unavoidable, has been an amount of repetition 
 which would scarcely be justified in any work which might 
 fairly be expected to be more continuously read or exam- 
 ined at greater leisure. 
 
 In connection with this practical aspect of the subject, 
 as in other respects, constant use has been made of the 
 many helpful suggestions which have come from a great 
 variety of sources. These it would be difficult, if not im- 
 possible, to enumerate. A life-long interest in a particu- 
 lar subject, while it has its embarrassments in the exercise 
 of a profession so jealous as that of law, carries with it 
 at least the partial compensation of disclosing the good 
 will of one's brethren. To all these gratitude is due, 
 coupled with regret that a single name should necessarily 
 represent the work of so many. In sucli a situation, it may 
 
Preface. xi 
 
 seem invidious to mention individual names. Yet special 
 appreciation is felt for the valuable assistance given by 
 the Honorable Howard P. Nash, City Magistrate of the 
 City of New York, and by James D. Kenny, esquire, of the 
 Irish Bar. Highly valued cooperation, especially in matters 
 of detail, has been received from former associates now 
 with the Edward Thompson Company of Northport, Long 
 Island, or with the American Law Book Company of New 
 York City, who have advanced an effort, in aid of the pro- 
 fessional value of the present treatise, to acquire the 
 marked condensation and disregard of negligible matters 
 characteristic of the encyclopedic form of legal writing. 
 Above all, a sense of indebtedness is felt to John Henry 
 Wigmore, Dean of the Law Faculty of the Northwestern 
 University of Chicago, whose splendid industry, sound 
 learning and dialectic skill have placed the legal profes- 
 sion, in both its teaching and practicing branches, under a 
 heavy weight of obligation. 
 
 While the effort has thus steadily been made to aid the 
 legal practitioner to advance his business by the ready dis- 
 covery of the latest cases upon given points, economizing, 
 so far as possible, his valuable time in so doing, it can- 
 not, as has been intimated, be said that this has been the 
 sole, or even the leading, motive for the work now sub- 
 mitted. The wider and, if the phrase may be used without 
 offense, the higher professional outlook upon the mission 
 of law has not been forgotten. The need of the time for a 
 more efficient, because more flexible, administration of jus- 
 tice seems unmistakable. In this connection, as in many 
 others, modern life is turning in no uncertain way from 
 the domination of Individualism (under the inspiration and 
 in aid of which many of the rules of law relating to evi- 
 dence have found their sole and sufficient warrant) if 
 not, indeed, to Socialism, at least to an insistence that in- 
 dividualistic action shall be directed to socially beneficial 
 ends. It is recognized that the social interests in litigation 
 far outweigh in importance the personal fortunes of the 
 litigants themselves. Nothing could well be more in ac- 
 
xii Pkeface. 
 
 cordance with this view than the objectives which the 
 law has prescribed to its tribunals. As the modern law 
 of evidence proposes the ascertainment of truth as the 
 objective for the work. of the jury, so does the attainment 
 of justice constitute the social mandate for the court. Prac- 
 tical experience is teaching how this may best be done. 
 Eules of procedure having the force of law, always a neces- 
 sary ingredient in every system of jurisprudence, are seen, 
 when so minute in regulation or excessive in number as to 
 defeat these social ends for which courts were established, 
 to spell general disrespect for law or even practical law- 
 lessness. The panacea invoked by individualistic democ- 
 racy as a remedy for all social evils — that the legislature 
 should pass a law on the subject — is perceived to have its 
 limitations and that these have long been reached. A vast 
 increase in the volume of judicial business, the growing 
 complexity in mercantile affairs, an impenetrable tangle of 
 statutory law badly codified or not codified at all, judicial 
 decisions so numerous as to render their full consideration 
 by overworked judges practically impossible, enforce the 
 view that the element of positive law, the controlling force 
 of statutory enactment or judicial precedent, is far too 
 large in our present jurisprudence for the best social re- 
 sults. To look to the legislature for any continuous relief 
 from this situation is, so far as the law of evidence is con- 
 cerned, simply an act of folly. Essentially, the judicial 
 office is an executive one and adequate power to attain de- 
 sired results, coupled with immediate definite responsibil- 
 ity to the people for any failure to reach them, is the simple 
 rule for making such a trust efficient for the public good. 
 As the element of administration is permitted by the people 
 to come into greater efficiency in the work of courts, the 
 markedly beneficial results of judicial responsibility become 
 manifest. Clearly, sound administration cannot justly be 
 demanded of those who are without power to furnish it. In 
 the absence of such ability, judicial machinery lacks the im- 
 pelling force essential to smooth and accurate working. 
 
Pkeeaoe. xiii 
 
 To suggest a practical method for reducing, within the 
 present lines of legal thought, this undue proportion of 
 substantive or procedural law without failing to show the 
 rules themselves, is the primary object of the following 
 treatise. To state the law of evidence, as it now exists, 
 however successfully this may be done, has not been re- 
 garded as sufficient. The attempt has also been made to 
 simplify it by insistence upon the rational basis postulated 
 by Stephen. Incidental simplification through the selection 
 of a definite meaning for particular terms and the elimina- ■ 
 tion, so far as possible, of ambiguities and confusions 
 has, indeed, been undertaken, as is more fully stated in de- 
 tail in the immediately succeeding explanatory chapter. In 
 main, however, it may be said that the object has been to 
 clarify the law of evidence by stating it, not in the sec- 
 ondary rules of prudence or maxims of good judgment, like 
 those discountenancing hearsay, opinion, res inter alios 
 acta, or the like, which, under the influence of the notion of 
 the individualistic democracy that law was the panacea for 
 all abuses, were hardened into precepts of substantive law 
 involving reversal for violation ; but rather in terms of the 
 few and simple primary canons of judicial administration 
 under which reason is exercised for the proper discharge 
 of the executive functions of the judicial office. The rules 
 themselves are considered fully; but as illustrations of 
 these principles. 
 
 In thus emphasizing the few and simple as contrasted 
 with the many and complex, in substituting the reasoning 
 of justice for the memory of technical enactments or rul- 
 ings, much professional gain may easily result. Few 
 things, for example, would aid trial practitioners more 
 immediately or tend more strongly to develop a class of 
 efficient jury lawyers than for them to be able to remember 
 a small number of master rules controlling the effect of all 
 others. To the community at large, the substitution of ju- 
 dicial reason controlling the rules of evidence in place of 
 their technical and rigid enforcement would mean cheaper, 
 speedier and more exact justice ; not the elimination of law, 
 
■xiv Preface. 
 
 but a more complete compliance with the higher social man- 
 date establishing the objectives for judicial administration. 
 It is even permissible to go a step further. Between the 
 various states of the American Union, as between England 
 and her self-governing colonies, legislative activity has in- 
 troduced, in very large number, points of difference as to 
 judicial procedure which tend to keep these jurisdictions 
 apart, retarding the growth of commercial intercourse and 
 the spirit of mutual helpfulness. Yet the canons of ra- 
 tional administration are precisely identical not only as 
 between the component parts of each set of national sov- 
 ereignties but as between the two great branches of the 
 English speaking race. Procedural law and judicial ad- 
 ministration must continue to co-exist in the law of evi- 
 dence used by any civilized nation. The only open question 
 is as to the proportion in which they shall be employed. 
 
 In considering such a matter in any scientific way, it may 
 well be borne in mind that by magnifying in enactment or 
 emphasizing in practice the legal or procedural element of 
 the judicial compound, force is given to points of difference 
 and disharmony. On the other hand, any rational increase 
 in the influence conferred upon sound judicial administra- 
 tion enhances, to no inconsiderable extent, an agency which 
 makes for harmony among the most potent factors in the 
 elevation of mankind. The Anglo-Saxon has no gift for 
 the dormant, but now awakening, nations of the earth 
 greater than the intelligent and purposeful administration 
 of exact justice between man and man or between the citi- 
 zen and the state. In perfecting such a gift, it would be 
 the highest privilege, well worthy the labor of years, to be 
 able to co-operate with our profession, in ever so slight a 
 degree, though only as one who 
 
 " Shall draw the thing as he sees it, 
 For the God of things as they are. ' ' 
 
 CHAELES F. CHAMBERLAYNE, 
 
 Schenectady, New York. 
 
CONTENTS. 
 
 VOLUME I. page. 
 
 Pbfface vii 
 
 Introduction xcv 
 
 CHAPTER I, 
 
 Law of Evidence. section. 
 
 Definitions in general 1 
 
 Law of evidence 2 
 
 scope of the law of evidence 3 
 
 Evidence defined 4 
 
 other definitions 5 
 
 extrajudicial evidence 6 
 
 judicial 7 
 
 " Proof " and " Evidence " 8 
 
 " Testimony " and evidence '. 9 
 
 Subdivisions of evidence 10, 
 
 admissible evidence II. 
 
 best and secondary evidence 12. 
 
 competent evidence 13 
 
 conclusive evidence 14 
 
 direct and circumstantial evidence 15. 
 
 material evidence 16. 
 
 oral and documentary evidence 17 
 
 document defined 17 
 
 other definitions 18. 
 
 difficulty of removal 19- 
 
 symbolical representation of thought 20 > 
 
 broad scope 21 
 
 limited scope 22 
 
 Mr. Gulson's view 23 
 
 Mr. Gulson's view considered 24 
 
 conclusions reached 25 . 
 
 positive and negative evidence 2d . 
 
 real and personal evidence 27 
 
 Bentham's view 27 
 
 Best's view 28- 
 
 Gulson's view 29- 
 
 Stephen's view 30 
 
 conclusions reached 31 
 
 Secondary meanings of the term " Evidence " 32 
 
 evidence as a science 33 
 
 influence of procedure 34 
 
 open influence of substantive law 35 s 
 
 [xv] 
 
xvi Contents. 
 
 Secondary meanings of the term " Evidence " — Continued 
 
 evidence as a science — Continued. section. 
 
 concealed influence of substantive law 36 
 
 the art of evidence 37 
 
 CHAPTER II. 
 
 Facts. 
 
 " Fact " defined 38 
 
 other definitions 39 
 
 " Matter of fact" 40 
 
 Matter of law 41 
 
 Matter of opinion 42 
 
 Classification of facts 43 
 
 physical and psychological 43 
 
 simple and compound 44 
 
 component facts 45 
 
 component and probative 46 
 
 res gestae and constituent 47 
 
 an illustrative instance 48 
 
 compound, component and constituent 49 
 
 positive and negative 50 
 
 principal and probative c 51 
 
 deliberative facts 52 
 
 states and events 53 
 
 Relevancy 54 
 
 objective 55 
 
 subjective 56 
 
 direct 57 
 
 indirect 58 
 
 logical 59 
 
 deliberative 60 
 
 legal 61 
 
 " facts in issue " 62 
 
 legal reasoning 63 
 
 General order and scope of treatise 64 
 
 CHAPTER III. 
 
 Law and Fact. 
 
 Law and fact; a third conception 65 
 
 Law defined 66 
 
 A divided tribunal 67 
 
 Who should apply rule of law 68 
 
 ( 1 ) judge authoritatively announces rule of law 69 
 
 civil cases 70 
 
 criminal cases 71 
 
 double jeopardy 72 
 
 public policy 73 
 
 confusion of law 74 
 
 differing views 75 
 
 (2) jury ascertain constituent facts 76 
 
 (3) application of law to constituent facts 77 
 
Contents. 
 
 xvu 
 
 SECTION. 
 
 Coke's maxim considered 78 
 
 ad quoestionem facti non respondent judices 79 
 
 incidental findings 80 
 
 preliminary facts conditioning admissibility 81 
 
 function of the jury 82 
 
 administrative details 83 
 
 ad qucestionem juris non respondent juratores 84 
 
 collateral rulings 85 
 
 General verdicts 86 
 
 matter of law for the jury 87 
 
 an incidental power 88 
 
 More rational expedients 89 
 
 inferences of fact 90 
 
 agreed statements of fact 91 
 
 power to draw inferences 92 
 
 express authority needed 92 
 
 a different view 93 
 
 effect of agreement 94 
 
 advantages to be expected 95 
 
 special verdicts ; statutory 96 
 
 special interrogatories 97 
 
 common law 97 
 
 statutory , 98 
 
 criminal cases excluded 99 
 
 object of special findings , 100 
 
 administration by the court 10] 
 
 objectionable questions 102 
 
 number of interrogatories 103 
 
 form of question 104 
 
 time of requesting submission 105 
 
 form of answers 106 
 
 answers must be responsive 107 
 
 effect of general verdicts 108 
 
 effect of special answers 109 
 
 inconsistency 110 
 
 the inconsistency irreconcilable Ill 
 
 trial judge's attitude 112 
 
 how advantage is taken of inconsistency 113 
 
 effect of granting a new trial 114 
 
 error and prejudice 115 
 
 judge sitting as jury 116 
 
 Matters of argument, opinion or judgment 117 
 
 sound reasoning 118 
 
 Matter of law 119 
 
 Meaning of words 120 
 
 Use of reason ; by others 121 
 
 reasonable time 122 
 
 negligence 123 
 
 action of the judge 124 
 
 duty of the jury. . ._ 125 
 
 probable cause 126 
 
 province of the jury 127 
 
xvm 
 
 Contents. 
 
 section. 
 
 Construction of documents 128 
 
 surrounding circumstances 129 
 
 probative writings 130 
 
 statutes 13*1 
 
 limits of judicial action 132 
 
 function of the jury 133 
 
 collateral facts 134 
 
 ambiguity 135 
 
 Construction of oral contracts : 13fr 
 
 a question of fact 137 
 
 province of jury 138 
 
 Demurrers to evidence 139" 
 
 versus motions to direct a verdict 140 
 
 demurrers and nonsuits 141 
 
 English rule 142 
 
 American rule 143 
 
 court sitting as a jury 144 
 
 Certainty of law 145 
 
 broad legal precepts 146 
 
 ( 1 ) presumption of law 147 
 
 ( 2 ) tentative rulings 148 
 
 " no evidence for the jury " 149 
 
 rules of negligence 150 
 
 Trial by inspection 151 
 
 nul tiel record 152 
 
 judgment of sister state 153 
 
 foreign law 154 
 
 unwritten 154 
 
 province of the jury 155 
 
 written 156 
 
 use of skilled witnesses 157 
 
 function of administration 158 
 
 English practice 159 
 
 judicial assumptions 160 
 
 rate of interest 161 
 
 foreign records 162 
 
 CHAPTER IV. 
 
 Court and Jury; Court. 
 
 Court and jury; .court 163 
 
 Functions of the judicial office 164 
 
 judicial 165 
 
 procedure defined 166 
 
 rights and remedies 167 
 
 (1) rights relating to matters of procedure 168 
 
 (2) substantive law may prescribe the remedy 169 
 
 verbal metabolism 170 
 
 distinctions not important 171 
 
 promote justice • 172 
 
 apply practice 173. 
 
Contents. xix 
 
 Functions of the judicial office — Continued. section. 
 
 administrative 174 
 
 field of administration 1 75 
 
 reason characteristic of administration 176 
 
 discretion 177 
 
 range of application 178 
 
 absence of judge from courtroom 179 
 
 adjournments 180 
 
 course of trial 181 
 
 exclusion of persons from the courtroom 182 
 
 grounds for admitting public 183 
 
 persistence of conditions 184 
 
 furnish proof or contradiction 185 
 
 grounds for exclusion 186 
 
 adjournments to avoid unwise publicity 187 
 
 separation of witnesses 188 
 
 grounds for making order 189 
 
 order not matter of right 190 
 
 what constitutes violation of the order 191 
 
 time of motion for order 192 
 
 by whom motion is made 193 
 
 to whom the order applies 194 
 
 enforcement of the order 195 
 
 consequences of disobedience 196 
 
 party's relation to violation 197 
 
 proceedings against offending witnesses 198 
 
 swearing of witnesses 199 
 
 subjective qualifications 200 
 
 method of inquiry 201 
 
 children as witnesses 202 
 
 form of oath 203 
 
 executive 204 
 
 require order and decorum 205 
 
 abusive language to judge 206 
 
 cursing the judge 207 
 
 disorderly conduct 208 
 
 insults in papers 209 
 
 insults on appeal 210 
 
 using force to prevent orderly administration 211 
 
 writing letters 212 
 
 compel obedience to directions 213 
 
 administrative orders 213 
 
 attorneys 214 
 
 corporations 215 
 
 court officers 216 
 
 clerks, attendants, etc 217 
 
 sheriffs, constables, etc 218 
 
 jurors 219 
 
 magistrates and inferior tribunals 220 
 
 public 221 
 
xx Contents. 
 
 Functions of the judicial office — Continued, 
 executive — Continued. 
 
 compel obedience to directions — Continued. section. 
 
 witnesses 222 
 
 compulsory exhibition of person 223 
 
 order to produce 224 
 
 separation of witnesses 225 
 
 testimony required 226 
 
 protect the course of justice 227 
 
 prevent insult to the judge 228 
 
 attorneys 229 
 
 court officers 230 
 
 grand jurors 231 
 
 jurors 232 
 
 discussions 232 
 
 obstructing justice 233 
 
 tampering with jury 234 
 
 threatening jury 235 
 
 magistrates and inferior tribunals 236 
 
 newspapers 237 
 
 embarrassing the administration of justice 238 
 
 past proceedings 239 
 
 improper influence 240 
 
 intimidation 211 
 
 special orders as to publication 242 
 
 place of publications 243 
 
 parties and public 244 
 
 service of process 245 
 
 witnesses 246 
 
 arrest 247 
 
 bribery 24R 
 
 false swearing 249 
 
 illustrations 250 
 
 intimidation 251 
 
 suppressing testimony 252 
 
 enforcement by contempt proceedings 253 
 
 civil and criminal cases 254 
 
 direct and constructive 255 
 
 constructive presence of judge 256 
 
 Judge sitting as » jury 267 
 
 administrative orders 258 
 
 rulings of law 250 
 
 use of argument 260 
 
 view by judge 261 
 
 weight of evidence 262 
 
 Action of appellate courts 263 
 
 distinctions between law and fact 264 
 
 Federal courts 26» 
 
 Evidence as a matter of administration 266 
 
 Stare decisis as applied to the law of evidence 267 
 
 Recapitulation 268 
 
Contents. xxi 
 
 CHAPTER V. 
 
 Court and Jury; Jury. „„„„,„„ 
 
 SECTION, 
 
 Institution of the jury 269 
 
 first stage 269 
 
 early forms of trial other than that by jury 269a 
 
 (a) trial by witnesses 269b 
 
 bargain or transaction witnesses 269c 
 
 (b) trial by compurgation 269d 
 
 number of compurgators 269e 
 
 popular courts 269f 
 
 royal courts 2*69g 
 
 decline of compurgation 269h 
 
 (c) trial by ordeal : 269i 
 
 early forms or ordeal 269j 
 
 forms of ordeal in England 269k 
 
 scope of ordeal in English 2691 
 
 decline of ordeal in England 269m 
 
 (d) trial by battle 269n 
 
 scope of trial by battle 269o 
 
 decline of trial by battle 269p 
 
 second stage 270 
 
 the Frankish inquisition 270a 
 
 indirect influence on popular courts 270b 
 
 scope of the assize 270c 
 
 criminal cases 270d 
 
 the Grand Assize 270e 
 
 Petty Assizes 270f 
 
 separation of jurata 270g 
 
 growth of the jurata 270h 
 
 personal knowledge required 270i 
 
 third stage contrasted 271 
 
 transition to the jury acting upon evidence 271a 
 
 a lighter view 27 lb 
 
 third stage 27 lc 
 
 reserved powers for the judge 272 
 
 Function of the jury 273 
 
 duty of ascertainment 274 
 
 jury confined to the issue 275 
 
 Comment on facts 276 
 
 English and Federal courts 277 
 
 the American minority 278 
 
 Connecticut 278 
 
 Minnesota 279 
 
 Pennsylvania 280 
 
 American majority 28 1 
 
 assumption of facts 282 
 
 refusal of assumptive instructions 283 
 
 uncontroverted facts 284 
 
 weight and credibility 285 
 
xxii Contents. 
 
 Comment on facts — Continued. 
 
 American majority — Continued. SECTION. 
 
 when comment is permitted 286 
 
 customary cautions 287 
 
 admissions 288 
 
 falsus in uno 289 
 
 hearsay 290 
 
 opinion evidence 291 
 
 photographs 292 
 
 positive and negative evidence 293 
 
 witnesses • 294 
 
 written and oral evidence 295 
 
 hypothesis of fact 296 
 
 illustrations of fact 297 
 
 meaning of terms 298 
 
 misrepresentation or mistake corrected 299 
 
 Subordination of judge to jury 300 
 
 ( 1 ) emotion versus reason 301 
 
 ( 2 ) general versus technical experience 302 
 
 ( 3 ) personal versus social interests in litigation 303 
 
 reasons for inversion 304 
 
 later developments 305 
 
 Granting of new trials 306 
 
 verdicts against reason 307 
 
 verdicts contrary to the weight of evidence 308 
 
 judge not an appellate tribunal 309 
 
 action of appellate courts 310 
 
 palpable confusion 311 
 
 technical errors as to evidence 312 
 
 substantive law 313 
 
 English rule 314 
 
 harmless error 314 
 
 admissions 315 
 
 exclusions 316 
 
 equity causes 317 
 
 a more technical rule 318 
 
 under the judicature act 319 
 
 American majority 320 
 
 Federal courts 321 
 
 criminal cases 322 
 
 a purely voluntary situation 323 
 
 futile legislation 324 
 
 basis of majority rule 325 
 
 technical inerrancy required 326 
 
 American minority 327 
 
 prejudice from error 328. 
 
 equity practice 329 
 
 criminal cases 330 
 
 taking jury's opinion 331 
 
Contents. xxiii 
 
 CHAPTER VI. 
 
 Principles of Administration; Protect Substantive Rights, section. 
 
 Principles of administration 332 
 
 A. protection of substantive rights 333 
 
 ( 1 ) Eight to prove one's case 334 
 
 a necessary principle 335 
 
 subdivisions of the right 336 
 
 counsel as witnesses 337 
 
 facts to be proved 338 
 
 (a.) right to use secondary evidence 339 1 
 
 illustrative instances 340 
 
 documents 341 
 
 constituent documents 342 
 
 deeds 343 
 
 negotiable instruments 344 
 
 public papers 345 
 
 wills 346 
 
 probative documents 347 
 
 illustrative instances 348 
 
 (b) means of communication 349 
 
 substituted modes of communication 350 
 
 interpreters 35 1 
 
 qualifications 352 
 
 details of interpretation 353 
 
 foreign 354 
 
 deaf mutes 355 
 
 defective speech 356 
 
 (c) scope of right 357 
 
 limited to proof of res gestae 358 
 
 (d) order of stages 359 
 
 right to open and close 360 
 
 actor has right 361' 
 
 plaintiff as actor 362 
 
 defendant as actor 363 
 
 code and common law pleadings 364 
 
 admission must cover a prima facie case 365 
 
 proceedings in rem ?66 
 
 variations in order of evidence 367 
 
 administrative considerations 368 
 
 evidence in chief 369 
 
 considerations influencing judge's action 370 
 
 practical administration 371 
 
 actor 372 
 
 non-actor 373 
 
 {e) order of topics 374 
 
 conditional relevancy 375 
 
 bearing apparent 375 
 
 bearing not apparent 376 
 
xxiv Contents. 
 
 section. 
 
 (2) Eight to test adversary's case 377 
 
 (a) cross-examination 378 
 
 (b) rebuttal 379 
 
 actor 380 
 
 use of " expert " 381 
 
 anticipatory rebuttal 3S2 
 
 non-actor 383 
 
 subsequent rebuttal 384 
 
 ( 3 ) Eight to the use of reason 385 
 
 should prevent jury from being misled ' 386 
 
 guessing not permitted 387 
 
 striking out prejudicial evidence 388 
 
 withdrawal of jury 389 
 
 preventing irrational verdicts 390 
 
 directing verdicts 391 
 
 relation to grant of a new trial 392 
 
 relation to motion in arrest of judgment 393 
 
 a matter of law 394 
 
 general rules 395 
 
 scintilla of evidence not sufficient 396 
 
 motion equivalent to a demurrer to evidence 397 
 
 direction against the actor 398 
 
 direction in favor of actor 399 
 
 time for making motion 400 
 
 direction on opening 401 
 
 party moving may be required to rest 402 
 
 nominal or actual verdicts 403 
 
 effect of waiver 404 
 
 action of appellate courts 405 
 
 effect of rulings on evidence 406 
 
 judge sitting as a jury 407 
 
 (4) Eight to judgment of court or jury 408 
 
 performance of function by judge 409 
 
 waiver 410 
 
 general right to jury trial 41 1 
 
 witnesses not permitted to reason 411 
 
 a strongly entrenched right 412 
 
 Federal constitution 413 
 
 consular courts 414 
 
 criminal cases 415 
 
 " jury " denned ' 416 
 
 removed causes 417 
 
 special proceedings 418 
 
 state constitutions 419 
 
 " hitherto used and enjoyed " 420 
 
 scope at common law 421 
 
 civil actions 422 
 
 compulsory references 423 
 
 judicial powers reserved 424 
 
 statutory construction 425 
 
 criminal cases 426 
 
 waiver forbidden 427 
 
 suits for penalties 428 
 
Contents. xxv 
 
 (4) Right to judgment of court or jury — Continued. 
 
 general right to jury trial — Continued. section. 
 
 incidental hearings 429 
 
 motions 430 
 
 proceedings subsequent to verdict 431 
 
 special proceedings 432 
 
 statutory proceedings 433 
 
 right must be claimed before a court 434 
 
 bankruptcy courts 435 
 
 courts martial 436 
 
 divorce courts 437 
 
 equity tribunals 438 
 
 code pleadings 439 
 
 general rule 440 
 
 various modifications of rule 441 
 
 issues out of chancery 442 
 
 inferior courts 443 
 
 probate courts 444 
 
 trials by judge without jury 445 
 
 common law 445 
 
 under codes and statutes 446 
 
 who may claim right 447 
 
 status of municipalities 448 
 
 option of the legislature 449 
 
 reasonable limitations permitted 450 
 
 demand 450 
 
 time of application 451 
 
 minor criminal offenses 452 
 
 number of jurors 453 
 
 payment of jury fees 454 
 
 restricted appeals 455 
 
 unreasonable limitations unconstitutional 456 
 
 waiver and estoppel 457 
 
 ( 5 ) Right to confrontation 458 
 
 limitations on the right 459 
 
 reason for the limitations 460- 
 
 no new rule of evidence 461 
 
 waiver 462 
 
 CHAPTER VII. 
 
 Principles of Administration; (B) Furtherance of Justice. 
 
 Principles of administration 463 
 
 ( B ) furtherance of justice 463 
 
 ( 1 ) Primary evidence required 464 
 
 secondary evidence defined 465 
 
 grading of primary evidence 466 
 
 evidence by perception 467 
 
 written and oral evidence 468 
 
 maps, plans, etc 469 
 
 scope of the canon 470 
 
 not a question of probative force 471 
 
 extent of administrative action 472 
 
xxvi Contents. 
 
 ( 1 ) Primary evidence required — Continued. section. 
 
 necessity for using secondary evidence 473 
 
 grounds of necessity ; witnesses or documents 474 
 
 necessity for establishing 475 
 
 necessity for corroboration 476 
 
 deliberative facts 477 
 
 a valuable principle 478 
 
 how objection is taken 479 
 
 " Best Evidence " as a rule of procedure 480 
 
 " Best Evidence Rule " at the present time 481 
 
 present scope of rule 482 
 
 a sole survival 483 
 
 a vanishing rule 484 
 
 a. wider scope 485 
 
 hearsay 486 
 
 attesting witnesses 487 
 
 \ 2 ) Completeness demanded 488 
 
 oral statements 489 
 
 proponent v 489 
 
 admissions and confessions 490 
 
 oral 491 
 
 confessions 492 
 
 independent relevancy 493 
 
 res gestce an exception 494 
 
 opponent 495 
 
 probative effect 496 
 
 right of initiative 497 
 
 former evidence 498 
 
 independent relevancy 499 
 
 documents 500 
 
 proponent 500 
 
 independent relevancy 500 
 
 judgment 501 
 
 notice to quit, etc 502 
 
 general practice 503 
 
 depositions 504 
 
 admissions 505 
 
 public records 506 
 
 executive 507 
 
 legislative 508 
 
 judicial 509 
 
 pleadings at law 510 
 
 pleadings in chancery 5W 
 
 statutory interrogatories 512 
 
 judgments 513 
 
 verdicts 514 
 
 executions 515 
 
 wills and probate papers 516 
 
 private records 517 
 
 opponent 518 
 
 independent relevancy 618 
 
 pleadings 519 
 
 public records 520 
 
Contents. xxvii 
 
 (2) Completeness demanded — Continued. 
 
 documents — Continued. section. 
 
 incorporation by reference 521 
 
 entire transaction may be shown 522 
 
 incorporation by relation 523 
 
 obligation to introduce into evidence resulting from demand 
 
 and inspection 524 
 
 a, contrary view 525 
 
 surplusage rejected 526. 
 
 (3) Prevent surprise 527 
 
 action of appellate courts 528 
 
 protection against unfair treatment 529 
 
 protect witnesses from annoyance 530' 
 
 cross examination 531 
 
 a reasonable limitation 532 
 
 an anti-social attitude 533 
 
 (4 ) Judge may interrogate witnesses 534 
 
 to enable judge to charge the jury 535 
 
 magistrates, arbitrators, etc 536 
 
 in order to elicit material facts 537 
 
 range of inquiry 538 
 
 form of question 539 
 
 ( 5 ) Judge may call additional witnesses 540 
 
 (6) Judge should hold balance of indulgence even 541 
 
 ( 7 ) Judge should require full disclosure 542 
 
 ( 8 ) Judge may suggest proper amendments 543 
 
 Principles of administration 544 
 
 ( C) Expedite trials 544 
 
 Reason required 545 
 
 ( 1 ) Rulings as to prima facie case , ' 546 
 
 ( 2 ) Range of examination , 547 
 
 ( 3 ) Inquiry into collateral matters restricted 548 
 
 ( 4 ) Introduction of cumulative evidence regulated 549 
 
 (5) Judge may limit number of witnesses 550 
 
 (6) Right to restrict repetition of questions 551 
 
 direct examination 551 
 
 cross-examination 552 
 
 repeating question asked on cross-examination 553 
 
 (7 ) Right to restrict repetition of testimony 554 
 
 (8) Judge may restrict length of arguments 554a 
 
 (9) Judge may restrict length of examination 555 
 
 number of counsel, etc 555 
 
 Principles of administration 556 
 
 (D) Judge should aim to give certainty to substantive law 556 
 
 use of reason 556a 
 
 Action of appellate courts 567 
 
 judicial function of trial judge 557 
 
 substantive law 557 
 
 findings of fact 558. 
 
 facts conditioning admissibility 569 
 
 capacity of witnesses 560 
 
 administrative function of trial judge 561 
 
 iii 
 
xxviii Contents. 
 
 Action of appellate courts — Continued. SECTION, 
 
 executive function of trial judge 562 
 
 all intendments made in favor of trial judge 563 
 
 error in law necessary for reversal 564 
 
 a contrary view 565 
 
 powers of an appellate court 566 
 
 reversal of action 567 
 
 modification of action 568 
 
 other orders 569 
 
 CHAPTER VIII. 
 Knowledge, Judicial. 
 
 Knowledge 570 
 
 Knowledge of law ; in general 571 
 
 Common and judicial knowledge 572 
 
 '' Judicial notice " 573 
 
 Judicial vs. personal knowledge 574 
 
 judge 574 
 
 judge as witness 575 
 
 England 575 
 
 American practise 576 
 
 sole judge 577 
 
 one of several judges 578 
 
 conclusions 579 
 
 jury 580 
 
 juror as witness 581 
 
 objections to the evidence 582 
 
 Scope of judicial knowledge of law 583 
 
 Judicial knowledge of common law 584 
 
 national 584 
 
 judicial knowledge on appeal 585 
 
 state and provincial courts 586 
 
 foreign unwritten law, sister state 587 
 
 law of former sovereignties 588 
 
 other countries 589 
 
 matters of common knowledge 590 
 
 Judicial knowledge of international law S^l 
 
 Judicial knowledge of law merchant 592 
 
 Judicial knowledge of written law; extension and intention 593 
 
 intension ; existence of the law 594 
 
 results directly accomplished 595 
 
 facts recited 596 
 
 treaties 597 
 
 national courts ; constitutions 598 
 
 public statutes 599 
 
 private statutes 600 
 
 foreign statutes 601 
 
 state and provincial courts; constitutions 602 
 
 constitutional requirements for statutory enactments . . 603 
 
 national statutes 604 
 
 state statutes 605 
 
 statutes of former sovereignties 606 
 
Contents. xxix 
 
 Judicial knowledge of written law — Continued. 
 
 state and provincial courts — Continued. . SECTION. 
 
 legislatives resolutions 607 
 
 special acts .• 608 
 
 private statutes 609 
 
 judicial knowledge of private statutes G10 
 
 local regulations 611 
 
 judicial knowledge on appeal or review 612 
 
 regulations of voluntary associations 613 
 
 statutes of sister state 614 
 
 " full faith and credit " 615 
 
 statutes of foreign country 616 
 
 local courts 617 
 
 amendment and repeal 618 
 
 what statutes are public 619 
 
 administration of government 620 
 
 local option laws, result of voting not judicially known. . . . 621 
 
 results of voting judicially known 622 
 
 municipal corporations 623 
 
 cities 624 
 
 mercantile corporations ; acts of incorporation 625 
 
 existence of such corporations 626 
 
 under private acts 627 
 
 statutes conferring power .- ; 628 
 
 minor facts 629 
 
 railroads 630 
 
 street railways 631 
 
 telegraph companies 632 
 
 private acts made public 633 
 
 statutes of sister state 634 
 
 How judicial knowledge of law is acquired 635 
 
 foreign law 636 
 
 Judicial knowledge of the results of law 637 
 
 governmental assumptions 638 
 
 official position 639 
 
 de facto and de jure officers 640 
 
 tenure of minor officers 641 
 
 official proceedings; in general 642 
 
 correspondence 643 
 
 publications 644 
 
 executive department 645 
 
 nation 645 
 
 proclamations and other executive acts 646 
 
 state 647 
 
 proclamations and other executive acts 648 
 
 county 649 
 
 municipal 650 
 
 public surveys 651 
 
 rules and regulations 652 
 
 nation 652 
 
 administrative boards 653 
 
 state 654 
 
xxx Contents. 
 
 Judicial knowledge of the results of law — Continued 
 
 executive department — Continued. section. 
 
 signatures and seals 655 
 
 national 655 
 
 executive magistrates of foreign states 656 
 
 state 657 
 
 county 658 
 
 cities, towns, etc 659 
 
 legislative department; general facts 660 
 
 journals 661 
 
 legislative proceedings 662 
 
 direct results of legislation 663 
 
 judicial department; general facts 664 
 
 inferior courts 665 
 
 special tribunals 666 
 
 Federal courts 667 
 
 foreign courts 668 
 
 districts 669 
 
 terms 670 
 
 administrative boards 671 
 
 length of terms 672 
 
 sessions; length of actual sitting 673 
 
 judges and magistrates 674 
 
 inferior courts 675 
 
 attorneys and counsel 676 
 
 signatures and seals 677 
 
 clerks 678 
 
 court oQicers and officials 679 
 
 sheriffs and constables, etc 680 
 
 practice 681 
 
 courts, records, papers, etc 682 
 
 own court ; same case 683 
 
 other cases 684 
 
 supplementary proceedings 685 
 
 other courts 686 
 
 sister state or foreign country 687 
 
 signatures and seals 688 
 
 national courts 688 
 
 state courts 689 
 
 notaries public 690 
 
 CHAPTER IX. 
 Knowledge; Common. 
 
 Common knowledge 691 
 
 a vital atmosphere 692 
 
 administrative advantages 693 
 
 general propositions of experience 694 
 
 What knowledge is common 695 
 
 knowledge as affected by jurisdiction 696 
 
 restricted communities 697 
 
 potential knowledge 698 
 
 A. General notoriety 699 
 
 classes of facts so established; res gestw 700 
 
 facts of optional admissibility 701 
 
Contents. xxxi 
 
 SECTION. 
 
 B. What f acts are covered by the rule 702 
 
 (1) nature 703 
 
 divisions of time 704 
 
 properties of matter 706 
 
 solid 706 
 
 liquid 707 
 
 intoxicating liquors 708 
 
 judicial knowledge 709 
 
 alcohol 710 
 
 distilled liquors 711 
 
 fermented liquors 712 
 
 malt liquors 713 
 
 " beer " 714 
 
 lager beer 715 
 
 bitters, tonics, etc 716 
 
 medicines, etc 717 
 
 wines 718 
 
 gaseous 719 
 
 (2) science 720 
 
 uniformity necessary . 721 
 
 mathematical science 722 
 
 established standards 723 
 
 capacity 723 
 
 extension •. . . . 724 
 
 value 725 
 
 weight 726 
 
 facts of the almanac 727 
 
 movements of the heavenly bodies 728 
 
 photography 729 
 
 statistics 730 
 
 census 731 
 
 mortality tables 732 
 
 trade tables 733 
 
 ( 3 ) facts of geography ; in general 734 
 
 nations 735 
 
 state 736 
 
 political divisions 737 
 
 commercial centers 738 
 
 natural features 739 
 
 rivers 740 
 
 railroads 741 
 
 distances and relative positions 742 
 
 counties 743 
 
 cities 744 
 
 boundaries 745 
 
 streets, blocks, etc 746 
 
 factors in determining whether notice is taken. . . . 747 
 
 wards, noted places, etc 748 
 
 foreign cities 749 
 
 towns 750 
 
 townships 751 
 
 villages, boroughs, etc 752 
 
Xxxii Contents. 
 
 B. What facts are covered by the rule — Continued. section. 
 
 (4) facts of human experience 753 
 
 standards of reasonable conduct 754 
 
 ( 5 ) facts of social life 755 
 
 customs 756 
 
 financial 757 
 
 local 758 
 
 fine arts 759 
 
 gaming 760 
 
 language 761 
 
 abbreviations 761 
 
 words 762 
 
 phrases 763 
 
 literature , 764 
 
 mechanic arts 765 
 
 medicine 766 
 
 phenomena of life 767 
 
 animal 767 
 
 human 768 
 
 (a) moral nature 768 
 
 (b) mind 769 
 
 (c) body 771 
 
 disease injuries, etc 771 
 
 vegetable 772 
 
 politics 773- 
 
 religion 774 
 
 things of common life 773 
 
 amusements 775 
 
 clothing 776 
 
 food 777 
 
 household conveniences 778 
 
 taxes 779 
 
 tobacco 780 
 
 value of property 781 
 
 wealth 782 
 
 (6) facts of history 783 
 
 world 784 
 
 minor facts 785 
 
 nation 786 
 
 commerce 787 
 
 foreign affairs 788 
 
 wars, insurrections, etc 789 
 
 habit and customs 790 
 
 war of the rebellion 791 
 
 state 792 
 
 settlement 792 
 
 land titles 793 
 
 industrial development 794 
 
 mining 795 
 
 railroads 796 
 
 later history 797 
 
 politics 798 
 
Contents. xxxiii 
 
 B. What facta are covered by the rule — Continued. 
 
 (6) facts of history — Continued, 
 state — Continued. 
 
 politics — Continued. section. 
 
 great national parties 799 
 
 results of elections 800 
 
 religion 801 
 
 county 802 
 
 officials 803 
 
 population, public buildings, etc 804 
 
 minor details 806 
 
 cities, town and small localities 806 
 
 commercial growth 806 
 
 minor facts 807 
 
 officials 808 
 
 (7) facts of business _ 809 
 
 evidence of skilled witness not required 810 
 
 agriculture 811 
 
 animals 812 
 
 crops 813 
 
 stock raising 814 
 
 banking 815 
 
 building trades 816 
 
 education 817 
 
 insurance 818 
 
 fire 818 
 
 life 819 
 
 mechanic arts 820 
 
 mercantile agencies 821 
 
 mining 822 
 
 minor business facts 823 
 
 professional services 824 
 
 legal 824 
 
 medical 825 
 
 railroading 826 
 
 construction 827 
 
 customs 828 
 
 equipment 829 
 
 operation 830 
 
 freight transportation 831 
 
 passenger service 832 
 
 real estate 833 
 
 stock transactions 834 
 
 street railways 835 
 
 equipment 836 
 
 operation 837 
 
 surveying 838 
 
 telegraphing 839 
 
 trading 840 
 
 course of mail 841 
 
 established routes 842 
 
 express companies 843 
 
xxxiv Contents. 
 
 B. What facts are covered by the rule — Continued. 
 
 ( 7 ) facts of business — Continued. 
 
 trading — Continued. section. 
 
 knowledge approximate merely 844 
 
 length of transit 845 
 
 meaning of phrases 846 
 
 methods 848 
 
 C. How actual knowledge may be acquired 848 
 
 ( 1 ) judge may decline to know fact 849 
 
 ( 2 ) may require aid of parties 850 
 
 matter of law 851 
 
 ( 3 ) examination by judge 852 
 
 official records 853 
 
 almanacs 854 
 
 historical works 855 
 
 function of the jury 856 
 
 " hearsay rule " inapplicable S57 
 
 books not evidence 858 
 
 standard treatises 859 
 
 probative facts 859a 
 
 inexact sciences 859b 
 
 exact sciences 859c 
 
 historical works 859d 
 
 market reports 859e 
 
 registers of pedigree, record, etc 859f 
 
 deliberative facts 859g 
 
 ( 1 ) direct increase of special knowledge S59h 
 
 (2) indirect supplementation by reducing common 
 
 knowledge to possession 859i 
 
 dictionaries 859j 
 
 encyclopaedias, etc 859k 
 
 histories, etc 8591 
 
 law dictionaries 859m 
 
 law reports 859n 
 
 statutory modifications 859o 
 
 administrative advantages of receiving treatises 860 
 
 incidental use 861 
 
 more valid objections 862 
 
 no exception to hearsay rule 863 
 
 relief through administration 864 
 
 testimony of skilled witnesses S65 
 
 D. How far knowledge is binding 866 
 
 matter of fact 867 
 
 matter of law 868 
 
 E. Cognizance as affected by action of the parties 869 
 
 CHAPTER X. 
 Knowledge; Special. 
 
 Special knowledge 870 
 
 reason for excluding knowledge in general 871 
 
 administrative action of judge 872 
 
 necessity and relevancy 873 
 
 adequate knowledge _._._. it . $74 
 
Contents. xxxv 
 
 SECTION. 
 
 Technical or scientific facts 875 
 
 administrative considerations 876 
 
 scope 877 
 
 properties of matter 878 
 
 illustrative instances 879 
 
 business affairs 880 
 
 customs 881 
 
 technical terms 882 
 
 carpentering and other building 883 
 
 chemistry 884 
 
 ecclesiastical matters 885 
 
 engineering questions 886 
 
 farming and stock raising; farming 887 
 
 stock-raising 888 
 
 insurance matters 889 
 
 fire 890 
 
 life 891 
 
 mortality tables 892 
 
 marine 893 
 
 interstate or foreign law 894 
 
 oral testimony as to written law 895 
 
 interpretation 896 
 
 skilled witness; English rule 897 
 
 qualifications 898 
 
 English rule 898 
 
 American rule 899 
 
 function of the judge 900 
 
 maritime affairs 901 
 
 mechanic arts 902 
 
 dangers 903 
 
 proper management of business 904 
 
 strength of mechanical appliances 905 
 
 use of firearms 906 
 
 value of materials 907 
 
 mining 908 
 
 natural history 909 
 
 professional facts 910 
 
 law 910 
 
 medicine 911 
 
 effect of drugs, poisons, etc 912 
 
 qualifications of witnesses 913 
 
 state of medical knowledge 914 
 
 symptoms of bodily or mental disease; injuries, etc. . . . 915 
 
 treatment; possibilities and probabilities 916 
 
 surgery 917 
 
 veterinary surgery 918 
 
 railroad facts 919 
 
 duties of officers or employees.- 920 
 
 operation 921 
 
 freight transportation 922 
 
 minor facts 923 
 
 passenger transportation 924 
 
xxxvi Contents. 
 
 Technical or scientific facts — Continued, 
 railroad facts — Continued. 
 
 operation — Continued. SECTION. 
 
 possibilities and probabilities f 925 
 
 roadbed and equipment 926 
 
 street railway matters 927 
 
 duties of officers or employees 928 
 
 operation ; possibilities 929 
 
 VOLTJME II. 
 
 CHAPTER XI. 
 
 Burden of Proof. 
 
 Burden of proof 930 
 
 Necessity for assigning burden of proof 931 
 
 Preliminaries to a trial by jury 932 
 
 ( 1 ) what facts must be proved 933 
 
 a palpable confusion 934 
 
 ( 2 ) duty of establishing 935 
 
 ( 3 ) consequences of failure 935a 
 
 A double meaning 936 
 
 Position of burden of proof 937 
 
 who would fail if no further evidence were introduced 937 
 
 never shifts 938 
 
 criminal cases 939 
 
 persistency through fluctuation 940 
 
 simile of the scales 941 
 
 common law pleading 942 
 
 general rule 943 
 
 burden on plaintiff 944 
 
 replication 945 
 
 burden on defendant 946 
 
 affirmative defences 947 
 
 lack of consideration 948 
 
 negative allegations 949 
 
 administrative details 950 
 
 equity pleading 951 
 
 statutory pleading 952 
 
 an apparent shifting 953 
 
 counter-claim or set-off 954 
 
 actions in rem, etc. 955 
 
 criminal cases 956 
 
 burden on prosecution 956 
 
 presumption of innocence 957 
 
 corpus delicti 958 
 
 competency of evidence 959 
 
 negative allegations 960 
 
 offense not outlawed, etc 961 
 
 sanity 962 
 
 venue 963 
 
 federal courts 964 
 
 affirmative defenses 965 
 
 insanity 968 
 
Contents. xxxvii 
 
 CHAPTER XII. 
 
 Burden of Evidence. section. 
 
 Burden of evidence 967 
 
 A logical necessity 968 
 
 Position of burden of evidence 969 
 
 difficulty of proof 970 
 
 shifts r 971 
 
 criminal cases 972 
 
 alibi 973 
 
 insanity 974 
 
 continuance of mental state 975 
 
 contrary views 976 
 
 intoxication 977 
 
 self-defense 977a 
 
 facts known to adverse party 978 
 
 negative facts 979 
 
 quantum of evidence required 980 
 
 method of proving a negative 981 
 
 burden of evidence not shifted 982 
 
 modern instances 983 
 
 the sounder view 984 
 
 Scope of burden of evidence 985 
 
 media of proof 986 
 
 quantum of proof required 987 
 
 number of witnesses 987 
 
 number not determinative 988 
 
 belief induced by reason 989 
 
 basis of earlier rule 990 
 
 traditional attitude of the jury 991 
 
 prima facie case 992 
 
 inertia of court 993 
 
 not a question of evidence 994 
 
 statutory requirements 995 
 
 by a fair preponderance of the evidence 996 
 
 " beyond a reasonable doubt " 996a 
 
 definition of " reasonable doubt " 996b 
 
 quantum in civil and criminal cases contrasted 996c 
 
 scope of requirement 996d 
 
 criminal capacity 996e 
 
 grade of offence 996f 
 
 identity of accused 996g 
 
 psychological constituents 996h 
 
 -special inertia of the court 997 
 
 civil cases 997 
 
 allegations of crime 998 
 
 suit for penalties 999 
 
 documents 1000 
 
 convention of parties 1001 
 
 considerations of public policy 1002 
 
 equitable relief 1003 
 
xxxviii Contents. 
 
 Scope of burden of evidence — Continued. 
 
 special inertia of the court — Continued, 
 civil cases — Continued. 
 
 documents — Continued. section. 
 
 relief at law 1004 
 
 not a question of evidence 1005 
 
 impeachment 1006 
 
 modification 1007 
 
 waiver of rights under a valid instrument 1008 
 
 parol proof of contents of documents 1009 
 
 extension of evidence 1O09 
 
 intention of evidence 1010 
 
 reformation of instrument 1011 
 
 reformation of absolute deed into trust or mortgage. 1012 
 
 specific performance 1013 
 
 substitutes for documents 1014 
 
 fraud 1015 
 
 criminal cases 1016 
 
 Effect of presumptions 1017 
 
 burden of proof 1018 
 
 burden of evidence 1019 
 
 presumption of sanity 1020 
 
 I-ogic vs. procedure 1021 
 
 inferences of fact 1022 
 
 operation of administrative rulings 1023 
 
 general considerations 1024 
 
 evolution of the presumption of law 1025 
 
 CHAPTER XIII. 
 
 Presumptions; Inferences of Fact. 
 
 Presumptions 1026 
 
 Inferences of fact 1027 
 
 inferences are rebuttable 1028 
 
 " no presumption on a presumption " 1020 
 
 inference of continuance 1030 
 
 administrative assumptions 1031 
 
 length of time 1032 
 
 nature of subject-matter 1033 
 
 bodily states or conditions 1034 
 
 habits 1035 
 
 legal results 1036 
 
 legal status or standing 1037 
 
 foreign law 1038 
 
 foreign regulations 103!) 
 
 official and other fiduciary relations 1040 
 
 qualification or disqualification 1041 
 
 life 1042 
 
 mental conditions 1043 
 
 mental states 1044 
 
 mental or moral character 1045 
 
 personal or business relations 1046 
 
 relations to creditors 1047 
 
 relations to localities 1048 
 
Contents. xxxix 
 
 SECTION. 
 
 Inferences of regularity 1049 
 
 human attributes 1060 
 
 physical 1050 
 
 capacity for child bearing 1050a 
 
 power of procreation 1051 
 
 mental or moral 1052 
 
 instinct of self-preservation 1053 
 
 business affairs • 1054 
 
 dates and actual time 1065 
 
 usual methods followed 1056 
 
 official business 1057 
 
 mail service 1057 
 
 necessary conditions on inference of receipt from mailing 1058 
 
 ( a ) proper address 1058 
 
 (b) postage must be prepaid 1059 
 
 ( c ) deposit in the mail 1060 
 
 " due course of mail " 1061 
 
 rebuttal of inference of receipt from mailing 1062 
 
 inference of regularity of constant assistance .... 1063 
 
 probative force of inference of receipt from mailing. . . . 1064 
 
 request for return 1064 
 
 corroboration 1065 
 
 presumption of law 1066 
 
 presumption of law denied . . . 1067 
 
 inference rebuttable 1068 
 
 telegrams 1069 
 
 Omnia contra spoliatorem 1070 
 
 value and damages 1070a 
 
 spoliation a. deliberative fact 1070b 
 
 subjective relevancy 1070c 
 
 modifying circumstances 1070d 
 
 spoliation an insult to the court 1070e 
 
 ( 1) fabrication 1071 
 
 (a) witnesses .' 1072 
 
 bribery 1072a 
 
 (b) writings 1073 
 
 criminal cases *. 1074 
 
 ( 2 ) suppression 1075 
 
 ( a ) witnesses 1075 
 
 failure to call 1075 
 
 effect of knowledge 1075a 
 
 equal availability 1075b 
 
 explanation permitted 1075c 
 
 equity causes 1075d 
 
 criminal cases 1075e 
 
 failure to testify 1076 
 
 effect of the inference 1076a 
 
 criminal cases 1076b 
 
 removal or concealment 1077 
 
 probative force of inference 1077a 
 
 moral aspect 1077b 
 
 strength of inducement to speak 1077c 
 
xl Contents. 
 
 Omnia contra spoliatorem — Continued. 
 
 (2) suppression — Continued. section. 
 
 ( b) writings 1078 
 
 destruction 1078 
 
 administrative punishment and indulgence 1078a 
 
 admiralty 1078b 
 
 failure or refusal to produce 1079 
 
 use of secondary evidence 1079a 
 
 ( 1 ) spoliating party 1079a 
 
 ( 2 ) non-spoliating party 1079b 
 
 refusal to produce on demand 1080 
 
 social consequences of suppression 1080a 
 
 mutilation, alteration, etc 1081 
 
 real evidence 1081a 
 
 CHAPTER XIV. 
 
 Presumptions of Law. 
 
 Assumptions of procedure 1082 
 
 Presumptions of law and assumptions of administration 1083 
 
 Logic vs. Law 1084 
 
 Presumptions of law 1085 
 
 evolution of substantive law 1086 
 
 rulings as to prima facie ease 1087 
 
 a limited number 1088 
 
 civil cases 1089 
 
 presumption of legitimacy 1089a 
 
 proof under the modern use of reason 1089b 
 
 proof of access 1089c 
 
 rebuttal of presumption 1089d 
 
 limitation upon scope of evidence 1089e 
 
 inferences of fact 1089f 
 
 presumption of death 1090 
 
 continuance of life 109O 
 
 inference of continuance of life rebuttable 1091 
 
 an inference of varying probative force 1092 
 
 origin of rule as to seven years' absence 1093 
 
 adoption of rule in America 1094 
 
 no probative force in the presumption itself 1095 
 
 no reverse presumption 1096 
 
 statutory modifications 1097 
 
 absence from jurisdiction 1098 
 
 proof of death by inferences of fact 1099 
 
 proof must be competent 1099a 
 
 failure to hear 1100 
 
 absence of tidings is important only when it exists 
 
 at absentees 'home 1101 
 
 actual receipt of tidings 1102 
 
 inflrmative considerations 1 103 
 
 probability of information 1104 
 
 shorter periods 110i> 
 
 subjective facts 1106 
 
Contents. xli 
 
 Presumptions of law — Continued. 
 
 presumption of death — Continued. 
 
 proof of death by inferences of fact — Continued. section. 
 
 unavailing search 1 107 
 
 what constitutes 1 108 
 
 administrative details 1109 
 
 computation of the seven year period 1110 
 
 time of actual death 1111 
 
 no presumption of life during seven years 1 ll 1 
 
 effect of the presumption of the continuance of life. 1112 
 
 other suggested presumptions 1<1>13 
 
 no assumption of time of death during the seven years. 1114 
 
 presumption rebuttable 1115 
 
 affirmative evidence of life 1116 
 
 hiding 1117 
 
 motive not to return or communicate IL18 
 
 criminal cases 1119 
 
 capacity for crime 1120 
 
 under seven 1 120a 
 
 seven to fourteen 1120b 
 
 inferences of fact 1 120c 
 
 rape 1120d 
 
 fourteen to twenty -one 1 120e 
 
 proof of mental state or condition 1 120'f 
 
 procedural assumptions 1 120g 
 
 presumption of larceny from recent unexplained possession of 
 
 stolen goods L121 
 
 inference not conclusive 1 1 22 
 
 a presumption of law 1123 
 
 limited to use of circumstantial evidence 1123a 
 
 statutory modifications 1 123b 
 
 administrative details 1 123c 
 
 presumption of law denied 1124 
 
 " a question of fact for the jury " 1 125 
 
 a prima facie inference of fact 1126 
 
 jury may act in accordance with the inference 1127 
 
 prima facie value denied 1128 
 
 corrobation required 1129 
 
 explanation 1 130 
 
 opportunity at trial 1 130a 
 
 reasonable doubt alone required 1130b 
 
 spoliation 11 30c 
 
 spontaneity 1130d 
 
 rebuttal 1130e 
 
 identification of goods 1131 
 
 place and cause of finding 1 132 
 
 proof of possession 1133 
 
 possession must be exclusive 1134 
 
 possession must be personal 1135 
 
 possession must be recent 1136 
 
 nature of subject-matter 1136a 
 
 a deliberative fact 1136b 
 
xlii Contents. 
 
 Presumptions of law — Continued. SECTION. 
 
 presumption of malice in homicide 1137 
 
 Alabama 1137a 
 
 Delaware 1137b 
 
 Georgia 1137c 
 
 Louisiana 1137d 
 
 Maine 1137e 
 
 Massachusetts 1137f 
 
 Minnesota 1137g 
 
 Mississippi 1137h 
 
 North Carolina 1137i 
 
 South Carolina 1137J 
 
 Texas 1137k 
 
 Vermont 11371 
 
 presumption of law repudiated 1138 
 
 Indiana 1138 
 
 Kentucky 1139 
 
 New York 1140 
 
 Tennessee 1141 
 
 effect of conflicting evidence 1142 
 
 probative and res gestw facts 1143 
 
 a conclusive presumption 1144 
 
 actual malice immaterial 1145 
 
 an unfortunate use of terms 1146 
 
 an anomalous rule 1147 
 
 untenable explanations 1148 
 
 a canon of construction 1149 
 
 proof of malice 1150 
 
 premeditation 1 150 
 
 wantonness, cruelty, etc 1151 
 
 use of deadly weapon 1152 
 
 absence of justification or excuse 1153 
 
 rebuttal 1 154 
 
 self-defence, provocation, etc 1155 
 
 burden of evidence 1 156 
 
 confused with burden of proof 1157 
 
 the sounder view 1158 
 
 CHAPTER XV. 
 
 Pseudo-Presumptions. 
 
 Pseudo-presumptions 1159 1 
 
 conclusive presumptions 1160 
 
 modes of growth 1161 
 
 scope of presumptions of this class 1162 
 
 fictions 1162 
 
 lost grant 1163 
 
 when conclusive 1163a 
 
 inference of fact 1163b 
 
 presumption of malice in libel 1164 
 
 express malice 1164a 
 
 death of attesting witnesses in case of ancient writings. 1165 
 
Contents. xliii 
 
 Pseudo-presumptions — Continued. section. 
 
 consequences of conduct 1 166 
 
 presumption of law repudiated 1167 
 
 good character 1168 
 
 knowledge of law 1169 
 
 instances of application 1 169a 
 
 no inference of fact 1170 
 
 real nature of presumption 1171 
 
 " presumption of innocence " 1172 
 
 general relations 1172a 
 
 an overestimated rule 1173 
 
 meaning of phrase 1174 
 
 Scottish law 1174a 
 
 a double aspect 1174b 
 
 no inference of innocence 1174c 
 
 what inertia is reasonable 1174d 
 
 no inference of fact 1 175 
 
 valueless as affirmative proof 1175a 
 
 chastity 1175a 
 
 treatment of prisoners in judicial administration 1175b 
 
 other views 1176 
 
 Greenleaf 1176a 
 
 McKinley's case 1176b 
 
 the Coffin case 1 176c 
 
 later federal decisions 1176d 
 
 presumption of survivorship 1177 
 
 distribution of funds, etc 117S 
 
 no presumption of law , 1179 
 
 probative facts 1 180 
 
 deliberative facts 1181 
 
 civil law 1182 
 
 American states following the civil law 1183 
 
 CHAPTER XVI. 
 
 Administrative Assumptions. 
 
 Administrative assumptions 1184 
 
 presumption* of law contrasted 1185 
 
 inferences of fact compared 1185a 
 
 rulings as to burden of proof 1186 
 
 identity of person from similarity of name 1187 
 
 assumption displaced 1188 
 
 inferences of fact 1 189 
 
 corroborative 1190 
 
 infirmative ] 191 
 
 initials 1191a 
 
 properly from possession 1192 
 
 regularity 1193 
 
 no probative force 1194 
 
 ancient facts 1195 
 
 no definite rule as to time 1196 
 
 order of events 1197 
 
 iv 
 
sliv Contents. 
 
 Administrative assumptions — Continued. 
 
 regularity — Continued. section. 
 
 subsequent acts or events 1198 
 
 judicial proceedings 1199 
 
 courts of record 1200 
 
 inferior or foreign tribunals 1201 
 
 public officers 1 202 
 
 a general assumption 1202a 
 
 executive 1202b 
 
 national or state 1202b 
 
 county 1203 
 
 municipal 1204 
 
 judicial 1205 
 
 judges 1205 
 
 inferior judges and magistrates 1206 
 
 attorneys 1207 
 
 clerks 1208 
 
 sheriffs and other officers 1209 
 
 performance of conditions 1210 
 
 relation between foreign and domestic law 1211 
 
 foreign law assumed to be the same as that of the forum. . 1212 
 
 common law 1212 
 
 inertia of the court 1213 
 
 statutory law 1214 
 
 foreign law not assumed to be the same as that of the forum 1215 
 
 civil law assumed to govern 1216 
 
 common law 1217 
 
 common law of the forum 1218 
 
 wrong doing not assumed 1219 
 
 good character 1220 
 
 fraud 1221 
 
 illegality 1222 
 
 pleading and administration 1223 
 
 Conflict of presumptions 1224 
 
 civil cases 1225 
 
 crimminal cases 1226 
 
 knowledge of law 1227 
 
 " presumption of innocence " 1228 
 
 continuance of life 1229 
 
 bigamy 1230 
 
 no presumption in the matter 1231 
 
 CHAPTER XVII. 
 
 Admissions; Judicial. 
 
 Admissions 1232 
 
 Admissions defined 1233 
 
 A general procedural requirement 1234 
 
 Admissions v. declarations against interest 1235 
 
 Conditions of admissibility 1235a 
 
 Probative force 1236 
 
 Order of topics 1237 
 
 Formal judicial admissions 1238 
 
 levamen proiationis 1239 
 
Contents. xlv 
 
 Formal judicial admissions — Continued. section. 
 
 control of the court 1240 
 
 limitation upon effect 1241 
 
 canons, of construction 1242 
 
 form of admissions 1243 
 
 pleadings 1244 
 
 in same case 1244 
 
 ( 1 ) constituting the issue 1245 
 
 (2) deliberative facts 1246 
 
 ( 3 ) use as admissions 1247 
 
 in other cases 1248 
 
 formation of issue 1248 
 
 use as admissions 1249 
 
 conditions of admissibility 1250 
 
 civil and criminal cases ' 1251 
 
 code pleading 1252 
 
 law and equity 1253 
 
 equity pleadings 1254 
 
 answer 1254 
 
 bill 1255 
 
 state and federal courts 1256 
 
 superseded or abandoned 1257 
 
 evidence rejected 1257 
 
 . evidence admitted 1258 
 
 minor details 1259 
 
 verification by oath, etc 1260 
 
 stipulations 1261 
 
 in other eases 1262 
 
 Informal judicial admissions 1263 
 
 probative force 1264 
 
 adoption by party 1265 
 
 oral evidence 1265 
 
 written statements 1266 
 
 depositions 1267 
 
 form of admissions 1268 
 
 oral 1268 
 
 testimony by party 1268 
 
 criminal cases 1269 
 
 minor details 1270 
 
 writings 127 1 
 
 affidavits 1272 
 
 answers to interrogatories 1273 
 
 depositions 1274 
 
 Judicial admissions 1275 
 
 by whom made 1275 
 
 attorneys 1276 
 
 acts in pais 1277 
 
 matters of procedure 1278 
 
 responsibility for claims 1270 
 
 responsibility for concessions 1280 
 
 substratum of fact 1281 
 
xlvi Contests. 
 
 Judicial admissions — Continued. SECTION. 
 
 probative force 1282 
 
 same case „ 1282 
 
 other cases 1283 
 
 formal judicial admissions conclusive 1284 
 
 function of the court 1285 
 
 informal judicial admissions constitute prima facie case. . . . 1286 
 
 estoppel from threatened prejudice 1287 
 
 CHAPTER XVIII. 
 Admissions; Extra-Judicial. 
 
 Extra-judicial admissions 1288 
 
 definition 1289 
 
 use a general one 1290 
 
 criminal cases 1290a 
 
 minor details 1291 
 
 Extra-judicial admissions not an exception to hearsay 1292 
 
 Conditions of admissibility 1293 
 
 statement must be one of fact 1293 
 
 statement must be voluntary 1294 
 
 criminal cases 1294a 
 
 statement must be certain 1295 
 
 statement must be complete 1296 
 
 criminal cases 1297 
 
 self-serving statements 1297 
 
 self-serving acts, appearances, etc 1298 
 
 irrelevancy 1299 
 
 a more liberal rule 1300 
 
 statements on other occasions 1301 
 
 written declarations 1302 
 
 weight and credibility 1303 
 
 statement must be relevant 1304 
 
 criminal cases 1304a 
 
 conditions of probative relevancy 1305 
 
 adequate knowledge 1305 
 
 infants, feeble-minded, etc 1306 
 
 remoteness 1307 
 
 deliberative facts 1308 
 
 contradictory statements 1309 
 
 Extra-judicial admissions 1310 
 
 by whom made 1310 
 
 parties 1311 
 
 parties to the record 1312 
 
 criminal cases 1313 
 
 coparties , 1314 
 
 declarant affected as if sole party 1314 
 
 coparty not affected 1315 
 
 rights of coparty 1316 
 
 joint offences 1317 
 
 exceptions to rule 1318 
 
 joint ownership 1318a 
 
 joint liability 1318b 
 
Contents. xlvii 
 
 Extra-judicial admissions — Continued. 
 
 by whom made — Continued. section. 
 
 nominal parties 1319 
 
 persons acting in a, fiduciary capacity 1320 
 
 persons beneficially interested 1321 
 
 injured person in a criminal proceeding 1323 
 
 corroboration and impeachment 1323 
 
 mental states 1324 
 
 res gestae 1325 
 
 test of beneficial interest 1326 
 
 persons acting in fiduciary capacity 1327 
 
 privity and agency 1328 
 
 admissions by privies 1329 
 
 evidence primary 1330 
 
 independent relevancy 1331 
 
 admissions distinguished 1332 
 
 claim 1333 
 
 disclaimer 1334 
 
 mental condition 1335 
 
 mental state 1336 
 
 admissions by agents 1337 
 
 agency must be affirmatively shown 1338 
 
 proof of agency by declaration of agent 1339 
 
 statement must be within scope of agency 1340 
 
 specific authority must be shown 1341 
 
 general and special agency 1341a 
 
 opinion excluded 1342 
 
 evidence is primary 1343 
 
 " res gestce " in this connection 1344 
 
 spontaneity required 1345 
 
 narrative excluded 1346 
 
 independent relevancy distinguished 1347 
 
 probative or constituent acts of an agent 1348 
 
 mental state 1349 
 
 statement through interpreter 1350 
 
 Form of extra-judicial admissions . . . . 1351 
 
 adoption 1 3.5 1 
 
 oral 1352 
 
 evidence is primary 1353 
 
 reference to another 1354 
 
 action conditioned on that of others 1355 
 
 writing 1356 
 
 book entries 1357 
 
 banks 1358 
 
 loan agencies, railroads, etc 1359 
 
 admissions of non-owner of books 1360 
 
 when original entries need not be produced 1361 
 
 effect of agency 1362 
 
 partnership books 1363 
 
 business documents 1364 
 
 commercial paper 1365 
 
 letters 1366 
 
 completeness required 1367 
 
xlviii Contents. 
 
 Form of extra-judicial admissions — Continued, 
 writing — Continued. 
 
 letters — Continued. section, 
 
 criminal cases 1368 
 
 self-serving statements not competent 1369 
 
 minor details 1370 
 
 obituary notices 1371 
 
 official papers 1372 
 
 professional memoranda 1373 
 
 tax lists 1374 
 
 temporary or ephemeral forms of writing 1375 
 
 Transmission by telephone 1376 
 
 Scope of extra-judicial admissions 1377 
 
 contents of a writing 1378 
 
 criminal cases 1379 
 
 facts of conduct 1379 
 
 physical facts 1380' 
 
 mental conditions 1381 
 
 mental state 1382 
 
 Probative force of extra-judicial admissions 1383 
 
 criminal cases 1384 
 
 judicial estimates 1385 
 
 unfavorable 1385 
 
 favorable 1386 
 
 not conclusive in the absence of estoppel 1387 
 
 declarant may explain, supplement, etc 1388 
 
 criminal cases 1388a 
 
 prima facie quality 1389 
 
 question for the jury 1390 
 
 impeachment 1391 
 
 CHAPTER XIX. 
 Admissions; by Conduct. 
 
 Admissions by conduct 1392 
 
 inconsistent conduct 1393 
 
 failure to advance present defence 1394 
 
 failure to allege present claim 1395 
 
 _ administrative requirements 1396 
 
 clear relevancy demanded 1396 
 
 conduct consistent with adversary's claim 1397 
 
 bodily condition 1308 
 
 mental state : . 1399 
 
 flight 1399a 
 
 order of acts 1400 
 
 silence 1401 
 
 failure to object to written statements 1402 
 
 obligation of good faith 1403 
 
 effect of denials 1404 
 
 conditions of admissibility 1405 
 
 party must understand the statement 1405 
 
 party must be under a definite duty to declare the truth. 1406 
 
Contexts. xlix 
 
 Admissions by conduct — Continued. 
 
 failure to object to written statements — Continued. section, 
 
 probative force 1407 
 
 active adoption 1408 
 
 effect of partial answers 1409 
 
 inference rebuttable 1410 
 
 scope of inference 1411 
 
 book entries 1411 
 
 commercial writings 1412 
 
 legal documents 1413 
 
 scope of inference 1414 
 
 letters 1414 
 
 function of the judge 1415 
 
 independent relevancy 1416 
 
 falsehood 1417 
 
 silence as proof of acquiescence 1418 
 
 civil cases 1419 
 
 criminal prosecutions 1420 
 
 self-serving statements 1421 
 
 inference of acquiescence rebuttable 1422 
 
 conditions of admissibility 1423 
 
 (a) statement must have been understood 1424 
 
 all attendant objective facts considered 1425 
 
 understanding assumed from hearing 1426 
 
 all attendant subjective facts considered 1427 
 
 (b) denial must be natural 1428 
 
 ( 1 ) declaration must invite a reply 1429 
 
 (2) the declarant mu9t be entitled to reply 1430 
 
 (3) time should be appropriate for denial 1431 
 
 (c) adequate knowledge 1432 
 
 (d) party must be physically and mentally capable of 
 
 reply 1433 
 
 probative force and effect 1 434 
 
 Statements and other facts 1435 
 
 admissibility vs. weight 1436 
 
 an invalid distinction 1437 
 
 Deliberative facts 1438 
 
 CHAPTER XX. 
 
 Offers of Compromise. 
 
 Oilers of compromise 1439 
 
 The rule of exclusion 1440 
 
 collateral purposes .-. 1441 
 
 Concessions of liability received 1442 
 
 accepted offers 1442 
 
 incidental admissions of liability 1443 
 
 liability assumed 1444 
 
 By whom compromise offer may be made 1445 
 
 plaintiff 1445 
 
 object other than to buy peace 1446 
 
 defendant 1447 
 
 agent 1448 
 
1 Contents. 
 
 section. 
 
 Explanation permitted 1449 
 
 Independent relevancy 1450 
 
 Specific admissions 1451 
 
 connection with compromise negotiations 1452 
 
 pendency of compromise negotiations 1453 
 
 statements partly incompetent 1454 
 
 treaties for peace assisted 1455 
 
 What offers are for peace 1456 
 
 a question of intention 1457 
 
 function of the court 1458 
 
 determining factors 1459 
 
 amount suggested 1459 
 
 time 1460 
 
 prior to negotiations 1461 
 
 subsequent to negotiations 1462 
 
 " Without prejudice " 1463 
 
 English practice 1464 
 
 correspondence 1465 
 
 independent relevancy 1466 
 
 statement received as an admission 1467 
 
 Canadian practice 1468 
 
 Reasons for the rule 1469 
 
 value of peace 1469 
 
 jury may be misled 1470 
 
 Value of the rule 1471 
 
 CHAPTER XXI. 
 Confessions. 
 
 Confessions 1472 
 
 Requisites of admissibility 1473 
 
 ( a ) statement must have been made by the accused 1474 
 
 (b) statement must be incriminating 1475 
 
 confessions and admissions distinguished 1476 
 
 (c) declaration must be certain 1477 
 
 (d) declaration must be complete in itself 1478 
 
 ( e ) declaration must be voluntary 1479 
 
 meaning of term " voluntary " 1480 
 
 an important distinction 1481 
 
 operation of " undue influence " 1482 
 
 ( 1 ) Misleading inducements 1483 
 
 infirmative considerations 1484 
 
 hope and fear 1485 
 
 power of fear 1486 
 
 correlated motives 1487 
 
 necessity of determining actual mental state 1488 
 
 how mental state is established 1489 
 
 (a) subjective considerations 1490 
 
 children, feeble-minded, etc 1491 
 
 insanity of crime 1492 
 
 intoxication 1493 
 
 pain, sleep, wounds, etc 1494 
 
Contents. li 
 
 ( 1 ) Misleading inducements — Continued, 
 hope and fear — Continued. 
 
 how mental state is established — Continued. section. 
 
 (b) objective considerations 1495 
 
 hope 1 495 
 
 inducement must be material 1496 
 
 averting punishment 1497 
 
 discontinuance of proceedings 1498 
 
 hope of pardon 1499 
 
 rules regarding approvers 1500 
 
 modifying punishment 1501 
 
 pecuniary reward 1502 
 
 (c) assumption of continuance 1503 
 
 modifying circumstances 1504 
 
 administrative details 1505 
 
 restriction of scope of rule 150© 
 
 extension of scope of rule 1507 
 
 Logic vs. Procedure 1508 
 
 physical or mental discomfort 1509 
 
 pain 1510 
 
 threats 1511 
 
 threats of punishment 1512 
 
 effect of firearms 1513 
 
 subject of threat or promise 1514 
 
 collateral matters 1514 
 
 independent matters 1515 
 
 moral or religious 1516 
 
 " better tell the truth " 1517 
 
 statement rejected 1518 
 
 rejection as a matter of procedure 1519 
 
 " you had better confess," 1520 
 
 who are " persons in authority," 1521 
 
 an artificial rule 1522 
 
 officers 1 523 
 
 implied assent 1524 
 
 a question of public policy 1524a 
 
 public prosecutors 1525 
 
 committing magistrates 1526 
 
 private prosecutors, injured persons, etc 1527 
 
 English rule 1527 
 
 rule in the United States 1528 
 
 bystanders, friends, fellow prisoners, etc 1529 
 
 effect of arrest 1530 
 
 an iniirmative consideration 1531 
 
 invalid arrest 1532 
 
 statement rejected 1533 
 
 statutory warning or caution 1534 
 
 general effect of warning upon admissibility 1535 
 
 stringency of regulation 1536 
 
 effect of suspicion 1537 
 
 deception 1538 
 
 breach of confidence 1538a 
 
 false impersonation 1538b 
 
lii Contents. 
 
 ( 1 ) Misleading inducements — Continued. 
 
 deception — Continued. section, 
 
 unfair treatment 1538c 
 
 statement " voluntary " l'538d 
 
 illegality 1539 
 
 (2) Self-incrimination 1540 
 
 a problem in jurisprudence 1541 
 
 reasons stated 1542 
 
 a page of English history 1543 
 
 the strategy of the struggle 1543a 
 
 subsequent consequences 1543b 
 
 " nemo tenetur seipsum accusare " 1544 
 
 present rule stated 1544a 
 
 a pervasive principle 1544b 
 
 American legislation 1544c 
 
 how far confessions obtained in violation oi the privilege are . 
 
 untrustworthy 1544d 
 
 procedure and reason 1545 
 
 knowledge and waiver 1546 
 
 preliminary hearings 1547 
 
 compulsion of an oath 1548! 
 
 ground for rejection 1540 
 
 a misleading analogy 1550 
 
 coroners' inquest 1551 
 
 voluntary witnesses 1551 
 
 compulsion of oath 1552 
 
 fire inquests 1553 
 
 former trials 1554 
 
 grand jury 1555 
 
 voluntary and involuntary evidence 1555 
 
 compulsory process 1558 
 
 statements made at trial of another 1557 
 
 ( 3 ) Duress 1558 
 
 " involuntary " under the rules of procedure 1559 
 
 a slight probative force 1560 
 
 duress by threats 1561 
 
 infliction of physical pain 1562 
 
 mob violence 1563 
 
 Form of confessions 1564 
 
 by conduct 1565 
 
 acquiescence by silence 1566 
 
 judicial or extrajudicial 1567 
 
 judicial 1568 
 
 pleading 1568 
 
 testimony 1569 
 
 extrajudicial 1570 
 
 oral 1571 
 
 writing 1572 
 
 " best evidence " 1573 
 
 administrative details 1574 
 
 Independent relevancy 1579 
 
 writing 1576 
 
Contents. liii 
 
 SECTION. 
 
 Introduction of confession into evidence 1577 
 
 ( 1 ) hearing on voir dire 1578 
 
 burden on defendant 1578 
 
 burden on prosecution 1579 
 
 anomalous rules of practice 1580 
 
 hearing defendant 1581 
 
 statutory provisions 1582 
 
 denials 1583 
 
 impeachment 1584 
 
 scope of the inquiry 1585 
 
 action of appellate courts 1586 
 
 ( 2 ) hearing of the jury 1587 
 
 ( 3 ) leaving question to the jury 1588 
 
 function of the jury 1580' 
 
 rights of accused upon cross-examination 1590 
 
 Probative force 1591 
 
 infirmative considerations 1591 
 
 hope and fear 1592 
 
 offers of compromise 1593 
 
 judicial confessions 1594 
 
 corroboration required 1595 
 
 judicial confessions 1596 
 
 what constitutes corroboration 1597 
 
 not a rule of evidence 1598 
 
 order of evidence 1599 
 
 proof of the corpus delicti 1600 
 
 circumstantial evidence sufficient 1601 
 
 a question for the jury 1602 
 
 a reasonable doubt 1603 
 
 confession to be weighed as a whole 1604 
 
 judicial views 1605 
 
 favorable 1605 
 
 unfavorable 1606 
 
 infirmative considerations 1607 
 
 the prevailing attitude.' 1608 
 
 Specific admissions 1609 
 
 deliberative facts 1610 
 
 relation to inadmissible confessions 1611 
 
 homicide 1612 
 
 larceny 1613 
 
 the triumph of procedure 1614 
 
 To whom extrajudicial confession is made 1615 
 
 Administrative details 1616 
 
 The evolution of reason 1617 
 
 modern growth 1613 
 
liv Contents. 
 
 CHAPTER XXII. 
 
 Former Evidence. section. 
 
 Former evidence 1619 
 
 ( 1 ) Administrative attitude of the court 1620 
 
 relevancy 1621 
 
 rights of opponent 1622 
 
 impeachment 1623 
 
 (2) Adequate necessity 1624 
 
 absence from jurisdiction 1625 
 
 adverse procurement 1626 
 
 possibility of deposition 1627 
 
 temporary absence 162S 
 
 analogy of depositions 1629 
 
 contrary views 1630 
 
 temporary return 1631 
 
 claim of privilege against self-incrimination 1632 
 
 death 1633 
 
 criminal cases *. . 1634 
 
 imprisonment 1635 
 
 inability to find 1636 
 
 diligence must be shown 1637 
 
 dissenting courts 163S 
 
 use of depositions 1639 
 
 infamy 1640 
 
 interest 1641 
 
 death of other party 1642 
 
 malicious prosecution 1643 
 
 mental incapacity 1644 
 
 official duty 1645 
 
 physical incapacity 1646 
 
 evidence received 1646 
 
 minor impairment 1647 
 
 evidence rejected 164S 
 
 civil cases 1648 
 
 criminal cases 1649 
 
 English practice 1650 
 
 use of depositions 1651 
 
 ( 3 ) " Former trial " 1 6o2 
 
 inferior courts 1653 
 
 lack of jurisdiction 1654 
 
 preliminary hearings 1655 
 
 ( 4 ) The hearsay rule 1656 
 
 right of confrontation 1657 
 
 cross-examination 1658 
 
 oath 1659 
 
 (5) Identity of the issue 1660 
 
 effective cross-examination 1661 
 
 opportunity sufficient 1662 
 
 waiver 1663 
 
 identity of subject-matter 1664 
 
Contents. lv 
 
 ( 5 ) Identity of the issue — Continued. section. 
 
 immaterial variations 1665 
 
 position of the parties on the record 1666 
 
 radical differences permitted 1667 
 
 ( 6 ) Identity of the parties 1668 
 
 actions in rem 1669 
 
 agency 1670 
 
 nominal parties 1671 
 
 privity 1672 
 
 in blood 1673 
 
 in estate 1674 
 
 in representation 1673 
 
 ( 7 ) Scope of proof 1676 
 
 extension 1676 
 
 entire examination 1676 
 
 further details 1677 
 
 independent relevancy 1678 
 
 intension 1879 
 
 precision in recollection 1680 
 
 exact words essential 1681 
 
 essential words sufficient 1682 
 
 substance of the evidence 1683 
 
 a reasonable rule 1684 
 
 effect of the evidence 1685 
 
 burden of proof, qualifications, etc 1686 
 
 (8) Media of proof 1687 
 
 official documents 1688 
 
 depositions 1689 
 
 formal court papers 1690 
 
 bills of exceptions N 1691 
 
 brief of evidence, case stated, etc 1692 
 
 no official record 1693 
 
 proof not conclusive 1694 
 
 view of minority 1695 
 
 unofficial documents 1696 
 
 memoranda 1696 
 
 general considerations 1697 
 
 attorneys 1698 
 
 considerations affecting weight 1699 
 
 judges and other magistrates 1700 
 
 resume by former judge 1701 
 
 stenographers 1702 
 
 official stenographers 1703 
 
 probative force 1704 
 
 statutory enactments 1705 
 
 witnesses 1706 
 
 independent memory 1706 
 
 refreshed recollection 1707 
 
 Depositions and former evidence contrasted 1708 
 
lvi Contexts. 
 
 VOLUME III. 
 CHAPTER XXIII. 
 
 Inference. section. 
 
 General nature of proof 1709 
 
 Judicial reasoning in general 1710 
 
 limitations imposed upon tribunals 1710a 
 
 Relevancy 1711 
 
 meanings of term 1711a 
 
 ( 1 ) probative 1712 
 
 (2) constituent 1713 
 
 ( 3 ) deliberative 1714 
 
 underlying conception 1715 
 
 Stephen's theory 1716 
 
 Stephen's definition 1717 
 
 Stephen's definition considered 1718 
 
 " facts in issue " 1718a 
 
 the .fundamental confusion 1718b 
 
 inference and observation 1718c 
 
 resulting difficulties 1718d 
 
 (1) disguising appropriate function of judge 1718d 
 
 proving res gestw 1718e 
 
 establishing constituent facts 1718f 
 
 measuring the' res gestce 171Sg 
 
 (2) obscuring the scope of evidence 1718b 
 
 eliminating the laws of the objective 17 18i 
 
 reason supreme in the field of evidence 1718j 
 
 early theories of judicial proof 1718k 
 
 reason and technical procedure 17181 
 
 teaching of the results 171Sm 
 
 Substantive and adjective law 1719 
 
 the field of the jury 1719 
 
 province of the court 1720 1 
 
 Incorporation of logic 1721 
 
 logic defined 1722 
 
 propositions 1723 
 
 propositions of fact 1724 
 
 mental operations 1725 
 
 (a) intuition 1726 
 
 a necessary blending 1727 
 
 (b) deductive reasoning 1728 
 
 formation of major premise by induction 172!) 
 
 (c) inductive reasoning 1730 
 
 perfect and imperfect induction 1731 
 
 probative strength and weakness of induction 1432 
 
 (d) inference from experience 1733 
 
 inference and deduction 1734 
 
 deduction the basis of induction 1735" 
 
 mental certainty 1736 
 
 demonstration 1737 
 
 geometrical and other hypothetical reasoning 1738 
 
 intuitive perception by the tribunal 1739 
 
Contents. lvii 
 
 Incorporation of logic — Continued. 
 
 mental certainty — Continued. section. 
 
 moral certainty 1 740 
 
 circumstantial evidence 1741 
 
 Probative relevancy; administrative limitations 1742 
 
 inferences must be certain 1743 
 
 necessity for expediting trials 1744 
 
 protect jury from being misled 1745 
 
 remoteness 1746 
 
 time 1747 
 
 imperative and optional admissibility 1748 
 
 action of appellate courts 1749 
 
 official admissibility 1750 
 
 antecedent or subsequent facts 1751 
 
 consistent and inconsistent facts 1752 
 
 consistent facts admitted 1753 
 
 relative rights of the parties 1754 
 
 explanatory or supplementary facts 1755 
 
 negative facts 1756 
 
 absence of entry, records, etc 1757 
 
 failure to see, hear, etc 1758 
 
 ignorance of alleged fact 1759 
 
 preliminary facts 1700 
 
 objective and subjective 1761 
 
 court and jury 1762 
 
 administrative details 1763 
 
 objective relevancy 1764 
 
 ancillary facts 1765 
 
 administrative details 1766 
 
 exceptions to rule 1767 
 
 corroboration and impairment 1768 
 
 corroboration 1769 
 
 cumulative corroboration 1770 
 
 coincidences 1771 
 
 coincidences between probative facts 1772 
 
 coincidences between physical objects 1773 
 
 subjective relevancy 1774 
 
 requisites for subjective relevancy 1775 
 
 requisites compared in regard to administrative actions 
 
 of the judge 1776 
 
 cumulative corroboration 1777 
 
 impairment of objective inference of truth 1778 
 
 deliberative inferences 1779 
 
 objective 1780 
 
 adaptation to objective reality 1781 
 
 time 1782 
 
 space 1783 
 
 causation 1784 
 
 subjective ., 1785 
 
 good faith 1786 
 
 bad faith 1787 
 
 general right 1788 
 
 administrative details 1780 
 
 right to employ nut an unlimited one.' 1790 
 
lviii Contents. 
 
 CHAPTER XXIV. 
 Reasoning by Witnesses. section, 
 
 "Matters of opinion" 1791 
 
 an ambiguous phrase 1791 
 
 facts incapable of verification 1792 
 
 irrelevancy as true ground for rejection 1793 
 
 lack of adequate knowledge 1794 
 
 modesty of claim to be distinguished 1795 
 
 true ground for exclusion 1796 
 
 Inference by witnesses 1797 
 
 Reason a vital atmosphere 179S 
 
 L"se of reason a matter of right 1799 
 
 The position of the witness 1800 
 
 Entire elimination of inference impossible 1801 
 
 Involution of reasoning 1802 
 
 ( 1 ) inference 1802 
 
 (2) conclusion 1803 
 
 ( 3 ) judgment 1804 
 
 ambiguity of the term expert 1805 
 
 a question of degree 1806 
 
 canons of administration 1807 
 
 conditions of admissibility 1808 
 
 necessi ty 1809 
 
 inferences 1810 
 
 conclusions and judgments 1811 
 
 (a) inability of witness to state precise mental effect 
 
 of observation 1812 
 
 detailed statement of salient facts 1813 
 
 (b) inability of jury to coordinate the sense impres- 
 
 sions of the observer 1814 
 
 sequences and coexistences 1815 
 
 administrative expedients 1816 
 
 jury's lack of knowledge 1817 
 
 common knowledge 1818 
 
 special knowledge 181!' 
 
 functions of the judge 1820 
 
 relevancy 1821 
 
 objective 1821 
 
 subjective 1S22 
 
 adequate knowledge 1823 
 
 administrative details 1824 
 
 position of the witness ' 1825 
 
 ordinary observer 1826 
 
 skilled witness 1827 
 
 who are skilled witnesses 1828 
 
 confessions drawn by skilled witness 1829 
 
 judgment formed by skilled witness 1830 
 
 judgment of skilled trilnr.is based upon practical 
 
 experience 1831 
 
 judgment of skilled witness qualified by reading. . 1832 
 
 judge as tribunal of fact ] 833 
 
 action of appellate courts 1834 
 
 harmless error 1 S35 
 
Contents. lix 
 
 CHAPTER XXV. 
 
 Inference from Sensation; Ordinary Observer. 
 
 Inference from sensation 1836 
 
 ordinary observer 1837 
 
 familiar physical objects 1837 
 
 solid 1838 
 
 liquid 1839 
 
 Instinctive inferences 1840 
 
 collective fact 1841 
 
 Negative inferences 1842 
 
 Reasoned inferences 1843 
 
 moral aspect of phenomena 1844 
 
 Conditions of admissibility of inferences from Observation 1845 
 
 Physical inferences 1846 
 
 body 1846 
 
 animals 1847 
 
 effect of injuries 1848 
 
 health or sickness 1849 
 
 minor and transitory appearances 1850 
 
 conduct 185L 
 
 animals, acts and habits 1852 
 
 common inferences 1853 
 
 complicated inferences 1854 
 
 habitual conduct 1855 
 
 human conduct 1856 
 
 mutual relations 1857 
 
 object of conduct 1858 
 
 other characterization of conduct 1859 
 
 administrative details I860 
 
 identities and correspondences 18©1 
 
 reasoned inference essential 1862 
 
 qualifications of observer 1863 
 
 certainty of inference 1864 
 
 persons 1865 
 
 animals 1866 
 
 circumstantial evidence 1867 
 
 objective facts 1868 
 
 subjective facts 1869 
 
 analogy to evidence establishing pedigree 1870 
 
 chattels 1871 
 
 ■articles were difficult to identify 1872 
 
 chose in action 1873 
 
 footprints 1874 
 
 administrative details 1875 
 
 province of the jury 1876 
 
 tracks other than foot prints 1877 
 
 other correspondences 1-878 
 
 intoxication 1879 
 
 conclusions excluded 1880 
 
 degree of intoxication 1881 
 
 V 
 
lx Contents. 
 
 Physical inferences — Continued. section. 
 
 physical condition of inanimate objects 1882 
 
 changes 1883 
 
 effect of fire, water, etc 1884 
 
 effect of the application of force 1885 
 
 safety 1686 
 
 negligence . 1887 
 
 soundness 1888 
 
 suitability 1889 
 
 Physiological inferences 1890 
 
 Psychological inferences 1891 
 
 mental conditions 1892 
 
 objective mental condition 1893 
 
 relevancy of inference 1894 
 
 qualifications of witness 1895 
 
 technical inferences 1896 
 
 change 1897 
 
 consciousness 1898 
 
 form of statement 1899 
 
 by conduct 1900 
 
 mental characteristics 1901 
 
 insanity 1902 
 
 ordinary observer rejected 1903 
 
 a dwindling minority 1904 
 
 Maine rule 1905 
 
 Massachusetts rule 1900' 
 
 rule in New York 1907 
 
 ordinary observer admitted 1908 
 
 English rule 1909 
 
 reasoning for admitting the inference 1910 
 
 qualification of ability to state details of phenomena. 1911 
 qualification of suitable opportunities for observa- 
 tion 1912 
 
 qualification of ability to coordinate phenomena.. 1913: 
 comparative value of qualifications demanded by 
 
 judicial administration 1914 
 
 direct and indirect inferences 1915' 
 
 judicial estimates as to probative force 1916 
 
 function of the judge 1917 
 
 actions of appellate courts 1918 
 
 province of the jury 1919 
 
 weight of the evidence 1920 
 
 skilled observer 1921 
 
 inferences of sanity 1922 
 
 subscribing witness 1923 
 
 English rule 1924 
 
 American rule 1925 
 
 an anomalous position 1926 
 
 marked administrative indulgence 1927 
 
 objective mental states 192S 
 
 intuitive inferences '1929 
 
 reasoned inferences 1930 
 
Contents. ]xi 
 
 Psychological inferences — Continued. 
 
 objective mental states — Continued. section. 
 
 administrative requirements 193-1 
 
 necessity 1931 
 
 subjective relevancy 1932 
 
 adequate knowledge 193,2 
 
 self-regarding states 1033 
 
 psychological states regarding others 19.34 
 
 unfavorable 1934 
 
 favorable 1935 
 
 disposition 1936 
 
 animals 1 9,3 7 
 
 inference rejected 1938 
 
 lack of adequate necessity 1939 
 
 facts may be placed before the jury 1940 
 
 lack' of objective relevancy 1941 
 
 protecting province of the jury 1942 
 
 administrative details 194$ 
 
 ■intent and intention 1944 
 
 other complex mental states 1945 
 
 psychological states not subject to direct observation.. 1946 
 
 CHAPTER XXVI. 
 Inference from Sensation; Skilled Observer. 
 
 General position of skilled witness 1947 
 
 a preliminary question 1948 
 
 (1) special knowledge alone does not constitute an expert 1949 
 
 ( 2 ) observers and experts 1950 
 
 Ordinary and skilled observer 1951 
 
 differentiation by subject matter 1 P51 
 
 what topics are technical 1952 
 
 administrative details 1953 
 
 differentiation as to powers of reasoning 1954 
 
 power of co-ordination 1955 
 
 methods of examination 1956 
 
 the fructifying power of thought 1957 
 
 Illustrative instances of skilled observation 19-58 
 
 architects and builders 1958 
 
 qualifications 1959 
 
 construction 1960 
 
 materials 1961 
 
 work and workman 1962 
 
 business affairs 1963 
 
 chemistry 1964 
 
 circumstances affecting weight 1965 
 
 familiar examples 1966 
 
 engineering 1967 
 
 civil 1968 
 
 hydraulic .' 1969 
 
 surveying 1970 
 
lxii Contents. 
 
 Illustrative instances of ■ skilled observation — Continued. section. 
 
 farming matters 1,971 
 
 animals 1972 
 
 diseases and injuries 1973 
 
 land 1974 
 
 stock raising 1975 
 
 insurance 1976 
 
 manufacturers 1977 
 
 machinery 1978 
 
 i repairs 1979 
 
 tools , 1980 
 
 administrative details 1981 
 
 jury's field 1982 
 
 maritime affairs 1983 
 
 construction ' 1984 
 
 condition and equipment of vessels 1985 
 
 management of vessels, etc 1986 
 
 non-technical inferences 1987 
 
 mechanic arts 1988 
 
 qualifications 1989 
 
 construction and use of firearms 1990 
 
 medical inferences 1991 
 
 degree of certainty required 1992 
 
 intuitive inferences ^ 1993 
 
 bodily conditions 1994 
 
 death 1995 
 
 diseases of human beings 1996 
 
 diseases of animals 1997 
 
 injuries 1998 
 
 administrative details - 1999 
 
 mechanical estimates 2000 
 
 direction 2001 
 
 location 2002 
 
 nature of force 2003 
 
 nature of instrument 2004 
 
 mental conditions 2006 
 
 insanity 2007 
 
 ( 1 ) attending physicians 2008 
 
 when admitted 2009 
 
 an accepted class of observers 2010 
 
 not an " expert " 2011 
 
 standard applied 2012 
 
 ' (2) other trained observers 2013 
 
 nurses and other practical assistants 2014 
 
 non-technical inferences 2015 
 
 probable results 2016 
 
 surgery 2017 
 
 qualifications of witnesses 2018 
 
 detail of constituting facts 2019 
 
 statements of patient _ 2020 
 
 information from others 2021 
 
 insufficient facts fail to qualify 2022 
 
 attending physician 2023 
 
Contents. lxiii 
 
 Illustrative instances of skilled observation — Continued. 
 medical inferences — Continued. 
 
 qualifications of witnesses — Continued. section. 
 
 proof of qualification 2024 
 
 attending physician 2024 
 
 practical experience 2025 
 
 reading and study 2026 
 
 special training 2027 
 
 statutory conditions 2028 
 
 administrative details 2029 
 
 probative weight 2030 
 
 administrative details 2031 
 
 mining matters 2032 
 
 administrative details 2033 
 
 photographic art 2034 
 
 railroad matters 2035 
 
 qualifications 2035 
 
 construction 2036 
 
 equipment 2037 
 
 operation 2038 
 
 transportation of merchandise 2039 
 
 administrative details 2040 
 
 street railways 2041 
 
 CHAPTER XXVII. 
 Estimates. 
 
 Estimates 2042 
 
 Administrative requirements 2043 
 
 necessity must be shown 2043 
 
 relevancy required 2044 
 
 Age 2045 
 
 animals .- 2046 
 
 inanimate objects 2047 
 
 province of the jury 2048 
 
 Capabilities 2049 
 
 animate objects 2049 
 
 hearing 2049 
 
 seeing 2050 
 
 other physical capabilities 2051 
 
 mental capacity 2058 
 
 mechanical 2063 
 
 causation 2064 
 
 natural occurrences 2055 
 
 application of force 2056 
 
 human beings 2057 
 
 animals 2058 
 
 effect stated 2059 
 
 hypothetical inferences 206O 
 
 future effects 2061 
 
 Dimensions 2062 
 
 area 2062 
 
 grade 2063 
 
 height 2064 
 
lxiv Contents. 
 
 SECTION. 
 
 Direction 2065 
 
 Distance 2066 
 
 application of rule 2067 
 
 basis of estimate 2068 
 
 complicated inferences 2069 
 
 possibilities 2070 
 
 Expense 2071 
 
 Identity : 2072 
 
 Location 2073 
 
 Number 2074 
 
 Quality 2075 
 
 skilled observer 2076 
 
 Quantity 2077 
 
 Iiesemblance 2078 
 
 foot-prints, tracks, etc 2079 
 
 paternity by resemblance 2080 
 
 English rule 2081 
 
 functions of the jury 2082 
 
 administrative considerations 2083 
 
 preliminary detail 2084 
 
 Sound 2085 
 
 iSpeed 2086 
 
 animals 2087 
 
 railroad and trolley cars 2088 
 
 comparative speed 2089 
 
 qualifications of witness 2090 
 
 administrative details 2091 
 
 Temperature 2092 
 
 Time 2093 
 
 Value 2094 
 
 Weight ' 2095 
 
 CHAPTER XXVIII. 
 
 Value I. 
 
 Value 2096 
 
 various methods of proof 2097 
 
 Absence of value 2098 
 
 Terms of value 2099 
 
 Time of estimating 2100 
 
 change in value 2101 
 
 Administrative requirements 2102 
 
 necessity 2102 
 
 what is really disputed 2103 
 
 articles in common use 2104 
 
 real estate 2105 
 
 relevancy demanded 2106 
 
 qualifications of witness 2107 
 
 adequate knowledge 2108 
 
 appraisers, auctioneers, etc 2109 
 
 brokers, etc 2110 
 
 caretakers 2111 
 
Contents. 1 x v 
 
 Administrative requirements — Continued, 
 relevancy demanded — Continued. 
 
 qualifications of witness — Continued. 
 
 adequate knowledge — Continued. section. 
 
 membership in community 2112 
 
 public officers 2113 
 
 qualifications by dealing 2114 
 
 administrative assumptions 2115 
 
 claims of knowledge 2116 
 
 action of appellate courts 2117 
 
 preliminary detailed statement of fact 2118 
 
 skilled observer 2119 
 
 farm value 2120 
 
 unusual uses 2121 
 
 sales of property 2122 
 
 administrative details 2123 
 
 cross-examination 2124 
 
 Ordinary observer 2125 
 
 personal property 2125 
 
 special qualifications of witness 2126 
 
 domestic articles 2127 
 
 farm equipment 21B8 
 
 mercantile, stock in trade 2129 
 
 real estate 2130 
 
 technical inferences 2131 
 
 services 2132 
 
 qualifications of witness 2133 
 
 rental value of chattels 2134 
 
 agricultural 2136 
 
 domestic services 213'6 
 
 mercantile 2137 
 
 nursing 2138 
 
 technical services 2139 
 
 Owner as witness 2140 
 
 qualifications 2141 
 
 preliminary detailed statement of fact 2141 
 
 familiarity required 2142 
 
 personal property 2143 
 
 classes of declarants 2144 
 
 farmers 2144 
 
 householders 2145 
 
 merchants 2146 
 
 various other classes of owners 2147 
 
 probative force of the estimate 2148 
 
 real estate 2149 
 
 services 2150 
 
 Skilled observer as witness 215L 
 
 qualifications required 2152 
 
 administrative details 2153 
 
 technical facts 2154 
 
 personal property 2155 
 
 real estate 2156 
 
lxvi Contents. 
 
 Skilled observer as witness — Continued. 
 
 real estate — Continued. section. 
 
 special qualifications 2157 
 
 change in value 2158 
 
 cost of property 2159 
 
 crops, trees, etc 2160 
 
 similar property 2161 
 
 direct examination 2161 
 
 cross examination 2162 
 
 services 2163 
 
 building operations 2164 
 
 commercial employments 2165 
 
 professional 2166 
 
 administrative details , 2167 
 
 conclusions and judgments 2168 
 
 personal property 2169 
 
 real estate ; 2170 
 
 cost of reproduction 2171 
 
 Skilled witness testifying as an expert 2171a 
 
 personal property 2171b 
 
 animals 2171c 
 
 crops 2171d 
 
 real estate 2171e 
 
 services 2171f 
 
 probative force of the judgment 2171g 
 
 how tested 2171g 
 
 cross-examination 2171h 
 
 Function of the jury 2172 
 
 probative force of the estimate. 2172 
 
 effect of error in basis of estimate 2173 
 
 limitation on freedom of jury 2174 
 
 duty of jury 2175 
 
 CHAPTER XXIX. 
 
 Handwriting I. 
 
 Handwriting 2176 
 
 Proof by direct evidence 2177 
 
 Proof by secondary evidence 2178 
 
 characteristics of handwriting 2179 
 
 phenomena of documents 2180 
 
 who are qualified as witnesses 2181 
 
 special knowledge 2182 
 
 age 2183 
 
 alterations 2184 
 
 prominent appearances 2185 
 
 (2 ) inference from observation 2186 
 
 administrative requirements 2187 
 
 degree of certainty demanded 2187 
 
 limitations imposed 2188 
 
 necessity 2189 
 
 relevancy 2190 
 
 preliminary detail of constituting facts 2191 
 
 basis of relevancy 2192 
 
 a discredited basis of inference 2193 
 
Contents. lxvii 
 
 Proof by secondary evidence — Continued. 
 
 administrative requirements — Continued. SECTION. 
 
 subjective relevancy 2194 
 
 qualifications of witnesses 2194 
 
 qualifications of witnesses compared 2195 
 
 a unique subject matter 2196 
 
 administrative details 2197 
 
 ante litem motam 2198 
 
 Ordinary observer 2199 
 
 qualifications 2199 
 
 ( 1 ) seeing person write 2199 
 
 a sound limitation on scope of the qualification 2200 
 
 witness not permitted to state inference that person not 
 
 seen to write was author of disputed document 2201 
 
 probative force of the inference 2202 
 
 (2) adoption in course of business 2203 
 
 onus of proving acquiescence on proponent 2204 
 
 what amounts to acquiescence 2205 
 
 business correspondence 2206 
 
 evidence of person other than receiver 2207 
 
 technical inferences 2208 
 
 (3') special experience 2209 
 
 official documents 2210 
 
 ■other sources of familiarity 2211 
 
 administrative details 2212 
 
 notes and negotiable securities 2213 
 
 Skilled observer 2214 
 
 qualifications required 2214 
 
 affirmative proof of qualification demanded 2215 
 
 study and investigation 2216 
 
 practical experience 2217 
 
 clerical positions 2218 
 
 subjective qualifications 2219 
 
 administrative details 2220 
 
 (4) " comparison of hands " 2221 
 
 meaning of phrase 2222 
 
 evolution of the rule 2223 
 
 witness not an " expert " 2224 
 
 English rule 2225 
 
 statutory modifications 2226 
 
 Canadian rule 2227 
 
 American rule 2228 
 
 ( a ) court and jury 2229 
 
 documents introduced in evidence as standard for com- 
 parison rejected 2230 
 
 documents introduced in evidence as standard of com- 
 parison accepted 2231 
 
 administrative expedients 2232 
 
 special rule in particular states 2233 
 
 New Hampshire 2233 
 
 Pennsylvania 2234 
 
 South Carolina 2235 
 
lxviii Contents. 
 
 Skilled observer — Continued. 
 
 qualifications required — Continued. section. 
 
 (b) witness 2236 
 
 inference rejected 2236 
 
 danger of collateral issues 2237 
 
 cumulative evidence admitted 2238 
 
 documents already in the cases 2238 
 
 inference received 2240 
 
 (1) comparison with documents already in evidence. 2241 
 
 (2) comparison with documents already on file in 
 
 the cause 2242 
 
 (3) comparison with documents introduced for the 
 purpose 2243 
 
 statutory modifications 2244 
 
 qualifications 2245 
 
 California 2246 
 
 Georgia 2247 
 
 Iowa 2248 
 
 Kentucky 2249 
 
 Louisiana 2250 
 
 Missouri 2251 
 
 Montana 2252 
 
 Nebraska 2253 
 
 New Jersey 2254 
 
 New York 2255 
 
 Oregon 2256 
 
 Pennsylvania 2257 
 
 Rhode Island 2258 
 
 Tennessee 2259 
 
 Texas 2260 
 
 Wisconsin 2261 
 
 United States 2262 
 
 proof of standard 2263 
 
 admissions 2264 
 
 authentication by proof 2265 
 
 evidence must be positive 2266 
 
 empirical rules 2267 
 
 ancient documents 2268 
 
 letter press copies, tracing magnified drawings, etc. . . . 2269 
 
 standardizing document should be present in court. . . 2270 
 
 practice upon cross-examination 2271 
 
 proof limited to handwriting of alleged author of disputed 
 
 documents 2272 
 
 proof in criminal cases 2273 
 
 self-serving specimens of handwriting of alleged author of 
 
 disputed document 2274 
 
 specially prepared specimens of handwriting 2275 
 
 tests for genuineness of standard 2270 
 
 satisfaction of presiding judge 2277 
 
 mechanical aids in testing genuineness 2278 
 
 measurements 2279 
 
 magnified drawings 2280 
 
 microscopes 2281 
 
 photographs 2282 
 
 preliminary proof of accuracy 2283 
 
Contents. lxix 
 
 SECTION. 
 
 Probative weight of the inference 2284 
 
 a question for the jury 2284 
 
 circumstances affecting weight 2285 
 
 function of the court 2280 
 
 unfavorable comment 2287 
 
 favorable comment 2288 
 
 inference a reasoned one 2289 
 
 tests furnished by cross-examination 2290 
 
 CHAPTER XXX. 
 
 Conclusions of Fact. 
 
 Conclusions 2291 
 
 a question of degree 2292 
 
 administrative details 2293 
 
 administrative requirements 2294 
 
 necessity 2294 
 
 protecting function of the jury 2295 
 
 relevancy 2296 
 
 preliminary detail of facts 2296 
 
 propositions in issue 2297 
 
 res gestae 2298 
 
 objective relevancy 2299 
 
 subjective relevancy 2300 
 
 Conclusions of fact 2301 
 
 when admitted 2301 
 
 causation 2302 
 
 condition 2303 
 
 dangerous or safe 2303 
 
 financial 2304 
 
 physical or psychological 2305 
 
 necessity 2306 
 
 negative facts 2307 
 
 possibility 2308 
 
 witness must be qualified 2309 
 
 sufficiency 2310 
 
 light 2311 
 
 means to end 2312 
 
 opportunity 2313 
 
 space 2314 
 
 time 2315 
 
 utility 2316 
 
 voluminous date 2317 
 
 when rejected 2318 
 
 conduct 2318 
 
 inference of necessity 2319 
 
 inference of possibility 2320 
 
 conditional possibility 238L 
 
 inference of probability ,' 2322 
 
 inference of sufficiency 2323 
 
 suppositions 2324 
 
lxx Contents. 
 
 CHAPTER XXXI. 
 Conclusions of Law. section. 
 
 Conclusions of law 2325 
 
 legal reasoning . . . : 2326 
 
 negative facts 2327 
 
 psychological facts 2328 
 
 when admitted 2329 
 
 agency and other authority 2330 
 
 damages 2331 
 
 administrative necessity 2331 
 
 practical convenience 2332 
 
 taking for public purpose 2333 
 
 other diminution in value 2334 
 
 indebtedness 2335 
 
 ownership 2336 
 
 possession 2337 
 
 when rejected 2338 
 
 agency and other authority 2339 
 
 damages 2339 
 
 elements of damage 2340 
 
 eminent domain 2341 
 
 administrative details 2342 
 
 legal reasoning 2343 
 
 graver objections 2344 
 
 indebtedness 2345 
 
 justification 2346 
 
 legal effect of transactions 2347 
 
 legal rights 2348 
 
 liability 2349 
 
 municipal liability 2350 
 
 personal injuries 2351 
 
 intent, intention or other constituent mental state .... 2352 
 
 negligence 2353 
 
 danger, safety, etc 2354 
 
 habitual conduct 2355 
 
 personal injuries 2356 
 
 reasonable conduct 2357 
 
 use of property 2358 
 
 ownership 2359 
 
 possession 2360 
 
 intrusion upon the function of the court 2361 
 
 an important distinction 2362 
 
 construction of document 2363 
 
 legal effect of spoken language 2364 
 
 meaning of contracts 2365 
 
 when conclusion is received 2366 
 
 understanding 2367 
 
 meaning of words 2368 
 
 meaning of figures 2369 
 
 meaning of phrases 2370 
 
Contents. lxxi 
 
 CHAPTER XXXII. 
 
 Judgments. section. 
 
 Judgments 2371 
 
 An obviou3 administrative danger 2372 
 
 The paramount right 2373 
 
 Field of the " expert " 2374 
 
 Admissibility a question of administration 2375 
 
 Historical development 2376 
 
 Probative force 2377 
 
 reasoning stated 2377 
 
 Administrative requirements 2378 
 
 objective relevancy 2378 
 
 subjective relevancy 2379 
 
 conjecture excluded 2380 
 
 speculative damages 2381 
 
 Illustrative instances of judgments 2382 
 
 carpentering and building 2382 
 
 commercial matters 2383 
 
 engineering matters 2384 
 
 hydraulic 2385 
 
 every-day matters 2386 
 
 farming 2387 
 
 crops and other farm produce 2387 
 
 operations 2388 
 
 stock 2389 
 
 structures 2390 
 
 insurance 2391 
 
 administrative reasoning 2392 
 
 fire 2393 
 
 increase of risk 2393 
 
 materiality of facts 2394 
 
 when judgment is received 2395 
 
 life 2396 
 
 marine 2397 
 
 land matters 2398 
 
 manufacturing 2399 
 
 marine matters 2400 
 
 necessity 2401 
 
 property 2402 
 
 administrative details 2403 
 
 mechanic arts 2404 
 
 capacity 2405 
 
 cause and effect 2406 
 
 cost 2407 
 
 experiments 2408 
 
 operations 2409 
 
 propriety 2410 
 
 safety 2411 
 
 administrative details 2412 
 
 medicine 2413 
 
 qualifications of witness 2414 
 
 insanity 2415 
 
lxxii Contents. 
 
 Illustrative instances of judgments — Continued, 
 medicine — Continued. 
 
 qualifications of witness — Continued. 
 
 insanity — Continued. section. 
 
 practicing physician 2416 
 
 reading- 2417 
 
 administrative considerations 2418 
 
 animal food 2419 
 
 cause and effect 2420 
 
 body 2420 
 
 mind 2421 
 
 permanence of effect 2422 
 
 administrative details 2423 
 
 death 2424 
 
 disease 2426 
 
 psychological conditions 2426 
 
 standard of insanity 2427 
 
 ability to transact business 2427 
 
 legal 2428 
 
 weight of inference as to insanity 2429' 
 
 mining matters 2430 
 
 cause and effect 2431 
 
 possibilities 2432 
 
 propriety 2433 
 
 safety 2434 
 
 railroad affairs 2435 
 
 qualifications of witness 2436 
 
 construction 2437 
 
 when judgment is rejected 2438 
 
 equipment 2439 
 
 when judgment is rejected 2440 
 
 operation 2441 
 
 cause and effect 2441 
 
 danger and safety 2442 
 
 operating force 2443 
 
 performance of duty 2444 
 
 when inferences are rejected 2445 
 
 stock-raising 2446 
 
 trolley and street railways 2447 
 
 qualifications of witness 2448 
 
 construction 2449 
 
 operation 2450 
 
 CHAPTER XXXIII. 
 Judgments; Hypothetical Question. 
 
 The hypothetical question 2451 
 
 an administrative necessity 245-2 
 
 the office of the question 2453 
 
 Conclusion and judgment 2454 
 
 gain and loss 2455 
 
 mixed hypothesis 2456 
 
 real evidence 2457 
 
 inadmissible mixtures 2458 
 
Contents. lxxiii 
 
 SECTION. 
 
 Form of question 2459 
 
 not an exclusive formula 2460 
 
 facts must 'be sufficient for reasonable judgment 2461 
 
 expert limited to facts stated 2462 
 
 new facts in diagnosis ; 2463 
 
 facts must include all those essential to some reasonable theory 
 
 of the case r 2464 
 
 Colorado rule 2465 
 
 New York rule 2466 
 
 facts must include " all undisputed material facts " 2467 
 
 Indiana 2468 
 
 Kansas 2469 
 
 Missouri 2470 
 
 New York 2471 
 
 facts must be plausibly proved 2472 
 
 rule applied at every stage 2473 
 
 controverted facts admissible 2474 
 
 immaterial facts 2475 
 
 legal evidence demanded 2476 
 
 its comparative weight not material 2477 
 
 facts assumed de bene 2478 
 
 testing constitutes an exception to the rule 2479 
 
 general assumption 2480 
 
 upon the evidence 2491 
 
 use approved 2482 
 
 restrictions imposed upon the use of this form of ques- 
 tion 2483 
 
 question excluded 2484 
 
 use of form of question destroys definitions of the 
 
 answer 2485 
 
 extent of witness' memory uncertain 2486 
 
 other indefinite assumptions 2487 
 
 administrative details 2488 
 
 complexity and length 2480 
 
 fairness to witness 2490 
 
 inaccuracy in question 2491 
 
 misleading questions 2492 
 
 questions misleading by reason of incompleteness 2493 
 
 unproved facts 2494 
 
 protect province of the jury 2495 
 
 rejection for defect in form 2496 
 
 action of appellate courts 2497 
 
 CHAPTER XXXIV. 
 Inferences; Tests and Probative Forces. 
 
 Probative weight of inferences and how determined 2498 
 
 Element of observation . . . '. 2499 
 
 Tests applied to the element of observation 2500 
 
 preliminary statements of fact 2500 
 
 test of reasoning faculty 2501 
 
 inferences of other observers 2502 
 
 possibility of reaching a different mental result 2503 
 
lxxiv Contents. 
 
 SECTION. 
 
 Tests applied to the element of reasoning 2504 
 
 qualifications of skilled witness 2506 
 
 direct endorsement by other experts r 2506 ■ 
 
 knowledge 2507 
 
 administrative details , 250® 
 
 mental powers 2509 
 
 expert 2510 
 
 (1) what facts are added to known basis of inference 2511 
 
 inferences and conclusions 2512 
 
 judgments 2513 
 
 ( 2 ) what standards are being applied by the witness 25 14 
 
 ordinary observer 2514 
 
 skilled observer or expert 2515 
 
 Administrative details as to testing inferences 2516 
 
 when tests are applied 2516 
 
 general range of cross-examination 2517 
 
 examination as to credit 2518 
 
 hypothetical question 2519 
 
 Probative force of inferences from observation 2520 
 
 attack at stage of rebuttal 2520 
 
 physical condition 2521 
 
 basis disproved 2522 
 
 contradiction by other witness 2523 
 
 Probative force of ' judgments 2524 
 
 how enhanced 2524 
 
 corroborative facts 2525 
 
 action upon judgment 2526 
 
 facts added to known basis of inference 2527 
 
 standard treatises 2528 
 
 adoption of text-book statement by expert 2529 
 
 refreshing memory 2530 
 
 treatise not evidence 2531 
 
 administrative details 2532 
 
 reasoning explained 2533 
 
 superiority of qualifications 2534 
 
 how tested on cross-examination 2535 
 
 qualifications of expert 25.35 
 
 use of 6tandard treatises 2536 
 
 contradictory position of authorities relied upon by op- 
 posing expert 2537 
 
 eliciting special knowledge 2538 
 
 formulating intelligible cross interrogatories 2539 
 
 reasoning of opposing expert 2540 
 
 attack at stage of rebuttal 2541 
 
 contradictory statements by witness 2542 
 
 establishing another explanation 2543 
 
 lack of proper qualifications in opposing expert 2544 
 
 showing imfirmative mental state of skilled witness 2545 
 
 bias 2545 
 
 use of standard text books 2546 
 
Contents. lxxv 
 
 SECTION. 
 
 Use of standard treatises 2547 
 
 science and the " hearsay " rule 2548 
 
 deliberative facts 2549 
 
 testing probative value 2550 
 
 proponent 2550 
 
 Weight of inferences 2551 
 
 a question for the jury 256 1 
 
 advisory position assigned to expert 2552 
 
 a crucial test of the juridical value of the jury itself 2553 
 
 fate of hypothetically stated facts 2554 
 
 a necessary caution 2555 
 
 no arbitrary tests 2556 
 
 administrative details 2557 
 
 judicial formularies improper as tests 2557 
 
 court should not assume correctness of any particular 
 
 set of -witnesses. 2558 
 
 use of reason essential and sufficient 2559 
 
 canons of reasonableness 2560 
 
 ( 1 ) jury should follow uncontradicted expert in a 
 matter about which they know nothing 2560 
 
 (2) of two rational views the jury are entitled 
 
 to choose 2561 
 
 (3) jury cannot follow a discredited and untrust- 
 worthy minority 2562 
 
 comparison between inferences from observation and reasoning 
 
 from assumptions 2563 
 
 inferences not secondary 2564 
 
 forensic advantage of judgments 2565 
 
 superiority of inferences 2566 
 
 ( 1 ) observed phenomena cannot be placed before expert 
 
 in their entirety 2566 
 
 (2) an act of pure reasoning lacks the warmth and 
 and intimacy of immediate connection with original 
 phenomena 2567 
 
 General value of expert evidence 2568 
 
 the field of conjecture 2568< 
 
 faulty methods of selection 2569 
 
 selection by the court 2570 
 
 judicial comment 2571 
 
 unfavorable 2571 
 
 issues involving mental conditions 2572 
 
 favorable 2573 
 
 vi 
 
lxxvi Contents. 
 
 VOLUME IV. 
 
 CHAPTER XXXV. 
 
 Unsworn Statements; Independent Relevancy. section. 
 
 Hearsay rule a3 a distinctive aiLomaly 2574 
 
 reasons for the anomaly 2575 
 
 ( 1 ) the rights of a litigant 2575 
 
 ( 2 ) argument proves too much 2576 
 
 ( 3 ) false remedy proposed 2577 
 
 scope of the anomaly 2578 
 
 a narrow field 2579 
 
 a. futile distinction 2580 
 
 Independent relevancy of unsworn statements 2581 
 
 meaning of res gestae 2581 
 
 a phase of doubtful signification 2581 
 
 English view of meaning .• 2582 
 
 American view of meaning 2583 
 
 no implication of action 2584 
 
 contemporaneousness not demanded 25'85- 
 
 contiguity, intimate relation etc. excused 2586 
 
 partial explanations 2587 
 
 distinct criminal offences 2588 
 
 assault 2589 
 
 homicide 2590 
 
 larceny 2591 
 
 dissimilar offences 2592 
 
 extrajudicial statements part of the res gestae 2593 
 
 eonstitutent facts 2594 
 
 existence of statement itself 2595 
 
 evidence is primary 2596 
 
 declarations of by-standers 2597 
 
 agency 259® 
 
 bailment 2599 
 
 claim 2600 
 
 narrative incompetent 2601 
 
 real estate 2602 
 
 boundaries 2603 
 
 form of claim 2604 
 
 objective relevancy 2605 
 
 possession necessary 2606 
 
 possession by tenants and other holders 2607 
 
 effect of substantive law on question of possession. 2608 
 
 personal property 2609 
 
 claimer and disclaimer in relation to creditors. . . . 2610 
 
 confusion with res gestae as evidence of facts asserted 2611 
 
 contract 2612 
 
 letters, telegrams, etc 2613 
 
 entire correspondence required 2614 
 
 period of res gestae 2615 
 
Contents. lxxvii 
 
 Independent relevancy of unsworn statements — Continued. 
 
 extrajudicial statements part of the res gestm — Continued. 
 
 contract — Continued. section. 
 
 statements by agents, etc 2616 
 
 post res gestae statements 2617 
 
 demand 2618 
 
 denial 2619 
 
 disclaimer 2620 
 
 libel and slander 2621 
 
 revocation 2622 
 
 sales 2623 
 
 extrajudicial statements as probative facts 2624 
 
 bodily sensation 2625 
 
 form of statement 2626 
 
 articulate 2626 
 
 inarticulate 2627 
 
 inference excluded 2628 
 
 narrative excluded 2629 
 
 confusion with the res gestae rule 2630 
 
 not an exception to the rule against hearsay 2631 
 
 who are competent as declarants 2632 
 
 declarant may be a party 2633 
 
 weight of the evidence 2634 
 
 statements to physician 2635 
 
 administrative details 2636 
 
 identification 2637 
 
 mental condition 2638' 
 
 a wide range permitted 2639 
 
 capacity for resistance 2640 
 
 mental weakness 2641' 
 
 other modes of proof 2642 
 
 mental states 2643 
 
 limitations upon admissibility 2644 
 
 minor mental states 2645 
 
 relevancy of mental state required 2646 
 
 act of bankruptcy 2647 
 
 assent or dissent 2648 
 
 belief 2649 
 
 duress 2650 
 
 fear 2651 
 
 good and bad faith 2652 
 
 impressions 2653 
 
 intent and intention 2654 
 
 when statements are received 2655 
 
 wide scope conceded 2656 
 
 conditions of admissibility 2657 
 
 criminal cases 2658 
 
 declaration may be self-serving 2659 
 
 narrative excluded 2660 
 
 res gestw rule distinguished 2661 ; 
 
 illustrative instances 2662 
 
 abandonment 2663 
 
 delivery 2664 
 
 domicil 2665 
 
lxxviii Contexts. 
 
 Independent relevancy of unsworn statements — Continued, 
 extrajudicial statements as probative facts — Continued. 
 
 mental states — Continued. section. 
 
 knowledge 2666 
 
 statements to a 2666 
 
 statements by a 2667 
 
 general knowledge 2668 
 
 knowledge by others 2669 
 
 reputation 2670 
 
 love and friendship 2671 
 
 malice 2672 
 
 motive or purpose 2673 
 
 provocation 2674 
 
 reasons assigned 2675 
 
 undue influence 2676 
 
 willingness, readiness, etc 2677 
 
 moral qualities 2678 
 
 extrajudicial statements as deliberative facts 2679 
 
 bias 2680 
 
 corroboration 2681 
 
 fixing attention or refreshing memory 2682 
 
 good and bad faith , 2683 
 
 identifying a date 2684 
 
 impeachment 2685 
 
 form of statement 2686 
 
 oral 2686 
 
 written 2687 
 
 reputation 26'88 
 
 injuries to reputation 2689 
 
 determination of damages 2690 
 
 similar rumors 2691 
 
 judicial assumptions as to reputation 2692 
 
 reputation as a probative fact 2693 
 
 administrative details 2694 
 
 an obvious danger 2694 
 
 objective relevancy 2695 
 
 subjective relevancy 2696 
 
 reporting evidence must be competent 2697 
 
 CHAPTER XXXVI. 
 
 Unsworn Statements; Hearsay. 
 
 Unsworn statements 2698 
 
 hearsay 269S 
 
 antiquity of rule 2699 
 
 Hearsay rule stated 2700 
 
 a controlling rule 2701 
 
 an absolute bar 2702 
 
 confessions by third persons 2703 
 
 statutory exceptions 2704 
 
 hearsay memoranda refreshing memory 2705 
 
 implied hearsay 2706 
 
 knowledge based on reputation 2707 
 
Contents. lxxix 
 
 Hearsay rule stated — Continued. section. 
 
 testimony based on hearsay 2708 
 
 statements of results 2709 
 
 administrative details 2710 
 
 Seasons for hearsay rule 2711 
 
 ( 1 ) inherent weakness 2711 
 
 lack of oath 2712 
 
 absence of cross-examination 2713 
 
 affidavits, depositions, etc 2714 
 
 effect of prior cross-examination 27 15 
 
 nature of tribunal 2716 
 
 coroner's inquest 2717 
 
 justices' courts 2718 
 
 (2) distrust of the jury 2719 
 
 hearsay in other judicial systems 2720 
 
 Scope of hearsay rule 2721 
 
 no application to irrelevant statements 2722 
 
 administrative details 2723 
 
 incomplete statements 2724 
 
 Relevancy of hearsay 2725 
 
 probative force of statements 2726 
 
 objective relevancy 2727 
 
 disconnected statements 2728 
 
 agency must be shown 2729 
 
 privity must be shown 2730 
 
 subjective relevancy 2731 
 
 adequate knowledge 2732 
 
 absence of controlling motive to misrepresent 2733 
 
 self-interest 2734 
 
 statements by agents 2735 
 
 statements by privies 2736 
 
 Form of hearsay 2737 
 
 composite hearsay 2738 
 
 reputation 2739 
 
 when admissible 2739 
 
 administrative position of reputation 2740 
 
 matter of public and general interest 2741 
 
 subjective relevancy 2742 
 
 public rights customs 2743 
 
 boundaries 2744 
 
 personal facts affecting community 2475 
 
 reputation 2746 
 
 when not admissible 2746 
 
 facts of personal interest 2747 
 
 financial condition 2748 
 
 mental condition 2749 
 
 physical condition 2750 
 
 relations of a business nature 2751 
 
 rumor 2752 
 
 tradition 2753 
 
 printed 2754 
 
 independent relevancy 2755 
 
Ixxx Contents. 
 
 Form of hearsay — Continued. section. 
 
 written 2756 
 
 self-serving statements 2757 
 
 judicial statements 2758 
 
 affidavits pleadings 2758 
 
 mercantile hearsay 2759 
 
 official statements 2760 
 
 admissions 2761 
 
 CHAPTER XXXVII. 
 Hearsay as Secondary Evidence; Declarations against Interest. 
 
 Hearsay as secondary evidence 2762 
 
 sporadic attempts at such a general rule 2763 
 
 exceptions to hearsay rule _ 2764 
 
 subordinate exceptions 2765 
 
 statements of testator regarding contents of lost will. . 2766 
 
 other enumerations 2767 
 
 modern modifications 2768 
 
 Declarations against interest 2769 
 
 rule stated 2769 
 
 distinguished from admissions 2770 
 
 administrative requirements 2771 
 
 necessity 2771 
 
 subjective relevancy 2772 
 
 knowledge 2772 
 
 absence of controlling motive to misrepresent 2773 
 
 nature of interest 2774 
 
 pecuniary 2774 
 
 proprietory 2775 
 
 personal property 2776 
 
 real estate 2777 
 
 boundaries 2778 
 
 interest other than pecuniary or proprietory 2779 
 
 legal liability 2780 
 
 general requirements 2781 
 
 interest must be actual 2782 
 
 interest must be known to declarant 2783 
 
 interest must be the substantial one 2784 
 
 form of statement 2785 
 
 oral 2785 
 
 effect of substantive law 2786 
 
 written 2787 
 
 scope of declaration 2788 
 
 probative force 2789 
 
 CHAPTER XXXVIII. 
 Declarations as to Matters of Public and General Interest. 
 
 Delarations as to matters of public and general interest 2790 
 
 Administrative requirements 2791 
 
 necessity 2791 
 
 subjective relevancy 2792 
 
Contents. lxxxi 
 
 Administrative requirements — Continued. 
 
 subjective relevancy — Continued. section. 
 
 adequate knowledge 2792 
 
 boundaries 2793 
 
 actual knowledge required 2794 
 
 judicial assumptions as to knowledge of owners .... 2795 
 judicial assumptions as to knowledge of adjoining 
 
 owners 2796 
 
 judicial assumptions as to knowledge of surveyors, 
 
 chain-bearers 2797 
 
 absence of controlling motive to misrepresent 2798 
 
 self-serving statements . . . . 2799 
 
 Form of declaration 2800 
 
 Scope of rule 2801 
 
 topics excluded 2802 
 
 topics included 2803 
 
 private boundaries 2804 
 
 ancient boundaries 2804 
 
 coincidence or relation to public boundaries 2805 
 
 a distinct step 2806 
 
 facts incidentally stated 2807 
 
 principle of the res ycstce 2808 
 
 statements of claim distinguished 2809 
 
 declarations rejected 2810 
 
 CHAPTER XXXIX. 
 
 Dying Declarations. 
 
 Hearsay as secondary evidence 2811 
 
 declarations 2811 
 
 Administrative requirements 2812 
 
 necessity 2812 
 
 relevancy 2813 
 
 subjective relevancy 2814 
 
 adequate knowledge 2814 
 
 absence of controlling motive to misrepresent 2815 
 
 self-serving declarations 2816 
 
 self-disserving statements 2817 
 
 friendship to others 2818 
 
 modern scepticism 2819 
 
 completeness demanded 2820 
 
 exact words not essential 2821 
 
 rule strictly construed 2822 
 
 civil cases 2823 
 
 criminal cases other than homicide 2824 
 
 indictment must be for death of declarant 2825 
 
 uncertainty fatal 2826 
 
 who are competent as declarants 2827 
 
 administrative assumptions 2828 
 
 function of the court 2829 
 
 action of appellate courts 2830 
 
 Expectation of death 2831 
 
 administrative details 2832 
 
Ixxxii Contents. 
 
 Expectation of death — Continued. section. 
 
 feelings of others 2833 
 
 subsequent occurrences not material 2834 
 
 modes of proof 2835 
 
 ( 1 ) conduct of declarant 2-836 
 
 (2) declarations of deceased 2837 
 
 administraative details 2838 
 
 (3) inference from physical conditions 2839 
 
 ( 4 ) statements made to deceased 2840 
 
 Form of declaration 2841 
 
 oral 2842 . 
 
 signs 2S43 
 
 written 2844 
 
 best evidence rule applies 2845 
 
 memorandum to refresh memory 2846 
 
 Number of dying declarations 2S47 
 
 Privilege of husband and wife 2848 
 
 Scope of declaration 2849 
 
 emotion excluded 2850 
 
 identification 2851 
 
 inference 2853 
 
 summarizing minute phenomena 2853 
 
 psychological facts 2854 
 
 a fair test 2855 
 
 preliminary facts 2856 
 
 administrative details 2S57 
 
 Weight for the jury 2858 
 
 a discredited rule 2850 
 
 lack of fairness 2860 
 
 distraction of declarant's mind 2861 
 
 wrong emphasis 2S62 
 
 corroboration 2863 
 
 impeachment 2864 
 
 inconsistent statements 2865 
 
 moral character 2866 
 
 mental state of declarant 2S67 
 
 Rule constitutional 2869 
 
 Varying estimates of value 2869 
 
 CHAPTER XL. 
 
 Hearsay as Secondary Evidence; Declarations in Course of Business. 
 
 Declarations in course of business 2S70 
 
 English rule 2871 
 
 duty to make record 2872 
 
 duty must not be self-imposed 2873 
 
 collateral facts 2874 
 
 time essential 2875 
 
 American rule 2876 
 
 collateral facts 2877 
 
 Administrative requirements 2S7S 
 
 necessity 2878 
 
 absence 2879 
 
 death 2880 
 
Contents. lxxxiii 
 
 Administrative requirements — Continued. 
 
 necessity — Continued. section. 
 
 practical conditions of business 2881 
 
 sickness 2888 
 
 relevancy 2883 
 
 subjective relevancy 2884 
 
 adequate knowledge 2884 
 
 joint knowledge 2885 
 
 production of all witnesses 2886 
 
 books best evidence 2887 
 
 absence of controlling motive to misrepresent 2888 
 
 declarations may be self-serving 2889 
 
 contemporaneousness required 2890 
 
 Greenleaf's view 2801 
 
 psychology of book-keeping 2892 
 
 regularity 2893 
 
 element of duty essential 2894 
 
 Declarations in course of business distinguished from memoranda. . . 2895 
 
 Fact of non-entry 2896 
 
 Form of statement 2897 
 
 oral 2897 
 
 written '. 2898 
 
 entries in account books 2899 
 
 proof of entry 2900 
 
 original must be produced 2901 
 
 endorsements 2902 
 
 memoranda 2903 
 
 reports 2904 
 
 Nature of occupation 2905 
 
 commercial 2906 
 
 mechanical 2907 
 
 professional 2908 
 
 service of process 2909 
 
 CHAPTER XLI. 
 Hearsay as Secondary Evidence; Declarations concerning Pedigree. 
 
 The pedigree exception 2910 
 
 Rule stated 2911 
 
 unsworn statements as to pedigree 2911 
 
 Administrative requirements 2912 
 
 necessity 2912 
 
 general and special 2912 
 
 special 2913 
 
 relevancy 2914 
 
 subjective relevancy 2915 
 
 adequate knowledge 2915 
 
 incompetent declarants 2916 
 
 reporting witnesses 2917 
 
 absence of controlling motive to misrepresent 2918 
 
 lis mota 2919 
 
 administrative value of requirement that pedigree state- 
 ment should have been made ante litem motam 2920 
 
Ixxxiv Contents. 
 
 Administrative requirements — Continued. section. 
 
 contemporaneousness not demanded . . . 2981 
 
 issue must be one of genealogy 2922 
 
 a contrary view 2923 
 
 pauper settlements 2924 
 
 declarations of pauper 2924 
 
 unsworn declarations by third person 2925 
 
 circumstantial evidence 2926 
 
 statement must be one of fact 2927 
 
 Scope of rule 2928 
 
 facts directly asserted ._ 2928 
 
 age 2929 
 
 birth 2930 
 
 death 2931 
 
 marriage 2932 
 
 relationship 2933 
 
 direct ascending 2934 
 
 direct descending 2935 
 
 collateral descending 2936 
 
 relationship of declarant 2937 
 
 other relationships 2938 
 
 facts incidentally asserted 2939 
 
 Form of statement 2940 
 
 composite 2941 
 
 a futile distinction 2941 
 
 reputation 2942 
 
 necessity 2943 
 
 subjective relevancy 2944 
 
 adequate knowledge 2945 
 
 absence of controlling motive to misrepresent .... 2946 
 
 birth, marriage, death, etc 2947 
 
 relationship and minor circumstances 2948 
 
 tradition 2949 
 
 individual 2950 
 
 written 2951 
 
 Circumstantial proof of pedigree 2952 
 
 Hearsay as circumstantial evidence in case of pedigree 2953 
 
 Eecords as circumstantial evidence in case of pedigree 2954 
 
 Proof by acquiescence in case of pedigree 2955 
 
 subjective relevancy 2956 
 
 adequate knowledge 2966 
 
 absence of controlling motive to misrepresent 2957 
 
 form of statement 2958 
 
 administrative details 2959 
 
 Ancient facts in case of pedigree 2960 
 
 family history 2961 
 
 conduct in family 2962 
 
 possession 2963 
 
 corroboration 2964 
 
 proprietors' record 2965 
 
 Animal pedigree 2966 
 
Contents. lxxxv 
 
 SECTION. 
 
 Scope of circumstantial evidence in case of pedigree 2967 
 
 age 2967 
 
 administrative relaxation 2968 
 
 hearsay 2969 
 
 death 2970 
 
 hearsay 2971 
 
 reputation 2972 
 
 reports 2973 
 
 marriage 2974 
 
 hearsay 2975 
 
 reputation 2976 
 
 criminal cases 2977 
 
 names ' 2978 
 
 race 2979 
 
 relationship 2980 
 
 status 2981 
 
 CHAPTER XLII. 
 
 Unsworn Statements as Primary Evidence; Res Gestae. 
 
 Hearsay as primary evidence 2982 
 
 spontaneity 2982 
 
 Relevancy of spontaneity 2983 
 
 Declarations part of a fact in the res gestce 2984 
 
 res gestce a term of protean meaning 2985 
 
 other definitions 2986 
 
 Lord Cockburn 2986 
 
 position of non-actor 2987 
 
 supplementing 2988 
 
 testing 2989 
 
 independent relevancy compared 2990 
 
 administrative requirements 2991 
 
 statement must be contemporaneous 2991 
 
 narrative excluded 2992 
 
 administrative requirements 2993 
 
 statement must characterize res gestw fact 2993 
 
 responsibility for injuring 2994 
 
 fact characterized must be a material one in the res gestce. 299-5 
 
 details of administration 2996 
 
 The " principle of the res gestw " 2997 
 
 Greenleaf's view 2998 
 
 a, sweeping exception to hearsay 2999 
 
 force of contemporaneous incorporation 3000 
 
 unsworn statements independently relevant 3001 
 
 reasons assigned by Greenleaf 3002 
 
 relation to rule against hearsay 3003 
 
 The modern view 3004 
 
 a typical instance 3006 
 
 Insurance Company v. Moseley ■ 3005 
 
 administrative details 3006 
 
 elapsed time 3007 
 
 indefinite periods 3008 
 
 definite periods 3009 
 
Ixxxvi Contents. 
 
 The modern view — Continued. 
 
 administrative details — Continued. section. 
 
 form of statement 3010 
 
 consciousness 301 1 
 
 lack of motive to misstate 3012 
 
 permanence of impression 3013 
 
 excitement or its absence 3014 
 
 spectators 3015 
 
 intervening occurrences 3016 
 
 onus on proponent 3017 
 
 medical assistance 3018 
 
 removal from locus 3019 
 
 physical state or condition 3020 
 
 Narrative excluded 3021 
 
 admissions by agents 3022 
 
 spontaneous statements by agents 3023 
 
 different meaning of res gestw 3024 
 
 remoteness 3025 
 
 Range of spontaneous statements 3026 
 
 probative facts preceding the res geslw 3026 
 
 probative facts subsequent to the res gestw 3027 
 
 criminal cases 3028 
 
 explanations 3029 
 
 homicide 3030 
 
 larceny 3031 
 
 poisoning 3032 
 
 accusation in travail 3033 
 
 declarations of complainant in rape 3034 • 
 
 English rule 3035 
 
 American rule 3036 
 
 independent relevancy 3037 
 
 corroboration 3037 
 
 details rejected 3038 
 
 details admitted 3039 
 
 failure to complain 3040 
 
 statement must be voluntary 3041 
 
 the element of time 3042 
 
 independent relevancy 3042 
 
 spontaneous utterances 3043 
 
 declarations of owner on discovering larceny, etc 3044 
 
 personal injuries 3045 
 
 employment of element of inference or reasoning not fatal 
 
 to admissibility 3046 
 
 statements to physicians 3047 
 
 Probative weight of spontaneous statements 3048 
 
 statements to phj sicans 3049 
 
 Who are competent declarants 3050 
 
Contexts. lxxxvii 
 
 CHAPTER XLIII. 
 
 Hearsay as Primary Evidence, Regularity. section. 
 
 Shop book rule 3061 
 
 English rule 3062 
 
 later developments 3053 
 
 American modifications 3054 
 
 New England states 3054 
 
 New York, New Jersey, etc 3055 
 
 Is the evidence primary or secondary? 3056 
 
 " principle of the res gestce " 3057 
 
 later developments 3058 
 
 secondary stage : 3059 
 
 memoranda to refresh recollection 3O60 
 
 memoranda as secondary evidence 3061 
 
 third stage 3062 
 
 " principal of the res gestce " 3063 
 
 Administrative requirements 3064 
 
 necessity 3065 
 
 no clerk 3066 
 
 clerk unavailable 3067 
 
 the modern situation 3068 
 
 clerk deceased 3069 
 
 other unavailability of entrant , 3070 
 
 relevancy 8071 
 
 adequate knowledge 3071 
 
 books of account 3072 
 
 effect of contemporaneousness 3073 
 
 joint knowledge 3074 
 
 mixed entries 3075 
 
 absence of controlling motive to misrepresent 3076 
 
 contemporaneousness required 3077 
 
 length of permissible interval uncertain 3078 
 
 nature of business 3079 
 
 books must be those of charge not of discharge 3080 
 
 res gestae distinguished 3081 
 
 suppletory oath, preliminary proof, etc 3082 
 
 authentication by proof of handwriting 3083 
 
 proof by or against representatives 3084 
 
 books must be those of original entry 3085 
 
 temporary memoranda not required 3086 
 
 form of books 3087 
 
 cheque stubs 3088 
 
 collection registers 3089 
 
 time books 3090 
 
 memorandum books, diaries, etc 3091 
 
 form of entry 3092 
 
 dates 3092 
 
 lump charges 3093 
 
 separate sheets of paper 3094 
 
 completeness demanded 3095 
 
lxxxviii Contents. 
 
 Administrative requirements — Continued. section, 
 
 corroboration aliunde 3096 
 
 dealing with other customers 3097 
 
 delivery 3098 
 
 proof of delivery 3099 
 
 entry must be intelligible 3100 
 
 entry on book account must have been a routine one 3101 
 
 nature of occupation 3102 
 
 facts creating suspicion 3103 
 
 identity of book must be established 3104 
 
 material used 3105 
 
 original must be produced 3106 
 
 account books 3107 
 
 Scope of evidence 3108 
 
 collateral matter^ 3ll©9 
 
 credit 3110 
 
 strictness of proof 3>L11 
 
 nature of charges 3112 
 
 goods sold and delivered 3113 
 
 bulky articles 3114 
 
 charges prior to delivery 3115 
 
 loans and cash payments 3116 
 
 money limit 3117 
 
 limitation as to amount removed 3118 
 
 notes, bills receivable, etc 3119 
 
 services 3120 
 
 under account book rule 3121 
 
 board 3122 
 
 literary services 3123 
 
 public services 3124 
 
 use of animals 3d25 
 
 special contract 3126 
 
 admissibility of book entry 3127 
 
 damages 3128 
 
 independent relevancy 3129 
 
 trust relations 3130 
 
 sports, games, etc 313d' 
 
 wholesale dealings 3132 
 
 nature of occupation 3133 
 
 tradesmen and handicraftsmen 3133 
 
 modern modifications 3134 
 
 mechanics 3135 
 
 merchants and tradesmen 3136 
 
 professional men 3137 
 
 who may be charged 3138 
 
 alternative charges 3139 
 
 goods delivered or services rendered to third person 3140 
 
 rectifying mistakes 3141 
 
 persons jointly liable 3142 
 
 undisclosed principle 3143 
 
 Rule strictly enforced 3144 
 
 statutory changes 3145 
 
Contents. lxxxix 
 
 SECTION. 
 
 Weight 3146 
 
 impeachment of declarant 3147 
 
 impeachment of general character of book 3 148 
 
 Value of the principle of the shop-book rule 3149 
 
 CHAPTER XLIV. 
 Relevancy of Similar Occurrences; Uniformity of Nature. 
 
 Relevancy of similar occurrences 3150 
 
 uniformity of nature 3150 
 
 Preliminary observations 3151 
 
 rule an assignment of irrelevancy 3151 
 
 negligence 3152 
 
 true ground of rejection 3153 
 
 collateral issues 3154 
 
 two uniformities 3155 
 
 a descending scale 3156 
 
 unascertainable antecedents 3157 
 
 physical 3157 
 
 psychological 31158 
 
 a question of administration 3159 
 
 surprise, prejudice; etc 3160 
 
 secondary evidence 3161 
 
 Rules stated '. 3162 
 
 Administrative requirements 3163 
 
 necessity 3163 
 
 necessity at stage of rebuttal 3164 
 
 action of appellate courts 3165 
 
 Administrative requirements 3166 
 
 relevancy 3166 
 
 relevancy of similarity 3167 
 
 essentially similar occurrences 3168 
 
 experiments 3169 
 
 civil cases 3170 
 
 criminal cases 3171 
 
 function of administration 3172 
 
 province of jury 3173 
 
 varying phenomena 3174 
 
 similar accidents 3175 
 
 relevancy of dissimilarity 3176 
 
 natural induction 3177 
 
 method of agreement 3178 
 
 method of difference 3179 
 
 joint method of agreement and difference 3180 
 
 method of concomitant variations 3181 
 
 Inference other than similar occurrences 3182 
 
 capability ,. . 3183 
 
 causation 3183 
 
 mechanical devices 3184 
 
 change 3185 
 
 properties of matter 3186 
 
xc Contents. 
 
 SECTION. 
 
 Other uniformities than that of physical nature 3187 
 
 municipal law 3188 
 
 unity of management 3189 
 
 equipment 3189 
 
 operation 3190 
 
 locomotive fires 3191 
 
 successive steps in proof 3192 
 
 identified engines 3193 
 
 unidentified engines 3194 
 
 force of habit 3195 
 
 physical 3195 
 
 metaphysical 3196 
 
 position of habit in the law of evidence 3197 
 
 evidence of habit rejected 3198 
 
 animals 3199 
 
 when admissible 3200 
 
 necessity 3200 
 
 corroboration and rebuttal 3201 
 
 criminal cases 3202 
 
 relevancy 3203 
 
 criminal cases 3-204 
 
 independent relevancy 3205 
 
 knowledge 3206 
 
 CHAPTER XLV. 
 Relevancy of Similar Occurrences; Moral Uniformity. 
 
 Res inter alios 3207 
 
 a modern meaning 3207 
 
 civil cases _. 3208 
 
 negligence and due care 3209 
 
 criminal cases 3210 
 
 corpus delicti not provable by other occurrences 3211 
 
 administrative necessity 3212 
 
 Administrative requirements 3213 
 
 necessity 3213 
 
 absence of actual observers 3214 
 
 relevancy 3215 
 
 relevancy of similarity 3216 
 
 proof of mental state 3217 
 
 influence on conduct 3218 
 
 remoteness in time 3219 
 
 remoteness in causation 3220 
 
 mental state must be relevant 3221 
 
 intent and intention 3222 
 
 fraud 3223 
 
 offences against the person 3224 
 
 offences against property 3225 
 
 sexual offences 3226 
 
 social offences 3227 
 
 knowledge 1 3228 
 
 negligence 3229 
 
 notice 3230 
 
Contents. xci 
 
 Administrative requirements — Continued, 
 relevancy of similarity — Continued, 
 proof of mental state — Continued. 
 
 knowledge — Continued. section. 
 
 criminal cases 3231 
 
 embezzlement 3232 
 
 false pretences 3233 
 
 forged instruments 3234 
 
 illegal sale of liquor 3235 
 
 larceny 3236 
 
 receiving stolen goods 3237 
 
 other felonies 3238 
 
 malice 3239 
 
 minor mental state 3240 
 
 claim 3240 
 
 minor mental states other than claim 3241 
 
 motive 3242 
 
 unity of design 3243 
 
 common purpose 3244 
 
 continuous purpose 3245 
 
 relevancy of dissimilarity 3246 
 
 psychological induction 3247 
 
 Inferences other than conduct 3248 
 
 constituent facts 3249 
 
 civil cases 3250 
 
 negligence 3251 
 
 criminal cases 3252 
 
 contradiction 3253 
 
 corroboration 3254 
 
 explanation 3255 
 
 identification of doer of act 3256 
 
 essential conditions for conduct 3256 
 
 capability 3257 
 
 knowledge 3258 
 
 opportunity 3259 
 
 skill 3260 
 
 possibility 3261 
 
 animals 3261 
 
 probative facts 3262 
 
 accuracy, habitual conduct, etc 3263 
 
 change 3264 
 
 CHAPTER XL VI. 
 Moral Uniformity; Character. 
 
 Inference of conduct from character 3265 
 
 inference not a probative one 3266 
 
 rule an assignment of irrelevancy 3267 
 
 Necessity 3268 
 
 criminal cases 3269 
 
 Relevancy 3270 
 
 criminal cases 3271 
 
 psychological states , 3272 
 
 vii 
 
xcii Contents. 
 
 SECTION. 
 
 Rule stated' 3273 
 
 civil cases 3273 
 
 exclusion absolute 3274 
 
 criminal eases 3275 
 
 exceptions to rule 3276 
 
 exclusion conditional 3277 
 
 a deliberative inference 3278 
 
 opportunity for prosecution 3279 
 
 quasi-criminal cases 3280 
 
 actions for penalties 3280 
 
 criminal charges in civil cases 3281 
 
 evidence of character admitted 3281 
 
 evidence of character rejected 3282 
 
 injuries to the person 3283 
 
 injuries to reputation 3284 
 
 immoral conduct not punished as a crime 3285 
 
 administrative details 3286 
 
 physical or mental impairment 3287 
 
 trait must be relevant 3288 
 
 adultery 3289 
 
 arson 3290 
 
 assault 3291 
 
 burglary 3292 
 
 carrying concealed weapons 3293 
 
 fraud 3294 
 
 homicide 3295 
 
 illegal sale of liquor 3296 
 
 indecent assault 3297 
 
 infanticide 3298 
 
 larceny 3299 
 
 libel 3300 
 
 malicious mischief 3301 
 
 perjury 3302 
 
 rape 3303 
 
 receiving stolen goods 3304 
 
 seduction 3305 
 
 train wrecking 3306 
 
 Inferences other than conduct 3307 
 
 independent relevancy 3307 
 
 character a constituent fact 3308 
 
 character a probative fact 3309 
 
 Proof of character 3310 
 
 " reputation is character " 3310 
 
 scope of rule 3311 
 
 application 3311 
 
 a negative fact 3312 
 
 stage of application 3313 
 
 use of rumors 3314 
 
 what witnesses are qualified 3315 
 
 ( 1 ) adequate knowledge 3315 
 
 administrative practice upon cross-examination 3316 
 
Contents. xciii 
 
 Proof of character — Continued. 
 
 " reputation is character " — Continued. 
 
 what witnesses are qualified — Continued. section. 
 
 action of appellate court 3317 
 
 knowledge of the community 3318 
 
 limited communities 3319 
 
 place of trial 3320 
 
 reputation at a, former residence 3321 
 
 practice on cross-examination 3322 
 
 practice on rebuttal 3323 
 
 administrative details 3324 
 
 action of appellate court 3325 
 
 number of witnesses 3326 
 
 remoteness in time 3327 
 
 a question of administration 3328 
 
 (2) absence of controlling motive to misrepresent 3329 
 
 initiation of the lis mota 3330 
 
 animals 3331 
 
 probative force 3332 
 
 reputation 3332 
 
 an unreliable test 3333 
 
 a decided anachronism 3334 
 
 an administrative advantage 3335 
 
 how tested 3336 
 
 contradictory statement 3337 
 
 inconsistent statements 3338 
 
 rebuttal ' 3339 
 
 proof other than by reputation 3340 
 
 inference by observers 3340 
 
 illustrative occurrences 3341 
 
 administrative considerations 3342 
 
 peculiar facts 3343 
 
 good character 3343 
 
 bad character 3344 
 
 administrative considerations 3345 
 
 animals 3346 
 
 illustrative occurrences 3346 
 
 inferences by observers 3347 
 
 administrative considerations 3348 
 
 Weight 3349 
 
 judicial truisms 3350 
 
 the defendant's privilege when the res gestce are directly proved. 3351 
 
 scope of defendant's privilege 3352 
 
 requirement of quantum of evidence unscientific 3.353 
 
INTRODUCTION. 
 
 The appearance of another treatise on the Law of Evidence 
 may seem, in view of the many excellent works on the subject 
 already before the profession, to warrant a word or two by way of 
 explanation. It is hoped that so far as justification may be 
 required, it is to be found in the fact that the present treatise 
 approaches the subject from what is practically, as related to other 
 works on the same subject, a different viewpoint. In a word, it 
 considers the adjective law of evidence rather more fully from 
 the standpoint of administration than from that of procedure, as 
 thee© terms are defined later on in this chapter (p. cxvi). The 
 difference in treatment, however, will be found to be one of 
 stress and emphasis, what should be regarded as of primary or 
 secondary importance, rather than as indicating a clearly marked 
 line of distinction between two great component factors in this 
 branch of the law. It has been customary to treat the law of 
 evidence as consisting, almost exclusively, of certain more or less 
 fixed rules of procedure having the force of law. Certainly, there 
 is ample warrant for holding that there are such rules and that 
 they are also of great importance in connection with the subject. 
 This does not admit of question. It may even be conceded that 
 much statutory legislation, especially by way of codification, has 
 produced an overwhelming influence in the element of substantive 
 or procedural law. 
 
 Yet it is quite possible to go too far in this direction. Substan- 
 tive law, statutory or judge-made, establishing and defining the 
 right or liability involved in the action, is constantly and very 
 properly mistress of the situation in which the servient or an- 
 cillary law of evidence acts confessedly as a handmaiden. To a 
 certain extent, it is essential and desirable that the positive law 
 should have a further influence. Rules of procedure necessarily 
 contribute a substructure and an element of firmness and fixity 
 which is of great value. All portions of the tribunal .are distinctly 
 conscious of regulations such as these. In accordance with the 
 popular will in various jurisdictions it is required that such 
 
xcvi Introduction. 
 
 rules be controlling on the action of its courts. It needs, however, 
 only a cursory view of the actual work of a trial employing the 
 English law of evidence to convince the observer that an element 
 other than the procedural is constantly operative and frequently 
 controlling. At all points, this influence is incessantly felt. The 
 presence of tradition, idealism, prescribed objective, necessity for 
 complying with certain rational requirements lies, entirely undis- 
 guised, on .the very surface. With the presiding judge resides a 
 power without the continued exercise of which the proceedings 
 must soon stop. It is not above the law. Arbitrary discretion has 
 no place in a modern judicial system. Equally with the most 
 rigid rule of procedure, the power of the presiding judge to 
 which reference is being made is directly conferred by the posi- 
 tive law. It is an executive right implied in the delegation to 
 certain persons constituting a branch of the government of the 
 judicial power of a sovereign state. As part of the law of the 
 court's being, the social mandate is a purely legal one essential to 
 the highest social usefulness of the people's judiciary in giving 
 the community the benefits, so far as humanly possible, of speedy, 
 complete and exact justice. Herein resides the element of flexi- 
 bility, adaptability to equitable or ethical considerations, in ju- 
 dicial proceedings. It is clearly broader than any possible scope 
 of the law of evidence. It is manifested in all forms of judicial 
 action. For the presiding judge, it is, as it were, his function 
 of functions, the supreme power permeated with and obedient to 
 legal reasoning by which the entire official conduct of a presiding 
 magistrate is properly regulated. 
 
 Necessarily, the procedural rules of evidence, these proposi- 
 tions of subs'tantive law, come under review of this 'all-pervasive 
 judicial power. It must of necessity continue to be so. When, 
 for example, a particular piece of evidence is tendered, it is 
 essential to its reception that the court should be able to per- 
 ceive that some proposition in the right or liability involved in 
 the action might be, in some degree of remoteness, proved or 
 disproved by it. Should a fact be presented upon which the 
 jury could not rationally act, the court's duty to enforce the 
 rules of sound reasoning requires its rejection. As other situa- 
 tions of fact present themselves, the presiding judge must deter- 
 mine what procedural rule, if any, is properly applicable and, if 
 more than one, in what proportion relative force and effect should 
 
An Incomplete View. xcvii 
 
 be accorded to each. Should these rules of procedure conflict, it 
 is for the judge, under the rules of law and certain established 
 canons of administration, to decide what course is indicated by 
 the opposing rights of the parties. Such, in brief, is the nature 
 of the judicial power which, operating under and through the 
 rules of law, including those of evidence, confers, as has been 
 said, an element of flexibility in the operation of these procedural 
 rules. This function of the judge recognizes the social, as dis- 
 tinguished from the personal, interests in litigation. Its object is 
 to make the administration of law efficient in the attainment of 
 justice. To it, it has seemed appropriate to apply the term 
 Administration. 
 
 Whatever may be deemed the proper relative importance of 
 these two elements in the law of evidence, the rigidity of pro- 
 cedural law or the flexibility of legal or rational administration — 
 as to which some observations have been made in the preface — 
 it is believed that to treat the law of evidence entirely from the 
 standpoint of procedural rules, omitting any adequate reference 
 to the constantly moulding and, at times, dominating influence 
 of judicial administration, is to present such an inadequate view 
 of the subject as results in unfortunate consequences of no slight 
 juridical importance. To venture upon simile by way of illustra- 
 tion, it- seems scarcely too much to say, with all deference to 
 opposing views, that to attempt formulating the modern English 
 law of evidence without making due allowance for the element 
 of judicial administration would be not unlike an effort to state 
 the nature of a man instinct with life and the power of growth, 
 vitalized by aspiration and purpose, in terms merely of his bones. 
 As constituting the foundation and form-creating portion of the 
 entire organism, it is not doubtful that euch a rigid framework is 
 of the highest value. Without its very rigidity and fixedness a 
 soft and flaccid mass incapable of high achievement might well 
 result. Even the growth of this rigid framework, at its various 
 stages of development, embryonic or rudimentary, may well be 
 deemed worthy of attention. As a study, it may become highly 
 fascinating. There is, however, the obvious danger that in thus 
 describing a man other important elements of his organism as a 
 whole, the spirit by which he is actuated, the motives which gov- 
 ern his conduct, his latent or half-developed powers, the direc- 
 tion of his future growth and even the true nature of his present 
 work may be obscured by directing exclusive attention to his 
 
xeviii Introduction. 
 
 anatomy. An inference may even arise in the mind of an 
 observer that, as such value is to be found in the skeleton, (the more 
 completely nerves, muscles and tendons can be replaced by bones, 
 the better will be the work which the organism can accomplish. 
 Thus, a partial ossification of the entire structure may supervene. 
 
 The order of treatment observed in the present work is, as 
 seems natural, determined by the extent to which the operation 
 of this judicial function of administration is present in the prac- 
 tical handling of various branches of the law of evidence. The 
 first volume (§§ 1-929) defines administration itself (§§ 174 
 et seq.), states the canons under which it is rationally exercised 
 (§§ 332—569), the general relations between matters of fact and 
 rules of law (§§ 6 ; 5— 162) as these are understood in English 
 jurisprudence and, also, the varied functions of judge and jury, 
 not only in respect to the distinction between law and fact but 
 to the proper position of each branch of the tribunal to the other 
 as these are modified or controlled by the function of judicial 
 administration itself (§i§ 163—331). Certain definitions, a dan- 
 gerous task, but one essential to any satisfactory precision in state- 
 ment or understanding have been undertaken in the opening chap- 
 ters (§§ H62). Its final chapters seem properly appropri- 
 ated to a limited consideration of the vast subject of Knowledge, 
 divided, for convenience, into Judicial (§§ 570^690), Common 
 (§§ 691-86-9') .and Special (§§ 870-929). These furnish at once 
 both an excellent example of the practical working of judicial 
 administration and an indispensable element of that sound reason- 
 ing which is both a test of administration and for the subject- 
 matter of evidence properly to be affected by procedural rules. 
 
 The second volume, following out the same line of treatment, 
 discusses the branches of the law of evidence in which the ele- 
 ment of administration, always unavoidably present, is least 
 operative. From the nature of the situation, it is clear that this 
 is precisely the same thing as saying that in these connections 
 the influence of substantive law, rules of procedure, legislative or 
 judicial efforts to control the operation of the reasoning faculty, 
 are most strongly influential. This is the citadel, as it were, of 
 Substantive Law in the law of evidence. Here the formal pro- 
 cedure of Norman and sub-Norman times (§§ 269^-271) and 
 the period of storm and stress through which the institutions of 
 English procedure passed under ithe Tudors, Stuarts and early 
 Georges (§.§ 304, 305, 458-462, 1543-1 544c) have left their most 
 
Classes op Admissions. xcix 
 
 permanent marks. It will be necessary to return shortly to the 
 same matter in a slightly different aspect. It may be sufficient, 
 at this time, to notice the brief list of subjects where this element 
 of substantive law was most clearly obvious at the time when the 
 modern expedient of conferring legislative sanction upon codified 
 procedural rules was inaugurated. 
 
 Like the subject of Knowledge with which the first volume 
 closed, that of Burden of Proof, in its double aspect of Burden 
 of Establishing (§■§ 930-966) and Burden of Evidence (§§ 967- 
 1025), with which the second volume opens, have no distinctive 
 relation to the law of evidence but pertain rather to the field of 
 reasoning in general. As Knowledge furnishes in its accumula- 
 tion of past inferences or observations the basis of the reasoning 
 faculty, Burden of Proof concerns itself largely with Pleading, 
 the branch of adjective law which formulates the objective toward 
 proof of which the processes of the reasoning faculty are to be 
 directed in the use of evidence. Prominent among topics in the 
 law of evidence in which the element of procedural law seems 
 most efficient in resisting the inroads of rational administration 
 is that of Presumptions of Law (§§ 10'82-115»). These relate, 
 correctly speaking, to various branches of the substantive law, 
 civil or criminal, to which they are properly attached. Carefully 
 to be distinguished from them are certain other so-called " pre- 
 sumptions " which have little in common except the indifferent 
 use of a single name or term. They are, on the one hand, 
 Inferences of Fact (§§ 1086— 10'81), a matter of logic and, on the 
 other, Assumptions of Administration (§§ 1184— 1231), with 
 which logic has nothing whatever directly to do. Contrasted with 
 both these, Inferences of Fact and Administrative Assumptions, 
 is a third class, maxims of jurisprudence, rhetorical paraphrases 
 of existing rules of law usually stated in another way. To them 
 the term Pseudo-Presumptions (§§ 1159-1183) seems properly 
 to have been applied. They are responsible for most of the con- 
 fused learning relating to " Conflict of Presumptions " (§§ 1224- 
 1231 ). Admissions seems also to be a topic in which the pro- 
 cedural as distinguished from the rational element in the law of 
 evidence is unduly large. Whether taken in its Judicial 
 (§§ 1232-1287) or in its Extra-Judicial (§§ 1288-1391) form, 
 the distinction between the two consisting in the circumstance as 
 to whether the statement was or was not made in the course of 
 
C iNTKODfCTION. 
 
 the trial in which it is offered, the declarations of a party 
 including those made for him by Agents (§§ 13'37— 1350) or 
 Privies (§§ 1329—1336), seem manifestly affected in a large 
 degree both as to admissibility and probative force by the influ- 
 ence of early procedure. This observation seems scarcely to apply 
 to so-called Admissions by Conduct (§§ 1392—1433), which 
 though usually treated in this connection, seem devoid of special 
 procedural efficiency and merely to constitute a convenient term 
 for logically probative circumstantial evidence of acts done by a 
 party. A topic in which a once powerful procedural element 
 seems rapidly shading into questions of logical impairment due 
 to the operation of a desire to buy peace appears to be that of 
 Offers of Compromise (§§ 1439—1471). Procedural influence, 
 i. e., that of substantive law operating through rules of procedure, 
 apparently culminates in intensity in connection with the sub- 
 ject of Confessions (§§ 1472—1618). Into the baffling intricacies 
 of the operation of the Misleading Inducements of hope or fear 
 (§§ 1483—1539), the privilege against involuntary Self-incrim- 
 ination (f§ 1540-15&7), or the power of Duress (■§§ 1558-1563) 
 in making certain statements of an accused person " involutary " 
 as it is called, it has seemed necessary to follow the tangled threads 
 of law and logic. By comparison, the procedural rules, largely 
 yielding to the influence of rational administration, under which 
 the Evidence of a witness given at a Former Trial (§§ 1619- 
 1708) is received seem simple and practically illustrative of the 
 normal operation of judicial administration where a primary 
 grade of evidence must be supplied by facts of a secondary 
 nature. 
 
 What this normal principle of judicial administration may 
 be more fully appears a& the influence of the administrative ele- 
 ment in the law of evidence becomes more strongly marked. This 
 occurs in the third and fourth volumes of the present treatise 
 where attention is given to the operation of the four so-called 
 exclusionary rules — Opinion, Hearsay, Res Inter Alios, and 
 Character. Speaking of these exclusionary rules as a whole, it 
 has been found necessary to insist upon a consideration, con- 
 stantly overlooked, which is yet of the highest consequence in this 
 connection. No fact can properly be said to be affected by the 
 operation of these or any other exclusionary rules of evidence un- 
 less it first appear to have been either probatively or constitu- 
 
A Conditional Exclusion. ci 
 
 ently, i. e., logically or legally, relevant to the truth of some 
 proposition placed in issue by the pleadings. Precisely what is 
 meant by these qualifications of the term relevancy will be made 
 to appear in an appropriate place. It may be sufficient for present 
 purposes to insist upon the obvious circumstance that an exclu- 
 sionary rule of evidence can apply only to that which is already 
 evidence. A fact that is not evidence excludes itself, as it were, 
 requiring no specific rule for the purpose. Only that which is 
 relevant is evidence and can, therefore, be excluded by some 
 special rule. Irrelevant facts are not evidence. Yet courts are 
 constantly in the habit of speaking of these exclusionary rules as 
 mere grounds of irrelevancy, assignments, as it were, of the rea- 
 sons why a particular statement in a given connection is entirely 
 devoid of- probative force. A most perplexing habit on the part 
 of certain judges is what might be called stating the second rea- 
 son first. An unsworn statement, for example, from a person 
 clearly without adequate knowledge on the subject is offered in 
 evidence. Counsel object to it as hearsay. It is rejected on that 
 ground. Yet the want of adequate knowledge on the part of the 
 declarant, depriving, as it does, the declaration of all probative 
 force, will alone be sufficient for the purpose. The judge is con- 
 scious, however, that, even were the statement relevant, it would 
 be rejected as hearsay. He, therefore, deems it convenient to ex- 
 clude it on that ground. Again: a witness is asked to state his 
 judgment as to the existence of an immaterial mental state. It 
 is objected that this is " opinion." The court excludes it as such 
 although entirely aware that the most unexceptionable species of 
 testimony if offered to prove the same fact would equally be re- 
 jected. This is more than a mere infelicity encumbering the 
 reports in digests with a mass of legally inert material. Its influ- 
 ence is formidable because it tends to obscure the real nature of 
 the situation. 
 
 Assuming that the exclusionary rules apply only to relevant 
 facts, the method in which they are treated by judicial adminis- 
 tration is simple, rational and scientific. iW'ith the exception of 
 certain applications of the hearsay rule, the exclusion effected by 
 any exclusionary rule is merely conditional. In case the proponent 
 can furnish more satisfactory evidence of the fact in question or, 
 perhaps, he can prove his case in some other way, effect is given 
 to the rule. Should it appear, on the other hand, that the pro- 
 
cii Intkoductioet. 
 
 ponent is powerless to prove his case without it, his right to use 
 secondary evidence (§,§ 339 et seq.) is regarded as paramount and 
 the previously rejected evidence, under suitable conditions of 
 relevancy, will be received. In other words, with the exception 
 stated, the exclusionary rules operative upon relevant matter are 
 deemed to shut out certain classes or species of inferior or second- 
 ary evidence until the necessity for resorting to them has been 
 suitably established. 
 
 The " Opinion Evidence Rule " treated in the third volume 
 well illustrates this familiar regulation of judicial administra- 
 tion. Witnesses are not to reason about the facts to which they 
 testify. Reasoning, whether by inference from facts or observa- 
 tion of the demeanor of witnesses, the declarations of documents 
 or the like, is part of the judicial function of the jury. Into this 
 field witnesses are not to be permitted to intrude their inferences. 
 They are simply to state the facts to the jury and the latter will 
 draw such deductions as may be necessary (§§ 1791— 1796). Still, 
 the rule, broadly viewed by administration, amounts merely to 
 this: The declaration of the witness as to the facts observed by 
 him is the primary evidence of the phenomena to which his atten- 
 tion has been directed. Ais such, it must be placed before the 
 jury, evidence of inference being excluded so long as this can 
 be done. If, however, in the opinion of the presiding judge, the 
 witness is unable to state the facts observed by him or some con- 
 siderable portion of them, except by giving the inferences which 
 his mind drew from observing them, the reasoning of the witness, 
 under proper administrative restrictions, may be placed before 
 the jury. Administration may even permit a proponent to go 
 further in his use of inference as secondary evidence from observa- 
 tion. Should a professional or technical matter be involved in 
 the observation of the witness in such a manner that the com- 
 mon knowledge of the jury would not enable them to form a 
 rational judgment upon the facts presented, even though the wit- 
 ness were able to detail them in their completeness the judge may 
 permit the observer himself, if found suitably qualified to do so, 
 to state the inference or conclusion which he has drawn from the 
 facts presented to his mind. 
 
 Nor is this all. Should the matter prove one of such intricacy 
 or technical difficulty that the jury might fairly be regarded as 
 inadequate, without assistance, to reason correctlv with regard to 
 
Inferences and Conclusions. ciii 
 
 the facts observed, the judge may permit the jury to receive, even 
 upon the precise point covered by their deliberations, the judg- 
 ment of one skilled or expert on the subject, though he has made 
 no particular observations upon the facts of an individual case 
 but is basing his judgment in this respect upon a detail, stated in 
 a hypothetical question, of facts observed by others. In connec- 
 tion with this treatment of the subject, it has been deemed ex- 
 pedient, by way of denning the terms used, to consider briefly 
 the general subject of Judicial Seasoning (§§ 1709-1720). The 
 practical Incorporation of Logic (§§ 1721—1741), science of the 
 laws of thought, which the requirement of this reasoning implies, 
 has also received attention. This has been deemed a reasonable 
 preliminary to the consideration of the general subject of Reason- 
 ing by Witnesses which constitutes the balance of the volume. 
 The latter topic has been thought to be conveniently divided into 
 three main classes of mental operation or result, varying from 
 each other in the progressive involution of the element of reason- 
 ing or inference when compared with that of intuition or observa- 
 tion. It being confidently assumed that the entire elimination of 
 inference from the results of observation is practically impossible 
 (§ 1801), the question still remains as to the proportion which 
 reason plays in the blended whole, as compared with sense-per- 
 ception. Though the division is confessedly arbitrary, it is per- 
 haps not unreasonable, in such a classification, to apply to the 
 instinctive, automatic, reflex action of the mind upon the pres- 
 entation by the senses of a familiar object, the general title of 
 the first of these specimens of reasoning, viz., Inference (§ 1802 
 et seq.). Such mental results may be drawn by either an ordi- 
 nary (§§ 1836-1916) or by a skilled (§§ 1947-2:041) observer, 
 the latter being one acquainted with the art or science, trade or 
 calling, related to the subject-matter. Although the gradations, 
 except in marked cases, are difficult to trace, the involution of 
 reasoning may be said to increase from the reflex, automatic in- 
 ference to that which is more reasoned (§,§ 1843 et seq.), and 
 so continues, ever presenting a larger involution of the element 
 of reasoning until it develops into what may be called Conclusion. 
 These, as a class, are readily separable into Conclusions of Fact 
 (§§ 22'91-2'3'24) or Conclusions of Law (§§ 2325-2370), accord- 
 ing as a rule or standard of law is or is not involved in the rea- 
 soning. In such a connection, the basis of specific observation 
 
civ Introduction. 
 
 relating to the phenomena directly submitted to sense perception 
 becomes greatly affected by the use of other data — observations 
 on distinct occasions by the witness, communicated statements, 
 general knowledge and the like. In case of a Conclusion, the ele- 
 ment of direct observation may diminish almost to the vanishing 
 point, the operation of inference becoming correspondingly exclu- 
 sive. When the stage of Judgment (§§ 2971— 2450 1 ) is reached, 
 Observation has become entirely eliminated. Inference alone is 
 operative. Here is the field of the Expert, exercising merely the 
 function of reasoning upon facts observed by others and detailed 
 to him by means of the Hypothetical Question (§§ 2451—2497). 
 Only to a witness who testifies in connection with acts of judg- 
 ment upon the basis of assumed fact has it been thought best to 
 apply the term " expert." A skilled observer may need for reach- 
 ing his conclusions the same training and experience which the 
 expert, properly so-called, would require for rendering a helpful 
 judgment. The mental process of the former is, however, essen- 
 tially distinct from that of the latter. It seems to fall into the 
 same category with the mental process of the ordinary observer. 
 In dealing with these three mental acts of Inference, Conclusion 
 or Judgment the foregoing rule of rational administration is seen 
 to apply. As the objectionable element of reasoning by the wit- 
 ness becomes greater, a corresponding necessity for receiving it as 
 secondary evidence of the facts themselves must be established by 
 their proponent. He is entitled to prove his case as best he can. 
 To do so it is essential that he should be able to place the facts 
 before the jury so far as possible in their entirety and in such a 
 manner that the jury can rationally act upon them. If the pro- 
 ponent in any case can show to the court that the primary evidence 
 of these facts cannot be thus submitted to the tribunal, he may 
 offer them in the secondary form of the result to which they have 
 led the mind of the witness. The necessity shown by the pro- 
 ponent must, however, in any case, be commensurate with the ex- 
 tent to which the normal function of the jury would be invaded 
 by the reception of the evidence. It must, therefore, be greater 
 in the reasoned than in the automatic inference, more pressing in 
 case of the conclusion than in that of an inference of either 
 variety, most inevitable of all, where a judgment is tendered. In 
 connection with these rulings, the court resumes, as in many 
 other matters relating to the examination of witnesses, its early 
 
Exceptions to " Heaksay." cv 
 
 and more normal powers (§ 267) and an excellent instance is fur- 
 nished of the delicate adjustment of conflicting rights in the in- 
 terest of substantial justice which would be impossible to a fixed 
 rule of law but is readily accomplished by the flexibility of ra- 
 tional judicial administration. Nothing could well be more sane 
 or socially salutary. 
 
 The fourth volume considers the other exclusionary rules deal- 
 ing with Unsworn Statements, Res Inter Alios, and Character. 
 With one exception, or, at most, two, it will be found that the 
 same underlying principle of a rational administration, that rele- 
 vant secondary evidence will not be excluded where a proponent 
 can prove his case in no other way, continues to apply. In other 
 words, one would in main be justified in saying that these exclu- 
 sionary rules have merely the mission of establishing the primary 
 grade of evidence (§§ 466 et seq.). Only in connection with the 
 matter of Unsworn Statements used as Hearsay does not substan- 
 tive or procedural law effect a serious breach in the truth of the 
 statement. The rule against Hearsay (§§. 2698-2761) arbitrarily 
 rejecting relevant testimony without which a proponent is impo- 
 tent to prove his case is the distinctive anomaly of the English law 
 of evidence. It is interesting, however, to notice that the anoma- 
 lous result was no't directly intended (§486). Like the unanimity 
 of the jury, the surprising result is apparently an unexpected 
 by-product involved in trying to do something much more rational. 
 Even here, however, the breach is by no means so serious as might 
 at first sight appear; for certain distinctions should at once be 
 drawn. In the first place, the scope of the anomaly is seen to be 
 greatly lessened when it is observed that the Hearsay Rule ap- 
 plies only to the unsworn statement when used in what may prop- 
 erly be called its assertive capacity, i. e., when offered as evidence 
 proving the truth of the facts asserted in it. Should the state- 
 ment be Independently Relevant (§§ 2474—2697), that is, rel- 
 evant per se by reason of its mere existence independent of the 
 truth of what it states, the declaration, or as it is sometimes called 
 the " verbal act," is simply a fact like any other and entirely be- 
 yond the application of the Hearsay Rule. A second mitigation 
 of the practical results of the unscientific doctrine is happily to 
 be found in the so-called exceptions to " hearsay." These are nu- 
 merous and important. In connection with them — Declarations 
 against Interest (§§ 2<762— 2-78'9), Declarations as to Matters of 
 
cvi Introduction. 
 
 Public and General Interest (§§ 2790-2810), Dying Declarations 
 (§§ 2811-2869), Declarations in Course of Business (§■§ 2870- 
 2909), Declarations concerning Pedigree (§§ 2'910-2981), — the 
 principle of judicial administration just mentioned continues, in 
 substance, to apply. The Hearsay Rule is regarded as establish- 
 ing the statement of the original declarant under oath as primary 
 evidence. '"Where, however, a suitable forensic necessity for rely- 
 ing upon secondary evidence is shown by the proponent, the report 
 of the declarant's unsworn statement will, under suitable condi- 
 tions of relevancy, be received as evidence of the facts asserted. 
 Formal tests, characteristic of the technical procedure of the 
 period,' may, indeed, be used for determining what shall be re- 
 garded in certain cases as proof of relevancy. Adequate knowl- 
 edge on the part of a declarant may, for example, be shown ex- 
 clusively by membership in a family or residence in a given com- 
 munity. Absence of controlling motive to misrepresent may, in 
 the same way, conclusively be established by the fact that the dec- 
 laration was made ante litem rnotam, while the contrary circum- 
 stance may exclude it beyond all hope. In general, however, the 
 rule of administration in question receives large classes of decla- 
 rations to which the Hearsay Rule might otherwise be fatal. 
 These exceptions to hearsay are comparatively ancient, practically 
 contemporaneous with the rule which is itself of no very early 
 origin. 
 
 Two very important modern rules have operated still further to 
 reduce the range over which that excluding hearsay holds unques- 
 tioned supremacy. Scarcely was it to have been anticipated that 
 a system of evidence so largely characterized by reason and a de- 
 sire for better scientific symmetry, should tamely permit so great 
 an anomaly as that relating to hearsay without some effort at 
 extruding it. A noteworthy peculiarity is presented at this 
 point. This modern impairment of the scope of the hearsay rule 
 has not proceeded by way of the establishment of additional ex- 
 ceptions treating unsworn statements 1 as secondary evidence. It 
 has, on the contrary, advanced by direct attack upon the rule it- 
 self in its exclusion of relevant testimony. In at least two im- 
 portant particulars, the doctrine is distinctly announced that 
 where relevancy of a certain kind is shown, an unsworn statement 
 is primary evidence of the facts asserted, notwithstanding the rule 
 ngainst hearsay. The required relevancy is furnished where the 
 
Spontaneity and Regularity. cvii 
 
 declaration in question may be said to have been automatic, i. e., 
 reflex, instinctive, not the result of conscious thought or 
 deliberation. Customarily, this automatism is the result of one of 
 two causes, (1) overwhelming emotion, (2) force of habit. The 
 witness may, in the first place, have had his meditative and re- 
 flective faculties temporarily suspended, numbed, as it were, by 
 the force of a shock. Some startling event, a railroad casualty, 
 for example, the seizure of sudden terror, or the like, may reduce 
 a human being to a condition of practical automatism. What he 
 says until the reasoning faculty, for the time dethroned, has re- 
 sumed its normal control, may be taken as true. Indeed, in such 
 an event, it is rather the force of facts which is speaking, through 
 the mouth of the declarant. This may be called the relevancy of 
 Spontaneity, best illustrated in the law of evidence by modern 
 rules relating to the use of Declarations part of the Res Gestae 
 (§§ 2>982— 3iO5'0') . In the second place, the relevancy of the auto- 
 matic utterance, most frequently, perhaps, in writing, may be due 
 to the machine-like precision arising from the continued repeti- 
 tion of a limited number of acts. Where a witness, for example, 
 is shown to have been in the habit of repeating, in discharge of 
 some private or public duty, a given action with no bearing known 
 to him, upon his own interest, it may well be taken to have been 
 made with competent knowledge and without motive to misrepre- 
 sent. To the probative force of a declaration made in this semi- 
 mechanical way the phrase Relevancy of Regularity may, with 
 apparent propriety, be applied. Prominent illustrations of the 
 probative force of facts possessing this relevancy may be seen in 
 the case of routine acts done in the discharge of official duty, or , 
 in connection with the use of Shop-Books and Books of Account 
 (§§ 3051-3149). When unsworn statements are shown to have 
 been made under the reflex action of either spontaneity or regu- 
 larity they are accorded admissibility by the modern law of evi- 
 dence. It is worth observing, however, that this use of the state- 
 ment in its assertive capacity is not, as in case of " exceptions to 
 hearsay," admitted as secondary evidence. The proof is primary. 
 The proponent need show no forensic necessity for introducing it. 
 The declarant may be available as a witness or even present in 
 court. The doctrine, therefore, announces the fundamental rule, 
 entirely inconsistent with that excluding hearsay, that an un- 
 sworn statement, if relevant for the purpose, may be used as evi- 
 dence of the facts asserted. In other words, no essential difference 
 
 viii 
 
cviii Inteoduction'. 
 
 exists, in the nature of things, between statements and other acts, 
 or between the inference of truth and any other deduction which 
 may logically be drawn from the existence of such a statement. 
 The scientific importance to the modern law of evidence is 
 obvious. 
 
 Judicial administration in dealing with the remaining exclu- 
 sionary rules, Res Inter Alios and Character, follows, in main, 
 the same principle or canon as was applied to Opinion and to the 
 Exceptions to Hearsay. With a possible exception in case of 
 Character, no relevant testimony is excluded which is necessary to 
 proof of the proponent's case. iS'ome distinctions, however, seem 
 worthy of attention. As was said above, only facts which are pro- 
 batively relevant, in some degree of remoteness, to the truth of a 
 proposition in issue can properly be said either to be rejected 
 under these rules or accepted as secondary evidence under the 
 canon of administration. Yet much which is said to be rejected 
 by virtue of these rules seems clearly to be of no probative rele- 
 vancy. This is particularly true in case of Character, or, as it 
 might perhaps more properly be called, Reputation. Few, in- 
 deed, are the instances in which it can fairly be said that the cir- 
 cumstance that a man possessed of or by a particular trait of char- 
 acter, proves, or even tends to prove, that he did an appropriate 
 act. The most which can rationably be asserted in such cases is, 
 that he is rather more likely to have done so on this account. In 
 other words, the relevancy of character, such as it is, is rather 
 deliberative (§ 1714) than directly probative (§ 1712). Possi- 
 bly, the character of the accused in criminal cases may, under ex- 
 ■ ceptional circumstances, be fairly thought to be logically probative. 
 Should such a case arise and the defendant decline, as he 
 may properly do (§ 327'7), to open the issue, the rule excluding 
 Character may truly be regarded as rejecting relevant testimony 
 offered in proof of the proponent's case, for no forensic necessity 
 of the prosecution, however great it may be, will suffice to admit 
 evidence on the subject. Apart from this rather remote contin- 
 gency, the Hearsay Rule stands alone, as stated above, in the 
 anomaly of rejecting probative evidence essential to the propo- 
 nent's case. 
 
 It may be noticed, further, that much which is said to be ex- 
 cluded by virtue of the rule of Re<s Inter Alios is, in reality, not 
 affected by it, because intrinsically irrelevant. That an act was 
 done, or an event occurred, because the person did a similar act 
 
A Paramount Eight. cix 
 
 at another time or an analogous event happened on a previous oc- 
 casion requires for any logical force, something more than a gen- 
 eral similarity between the two acts or occurrences. That the 
 happening of one event or the doing of a particular act on a given 
 occasion should tend, in any just sense, to prove the occurrence 
 of a distinct event or the doing of a certain act at a different time 
 some clearly marked relation of causation must be shown to have 
 been exhibited on the two occasions. A law of causation, an in- 
 variable or fairly uniform succession of antecedent and conse- 
 quent, a normal uniformity of nature or of mind, must be exhib- 
 ited. Varying degrees of probative force may well attend the 
 proof of the happening of a given event or the doing of a particu- 
 lar act by showing that, even under precisely similar circum- 
 stances, the like event happened or the same act was done on an- 
 other occasion. Where the uniformity is that of nature (§§ 31 5 1 - 
 3206), this logical relevancy of similar occurrences may be of 
 very considerable probative force. Where the uniformity relied 
 upon is moral in its nature (§§ 3207-3264), the force of the in- 
 ference of present from past conduct may diminish to the point 
 of disappearance. Nice questions of degree like these are quite 
 within the function of judicial administration, however difficult 
 it would be to control the matter by a rigid rule of procedure. 
 The canon of administration in the matter appears to be this. 
 Should the evidence furnished by the similar transaction be 
 shown, under all the circumstances, to be such that the jury could 
 rationally act in accordance with it and it further appears that 
 the proponent can prove his case in no other way, it will be re- 
 ceived. The ground for excluding such evidence in the absence of 
 a forensic necessity for receiving it is not, as in case of evidence 
 of inference, that it tends to violate the right of a party to have 
 the reasoning on the facts of his case done by the jury (§§ 411 et 
 seq.), nor, as in case of unsworn statements, that the jury may give 
 undue weight to them (§'§ 2-711 et seq.) ; but rather that the jury 
 may be misled (§ 386) and the trial unduly protracted (§§ 544 et 
 seq.) by raising collateral issues (§'§ 3154). If it appears that 
 this danger must be met if the proponent is to have a reasonable 
 opportunity of proving his case, judicial administration, under the 
 canon 'above frequently referred to, does not hesitate to incur 
 the hazard. The right of a party to prove his case is paramount 
 from the standpoint of administration (§§ 3'34 et seq.). 
 
ex Introduction. 
 
 The progressive influence of the element of Administration 
 during the unfoldment of the topics of the third and fourth vol- 
 umes thus becomes apparent. In regulating the use of the media 
 of evidence, Perception, Documents, and Witnesses, the power 
 and practical efficiency of this element in the law of evidence be 
 comes still more marked. 
 
 The power and flexibility of judicial administration is mani- 
 festly due to the circumstance that it embodies the use of reason 
 (§ 176>) as applied to the facts of individual cases 1 . The rules of 
 procedure, on the contrary, with which, as is illustrated above, 
 administration is constantly called upon to deal, in connection 
 with the use of evidence, represent the operation of positive 
 laws applicable to all cases. The modern law of evidence bas- 
 ing itself, in part, upon Stephen's theory and definition of rele- 
 vancy (§§ 1716 et seq.), imposes the use of reason upon all 
 branches of the tribunal, whether it be the jury in its search for 
 truth or for the court in discharge of its mandate for the doing of 
 justice. 'Such seems to be in the line of legal evolution. Reason 
 has, at all times, since judicial procedure was employed in Eng- 
 land for the discovery of truth with regard to disputed questions 
 of fact, been, in some way or other, used in connection with the 
 process. It will readily be observed, however, that the actual re- 
 lation of reason to procedure has so greatly varied at different 
 times- as practically to present three several stages of progress. 
 In the first of these, that of formal procedure (§'§ 2'69' et seq.), 
 the reason of man could merely suffice to recognize that the dis- 
 covery of truth, when complicated by contradiction or mystery, 
 must of necessity be left to God alone. Reason thus at first yielded 
 to faith. The revealing of so high a thing as truth might, it was 
 thought, safely be committed to the arbitrium Dei invoked in vari- 
 ous forms of ordeal. Timidly the judicial mind of later centuries, 
 culminating in the early half of the nineteenth, ventured to give 
 a somewhat wider scope to the operation of reason in connection 
 with matters of evidence. In this second epoch, which may be 
 termed that of technical procedure, reason is not as yet trusted 
 as being in itself a guide to truth. In a hesitating and halting 
 way, it was employed to detect other tests as to what may be as- 
 sumed to lead the mind of the tribunal in the right direction. 
 Trust in a rule, a fixed mode of doing things, the prop of prece- 
 dent was, and, to a certain extent, still is, comforting to the judi- 
 
A Dexusive Panacea. cxi 
 
 cial mind. Certain classes of fact, regarded as objectionable in 
 the average case, because for some reason likely to mislead, were 
 absolutely excluded regardless of their effect in any particular in- 
 stance. Keason thus simply ventured to supply general tests for 
 exclusion. Both of these lines of thought, the formal and the tech- 
 nical, are conspicuous in the English law of evidence to day. The 
 oath-ordeal, surviving in the swearing of witnesses, is an example 
 of the former. Exclusion of confessions induced by threats or 
 promises or the so-called " rule against hearsay " may fairly rep- 
 resent the latter. In this process of growth toward higher social 
 efficiency, reason is increasingly employed ; not as a guide to tests 
 for truth, but as itself constituting the sufficient standard of ad- 
 missibility. However much the guidance of this principle of 
 reason, as the touch-stone for truth, may be confused or compli- 
 cated by the influence of antecedent epochs in legal growth, it is 
 destined ultimately to become supreme. 
 
 Can it be said with any approximation to truth that the im- 
 portance in the law of evidence of this associate of the substantive 
 law is being accorded by state legislatures or even by judges and 
 the profession generally the influence which its social effective- 
 ness would seem to warrant ? The question is not one for dogma- 
 tism. Yet suggestions bearing on the matter are to be found, 
 scattered here and there, through the present treatise. In the 
 main, the question as to whether the element of substantive rigid- 
 ity or administrative flexibility should be given increased power 
 in the law of evidence is much the same as asking whether the 
 community can best look for the blessings of a sound administra- 
 tion of justice to its legislature or to its judges. It would seem, 
 as has been incidentally pointed out, that experience has some- 
 thing to teach as to the fitness of legislative bodies to prescribe 
 details of judicial administration. Laws in plenty have been 
 passed as a panacea for all evils in the body politic, including the 
 ineffectiveness of the courts. 'A sacramental potency has been 
 supposed to attach to the will of the people expressed through its 
 duly appointed representatives. Yet it has come to be perceived 
 that laws can scarcely enforce themselves and that a multiplicity 
 of statutes may, in the absence of some definite responsibility for 
 practical results imposed upon some one adequately equipped 
 with power, be entirely consistent with an actual break-down in 
 the work of the judiciary. For the past 300 years the growth 
 of democracy has meant an increase in legislative power, and 
 
cxii Introduction. 
 
 its tendency to absorb to itself the regulation of other departments 
 of government has become highly developed. Yet a legislature, 
 after all its usefulness is admitted, is but a clumsy machine for 
 doing continuous justice or even providing, beyond general regula- 
 tions, in what way it should best be done. To prescribe rights or 
 liabilities or, in other ways, to establish objectives toward which 
 the exercise of the reasoning faculty is to be directed (§§ 1718 i, 
 1719 et seq.), is fairly within the appropriate work of the legis- 
 lature. But to fetter reason itself is quite a different matter. 
 To regulate the precise means by which the judicial branch of 
 government is to discharge its appropriate social mandate would 
 seem as pernicious as for the legislature to undertake to predeter- 
 mine in what manner the supreme executive of the sovereignty 
 should discharge his duties as commander of the military power 
 of the state. To confer with one hand a supreme essential man- 
 date upon a particular branch of government and with the other 
 render its discharge impossible by a series of petty restrictions 
 seems but little calculated to advance the public interest. Clearly 
 the best results are to be obtained only by the loyal social service 
 of men whose powers within their appropriate legal sphere are 
 adequate to the purpose. 
 
 Upon what theory, then, of the public good does America dis- 
 trust and persistently cripple the work of its judges? It is im- 
 possible that the inquiry should not present itself to the mind: 
 Why does English democracy in America so persistently turn in 
 its search for sound administration to the legislature which has 
 so constantly failed it and away from the judiciary which for 
 generations has had no adequate opportunity to serve it effect- 
 ively ? If an answer could be had it would probably be to the 
 effect that judges had been agents of tyranny in the past and 
 could not be trusted with power. In other words, magistrates 
 elected by practically universal suffrage for short terms and small 
 salaries or appointed by an executive magistrate elected by and 
 directly responsible to the entire people of the state or nation are 
 not to be clothed with social effectiveness in an enlightened age 
 and under purely democratic institutions to punish crime or 
 award justice because Coke, Jeffreys, or Scroggs, under different 
 social conditions, were too faithful to an autocratic king in the 
 punishment of political offenders. The cause is plain. The suc- 
 cessful political party has petrified its prejudices into constitu- 
 tional law and enacted its fears into statutes. Exceptional causes, 
 
Subordination of Judge to Jury. cxiii 
 
 as has been observed (§§ 3'04, 304), have made this result par- 
 ticularly noticeable in the United States. Here the love for hav- 
 ing rules of law as a safeguard against arbitrary tyranny greatly 
 accentuates the early influence of formal rule and regulations, 
 arrangement into definite classes, semi-mechanical precision of 
 thought, rigidity and fixedness of general life and philosophy 
 in past times. The ghost of political or religious oppression 
 has continued to haunt the uneasy dreams of statesman and citi- 
 zen alike long after all vitality and power have departed from it. 
 Is it quite clear that this mental Keign of Terror is fully past? 
 The evils to the sound administration of justice which are crip- 
 pling the power of the judge at every turn by constitutional re- 
 strictions or statutory enactments " in favor of liberty " are suffi- 
 ciently obvious (§ 1718 m). It is much more difficult to recog- 
 nize the actual dangers against which society is being protected. 
 We have solemnly secured to one accused of crime the right of 
 confrontation (§§ 458 et seq.), although the day of the Star 
 Chamber or the Court of High Commission has long been over 
 and the principal effect is to trap the judge into supposing that 
 the defendant has waived a privilege of which the appellate court 
 may say he had no constitutional right to deprive himself. We 
 confer a privilege not to answer incriminating questions and di- 
 rect the jury to draw no inference from the failure of an accused 
 to testify. This is for no better apparent reason than that at a 
 particular stage of English history (§§ 1543 et seq.) those who 
 were in revolt against the government found it convenient to 
 claim the benefit of a Latin motto of doubtful authenticity. This 
 is done entirely oblivious of the fact that the political sympa- 
 thizers of these persons are now the government needing protec- 
 tion against criminals of a different character and that as soon as 
 a prisoner is given the right to testify no rational tribunal can fail 
 to draw inferences from his neglecting to do so. The judge is 
 forbidden to comment upon the facts of the case (§§ 2®1 et seq.), 
 seemingly because at this particular period of storm and stress in 
 the development of democracy the only hope of the accused lay in 
 exalting the power of the jury at the expense of that of the court. 
 Is it of no consequence that such a course is to subordinate intel- 
 lect to emotionalism (§l 301) and place the social interests in liti- 
 gation below those which are purely personal (§ 303) or that the 
 judge, obliged to sit silent while he sees the jury misled by sophis- 
 
cxiv Introduction. 
 
 ticated arguments, should be compelled to declare, by ordering a 
 new trial (§■§ 306 et seq.), that the whole expenditure of time, 
 money and effort, has resulted only in a miscarriage of justice? 
 To committing magistrates is denied, except under special cir- 
 cumstances, the right to interrogate a person accused of crime and 
 any confession so induced is to be rejected as involuntary because, 
 forsooth, merciful judges acting under a bloody penal code, hap- 
 pily now repealed, deemed it wiser to make sure that the pris- 
 oner's confession should have been absolutely voluntary (§ 1'568). 
 This is done in apparent disregard of the impressive circumstance 
 that by holding confessions made to " persons in authority " 
 (§§ 15i2il et seq.) to be involuntary the administration of law de- 
 prives itself of a valuable opportunity for detecting and punishing 
 crime and, while it forbids impartial judicial action invaluable 
 to an innocent man, turns him instead, entirely defenceless, over 
 to the newspaper reporter, amateur detective or the eavesdropper 
 (§§ 1538 et seq.). 
 
 In short, it may be fairly said that much of the intervention of 
 substantive or procedural law into the field of evidence (§§ 1719 
 et seq.) is not only irrational but positively harmful to the body- 
 politic under whatsoever soothing expression regarding the so- 
 called rights of man it may chance to be expressed or defended. 
 It may be regarded as a truism that modern conditions have long 
 since made it difficult to convict an innocent man of a serious of- 
 fence. The problem is rather as to how far it is possible, under 
 such restrictions upon rational administration, to punish a guilty 
 one. The work of legislation in this respect is, as it were, to erect 
 massive battlements and lofty watch-towers against perfectly im- 
 aginary foes, training heavy cannon to bear against enemies who 
 can never come, while at the same time there is rioting and dis- 
 order within the walls and general discontent among those for 
 whose supposed defense the costly armament has been provided. 
 
 Should the proportion of the influence of substantive law or 
 procedure to that of administration or reason seem unduly high 
 the judiciary itself cannot justly be said to be without blame in 
 the matter. To many judges the legislative or constitutional re- 
 strictions upon normal judicial administration seem part of the 
 established order. The fruits of this legislative activity are, in 
 the apparent opinion of many magistrates, not only to be cherished 
 but supplemented by reinforcement on their own part. Indeed, 
 it is to be doubted whether the rigidity of the adjective law of 
 
Social Service, Not Personal Profit. cxv 
 
 evidence, its inability to respond quickly and fully to social needs, 
 is not quite as much due to the effect of according to administra- 
 tive rulings the force of precedent as to any legislative desire to 
 avoid obsolete dangers. The doctrine of stare decisis (§§ 267, 
 1618 n. 2) is one very largely, so far as the adjective law is con- 
 cerned, within the administrative control of the court. It is very 
 evident that many salutary rules of executive caution, maxims 
 of prudence as to reception of evidence, need of corroboration, as 
 to when the trust imposed by confidential relation should be vio- 
 lated in the interests of justice, have become part of the volume of 
 substantive law and its lack of flexibility correspondingly increased 
 by the automatic ossification due to the entirely unwarranted 
 force accorded to precedent. On the other hand, in the absence 
 of statutory regulation, much of this difficulty would be immedi- 
 ately removed by the simple expedient of regarding such rulings 
 as mere matters of practice. It is probable that in making this 
 change appellate courts would not only promote judicial efficiency 
 and lighten their own labors but forestall an attitude which will 
 otherwise soon be forced upon them by the vast bulk of minutely 
 conflicting decisions with which digests, encyclopedias and text- 
 books are at present bursting. 
 
 In the hands of the legal profession, however, lies the only per- 
 manent remedy for any evils which may have come from the legis- 
 lative curbing of the functions of the court. Lawyers are its offi- 
 cers, interested in its highest efficiency, dedicated to social service 
 in a most important branch of human activity. The presence in 
 the law of evidence of a large number of technical rules, however 
 devoid of rational basis, may well appear to the profession to be 
 a powerful mental stimulus, gratifying to the lust of combat or a 
 source of financial profit. ISTot thus, however, will the highly 
 ethical profession of law regard its own discharge of the most 
 God-like function committed to man. It realizes that social ser- 
 vice, not personal profit, is the aim of its existence. In the full- 
 ness of time, therefore, it may safely be relied upon to provide for 
 the community at large the blessings of a faithful judiciary 
 equipped with executive powers adequate to the full discharge of 
 the duties of its high social commission (§ 95). Popular confi- 
 dence due to the general recognition that lawyers appreciate their 
 true relation to the attainment of justice would make their leader- 
 ship in promoting judicial reform as satisfactory as it is essential. 
 
cxvi Inteodtjction. 
 
 Scientific administration manifestly demands a reliable no- 
 menclature in which to express itself. It has seemed essential, 
 therefore, that an attempt be made to define certain of the more 
 familiar terms with which the law of evidence is called upon to 
 deal. The situation is undoubtedly a sorry one. Many of its 
 terms are distinctly ambiguous by reason of various well-estab- 
 lished meanings. Selection among several connotations must, at 
 times, be arbitrary, for the Gordian knot can only be cut. The 
 theory that legal terms are best defined by their use is but a 
 pleasing fallacy as the present state of this branch of the law 
 abundantly demonstrates. The most obvious suggestion in enter- 
 ing upon the task of definition would be that of coining a novel 
 nomenclature to which a definite scientific meaning could be once 
 for all attached. So inviting a short-cut to precision must re- 
 luctantly be disregarded. As Pollock and Maitland (2 Hist. 
 Eng. Law, p. 30) say: " The licence that the man of science can 
 allow himself of coining new words, is one which by the nature 
 of the case is denied to lawyers." The most which it has seemed 
 proper to attempt is the selection of a single meaning among sev- 
 eral, primary being preferred. It will then become necessary to 
 call attention to any use of the word carrying a different meaning. 
 A few prominent examples of the manner in which this has been 
 done may be given in this connection. 
 
 The relation of Administration to Procedure, involving as it 
 does a definition of both terms, has been established in thiip some- 
 what arbitrary manner. Procedure itself seems to have been prop- 
 erly defined (§ 166) as the law of actions. In adopting this defi- 
 nition, the very common distinction that the substantive law relates 
 to rights or liabilities while procedure applies to the use of the rem- 
 edy by which these rights or liabilities are utilized or enforced, has 
 been disregarded. For this there have been several reasons. In the 
 first place, the line between rights, liabilities and remedies is one 
 extremely difficult to draw. In fact, what may be called a verbal 
 metabolism (§ 170) may be employed between rights and liabili- 
 ties on the one hand and remedies on the other. That is to say, 
 rights may usually be expressed in terms of remedy or vice versa. 
 Legal reasoning, apparently circular, though in reality more nearly 
 spiral, is constantly arguing from the existence of a right to that 
 of a remedy and back again from remedy to right. (See Pollock 
 & M., 2 Hist. Eng. Law, p. 31). In the second place, so far at 
 
Classification of Judicial Knowledge. cxvii 
 
 least as the law of evidence is concerned, the important distinc- 
 tion is not between right or liability and remedy; rather is it 
 between the existence of a rule having the force of law and its 
 absence. Thus, so far as the rights of a proponent are concerned, 
 if the evidence which he offers is rejected under a rule of law, 
 it is a matter of indifference whether this rule is said to be one 
 of substantive law as part of the right or liability to proof of 
 which evidence is alone legally to be directed, or is one of pro- 
 cedure prescribing absolutely that such evidence as his shall in no 
 case be received. In either event, the judge has no option, dis- 
 cretion, opportunity for administrative action. Only when his 
 ruling is not predetermined and controlled by a precept of law 
 can a function of administration be exercised. It has seemed 
 appropriate, therefore, to apply the term Administration (§§ 174 
 et seq.), to that part of procedure in general which is not directly 
 controlled by a rule of law. Indirectly, the most unfettered exer- 
 cise of administration can exist only by virtue of some provision 
 of law. Procedure and Administration are to be taken therefore 
 as standing to each other in relation of genus and species or as 
 different species under the generic term Procedure. Under the 
 definition, a rule of court which left no option to the presiding 
 judge would be a matter of procedure. Custom or practice would 
 be, on the contrary, a matter of administration. 
 
 As has been incidentally suggested above, the use of the term 
 Burden of Proof (§§ '&3iO-9'66) has been confined to its original 
 and primary meaning of the burden of establishing the affirmative 
 of the issue formulated by the pleadings. Unshifting onus has 
 been segregated from the necessity which from time to time ac- 
 cording to the vicissitudes of a trial rests upon one or the other 
 of the parties of introducing more evidence if he is to succeed 
 in the litigation. To the latter forensic requirement the phrase 
 Burden of Evidence (§§ 96T— 102'5) has been assigned. In other 
 words, the relation between Burden of Proof and Burden of Evi- 
 dence is much the same as that between Procedure and Adminis- 
 tration* Burden of Proof, as commonly employed, is a generic 
 term covering also Burden of Evidence. Specifically considered, 
 however, Burden of Proof is used in contrast with Burden of 
 Evidence, both being classed under the general term Burden of 
 Proof. The terms Judicial Knowledge, Judicial Notice and the 
 like apparently cover two classes of knowledge which have noth- 
 
cxviii Intkoduction. 
 
 ing in common except the designation. (1) It denotes a knowl- 
 edge of the rules of domestic law which the judge has because, as a 
 branch of the government established by the sovereignty of the 
 forum, he is required to enforce it. The possession of such knowl- 
 edge is not so much a fact as a function. The judge does not, for 
 obvious reasons, share it with the jury. He instructs and informs 
 them with regard to it. The judge, and he alone of all in the 
 court room, has this knowledge. It is his, as judge, simply because 
 he is judge and for no other reason. This is Judicial Knowledge, 
 properly so-called (§§ 5>7'0-636). The presiding magistrate, as 
 part of the knowledge of the law which it is his duty to apply and 
 enforce, knows also the direct and primary results which these 
 laws have established (§§ 637-690) — e. g., as to the office of 
 Chief Executive Magistrate, his duties and the like. (2) The 
 phrase Judicial Knowledge is so used as to cover facts which the 
 judge, the jury and every other intelligent member of the com- 
 munity knows. These, when not part of the res gestae, a judge 
 will not require to be proved. Indeed, he will not waste time in 
 hearing evidence to establish facts of this kind. It has seemed 
 unwise to classify facts so dissimilar in their nature under a sin- 
 gle designation. The term " Judicial Knowledge " has, therefore, 
 been reserved for facts of the first class ; — those which the judge 
 knows ex-officio, by virtue of the mere fact of his position. Knowl- 
 edge of the second variety is spoken of as Common (§§ 691-869). 
 Common knowledge has been further subdivided into that which, 
 as has been said, is general among judges, jurors and the average 
 well informed members of the community (§§ 691—869) and the 
 class or species of knowledge regarding technical matters which 
 may be fairly deemed to be common among members of any par- 
 ticular profession, trade or calling. Facts of this nature-- have 
 been designated as Special Knowledge (§§ 870- J 9i29). Unlike 
 the knowledge common to the community at large, which is not 
 required to be proved, Special Knowledge is the subject of testi- 
 mony. More frequently than not, a witness qualified to inform 
 the judge and jury upon such matters is spoken of as an " expert." 
 As the use of this term has been reserved in the present treatise 
 exclusively for a witness testifying to his Judgment in response 
 to hypothetical questions (§§ 875 et seq., 1806, 2374, 2462), it 
 has seemed desirable to segregate, to a certain extent, the work 
 of the skilled witness in stating the facts of his special calling 
 
Presumptions; Legitimacy. cxix 
 
 rather than drawing inferences from phenomena observed by 
 him (§§ 1947-2041). The convenience of the reader has, it is 
 hoped, been assisted in this connection by the rather elementary 
 expedient of arranging the very numerous cases relevant to the 
 subject into the branches of human activity, alphabetically stated, 
 such as Business Affairs (§ 880), Carpentering and other Build- 
 ing (§ 883), Chemistry (§ 884) and the like, in which illustra- 
 tions of the rule most frequently occur. The same arrangement 
 has been adopted in connection with Business Affairs as part of 
 Common Knowledge (§§ 809-847), the Inferences of Skilled 
 Observers (§§ 1958-2041) or the Judgments of Experts 
 (§§ 2382-2450). 
 
 The meanings of the term Presumption (§§ 1026-1231) are so 
 numerous and so widely diverse as to invite and almost necessitate 
 a somewhat more radical treatment. Laying aside mere rhetorical 
 paraphrases of rules of procedure or substantive law — as that 
 every one is presumed to be innocent of crime (§§ 1172— H76d) 
 or to know the law (§ 1169 et seq.) — to which the general term 
 of Psuedo-Presumptions (§§ 115'9— 1183) has been applied, there 
 still remains the so-called Inferences of Fact (§§ 10i26— 1081) and 
 the Presumptions or Assumptions of Law (§§ 1082-1158a). The 
 first of these has been spoken of as an inference of fact — a crea- 
 tion of logic based upon human experience. ISTo special treatment 
 is apparently required for presumptions of this class. All pro- 
 bative facts give rise to inferences or presumptions of this type. 
 The presumption of law, on the contrary, seems, in and of itself, 
 to be entirely devoid of probative force. It is, in fact, merely 
 an assumption of procedure with which logic has nothing to do. 
 This assumption may relate to the probative force of an inference 
 of fact ; or it may not. In the first case, the assumption is spoken 
 of as one of Procedure (§§ 10>82— 1158), in the second, as one of 
 Administration (§§ 1184— 12 , 31). Assumptions of procedure — 
 the typical presumption of law — are to the effect that a given 
 inference of fact possesses a prima facie quality. This assump- 
 tion, though stated in terms of evidence, is, in reality, part of the 
 substantive law of the subject to which it appertains. Thus, the 
 rule that the inference that a child born in wedlock was the 
 legitimate offspring of the married pair (§§ 1089a-1089f) shall 
 be deemed prima facie correct, is most properly regarded as part 
 of the positive law of persons. In like manner, in a criminal case, 
 
cxx Introduction. 
 
 the proposition that one found in possession of recently stolen 
 goods for which he cannot account in a satisfactory manner, is 
 prima facie the thief, is one in the law of larceny (§§ 1121— 
 1136b). On the contrary, the Assumption of Administration 
 (§§ 1184-1231) does not apply to the logical strength of an infer- 
 ence of fact and has no direct relation to any particular branch of 
 the substantive law. It is a purely forensic or administrative ex- 
 pedient for expediting trials (§§ 544 et seq.), by developing the 
 crux or hinge of the case. It assumes that the regular, the normal, 
 the legal, the proper, takes place ; at least, it does so to the extent 
 of calling upon one who disputes the proposition in any individual 
 case to show grounds for his claim. The presumption against 
 fraud (§ 1221), in favor of regularity (•§•§ 1193-1.210) or good 
 faith (§ 1219) are of this non-probative, administrative nature. 
 Assumptions of procedure and those of administration — both 
 usually denominated presumptions of law — possess, indeed, the 
 common feature that they operate to sustain the burden of evi- 
 dence for the party in whose favor they exist. The purpose which 
 they seek to attain is, however, somewhat different. The assump- 
 tion of procedure — the true presumption of law — aims at an 
 increase of certainty or comprehensiveness in the substantive law 
 (§ 556) of the subject of which the so-called " presumption of 
 law " is a part. The assumption of administration, on the other 
 hand, is content with a purely administrative achievement — 
 placing the burden of evidence upon the party whose activity will 
 best conduce to reaching a correct issue without unnecessary waste 
 of time. 
 
 A somewhat similar necessity for classification arises in 
 case of the term relevancy. The word is one of relation 
 (§ 1715). It cannot, therefore, well be used unconditioned by 
 some qualifying expression. Of these there are several. The 
 difference between direct (§ 57), or indirect (§ 58) relevancy, 
 varying as the relevancy is that of evidence in the direct line of 
 proof or more nearly relates to those collateral or remote facts 
 which tend rather to test than to establish; the contrast between 
 objective (§ 55) and subjective relevancy (§ 56) as the relation 
 between the factum prohans and the factum probandtu/m 
 (§ 51) is that found in objective nature or one which 
 accrues by reason of the knowledge and animus of the 
 witness or other declarant; the distinction between logical 
 
Definite Meaning foe " Res Gestw." cxxi 
 
 (§ 59) and deliberative (§§ 60, 1714) relevancy, accord- 
 ing as the act of reasoning in aid of which the fact is offered be 
 that of proving or of weighing, these apparently speak for them- 
 selves. A somewhat more complicated situation is presented, 
 however, where the distinction is between probative or logical 
 (§§ 59, 1712) relevancy on the one hand and, on the other, that 
 which is legal or constituent (■§§ 47 n. 1, 61, 1713). When the 
 statement of a witness, the declaration of a document or any other 
 probative fact is said to be relevant to one in the res gestae or to 
 any other intermediate fact by which that in the res gestce is estab- 
 lished, the reference is to experience, logical or probative rele- 
 vancy, as denned by Stephen in his Digest of the Law of Evi- 
 dence (§'§ 1717 et seq.). 'When, however, a res gestce fact or set 
 of them is said to be relevant to some proposition in issue by which 
 a right or liability is, in whole or in part stated, the relevancy is 
 legal, the question raised is one of law, appropriately tested by a 
 demurrer to evidence or a motion to order a verdict. The rele- 
 vancy is no longer that of experience or logic ; it is the use of the 
 term in its Scotch sense, ability to stand the test imposed by the 
 application of a rule of law in measuring a particular set of facts 
 or propositions or expressions of fact. To this latter form of 
 relevancy the designation constituent has been applied ; — the 
 former being known as probative. Upon the successful elimina- 
 tion of legal or constituent relevancy from the field of evidence 
 (§§ I7l8d et seq.), as seems readily possible, any clear demarka- 
 tion of the scope of this branch of the law seems entirely 
 dependent. 
 
 Finally, it may be said that few terms commonly employed in 
 connection with the law of evidence are more notoriously am- 
 biguous than the phrase " res gestw." Only by the connection, 
 and by no means always then, can it be known in which of its 
 several distinct meanings the term is being used by a speaker 
 or writer. Its primary meaning is apparently that of the par- 
 ticular portion of the world happenings on which the right or 
 liability involved in the inquiry is said to depend — out of which 
 it arises, if at all (§ 47). The expression denotes the class of 
 facts which in case of a direct contempt in open court the judge 
 would perceive for himself. The arbitrary nature of such an 
 exclusive use is beyond question. Its general acceptance by the 
 profession, however, would appear likely to have juridical results 
 
cxxii Inteoduction. 
 
 of no small value. Prominent among these are four. (1) It 
 would tend to distinguish the actual occurrences themselves out of 
 which a right or liability arises from the testimony of witnesses 
 and the other probative facts by which it is sought to reproduce 
 or establish these facts to the tribunal, whose only need for evi- 
 dence lies in the circumstance that it has not observed their oc- 
 currence for itself. (2) It clearly defines the extent of the law 
 of evidence by limiting its direct scope to proof of the res gestae 
 facts as above defined. (3) It clearly differentiates the proper 
 province of the jury from that of the judge by confining the 
 former to finding the res gestce facts or, perhaps more properly, to 
 ascertaining those hereafter denominated constituent (§§ 47, 47 
 n. 1, 61, 1713). (4) It would effectively secure attention to a fact 
 which is of much more than technical importance ; — that the 
 term " relevancy " is itself one of ambiguous or equivocal meaning. 
 More customary and accepted definitions of the various terms 
 employed in the law of evidence appear in the following chapter. 
 
THE MODERN LAW OF EVIDENCE. 
 
 CHAPTER I. 
 
 LAW OF EVIDENCE. 
 
 Definitions in general, 1. 
 Law of evidence, 2. 
 
 scope of the law of evidence, 3. 
 Evidence defined, 4. 
 
 other definitions, 5. 
 extrajudical evidence, 6. 
 judicial, 7. 
 " Proof " and " Evidence!' 8. 
 " Testimony " and evidence, 9. 
 Subdivisions of evidence, 10. 
 admissible evidence, 11. 
 best and secondary evidence, 12. 
 competent evidence, 13. 
 conclusive evidence, 14. 
 direct and circumstantial evidence, 15. 
 material evidence, 16. 
 
 oral and documentary evidence; document defined, 17. 
 other definitions, 18. 
 difficulty of removal, 19. 
 symbolical representation of thought, 20. 
 broad scope, 21. 
 limited scope, 22. 
 Mr. Gulson's view, 23. 
 
 Mr. Gulson's view considered, 24. 
 conclusions reached, 25. 
 positive and negative evidence, 26. 
 real and personal evidence, 27. 
 Bentham's view, 27. 
 Best's view, 28. 
 Gulson's view, 29. 
 Stephen's view, 30. 
 conclusions reached, 31. 
 
§ 1. Law of Evidence. 2 
 
 Secondary meanings of the term "Evidence/' 32. 
 evidence as a science, 33. 
 
 influence of procedure, 34. 
 open influence of substantive law, 35. 
 concealed influence of substantive law, 36. 
 the art of evidence, 37. 
 
 § 1. Definition in General. — The late Prof. James Bradley 
 Thayer, of the Harvard University Law School, — clwrum et vene- 
 rabile nomen — in essaying to define the term " fact " as formerly 
 and at present used in the law of evidence 1 and quoting from the 
 Year Books, speaks of his attempt as a " pervious chose." The 
 eminent authority need not have limited his characterization to 
 any particular definition in the law. All definition is perilous. 
 His distinguished associate in formulating the modern law of evi- 
 dence, Mr. Justice James Fitzjames Stephen, 2 states the broader 
 view on which the quotation from the Year Book rests : " Omnis 
 definitio in lege periculosa est." In venturing to disregard this 
 danger in the definitions of the " Digest," Mr. Justice Stephen 
 encountered the severe animadversions of a very acute, if occasion- 
 ally misguided, professional critic in the Solicitors' Journal. 3 "A 
 definition," said this critic, " is the most diificult of all things. 
 There is far greater probability of a correct use of terms than 
 of a correct definition of them. The best definition, therefore, is 
 that by use. A correct use renders definition unnecessary, because 
 the law will speak plainly without it. And where it is unneces- 
 sary to define it is also dangerous, because an incorrect definition 
 will confound the correct use, and introduce the very difficulty it 
 was designed to avoid, while a definition which is arbitrary (and 
 for that reason only cannot be called incorrect) will be probably 
 forgotten and departed from in the use." * 
 
 Of these suggestions, Professor Thayer remarks : B "That is a 
 true utterance of the inherited instinct of English-speaking law 
 
 1. Thayer, Prelim. Treat., 189. a new sense is the very last thing 
 
 2. Stephen, Dig. Law of Ev. (1st which should be done. If, on the 
 ed.) Introd., xvi. other hand, the word is a new one, or 
 
 8. Solicit. Jour., Vol. 20, p. 869. is not well-known, it should not be 
 
 4. Again the same gentleman writes: used at all, unless the subject-matter 
 
 " If well-known words are used in a of the legislation is so new that it 
 
 new sense, it is no doubt plainly requires new terms." Solicit. Jour., 
 
 necessary to define them; but, as Vol. 20, p. 869. 
 
 plainly, to use well known words in 5. Thayer, Prelim. Treat., 190n. 
 
3 Discussion of Teems. § 1. 
 
 yers and judges. But it is quite certain that as our law grows 
 it must be subjected more and more to the scrutiny of the legal 
 scholar, and that it will profit by any serious and competent effort 
 to clarify and restate it." 
 
 Whatever may be true of this ancient maxim in other connec- 
 tions, one who, like Mr. Justice Stephen, is seeking to render the 
 law of evidence intelligible, cannot well refrain from incurring 
 the danger of violating it. As part of the law of procedure, the 
 ancient subject of evidence traces a long descent from a dim and 
 distant past over a period during which its familiar terminology 
 has had varied, though frequently interblending, meanings which 
 show in the older among them a wonderful vitality and tendency to 
 recrudescence. The further difficulty presents itself. The con- 
 stant necessity of adapting familiar technical terms to the ap- 
 prehension of a popular, ever-changing, tribunal like the jury, 
 and the careless, inexact — sufficiently accurate for immediate pur- 
 poses — action of the courts in their use of terms have a constant 
 tendency to break down any remnants of scientific precision in 
 the use of terminology, and to develop numerous connotations 
 for each term or phrase commonly employed in connection with 
 the subject. 6 That any treatise on evidence should be under- 
 standable, this confusion must, so far as practicable, be eliminated 
 by a careful definition of the terms about to be employed. It 
 has, however, been deemed advisable not to attempt incumbering 
 the subject with the additional complication of a new terminology. 
 The only course, therefore, would seem to be the selection of one 
 among several connotations of the multifold-meaning terms. 
 While this has, wherever possible, been done, the process of ex- 
 cluding the discarded connotations, which insisting upon the 
 meaning of the one selected, has made necessary a somewhat 
 more extended discussion of the meaning of terms than would 
 have been required in the mere act of defining a newly-coined 
 term or one with a single signification. 
 
 G. Nothing but confusion can attend other a common nature; and often, 
 
 the use of varied meanings for the expend much labor very unprofitably 
 
 same term or phrase. As Mill says, (as was frequently done by the two 
 
 referring to the errors of Plato and philosophers just mentioned) in vain 
 
 Aristotle: "Even the strongest under- attempts to discover in what this 
 
 standings find it difficult to believe common nature consists." Mill, Logic 
 
 that things which have a common (8th ed.), bk. I, c. IV, § 1. 
 name, have not in some respect or. 
 
§ 2. Law of Evidence. 4 
 
 § 2. Law of Evidence. — The " rules of evidence " are such pre- 
 cepts in the general subject of judicial administration as determine 
 the manner in which a designated fact submitted to judicial de- 
 cision may be proved; 1 whether such a fact may be proved at all; 
 if so, who are competent to prove it and under what conditions. 
 In the aggregate, these rules constitute the " law of evidence." 
 Mr. Justice Stephen thus defines the law of evidence: 2 
 
 "All law may be divided into Substantive Law, by which rights, 
 duties, and liabilities are defined, and the Law of Procedure, by 
 which the Substantive Law is applied to particular cases. 
 
 " The Law of Evidence is that part of the Law of Procedure 
 which, with a view to ascertain individual rights and liabilities in 
 particular cases, decides: 
 
 " I. What facts may, and what may not be proved in such cases ; 
 
 " II. What sort of evidence must be given of a fact which may 
 be proved; 
 
 " III. By whom and in what manner the evidence must be pro- 
 duced by which any fact is to be proved." 
 
 The author is wisely careful to state at once his clause I — 
 " What facts may and what may not be proved in such cases " — 
 so as to indicate that the law of evidence determines not what 
 individual facts, but what classes or species of facts, may be proved. 
 " The facts which may be proved," he says, " are facts in issue, 
 or facts relevant to the issue ; " — to which, for reasons stated else- 
 where, we shall therefore assign the terms, respectively, of con- 
 stituent 3 and probative 4 facts. No countenance is given by Mr. 
 
 1. Lapham v. Marshall, 51 Hun to another matter of fact. ... In 
 
 (N. Y.) 361, 3 N. Y. Suppl. 601 giving evidence we are furnishing to 
 
 (1889). a tribunal a new basis for reasoning." 
 
 Thayer's definition. — " What ia our " Evidence, then, is any matter of 
 
 law of evidence? It is a set of rules fact which is furnished to a legal 
 
 which has to do with judicial in- tribunal — otherwise than by reason- 
 
 vestigationa into questions of fact. ing or a reference to what is noticed 
 
 . . . These rules relate to the mode without proof — as the basis of in- 
 
 of ascertaining an unknown, an,d ference in ascertaining some other 
 
 generally a disputed, matter of fact. matter of fact." Professor J. B. 
 
 But they do not regulate the process Thayer, " Presumptions and the Law 
 
 of reasoning and argument." of Evidence," 3 Harv. Law Rev. 142 
 
 "When one offers 'evidence,' in the (1889). 
 
 sense of the word which is now under 2. Stephen, Dig. Law of Ev. (May's 
 
 consideration, he offers to prove, other- Am. ed.), Introd., 6. 
 
 wise than by mere reasoning from 3. Infra, § 47. 
 
 what is already known, a matter of 4. Infra, § 51. 
 fact to be used as a basis of inference 
 
5 Gulson's Classification of Evidence. § 2. 
 
 Justice Stephen to what is perhaps the most fundamental and far- 
 reaching error that beclouds the subject of evidence, to wit, the 
 conception, more often- implied than expressed, that it is part of 
 the subject-matter of the law of evidence to determine what indi- 
 vidual facts are admissible in a given case ; — i. e., that the facta 
 probanda of the inquiry are to be determined by the rules of evi- 
 dence. Nothing could well be further from the fact. The ulti- 
 mate facta probanda <are the constituent facts, i. e., those parts of 
 the res gestce s which are rendered material to the inquiry only in 
 so far as these natural happenings tend to establish or constitute 
 some right or liability prescribed by the substantive law. Assume 
 that a fact may be proved, and the law of evidence indicates how 
 it may be done. It has no function to decide the ends to which the 
 evidence shall be directed. That is, as Mr. Justice Stephen, by 
 implication says, the province of the substantive law. 6 
 
 The perplexities and ambiguities of the English law of evidence 
 begin with the definition of the term " evidence." As pointed out 
 by a careful writer 7 the word " evidence " has at least three legiti- 
 mate meanings, as denoting: 
 
 (1) The science of proof or the fundamental, natural principle 
 which regulate the art of proving. 
 
 (2) The art of proof or the rules and methods employed in the 
 application of that science to practice. 
 
 (3) The physical means or agencies by which that art is carried 
 into effect. 
 
 5. Infra, § 47. themselves oftenest in the form of 
 
 6. " The question, on what facts the rulings upon the sufficiency of evi- 
 decision turns, is a question, not of dence." Mr. Justice Oliver Wendell 
 evidence, but of the substantive branch Holmes, The Common Law, 120 (1881). 
 of the law; it respects the prolandwm, "It is then fundamental that not 
 not the prolans; it does not belong all determinations admitting or ex- 
 to the inquiry, by what sort of evi- eluding evidence are referable to the 
 dence the facts of the case may be law of evidence. Far the larger part 
 proved; it belongs to the inquiry, of them are not. An innumerable 
 what are the facts of which the law company of questions, of the sort just 
 has determined that proof shall be alluded to, very often — more often 
 required, in order to establish the than not, nay, much oftener than 
 plaintiff's claim." Bentham, Ration- not — are dealt with in our text-books 
 ale of Jud. Ev., bk. IX, pt. VI, c. V. and cases as belonging to the law of 
 (Bowring's ed., vol. VII, p. 560) evidence, when in real truth they 
 (1827). ought to be carried to the border 
 
 " The principles of substantive law line of this subject and respectfully 
 
 which have been established by the deposited on the other side." Thayer, 
 
 courts are believed to have been some- Prelim. Treat., 515 (1898). 
 what obscured by having presented 7. Gulson, Philosophy of Proof, § 1. 
 
§ 2. Law of Evidence. 6 
 
 The present treatise concerns itself primarily with evidence in 
 its third sense. Neither as denoting a science nor an art is the 
 term " evidence " customarily employed, but as covering the 
 physical means by which the art of producing belief in the truth 
 of a given proposition or of verifying a fact by the use of reason, 
 is carried on. This aspect of the term " evidence " is the special 
 subject of this treatise. This third meaning of the term as classi- 
 fied by Mr. Gulson will be treated as the primary meaning of the 
 term, to be first considered; reserving for evidence considered 
 either as a science or as an art, such brief consideration as sec- 
 ondary meanings of the term 8 as is rather imposed by the limita- 
 tions in scope which the present work proposes to itself than 
 warranted by the great importance to the interests of general juris- 
 prudence of the subject when considered in these aspects. 
 
 § 3. Scope of the law of Evidence. — The scope of the law of 
 evidence is thus stated by Professor Thayer : ] " It must be noticed, 
 then, that ' evidence,' in the sense used when we speak of the law 
 of evidence, has not the large meaning imputed to it in ordinary 
 discourse. It is a term of forensic procedure; and imports some- 
 thing put forward in a court of justice. When men speak of his- 
 torical evidence and scientific evidence and the evidences of 
 Christianity, they are talking about a different sort of thing. The 
 law of evidence has to do with the furnishing to a court of matter 
 of fact, for use in a judicial investigation. But how ' has to do ? ' 
 (1) It prescribes the manner of presenting evidence; as by requir- 
 ing that it shall be given in open court, by one who personally 
 knows the thing, appearing in person, subject to cross-examination, 
 or by allowing it to be given by deposition, taken in such and such 
 a way; and the like. (2) It fixes the qualifications and the privi- 
 lege of witnesses, and the mode of examining them. (3) And 
 chiefly, it determines, as among probative matters, matters in their 
 nature evidential, — what classes of things shall not be received. 
 This excluding function is the characteristic one in our law of 
 evidence." 
 
 § 4. Evidence Defined. — In its original sense, the term " evi- 
 dence " is that which causes the state of being evident or plain. 1 
 
 8. Infra, §§ 32 et seq. 61 Vt. 153, 185, 17 Atl. 483 (1888) ; 
 
 1. Thayer, Prelim. Treat., 264. Gordon v. Denison, 24 Ont. 576, 583 
 
 1. Holland v. Ingram, 6 Eich. L. (1893). See also 3 Black. Comm. 367. 
 
 (S. C.) 50, 52 (1851) ; State v. Ward, "Its primary obvious meaning is 
 
Judicial and Extrajudicial Evidence. 
 
 § 4. 
 
 As at present employed, the term " evidence," in general, covers all 
 facts from which an inference may logically be drawn as to the 
 existence of a fact under investigation. 2 For judicial purposes, 
 evidence may conveniently be divided, in the order in which a fact 
 may present itself to observation, into extrajudicial and judicial. 3 
 
 that which, makes evident or manifest ; 
 the ground of belief or judgment; 
 conclusive testimony; a statement 
 which contains proofs, as the ' evi- 
 dence ' of our senses ; ' evidence ' of 
 truth or falsehood. Webster, Diet. 
 It is frequently said of a proposition 
 that it furnishes the evidence of its 
 truth, or carries with it evidence of 
 its own truth. ' Self-evident,' ' evi- 
 dently,' are employed to express the 
 idea of full proof; conviction." Mc- 
 Williams v. Rogers, 56 Ala. 87, 93 
 (1876). 
 
 " Evidence is said to be that which 
 demonstrates and makes clear a ques- 
 tion of fact at issue." Mallery v. 
 Young, 94 Ga. 804, 807, 22 S. E. 142, 
 143 (1894). 
 
 " ' Evidence ' is denned to be that 
 which makes a matter in dispute 
 clear, evident." Holland v. Ingram, 
 6 Rich. L. (S. C.) 50, 52 (1851). 
 
 Mr. Best points out, that the pri- 
 mary use of the term applied rather 
 to the effect produced than to the 
 means employed for producing it. 
 "The word evidence (evidentia) sig- 
 nifies, in its original sense, the state 
 of being evident, i. e., plain, apparent 
 or notorious. But in an almost 
 peculiar inflection of our language, it 
 is applied to that which tends to 
 render evident or to general proof." 
 Best, Ev., § 11. Conf. The popular 
 usage by which a conspicuous or no- 
 torious person or thing is said to be 
 " very much in evidence," or the like. 
 Blackstone's definition (3 Comm. 
 367) adopts the same etymological 
 view point. He defines evidence as 
 " that which demonstrates, makes clear 
 or ascertains the truth of the very 
 fact or point in issue, either on one 
 side or the other." 
 
 2. California. — Schloss v. Creditors, 
 31 Cal. 201 (1866). 
 
 Georgia. — Tift v. Jones, 77 Ga. 181, 
 3 S. E. 399 (1886). 
 
 Kentucky. — Miles v. Edden, 1 Duv. 
 (Ky.) 270 (1864). 
 
 Louisiana. — State v. Thomas, 50 
 La. Ann. 148, 153, 23 So. 250 (1898). 
 
 Michigan. — Auditor Gen. v. Me- 
 nominee Co. Sup'rs, 89 Mich. 552, 618, 
 51 N. W. 483 (1891). 
 
 Mississippi. — Glenn v. State, 64 
 Miss. 724, 726, 2 So. 109 (1887). 
 
 New York. — Lapham v. Marshall, 
 51 Hun (N. Y.) 361, 3 N. Y. Suppl. 
 601 (1889). 
 
 South Carolina. — Hill v. Watson, f 
 10 S. C. 268, 274 (1878). 
 
 Texas. — Horbaeh v. State, 43 Tex. 
 242, 249 (1875). 
 
 " Fact " and " Evidence " not really 
 synonymous. — Though frequently so 
 used, the terms " fact " and " evi- 
 dence " are not in reality synonymous. 
 Gates v. How, 150 Ind. 370, 372, 50 
 N. E. 299 (1897). 
 
 More properly speaking it is the 
 inference from the fact to which the 
 fact gives rise rather than the physical 
 fact itself which is the probative or 
 evidentiary force. The mind of the 
 observer, whether in or out of court, 
 cannot directly be influenced to belief 
 or any material mental state by a 
 physical fact. Only by changes in con- 
 sciousness which the fact produces is 
 evidence furnished. 
 
 3. An element of confusion is in- 
 troduced when the existence of pro- 
 bative fact is said to be " evidence " 
 of a constituent one. The relation of 
 relevancy recognized by the mind as 
 subsisting between the two facta exists 
 merely by virtue of a process of rea- 
 soning, based on experience. Nothing 
 
§ 4. Law of Evidence. 8 
 
 " Judicial evidence is that which is produced to the court ; it com- 
 prises all evidential facts that are actually brought to the personal 
 knowledge and observation of the tribunals. Extrajudicial evi- 
 dence is that which does not come directly under judicial cogniz- 
 ance, but nevertheless constitutes an intermediate link between 
 judicial evidence and the fact requiring proof." 4 
 
 § 5. (Evidence defined) ; Other Definitions. — The Supreme 
 Court of the United States, speaking through Mr. Justice Miller, 
 gives the following excellent definition of " evidence." i Evidence 
 " as a part of procedure, signifies those rules of law whereby we 
 determine what testimony is to be admitted and what rejected in 
 each case, and what is the weight to be given to the testimony ad- 
 mitted." The close parallelism between the various definitions is 
 well illustrated by a statement of the Supreme Court of Nebraska, 
 which, it will be observed, uses the definition of Bentham and 
 Greenleaf, and also that which is given in the present treatise. 
 " Evidence, as defined by lexicographers and law-writers, includes 
 all the means by which, in a judicial trial, it is sought to establish 
 or disprove any material allegation of a civil or criminal pleading. 
 Any circumstance which affords an inference as to whether the 
 matter alleged is true or false is therefore ' evidence,' and is com- 
 monly understood to be within the meaning of that term." 2 A 
 simpler, if less accurate, definition is that given by the Supreme 
 Court of California. " Evidence is simply the means of proving 
 a fact ; that which tends to establish a fact." 3 
 
 except a fact can properly be said to selves " to adjudge upon that evidence 
 be relevant to another. The state- concerning matter of fact." 
 raents of witnesses, production of 4. Salmond, Jurisp. (ad ed.) 447. 
 documents, perception by the tribunal, 1. Kring v. Missouri, 107 U. S. 221, 
 and other facts of evidence constitute 27 L. ed. 306, 2 S. Ot. 443, 452 (1882). 
 the "matter of evidence" of earlier 2. O'Brien v. State, (Nebr. 1903) 
 English law; the raw material, as it 96 N. W. 649, 650. 
 were, from the existence of which " Evidence is that which brings to 
 the existence of constituent facts the mind a just conviction of the 
 might be inferred by such pro- truth or falsehood of any substantive 
 cess of reasoning either on the proposition which is asserted or de- 
 part of the judge or by the jurymen, nied." Mr. Justice Edward Living- 
 See, for example, Littleton's Case ston, Draft Code, Book of Definitions 
 (cited in 10 Coke 56b), where the (Works, ed., 1872, II, 646) (1823). 
 jury, it is said, are not [by a special 3. People v. Bowers, (Cal. 1888) 18 
 verdict] to leave matter of evidence Pac. 660, 665. 
 to the court to adjudge but are them- 
 
9 Greenleaf's Definition of Evidence. § 5. 
 
 Bentham. — < In this latter meaning, the term, as Bentham saga- 
 ciously points out, 4 " is a word of relation." A definite relation 
 must, in the nature of things, exist between a factum proians and 
 a factum probandum so as to make the existence of the one render 
 probable, in a greater or less degree, the existence of the other. 
 In other words, Bentham limits " evidence " to what we have 
 called probative facts; 5 — neither constituent facts, nor delibera- 
 tive facts — the two other classes of admissible facts having the 
 necessary proving element which is characteristic of evidence. By 
 the term " evidence " he says, " seems generally to be understood 
 any matter of fact, the effect, tendency or design of which, when 
 presented to the mind, is to produce a persuasion concerning the 
 existence of some other matter of fact — a persuasion either af- 
 firmative or disafKrmative, of its existence." 6 These physical 
 means by which belief of the existence of a given fact is created 
 have been described, in a general way, by authorities on the sub- 
 ject — all being, more or less directly, based upon the definition 
 of Jeremy Bentham. 7 
 
 Greenleaf. — Upon this statement of Bentham was modeled the 
 celebrated definition of Professor Greenleaf, which is the accepted 
 definition in the American jurisdictions: " The word evidence, in 
 legal acceptation, includes all the means by which any alleged 
 matter of fact, the truth of which is submitted to investigation is 
 established or disproved." 8 Of this definition, it may be sug- 
 
 4. Bentham, Rationale of Jud. Ev., nominee Co. Sup'rs, 89 Mich. 552, 51 
 bk. I, c. I. N. W. 483, 505 (1891). 
 
 5. Infra, § 51. New York. — Lapham v. Marshall, 
 
 6. Cook v. New Durham, 64 N. H. 51 Hun 36, 3 N. Y. Suppl. 601, 603 
 419 (1887). (1889) ; McEntyTe v. Tucker, 5 Misc. 
 
 7. Bentham, Rationale of Jud. Ev., 228, 25 N. Y. Suppl. 95, 96 (1893). 
 bk. Ij c. I. Wyoming. — 'Wyoming Loan & Trust 
 
 8. Greenleaf, Ev., § 1. Co. v. W. H. Holliday Co., 3 Wyo. 386, 
 California. — Schloss v. His Credi- 24 Pac. 193 (1890). 
 
 tors, 31 Cal. 201, 203 (1866). See, also, Cook v. New Durham, 64 
 
 Georgia. — Tift v. Jones, 77 Ga. 181, N. H. 419, 13 Atl. 650, 651 (1887) 
 
 3 S. E. 399 (1886); Hotchkiss v. (citing 1 Bentham, Rationale of Jud. 
 
 Newton, 10 Ga. 560, 567 (1851). Ev., 17); State v. Ward, 61 Vt. 153, 
 
 Indiana. — Roberts v. State, 25 Ind. 17 Atl. 483, 487 (1888) (citing 1 
 
 App. 366, 58 N. E. 203, 205 (1900) ; Best, Ev., § 11). 
 
 Nelson v. Johnson, 18 Ind. 339, 332 "In its wider and universal sense, 
 
 (1862). it [evidence] embraces all questions by 
 
 Louisiana. — • State v. Thomas, 50 which any alleged fact, the truth of 
 
 La. Am. 148, 23 So. 250, 252 (1898). which is submitted to examination, 
 
 Michigan. — Auditor General v. Me- may be established or disproved." 
 
5. 
 
 Law of Evidence. 
 
 10 
 
 gested: (1) That unless "matter of fact" may be regarded as 
 something different from " fact " the definition of Bentham that 
 the existence of a fact should be shown is the more accurate phrase- 
 ology. Truth cannot well be predicated of a mere fact. Only 
 when existence or some other attribute is predicated of a fact can 
 its truth be affirmed or denied, or it be made the subject of proof 
 or the object of belief. 9 (2) The "means" for producing belief 
 in the truth of a given proposition or expression of fact with which 
 the law of evidence proposes to deal are those which are physical. 
 The definition " all means " would include the use of mere argu- 
 ment which is assuredly not evidence. 
 
 Stephen. — Mr. Justice Stephen says these means for inducing 
 belief as to the truth of a proposition of fact are two: (1) Oral 
 statements by witnesses, and (2) the use of documents. " ' Evi- 
 dence ' means: (1) Statements made by witnesses in court under 
 a legal sanction, in relation to matters of fact under inquiry ; . . . 
 (2) documents produced for the inspection of the court or judge." 10 
 
 Dissenting opinion in Hubbell v. 
 United States, (U. S. 1879) 15 Ct. 
 CI. 546, 606. 
 
 9. " Whatever can be an object of 
 belief or even of disbelief, must, when 
 put into words, assume the form of a 
 proposition. ... In every act of be- 
 lief two objects are in some manner 
 taken cognizance of; that there can 
 be no belief claimed, or question pro- 
 pounded, which does not embrace two 
 distinct (either material or intel- 
 lectual) subjects of thought; each of 
 them capable, or not, of being con- 
 ceived by itself, but is capable of 
 being believed by itself. I may say, 
 for instance, ' the sun.' The word has 
 a meaning, and suggests that mean- 
 ing to the mind of any one who is 
 listening to me. But suppose I ask 
 him, whether it is true; whether he 
 believes it? He can give no answer. 
 There is as yet nothing to believe, or 
 to disbelieve. Now, however, let me 
 make, of all possible assertions re- 
 specting the sun, the one which in- 
 volves the least of reference to any 
 object besides itself; let me say, 'the 
 sun exists.' Here, at once, is some- 
 thing which a person can say he be- 
 lieves. But here, instead of only one, 
 
 we find two distinct objects of con- 
 ception: the sun is one object; exist- 
 ence is another." Mill, Logic, (8th 
 ed.) bk. I, c. I. § 2. See, also, Mill. 
 Logic, (18th ed.) bk. I, c. VI, § 1. 
 
 10. Stephen, Dig. Law of Ev., c. I, 
 art. 1. 
 
 The critic of the Solicitors' Journal 
 thus comments : " If counsel were 
 asked, ' What evidence do you propose 
 to give of the authority of such a 
 one to pledge the credit of the defend- 
 ant? ' he would not reply, 'The state- 
 ments of the witnesses who will say 
 that the defendant has habitually 
 paid for goods ordered on his account 
 by that person;' meaning that the fact 
 of the defendant's having so paid 
 would be the substance of the evidence 
 which he was about to adduce. This 
 would almost certainly be his mean- 
 ing, although it is possible that he 
 might refer to the fact itself as evi- 
 dence, in the sense of a means of 
 proving, that the person in question 
 had authority to pledge the defend- 
 ant's credit, passing over in his mind 
 altogether the statements of witnesses 
 by which that fact would itself be 
 proved." Solicit. Jour., vol. 20, p. 
 857. 
 
11 Judicial Evidence Defined. § 5. 
 
 This definition seems faulty in failing to include facts of which 
 the judge or jury are the original percipient witnesses — inferences 
 drawn from their own perception. 11 
 
 § 6. (Evidence Defined) ; Extrajudicial Evidence. — " Extra- 
 judicial evidence includes all evidential facts which are known to 
 the court only by way of inference from some form of judicial 
 evidence." ] Extrajudicial evidence is part of the order of nature 
 — as distinguished from the art of investigating reports of the 
 natural occurrences. It is the field of objective relevancy. 2 Every 
 judicial inquiry arises out of and involves the existence of a cer- 
 tain section of the world's happenings — hedged about by time, 
 space and causation. These are the res gestae of the case, the facts 
 which constitute the right or liability asserted ; 3 so far, at least, as 
 it is constituted at all. Under the direction and within the limita- 
 tions of objective relevancy, i. e., along the lines of natural causa- 
 tion, run various lines of probative facts 4 each factum probans 
 establishing its respective factum probandum, the latter, in turn, 
 becoming a factum probans, until it reaches some ultimate or con- 
 stituent fact — some fact in the res gestce, which are the ultimate 
 facta probanda. Fov the res gestae do not, in turn, become facta 
 probanies. The chain of cause and effect stops. 
 
 § 7. (Evidence Defined) ; Judicial — Judicial evidence includes 
 all testimony given by witnesses in court, all documents produced 
 to and read by the court, and all things personally examined by the 
 court for the purposes of proof. 1 Stephen's definition of evidence 
 in general, if supplemented by the evidence which the judge and 
 jury obtain by perception 2 is true, if limited to judicial evidence. 3 
 "'Evidence' means: (1) All statements which the judge per- 
 mits or requires to be made by witnesses in court, in relation to 
 matters of fact under inquiry ; such statements are called oral evi- 
 dence; (2) all documents produced for the inspection of the court 
 
 11. See Evidence by Perception. ties, or one of them for an affray com- 
 
 1. Salmond, Jurisp. (3d ed.), 417. mitted in his presence. 
 
 2. Infra, § 55. 4. Infra, § 51. 
 
 3. It is not necessarily true, though 1. Salmond, Jurisp. (2d ed.), 417. 
 usually it happens, that the res gestw 2. See Evidence by Pebception. 
 should be extrajudicial. The entire 3. " The means, sanctioned by law, 
 transaction may take place in pres- of ascertaining in a judicial proceed- 
 ence of the court — coram judice — ing the truth respecting a question 
 as where a presiding judge inaugu- of fact." Cal. Code Civ. Proc, § 1823. 
 rates proceedings to punish the par- 
 
§ 7. Law of Evidence. 12 
 
 or judge; such documents are called documentary evidence." 4 
 Judicial evidence is the domain of subjective relevancy; 5 of the 
 use of deliberative facts ; 6 of the balancing in mental scales, of the 
 weight — the true probative force — of the statements of witnesses 
 or of the declarations of documents. The res gestae, established 
 either by direct evidence, or if this cannot be obtained, by the cir- 
 cumstantial facts which tend to prove or disprove the existence, 
 in an objective point of view, of these res gestce are to be laid be- 
 fore the tribunal through the subjective mental condition of de- 
 clarants, either speaking orally to the ear as witnesses or by written 
 characters through the sense of sight, to the tribunal. It is only 
 as to these facts that the mental state of the declarant, testifying 
 orally or in writing, is of importance in the inquiry. But in 
 judicial evidence the question is not one as to natural connection 
 as in case of extrajudicial testimony, but a question of psychology 
 is presented. The inquiry is not as to what the objective facts, if 
 established, prove in point of fact, but rather as to what inference 
 the tribunal will draw as to whether the objective facts are them- 
 selves established in view of the statements made by witnesses hav- 
 ing certain knowledge, intelligence, powers of observation or 
 reasoning and acting under a certain bias, prejudice, interest or 
 motive to misrepresent the truth. It follows that all judicial testi- 
 mony or documents establish the res gestae facts, or the probative 
 facts leading up to their inferential establishment, in a circum- 
 stantial manner. Unless the tribunal observes the res gestce for 
 itself, they must be proved to the tribunal circumstantially, through 
 
 4. Stephen, Dig. Law of Evid. (1st physical ear of the tribunal. This is 
 
 ed.), c. 1, art. 1. all vehicle, means of communication. 
 
 While it is common, as in Stephen's What causes belief — so far as it is 
 
 Definition of Evidence, to speak of caused — in the mind of the tribunal 
 
 the physical statement of the witness is the mental, intangible inference 
 
 or the physical words of the declarant which the mind of the segregated 
 
 set out in the document as being the units of conciousness which compose 
 
 evidence, it seems obvious that if evi- the tribunal shall draw as to the 
 
 dence be that which produces con- mental state of the declarant; — the 
 
 viction, belief or other mental state inference as to how far it is probable 
 
 the probative force is not physical. that, in view of the mental and moral 
 
 Matter cannot act directly upon mind. equipment of the witness, he would 
 
 Only mind can do that. The pro- have made the statement which he did 
 
 bative belief-compelling force lies make were the fact other than he 
 
 neither in the vocal sound set in states it to be. 
 
 motion during the statement of the 5. Infra, § 56. 
 
 witness, nor in these physical air 6. Infra, §§ 47, 52. 
 vibrations as they strike upon the 
 
13 "Evidence" and "Testimony" ContkasteD. § 7. 
 
 the witnesses who testify to them; their statements are the pro- 
 bative facts which tend to establish them. In case of direct evi- 
 dence, so called, the witnesses testify to the res gestae directly and 
 not to probative facts from which the existence of the res gestce 
 facts may itself be inferred. 
 
 § 8. " Proof " and " Evidence." — The terms " evidence " and 
 " proof " have been used as synonyms — that is, as indicating the 
 means by which mental certainty on the part of a tribunal is cre- 
 ated. 1 When properly employed, " proof " sustains to " evidence " 
 the relation of an end to the means used in attaining it. Proof is 
 the state of mind which it is the object of evidence to produce. 2 
 The most pernicious effect of using the word " proof " as meaning 
 either (1) the end of mental certitude, or (2) the means by which 
 a party seeks to attain that end lies in connection with the» phrase 
 " burden of proof," where the two senses of the term proof are 
 interchangeably employed in a bewildering way. 3 
 
 § 9. " Testimony " and " Evidence." — By colloquial use of tech- 
 nical terms which has almost of necessity affected a branch of law 
 involving the cooperation of a jury, " evidence " and " testimony " 
 have frequently been used as conveying the same meaning. 1 More 
 
 1. O'Reilly v. Guardian, etc., Life hausen, 120 Mich. 677, 683, 79 N. W. 
 Ins. Co., 60 N. Y. 169, 173, 19 Am. 935 (1899). 
 
 Rep. 151 (1875) ; Hill v. Watson, 10 New York.— Buffalo, etc., R. Co. v. 
 
 S. C. 268, 273 (1878). Reynolds, 6 How. Pr. 96, 97, 98 
 
 Reverse confusion. — Under a New ( 1851 1- 
 
 ,, . , . , . . , .„ , South Carolina. — Hill v. Watson, 10 
 
 York statute a certain certificate was 
 
 declared to be " evidence without fur- " ' l ' ' 
 
 ,, cm. j 3 - Infra, § 936. 
 
 ther proof. These words were con- . _, * __ _.. . 
 
 , ... ,.„ 1. Cahforma. — Mann v. Higgins, 83 
 
 strued to mean that the certificate ^ 66> 23 pae ^ )# 
 
 was proof without further evidence. Connecticut.- Appeal of Orandall, 
 
 Albany County Savings Bk. v. Mo- 63 Conn 365j 28 Atl> 531> 38 ^ 
 
 Carty, 149 N. Y. 71, 83, 43 N. E. g t> Rep , 375 (1893) . 
 
 427 (1896). Illinois.—- People v. Henckler, 137 
 
 2. California. — Schloss v. Creditors, 111. 580, 27 N. E. 602 (1891) ; Jones 
 31 Cal. 201 (1866). V. Gregory, 48 111. App. 228 (1892). 
 
 Georgia.— Powell v. State, 101 Ga. Indiana.— Harris v. Tomlinson, 130 
 
 9, 21, 29 S. E. 309, 65 Am. St. Rep. Ind - 426 > 30 N - E - 214 < 1891 )- 
 277 (1897); Tift 17. Jones, 77 Ga. Nebraska.— Woolworth <o. Parker, 
 
 181, 190, 3 S. E. 399 (1886). 57 Nebr - 417 ' 77 N - W - 109 ° < 1899 )- 
 
 New York. — People v. Armour, 18 
 Iowa.- Perry v. Dubuque, etc., R. N y A Div _ 5g4 46 y> y _ g . 
 
 Co., 36 Iowa 102 (1872). 317 (1897)i 
 
 Kentucky.— Miles v. Edelen, 1 Duv. Washington.— Noyes v. Pugin, 2 
 
 (Ky.) 270 (1864). Wash. 653, 661, 27 Pac. 548 (1891). 
 
 Michigan. — Jastrzembski v. Marx.- 
 
§ 9. Law oe Evidence. 14 
 
 properly, " testimony " is that part of judicial evidence which 
 comes to the tribunal through the medium of witnesses — ■ i. e., by 
 means of their verbal statements. 2 
 
 § 10. Subdivisions of Evidence — Before attempting to define the 
 term " fact," without which the foregoing definitions of the term 
 " evidence " are without meaning, 1 and entering upon the further 
 effort of making such a classification of facts in general, as may 
 be helpful for the present purpose, 2 it may be convenient to con- 
 sider, as briefly as seems possible, certain of the more important 
 of the classifications which have been made in the generic term 
 " evidence." Wo general system of classification has been adopted 
 by those who have sought to create these classes. In most cases, 
 the classification is, as it were, modal, i. e., the classes are differ- 
 entiated according to the mode or method by which the evidence 
 operates in creating belief in the existence of a given fact, e. g., 
 direct and circumstantial evidence; or probative, i. e., as indicat- 
 ing the evidentiary force — belief-generating effect — of the facts 
 in question as related to the facts involved in the inquiry — as 
 material evidence, competent evidence and the like. To the more 
 scientific classification announced by Bentham and more generally 
 known through the treatise of Best, and very interestingly dis- 
 cussed by Mr. Gulson, a somewhat more extended consideration 
 will be given. 
 
 § 11. (Subdivisions of Evidence) ; Admissible Evidence. — .Evi- 
 dence which the court receives in the course of a trial, or might 
 properly receive, is admissible evidence. Admissible evidence re- 
 lates to proof of three classes or species of facts: (1) Constituent, 
 or res gestce facts; (2) probative or evidentiary facts; (3) delib- 
 erative facts. 
 
 § 12. (Subdivisions of Evidence); Best and Secondary Evi- 
 dence — . The important subject of " best and secondary " evidence 
 — which so constantly attracts the attention of the court and so 
 
 2. Indiana. — Woods v. State, 134 New York. — People v. Kenyon, 5 
 
 Ind. 35, 41, 33 N. E. 901 (1892). Parker Cr. (N. Y.) 254, 288 (1862). 
 
 Louisiana. — Carroll v. Bancker, 43 Wisconsin. — Nash v. Hoxle, 59 
 
 La. Ann. 1078, 1085, 1194, 10 So. 187 Wis. 384, 18 N. W. 408 (1884). 
 
 (1891). 1. Infra, § 38. 
 
 Nebraska. — Columbia Nat. Bank v. 2 - Infra, Jj 43. 
 German Nat. Bank, 56 Nebr. 803, 77 
 N. W. 346 (1898). 
 
15 Axioms and Direct Acts of Consciousness. § 12. 
 
 constantly taxes the ingenuity of trial counsel and the patience of 
 appellate judges, is one which it seems easy to misunderstand. It 
 indicates no absolute division between facts of one class and facts 
 of another. The classification, in any particular case, is condi- 
 tioned upon a number of variables, e. g., the evidence which it is 
 fairly within the power of a proponent to produce, the nature of 
 the case or investigation, the stage of the trial, the state of the 
 evidence, and the like. It therefore indicates a relative rather than 
 an absolute line of demarkation. What would be secondary under 
 one set of circumstances may be deemed primary in another. Evi- 
 dence may be excluded under it, in one case, or at one time in a 
 case, which might properly be received in the next case or even at 
 a subsequent stage in the same proceeding. Such a division of 
 relation is obviously not a rule of law or even a rule of procedure. 
 It is rather a guide to the discretion of the court in admitting testi- 
 mony, i. e., a canon of judicial administration. It is so treated 
 elsewhere, 1 especially in its very important application to the use 
 of documents. 2 
 
 § 13. (Subdivisions of Evidence); Competent Evidence Facts 
 
 which, under these rules of procedure or the canons of administra- 
 tion, will be considered by a judicial tribunal, have been designated 
 as "competent," 1 though the term has been used as equivalent to 
 sufficient to warrant action by the tribunal. 2 
 
 § 14. (Subdivisions of Evidence); Conclusive Evidence. — 
 
 Where the evidence of a probative fact or set of facts amounts to 
 a demonstration of the factum probandum to which it is directed, 
 where the evidence is uncontrovertible, it is said to be conclusive. 1 
 This conclusive evidence has been spoken of as " either a pre- 
 sumption of law, or else evidence so strong as to overbear all other 
 in the case to the contrary." 2 Such a statement would be appro- 
 priate, in reality, only of a mathematical demonstration, the ulti- 
 mate basis of which is the existence of an axiom not admitting of 
 dispute; or a direct act of perception where the existence of the 
 
 1. Infra, § 339. 2. Niles v. Sprague, 13 Iowa 198, 
 
 2. See Documentaby Evidence. 204 (1S62). 
 
 1. Ryan v. Bristol, 63 Conn. 26, 36, 1. Wood v. Chapin, 13 N. Y. 509, 
 
 27 Atl. 360 (1893) ; State v. John- 515, 67 Am. Dec. 62, per Denio, C. J. 
 
 son, 12 Minn. 476, 93 Am. Dee. 241 (1856). 
 
 (1867) ; Porter v. Valentine, 18 Misc. 2. Haupt. v. Pohlnaan, 1 Rob. 
 
 (N. Y.) 213-215, 41 N. Y. Suppl. (N. Y.) 121, 127, per Robertson, J. 
 
 507 and cases cited (1896). (1863). 
 
§ 14. Law of Evidence. 16 
 
 thing observed as distinguished from the inferences to be drawn 
 from it — being a state of consciousness, cannot admit of doubt. 
 " Whatever is known to us by consciousness is known beyond pos- 
 sibility of question. What one sees or feels, whether bodily or 
 mentally, one cannot but be sure that one sees or feels. No science 
 is required for the purpose of establishing such truths; no rules 
 of art can render our knowledge of them more certain than it is 
 in itself. There is no logic for this portion of our knowledge." 3 
 That one who perceives knows his actual state of consciousness is 
 conclusively shown to him. But it is not proved to him. Moral 
 evidence and the reasoning from phenomena or the statements of 
 witnesses can never in the nature of things, amount to a demon 
 stration, to conclusive proof. At most, it can legitimately result 
 only in a very high degree of probability. 
 
 The phrase, conclusive evidence, may be used to state a propo- 
 sition as to which the law of evidence has nothing whatever to 
 do, though couched in the appropriate phraseology of the subject; 
 — the equivalence between two things prescribed by the sub- 
 stantive law. Thus, the rule of substantive law that prescriptive 
 user of a non-corporeal hereditament for a period of twenty years 
 bars the right of action, may be announced by saying that proof 
 of such a user is conclusive evidence of a lost grant, 4 or by the 
 equivalent expression that a lost grant is conclusively presumed 
 from the fact of such user. 
 
 § 15. (Subdivisions of Evidence) ; Direct and Circumstantial 
 
 Evidence. — As commonly used, direct evidence is the immediate 
 perception of the tribunal 1 or the statement of a witness as to the 
 existence of a constituent fact. Circumstantial evidence is the 
 statement of a witness as to the existence of a fact in some degree 
 probative as to the existence of a constituent fact. The distinction 
 is generally regarded as important. Where a witness testifies to 
 the existence of a res gestae fact, his testimony is direct. Where, on 
 the contrary, he testifies to a probative fact, i. e., to a fact which, 
 either alone or in connection with other facts, renders probable the 
 
 3. Mill, Logic (8th ed.), Introd., is to be applied as a presumptio juris 
 30. et de jure, wherever by possibility a 
 
 4. "Adverse, exclusive, and unin- right can be acquired in any manner 
 terrupted enjoyment for twenty years known to the law." Wallace V. 
 of an incorporeal hereditament affords Fletcher, 30 N. H. 434 (1855). 
 
 a conclusive presumption of a grant 1. See Evidence by Pebception. 
 
 or a right, as the case may be, which 
 
17 Steength of Circumstantial Evidence. § 15 
 
 existence of a res gestae fact, the evidence is circumstantial. " Evi- 
 dence is of two kinds: That which, if true, directly proves the 
 fact in issue; and that which proves another fact from which the 
 fact in issue may be inferred." 2 
 
 The distinction seems confusing and misleading rather than help- 
 ful. It is an attempt to turn a difference in degree of immediate- 
 ness in proving a res gestae fact into a difference in kind or nature 
 of evidence itself. 3 It is true that, other things being equal, less 
 chance for error is afforded where but one act of inference is needed 
 for the proof of the constituent fact than where more inferences are 
 asked for the same end. It follows that where the single inference 
 from the statement of the percipient witness to the fact affirmed 
 by him is needed for an act of belief on the part of the tribunal, 
 less danger of mistake exists than where the same tribunal is re- 
 quired to infer from the statement of a percipient witness the ex- 
 istence of a probative fact, or set of facts, and to further infer from 
 the existence of these facts the existence of the constituent fact. 
 But in the matter of degree of probative force, which is the essential 
 difference between classes of evidence, no real comparison is possi- 
 ble. Assuming circumstantial evidence to be inferior in degree of 
 probative force a large and intimately correlated mass of such 
 
 2. Hart v. Newland, 10 N. O. 122, Tennessee. — Lancaster ■». State, 91 
 
 123 (1824). Term. 267, 18 S. W. 777 (1891). 
 
 Alabama. — West <o. State, 76 Ala. United States. — U. S. v. Cole, 5 
 
 98 (1884). McLean 513, 610, Fed. Cas. No. 14832 
 
 Dakota.— Terr. V. Eagao, 3 Dak. (1853) ; U. S. v. Gilbert, 2 Sumn. 19 
 
 119, 13 N. W. 568 (1882). Fed. Cas. No. 15204 (1834). 
 
 Maine. — Reed's Case, 1 Cen. L. J. " Direct or positive evidence is when 
 
 219 (1874). a witness can be called to testify to 
 
 Massachusetts.— Com. v. Webster, 5 the precise fact which is the sub- 
 
 Cush. 295, 310, 52 Am. Dec. 711 J ect of the issue on trial " Com. v. 
 
 / 1850 )_ Webster, 5 Cush. (Mass.) 295, 310, 
 
 Mississippi.— McCarin v. State, 13 per Shaw, C.J. (1850). 
 
 Smedes & M. 471 (1850). Circumstantial not cumulative as 
 
 Missouri.- State*. Avery, 113 Mb. re S ards aire( * evidence.- Evidence 
 
 475, 21 N. W. 193 (1892). tending, circumstantially, to estab- 
 
 ,. . , „ t> • i n^ Ush a fact in issue is not cumulative 
 
 Nebraska. — Curran v. Percival, 21 ,. ., , 
 
 ■.T , .„. „„ -*T m „„„ ,-„„.., a s regards direct evidence as to the 
 
 Nebr. 434, 32 N. W. 213 (1887). & „ , TT . 
 
 same fact. Vardeman v. Byrne, 7 
 Nevada.- State v. Slmgerland, 19 How {mss) 8g5 (lg43)i 
 
 Nev. 135, 7 Pac. 280 (1885). 3 _ A fact proved hj a legitimate in . 
 
 New York.— Pease v. Smith, 61 f er ence is proved no less than when 
 
 N. Y. 477 (1875). it is directly sworn to. Doyle v. 
 
 Pennsylvania. — Bash v. Bash, 9 Pa. Boston, etc., Ry. Co., 145 Mass. 386 
 
 St. 260 (1848). (1888). 
 
 Voi.. I. 2 
 
§ 15. Law of Evidence. 18 
 
 evidence may, in any individual case, produce a deeper sense of 
 mental certitude than a smaller quantity of the intrinsically more 
 probative evidence. Aside from the effect of the oath — a require- 
 ment of procedure which, in most cases, has but slight influence on 
 probative force — the logical operation of any statement, in or out 
 of court, is, in the last analysis, a circumstantial one. That is, the 
 statement is believed in proportion as the person to whose judgment 
 it is submitted is led by experience to believe that the statement 
 is true because the declarant, with a certain degree of knowledge 
 and speaking under certain moral or legal sanctions or in certain 
 relations to the parties or the subject-matter, has made it. All 
 statements, therefore, so far as probative at all, carry weight as 
 they satisfy the conditions prescribed by experience. 4 This appeal 
 to experience exists, so far as the fact testified to is concerned, 
 whether that fact is a constituent or a probative one, i. e., whether 
 the evidence is " direct " or " circumstantial." All that remains, as 
 a distinction between direct and circumstantial evidence, is the es- 
 sential difference between a constituent and a probative fact. To 
 be effective as an offensive or defensive weapon, circumstantial evi- 
 dence must satisfy a double appeal to experience. Direct evidence 
 need satisfy but one. 
 
 But circumstantial evidence has also its claim to credibility of a 
 high order. Under the environing conditions of time, space and 
 causation certain evils as fabrication, collusion and mistake, to 
 which direct evidence is peculiarly and almost necessarily exposed, 
 can seldom be carried over into the proof of a large number of pro- 
 bative facts, frequently of slight individual evidentiary effect. It 
 cannot well be doubted that grave injury is constantly being done 
 to the cause of justice by insisting upon a distinction which seems 
 to discredit the use of absolutely necessary facts, by affirming 
 that such facts should not be permitted by a tribunal to exert a 
 normal influence in producing the state of mental certainty re- 
 quired for its affirmative action. The value of the distinction does 
 not apparently compensate for the danger involved in emphasizing 
 it, and it might readily be abandoned without injury to any in- 
 terests of judicial administration. 5 
 
 4. See, however, Davenport t'. Cum- to accuracy be spoken of as tending 
 
 mings, 15 Iowa 219 (1863), where the to prove an issue." 
 court says : " Direct and positive evi- 5. This has been done by Stephen, 
 
 dence cannot with a, critical regard See Dig. Law of Ev., art. 1. 
 
19 Documents Limited to "Writings. § 16. 
 
 § 16. (Subdivisions of Evidence) ; Material Evidence Where 
 
 a fact offered in evidence is not merely relevant, in the logical 
 sense, but presents the cogency of probative force required for 
 affirmative action on the part of the tribunal, 1 it is " material evi- 
 dence." 2 While " material " implies an additional logical pur- 
 suasiveness to that necessarily carried by the term relevant, " im- 
 material " and " irrelevant," as generally used, are practically 
 synonymous. What facts are material to any inquiry will be found 
 to be determined by the nature of the right or liability asserted, 
 i. e., so far as this is expressed in terms of fact, by the component 
 facts of the case. The existence of these component facts differ- 
 entiates the res gestae facts into those which the material, i. e., 
 constituent, and those which are not. 
 
 § 17. (Subdivisions of Evidence) ; Oral and Documentary Evi- 
 dence; Document Defined. — By "document" is denoted the union 
 of a material substance and the written language carried by it. 
 
 The term " document " is one difficult to define, by reason of the 
 very intangible nature of the distinction between the material or 
 physical element and the nonmaterial or intellectual component 
 which are united under it. In other words, a document is a physi- 
 cal thing — a piece of paper, parchment, any material substance, 
 and this physical, material thing is a vehicle, instrument or means 
 by which thought is presented to the mind. Both of these ideas are 
 essential to the conception of the term " document." A blank sheet 
 of paper would not be a document. The oral testimony of a wit- 
 ness — though it convey thought, is not a document. The steno- 
 graphic notes by which the testimony of the witness has been placed 
 upon paper would probably constitute the paper containing them 
 a document. When these notes are transcribed into the ordinary 
 written, typewritten or printed characters of language, the material 
 substance carrying the thoughts so represented is clearly one. It is 
 this combination of a material substance and its conveyance of 
 thought which constitutes the essential feature of a document. In 
 other words, the term " document " will be limited to writings 1 
 in the present treatise. 
 
 1. Infra, § 993. general sense, any use of or method of 
 
 2. Porter v. Valentine, 18 Misc. using letters or other conventional 
 (N. Y.) 213, 41 N. Y. Suppl. 507 symbols of uttered sounds for the 
 (1896). visible preservation or transmission 
 
 1. The recording of words or sounds of ideas. Cent. Diet., in verb. 
 in significant characters, in the most 
 
§ 17. Law of Evidence. 20 
 
 Under such a definition, single words, or even a collection of 
 disconnected words, like the incoherent verbal ejaculations of a per- 
 son in pain, do not constitute a document, when carried on or pre- 
 sented to the observer by a material substance. Such words su.gr- 
 gest rather than convey thought. Such a limitation of the char- 
 acters on a document to language — which conveys thought, 
 rather than to marks or symbols which merely suggest it, from 
 the existence of which it may reasonably be inferred — seems to 
 be in the direction of clearness and precision in terminology. The 
 difference between language and mere facts such as notched sticks, 
 tallies and the like to which private convention has allotted a 
 definite significance, and plans, maps, diagrams and the like, to 
 which significance is given only by antecedent knowledge — is so 
 great in this connection as to amount to a difference in kind. Un- 
 less this limitation be adopted, the whole definition of document at 
 once becomes enveloped in a fog — as is abundantly shown by the 
 interesting speculations of Bentham and Mr. Gulson's commen- 
 taries upon them which are stated in this chapter. 2 The limitation 
 to language is also in the interest of symmetry and harmony in the 
 subject itself. A very important reason, briefly stated in this 
 chapter, 3 and hereafter to be treated more in detail, 4 why " docu- 
 mentary evidence " is given distinctive treatment in the law of 
 evidence at all is that documentary evidence has been affected in 
 a distinctive way, and in important particulars, both by the sub- 
 stantive law, acting by statutory regulations or preserving the con- 
 ventions of the parties ; or by the law of procedure, acting through 
 canons of administration. These regulations have no application 
 to any form of document except one in writing. Unless, therefore, 
 language is employed as the test of a document we have a series 
 of important rules which fail to apply to a large portion of the 
 class. The law of evidence will suffer little and gain much by rele- 
 gating to the general class of facts, when viewed by the court, 
 as evidence by perception, all other so-called " documents " not in 
 writing, e. g., maps, plans, photographs, private conventions and 
 the like. 
 
 No restriction exists as to the material substance which may thus 
 convey thought. 5 
 
 2. Infra, §§ 23, 27. 5. Rowland v. Burton, 2 Harr. 
 
 3. Infra, § 22. (Del.) 288 (1837), wood; Kendall V. 
 
 4. Infra, §§ 480 et seq. Field. 14 Me. 30 (1836), wood. 
 
21 Real, Evidence Classed as Documents. § 18. 
 
 § 18. (Subdivisions of Evidence; Oral and Documentary 
 Evidence; Document Defined); Other Definitions. — 'Other defi- 
 nitions are less restricted and embrace many matters which, under 
 the definition here adopted, would be excluded, not being docu- 
 ments but falling back into the general class of facts. 
 
 Best. — Thus Mr. Best 1 uses the term " as including all material 
 substances on which the thoughts of men are represented by writing 
 or any other species of conventional mark or symbol. Thus, the 
 wooden scores on which bakers, milkmen, etc., indicate by notches 
 the number of loaves of bread or quarts of milk supplied to their 
 customers, the old exchequer tallies, and such like, are documents 
 as much as the most elaborate deeds." 
 
 Wharton. — Professor Wharton 2 defines " document " as " an in- 
 strument on which is recorded by means of letters, figures, or 
 marks, matter which may be evidentially used." 
 
 Stephen. — Mr. Justice Stephen presents a definition which is 
 similar — though somewhat more restricted. A document, he 
 says, 3 " means any substance having any matter expressed or de- 
 scribed upon it by marks capable of being read." * 
 
 Within these three definitions, a ring or banner with an inscrip- 
 tion, a musical composition and a savage tattooed with words in- 
 telligible to himself would all be documents. Photographs, cari- 
 
 1. Prin. Law of Ev. (3d Am. ed.), same with, but is different from, the 
 § 215. means by which it is expressed or de- 
 
 2. Wharton, Ev., § 614. . scribed, and is that which is ex- 
 
 3. Stephen, Dig. Law of Ev., c. 1, pressed, understood, and ascertained 
 art. 1. by those means ; and what is produced 
 
 4. Mr. Stephen's original definition to the court is the expression of it, 
 read as follows : " ' Document ' means or more strictly the substance itself 
 any matter expressed or described bearing upon it this expression." 
 upon any substance by means of let- After calling attention to certain 
 ters, figures, or marks, or by more verbal infelicities involved in the use 
 than one of those means, intended to of the words " intended to be used, 
 be used, or which may be used, for or which may be used, for the pur- 
 the purpose of recording that matter." pose of recording that matter " which 
 Dig. Law of Ev., art. 1. This defi- he regards as superfluous or possibly 
 nition evidently fails to give proper misleading, the writer proceeds as fol- 
 prominence to the material element in lows: " We would suggest, therefore, 
 the complex conception of a document, that a more accurate definition would 
 an error which was pointed out by the be ' Document means any substance 
 critic of Mr. Stephen's work in the • having any matter expressed or de- 
 Solicitors' Journal. " The document, scribed upon it by means of letters, or 
 therefore," he says, "is by the defi- figures, or marks, or by more than 
 nition the matter expressed or de- one of those means.' " Solicit. Jour., 
 scribed. But this matter is not the vol. 20, p. 858. 
 
§ 18. Law of Evidence. 22 
 
 catures, wooden scores or tallies would apparently be classified as 
 " documents " under all these definitions, except that of Mr. Jus- 
 tice Stephen — which seems in its amended form the most ac- 
 curate and workable of the three. 
 
 § 19. (Subdivisions oi Evidence; Oral and Documentary 
 Evidence); Difficulty of Removal — Practical considerations of 
 convenience may, as a matter of administration, excuse the physical 
 production of a document where its size, weight or immobility are 
 such as to render it difficult, if not impossible, to afford the court 
 and jury actual personal inspection of it. In such cases, as is 
 more fully stated elsewhere, 1 the court may take a view or permit 
 the jury to take one if this seems the more satisfactory course; 
 cr, witnesses may be permitted to testify as to the contents, 2 or a 
 copy, 3 by photographic or other means, may, upon proper iden- 
 tification, be introduced in evidence. But this inconvenience of 
 production in no way affects the fact that, whatever may be the 
 material substance, it is, so long as it conveys thought, a docu- 
 ment. Up to this point, harmony exists among the authorities. 
 
 § 20. (Subdivisions of Evidence; Oral and Documentary 
 
 Evidence) ; Symbolical Representation of Thought A divergence 
 
 of opinion, however, at once arises when the question is asked: — 
 By what signs, symbols, characters, or other means may thought 
 properly be placed in or upon this physical substance, within the 
 meaning of the term, " document " ? It would seem that, on 
 principle, this question was most readily answered by asking 
 another and closely related one : — What does it mean to convey 
 thought? Clearly, it is something more than to suggest it or to 
 bring to the mind of the observer the same general idea that the 
 maker of the symbol had in mind. The baggage check attached to 
 
 1. See Evidence by Perception. duced at the trial; and, being a docu- 
 
 2. Tracy Peerage Case, 10 CI. & ment which was put forward as the 
 Fin. 154, 180 (1843). basis of the contract between the 
 
 But the difficulty of removal must parties, it ought itself to have been 
 
 affirmatively appear. — Otherwise, the produced. It is different where the 
 
 evidence will be rejected. Thus, on a thing is a fixture, or where it cannot 
 
 motion to show cause why a new trial be produced on account of the public 
 
 should not be granted, Parke, B., convenience." Jones v. Tarleton, 9 
 
 said : " I think no ground has been M. & W. 675, 677, per Parke, B. 
 
 laid for this rule. With respect to (1842). 
 
 the notice, it appears to have been a 3. Slaney v. Wade, 1 Myl. & C. 338 
 
 mere portable notice, which might (1835). 
 have been taken off the nail and pro- 
 
23 Broad Meaning of " Documentary Evidence." § 20. 
 
 a trunk and carrying a number suggests the thought of a corre- 
 sponding number which may serve to identify the proper claimant, 
 Yet neither this, nor any similar suggestions apparently suffice to 
 make the check such a conveyor of thought as to constitute it a 
 document. 1 Any conventionalized symbol — e. g., that a bird on 
 the wing shall represent a journey — may cause the same general 
 idea to arise in the mind of an observer which the maker of the 
 symbol had in his own mind. But the idea is rather a fact than a 
 proposition. The propositions or inferences which arise from it 
 may be as varied as are the observers. None among these inferences 
 may establish the precise fact which the delineator of the conven- 
 tionalized symbol had in his own mind and sought to represent. 
 The thought in the mind of the maker can scarcely, with propriety, 
 be said to have been conveyed to the mind of the observer. The ele- 
 ments which formed and conditioned his precise thought cannot 
 be gathered from it. To a certain extent, this failure of precise 
 communication is inherent in the infirmity of human powers of 
 expression. Even the notions conveyed by familiar words will be 
 found to vary somewhat with different individuals. The most 
 that can be done in such a connection is to select the method of 
 thought conveyance most adequate to its proposed object. 
 
 Language preeminent as a thought conveyor. — For practical 
 purposes the sole method by which thought may properly be said to 
 be conveyed with a reasonable approximation to clearness and ac- 
 curacy from one mind to another, is by the use of language. How- 
 ever inadequate, even when most aided by gesture, tone, play of 
 feeling and the like, language is still so far in advance of "all other 
 means for communicating thought that it stands alon 3 and in a 
 class by itself. It would seem appropriate therefore that the use 
 of written language should be the sole means of conveying thought 
 which, when joined with a material substance, shall be deemed to 
 constitute a document. 
 
 § 21. (Subdivisions of Evidence; Oral and Documentary 
 Evidence) ; Broad Scope — In its broad extension the term " docu- 
 mentary evidence" denotes all evidence furnished by documents. 
 Under this heading, such a definition arranges all facts of which the 
 document is the vehicle. Both the physical medium for transmit- 
 ting thought and the thought transmitted are spoken of as " docu- 
 
 1. " The tag referred to was not a fied." Com. v. Morrell, 99 Mass. 542 
 document, but an object to be identi- (1868). 
 
§ 21. 
 
 Law of Evidence. 
 
 24 
 
 mentary," and the evidence which either or both these elements 
 furnish is designated " documentary evidence." It is apparently 
 in this sense that the term is used by Mr. Justice Stephen. 1 
 It would seem that such a classification — placing oral statements 
 on the one side and written ones on the other — is by no means 
 accurate or scientific. The short reason is, that the oral or docu- 
 mentary nature of the medium by which facts are conveyed to a 
 legal tribunal is not a satisfactory or illuminating point of dif- 
 ferentiation between such facts. Any classification of the subject- 
 matter embraced in the consideration of any particular branch of 
 human knowledge should, so far as possible, be helpful to the 
 object of the treatment to be accorded to the topic. 2 The basis of 
 classification should be one of importance to the end to which the 
 classification itself is a means. 3 In other sciences than that of evi- 
 dence, this is readily recognized. 
 
 tertiary periods, above the coal and 
 below the eoal, etc. Whales are or 
 are not fish according to the purpose 
 for which we are considering them. 
 ' If we are speaking of the internal 
 structure and physiology of the 
 animal, we must not call them fish; 
 for in these respects they deviate 
 widely from fishes; they have warm 
 blood, and produce and suckle their 
 young as land quadrupeds do. But 
 this would not prevent our speaking 
 of the whale-fishery, and calling such 
 animals fish on all occasions connected 
 with this employment, for the rela- 
 tions thus arising depend upon the 
 animals living in the water, and being 
 caught in a manner similar to other 
 fishes. A plea that human laws which 
 mention fish do not apply to whales, 
 would be rejected at once by an in- 
 telligent judge.' " Mill, Logic, bk. IV, 
 c. 7, § 2. 
 
 3. " The ends of scientific classifi- 
 cation are best answered, when the ob- 
 jects are formed into groups respect- 
 ing which a greater number of general 
 propositions can be made, and those 
 propositions more important than 
 could be made respecting any other 
 groups into which the same things 
 could be distributed.'' Mill, Logic, 
 bk. IV, c. 7, § 2. 
 
 1. " Evidence," says he, " means 
 (1) Statements made by witnesses in 
 court under a legal sanction, in rela- 
 tion to matters of fact under inquiry; 
 such statements are called oral evi- 
 dence; (2) Documents produced for 
 the inspection of the court or judge; 
 such documents are called document- 
 ary evidence." Stephen, Dig. Law of 
 Ev. (May's ed.), c. 1, art. 1. 
 
 2. " We said just now that the 
 classification of objects should follow 
 those of their properties which indi- 
 cate not only the most numerous, but 
 also the nlost important peculiarities. 
 What is here meant by importance? 
 It has reference to the particular end 
 in view; and the same objects, there- 
 fore, may admit with propriety of 
 several different classifications. Each 
 science or art forms its classification 
 of things according to the properties 
 which fall within its special cog- 
 nizance, or of which it must take ac- 
 count in order to accomplish its 
 peculiar practical end. A farmer does 
 not divide plants, like a botanist, into 
 dicotyledonous and monocotyledonous, 
 but into useful plants and weeds. A 
 geologist divides fossils, not like a 
 zoologist, into families corresponding 
 to those of living species, but into 
 fossils of the paleozoic, mesozoic, and 
 
25 Documentary Nature Immaterial on Admissibility. § 21. 
 
 An Illustration. — Thus, were the subject-matter that of ethics, 
 it would at once be perceived that to divide the things which may 
 or may not be done, into (1) things which may be done by men, 
 (2) things which may not be done by men, (3) things which may 
 be done by women, (4) things which may not be done by women, 
 would not be a helpful classification. The reason for such a feel- 
 ing would lie in a perception that the fact of sex was of no import- 
 ance in determining whether one should do or refrain from doing 
 acts of a certain moral quality; in other words, it would be felt 
 that precisely the same rules for moral conduct applied to an indi- 
 vidual entirely irrespective of whether that individual were a man 
 or a woman. Properly to carry out such a classification would 
 practically require the writing of duplicate treatises. To draw a 
 penal code classifying the acts forbidden as " offenses committed by 
 men " and " offenses committed by women " would be recognized 
 as faulty for the same reason. 
 
 § 22. (Subdivisions of Evidence; Oral and Documentary 
 Evidence); Limited Scope. — To classify all evidence as (1) oral 
 evidence and (2) documentary evidence seems objectionable in 
 much the same way. In a system of judicial evidence based upon 
 the fundamental principle that all facts logically relevant are to be 
 received, 1 and that no other facts are to be received, 2 a proper 
 scientific method apparently would classify facts into (1) relevant 
 facts; (2) irrelevant facts; (3) relevant facts which are not re- 
 ceived; (4) irrelevant facts which are received. In other words, a 
 suitable consideration of the subject of judicial evidence would 
 deal with facts or species of facts classified according to their ad- 
 missibility or rejection by a judicial tribunal. In treating the 
 questions so raised the fact that a given statement comes to a given 
 tribunal by the medium of sound, as in oral testimony, or by that 
 of sight through writing, printing, engraving, etc., as in documen- 
 tary evidence is as immaterial as would be the fact of sex in classi- 
 fying human conduct according to the rules of ethics or to arrange 
 the prohibition of a penal code in accordance with the same basis 
 of classification. 
 
 For example, an admission is equally competent whether made 
 verbally or by means of a letter. 3 An unsworn statement when 
 offered as evidence of the facts stated in it, is equally hearsay 
 
 1. Infra, § 1764. 3. Infra, § 1366. 
 
 2. Infra, § 1764. 
 
§ 22. Law of Evidence. 26 
 
 whether it be made orally or presented to the court in a written 4 
 or printed 5 form. Properly to give full effect to the broad scope of 
 " documentary evidence " would involve, in many instances, the 
 writing of duplicate and practically identical treatises. 
 
 A Legitimate Use. — But while the term " documentary evi- 
 dence " has no proper place as designating one of the two principal 
 species of evidence, it has a distinct and valuable place as indicat- 
 ing certain special features which attend the use of documents as 
 one of the media of proof. In this connection, documentary evi- 
 dence is distinguished from evidence by perception, 6 or evidence by 
 witnesses. 7 Such a use of the term " documentary evidence " 
 seems in strict accordance with the way in which reference is made 
 to the other media of proof — perception and witnesses. ~Eo con- 
 fusion is created, so far as these media of proof, perception and 
 witnesses, are concerned, by using a single term to cover both the 
 facts conveyed to a tribunal and the means by which they are con- 
 veyed. The vehicle is not mistaken for its cargo. Perception in 
 itself is not, as is readily observed, a species of evidence. It is 
 simply the vehicle by which certain facts are gained by the court 
 in a particular way, viz. through the exercise of its own perceptive 
 faculties. Facts so acquired constitute evidence by perception. 8 
 In like manner it is agreed that witnesses are not in themselves 
 evidence. Only the statements made by them, the facts which they 
 bring to the tribunal, come within that designation, and are spoken 
 of as evidence by witnesses. 9 In documentary evidence alone, is 
 to be found this failure to differentiate the material vehicle from 
 the incorporeal thought which it carries, a peculiarity, as has been 
 said, due to the complex nature of the conception of a document. 10 
 In reality documents are not evidence. The statements which they, 
 as vehicles, present to the consciousness of the tribunal, are properly 
 to be classified as evidence. 
 
 Viewed, as a medium of proof, as a vehicle for evidence, a defi- 
 nite and limited treatment may, and should, properly be accorded 
 to " documentary evidence " — regarding its distinctive features 
 in this connection — in much the same way that in a treatise on 
 moral philosophy a restricted treatment might with propriety be 
 
 4. Infra, § 2756. 8. See Evidence by Perception. 
 
 5. Infra, § 2754. 9. See WITNESSES. 
 
 6. See Evidence by Pebception. 10. Supra, § 17. 
 
 7. See Witnesses. 
 
27 Peoof of and Proof by Documents. § 2>2. 
 
 given to sexual conduct ; or, in a penal code, some statement, under 
 a separate heading, might properly be given to questions relating 
 to crimes which can only be committed against women. The proper 
 scope of a treatment of documentary evidence, while restricted, 
 would yet be of importance. 
 
 Substantive law has made and will continue increasingly to make 
 very sweeping requirements as to documents. This is done either 
 (1) by statutory enactment or (2) by enforcing the conventions of 
 the parties. Considerations of public policy, for example, have 
 seemed to the law-making body to require that certain important 
 acts, such as deeds or wills, should be constituted or evidenced by 
 a formal writing. 11 In much the same way certain contracts, as 
 those relating to sales of land, or for services not to be performed 
 within a year, are required to be in writing. Even where the writ- 
 ten form is adopted by the parties, rather than imposed upon them, 
 substantive law prescribes that, having reduced their contracts or 
 other agreements into a documentary form, such arrangements are 
 to be protected against change. With this object it prescribes cer- 
 tain conditions under which, as is commonly said, evidence of ex- 
 trinsic facts will be received to vary, contradict or control the 
 ascertained import of a valid written instrument, and establishes 
 rigid conditions, on which alone it grants relief, at law or in equity, 
 against the effect of the instrument, when ascertained. It pre- 
 scribes also the method by which copies of public documents may 
 be authenticated, and received in evidence. 12 These provisions of 
 substantive law affect deeply the use of documents as a medium of 
 proof. 
 
 Not only by substantive law, but also by procedure, is the use of 
 documents as evidence greatly affected. The judicial administra- 
 tion of evidence has established, as a rule of procedure, that in 
 proving facts by the use of documents, production of the document 
 itself shall be deemed primary evidence of its contents 13 and has 
 further established definite requirements as to the reception of sec- 
 ondary evidence. 14 This also seems properly treated as an incident 
 of the use of documents ns an instrument of proof or a vehicle of 
 evidence. Such a treatment more closely resembles proof of docu- 
 ments than proof by documents as is the meaning of the phrase 
 "documentary evidence" in its broader scope. 
 
 11. See Documentary Evidence. 13. See Documentary Evidence. 
 
 12. See Documentary Evidence. 14. See Documentary Evidence. 
 
I 22. Law of Evidence. 28 
 
 This limited and yet distinctive treatment, of documentary evi- 
 dence — not as a species of evidence but as carrying certain fea- 
 tures of the use of documents as a medium of proof — ■ precisely as 
 the special rules attaching to perception as a medium of proof, 15 or 
 the special rules governing the use of witnesses 16 as a vehicle of 
 evidence — may properly receive separate treatment. This con- 
 stitutes what seems to be a sufficient ground for alloting a distinct 
 place to documentary evidence in any treatise on the general 
 subject. 
 
 § 23 (Subdivisions of Evidence; Oral and Documentary 
 Evidence); Mr. Gulson's View. — The necessity, or even the pro- 
 priety of such a course, has been disputed by so careful a thinker 
 as Mr. Gulson. 1 When a document is presented to the court, says 
 he, it becomes real evidence, or, as we have preferred to call it, 
 evidence by perception. 2 The court sees for itself, what the docu- 
 ment states, that it purports to be a deed, a will or some other form 
 of constituent 3 instrument, exactly as it would recognize, by look- 
 ing at it, any other physical object — say, a knife. " Precisely as 
 the tribunal in the latter case perceives the shape, size, and other 
 characteristics of the knife, so, in the former, does it behold the 
 shape and order of the marks or letters imprinted on the surface 
 of the paper. Both appeal equally to its senses, i. e., in both the 
 cases here suggested to its sense of sight." 4 Proof of the identity 
 of the original document, or its execution or authenticity, the ac- 
 curacy of a copy and other similar facts regarding the document 
 are established by personal evidence. It thus happening that the 
 document is properly placed before the court by means of personal 
 evidence, i. e., the oral statement of a witness, and that, when of- 
 fered in evidence, it presents to the court real evidence, i. e., evi- 
 dence by perception 5 what then, asks Mr. Gulson, remains to be 
 classified as "documentary evidence?" The designation, in his 
 view, is a useless one and should be eliminated, leaving but two 
 classes or species of evidence, (1) real evidence, and (2) oral or 
 personal evidence. To state his proposition in the terminology of 
 the present treatise, it is to reduce all the media of proof to percep- 
 tion and witnesses. 
 
 15. See Evidence by Perception. 3. Infra, § 47. 
 
 16. See Witnesses. 4. Gulson, Philosophy of Proof, 
 
 1. Gulson, Philosophy of Proof, § 314. 
 
 § 313. 5. See Evidence by Perception. 
 
 2. See Evidence by Perception. 
 
29 Guxson's Statement of His View. § 23. 
 
 It is, perhaps, fairer that Mr. Gulson be allowed to state his view 
 for himself, together with the authorities by which he reinforces 
 it. 8 " If real evidence be truly, as I have endeavored (and I trust 
 successfully) to establish, neither more nor less than the proof ac- 
 quired by the tribunal through the use of its own faculties of per- 
 ception, then there is this difference, and this only, between real 
 and ' written ' evidence — that in the case of writing, an ulterior 
 meaning is attached by convention to the characters; i. e., to the 
 shape and order of the marks which are seen to be imprinted on 
 the face of the document. 
 
 " But this conclusion as to the ulterior meaning of words and 
 phrases, which we draw, in the case of writing, from our percep- 
 tion of the form and arrangement of the letters visible on the 
 paper, if it alters the character of our evidence at all, is simply in 
 the nature of a very obvious and, in most cases, almost necessary 
 inference from that which we actually perceive, depending for its 
 validity and correctness on our previous knowledge of the conven- 
 tional meaning of words and phrases, as expressed by written 
 symbols. Such an inference, if it alters the case at all, merely con- 
 verts our direct real evidence into indirect or circumstantial real 
 evidence. But the inferring process in such a case is, generally 
 speaking (i. e., where the writing is legible and the language clear), 
 so shadowy in its action, so certain in its results, as to leave our 
 evidence barely, if at all, distinguishable from direct. And in any 
 case, whether we choose to regard the evidence as direct or as in- 
 direct, it is still, to the person who peruses the document, ' imme- 
 diate ' evidence, and where the reader is represented by a judicial 
 tribunal, real. 
 
 " Even Bentham appears to have apprehended in a confused 
 manner the analogy between the two cases, i. e., between the pro- 
 duction in court of a written document, and that of any other kind 
 of material object. At page 691 of the second volume of his 
 treatise upon Judicial Evidence the following passage occurs: 
 ' Imprinted upon any subject-matter of property, the proprietor's 
 name at length would be unquestionably an article of written evi- 
 dence : no less so the initials, as in the case of G. K. for George Hex. 
 But when instead of the G. E. comes the broad arrow on timber, or 
 the strand in sail-cloth, then comes the doubt (happily altogether 
 an immaterial one) as between written and real evidence.' Now, 
 
 6. Gulson, Philosophy of Proof, §§ 314-319. 
 
§ 23. Law of Evidence. 30 
 
 though we must not be taken to assent to Bentham's position, that 
 a mark on timber or on sail-cloth is in itself real evidence, since 
 we regard such matters, not in the light of evidence at all, but in 
 that of facts, yet such marks precisely resemble characters written 
 or printed on paper, in being facts of that permanent and continu- 
 ing kind which are peculiarly capable of being established by real 
 evidence. 'Not only, therefore, must we cordially agree with Ben- 
 tham as to the difficulty of distinguishing between the two cases, 
 but further, we must insist that, so far as concerns the real quality 
 of the evidence afforded by the production of either, there is no dif- 
 ference whatever between them; not only does the manifestation 
 of such marks, as he describes, to the senses of a judicial tribunal 
 afford real evidence of the marks, but equally does the manifesta- 
 tion of written characters traced upon paper, or the production in 
 court of paper displaying such characters furnish real evidence of 
 the writing. And it is precisely because there is no solid difference 
 in principle between the two cases that the ' doubt,' to which Ben- 
 tham refers, is, as he observes, ' altogether an immaterial one.' In 
 the following page, also, we find him again forced to recognize the 
 same resemblance. ' Mint marks,' he there observes, 7 ' applied in 
 the same view, wear an ambiguous aspect, being referable either to 
 the head of real or written circumstantial or direct official evi- 
 dence.' 8 
 
 " Mr. Best, too, is compelled to admit the difficulty he experi- 
 ences in drawing the line (as he expresses it) between real and, 
 documentary evidence. ' The remaining instruments of evidence,' 9 
 he says, ' are documents, under which term are properly included 
 all material substances, on which the thoughts of men are repre- 
 sented by writing, or any other species of conventional mark or 
 symbol. Thus the wooden scores on which bakers, milkmen, etc., 
 indicate by notches the number of loaves of bread or quarts of milk 
 supplied to their customers; the old exchequer tallies, and such 
 like, are documents as much as the most elaborate deeds. In some 
 instances, no doubt, the line of demarcation between documentary 
 and real evidence seems faint; as in the case of models and draw- 
 ings, which clearly belong to the latter head, but differ from that 
 which we are now considering in this, that they are actual, not 
 symbolical representations.' As to which distinction I must beg 
 
 7. Bentham, Ev., 11, 692. 9. Best, Ev., § 215. 
 
 8. Bentham, Ev., 11, 692. 
 
31 Documents as Seal Evidence. § 2'3. 
 
 leave again to remark, that the symbolical quality of written char- 
 acters in no wise alters the nature, as real or otherwise, of the 
 evidence afforded by the production of the writing; but merely 
 interposes a very simple and obvious process of inference between 
 that which is actually verified by perception, namely, the written 
 character or symbol itself, and that which is actually in question, 
 viz. : the meaning of the symbol ; an inference which, though it may 
 possibly affect the nature of the evidence as direct or indirect, has 
 no influence upon its character as real. 
 
 " In further confirmation of the principle now under considera- 
 tion, let us observe also the analogy existing between the evidence 
 afforded by the copy of a writing, and that furnished by the model 
 of any other material object (such, for instance, as the model of a 
 house) produced in court. In the former case, the nature of the 
 contents of the original writing, which is a single fact, capable of 
 being established in its entirety by real or immediate evidence, is, 
 as it were, split or divided for purposes of proof into two com- 
 ponents; namely, (1) the identity or correspondence of the con- 
 tents of the copy with those of the original -writing (which fact 
 cannot well be proved by real evidence, for in that case the tribunal 
 itself must institute the comparison, and for that purpose must 
 have the original before them, which would render presence of the 
 copy superfluous and unnecessary) ; and (2) the actual nature of 
 the contents of the copy, of which latter fact the production and 
 inspection by the court of the copy furnishes real evidence. 
 
 " Precisely similar is the process that takes place in the case of 
 the model. The features and details of the actual house — the 
 compound fact — 'is split into two component facts; viz.: (1) the 
 identity or coincidence of the various features of the model with 
 those of the real house — a fact not capable of proof by real evi- 
 dence; and (2) the actual details or features of the model, of which 
 latter fact its own production affords real evidence. 
 
 " The analogy between these two cases is also alluded to by Mr. 
 Dumont : ' In real evidence,' he observes, 10 ' representations given 
 by drawings, paintings or models, are much analogous to copies of 
 writings.' 
 
 " Having proceeded so far, the writers referred to would hardly, 
 I think, have failed to recognize the truth of the principle under 
 consideration, had not their judgment been obscured from the out- 
 
 10. Dumont, Ev., 306. 
 
§ 23. 
 
 Law of Evidence. 
 
 32 
 
 set by the false and confusing view of the true nature of real evi- 
 dence induced by their definition of it as ' the evidence of which 
 any object belonging to the class of things is the source.' " u 
 
 § 24 (Subdivisions of Evidence; Oral and Documentary 
 Evidence; Mr. Gul son's View); Mr. Gulson's View Considered. 
 
 — Viewed from the standpoint of a classification of evidentiary 
 facts, i. e., of evidence itself — in its third sense, of the physical 
 means or agency by which the art of evidence is carried into effect/ 
 there would be a philosophical propriety in Gulson's classification 
 into real and personal evidence — for, as will be seen, 2 all 
 evidentiary facts are either physical or psychological. If so, the 
 inferences to be drawn from them must be furnished either by 
 (1) persons, or (2) by things. But for judicial purposes, this 
 broad distinction is practically valueless and is conceded so to be 
 by Mr. Gulson himself in very properly abandoning 3 Best's classi- 
 fication of real evidence — the evidence furnished by things — 
 into immediate and reported real evidence. 4 Reported real evi- 
 
 11. Vide Best, Ev., §§ 28, 196. 
 
 1. Supra, § 2. 
 
 2. Infra, § 43. 
 
 3. " From this it follows that what 
 Mr. Best, under Bentham's auspices, 
 calls ' Real reported evidence ' is not 
 real evidence at all, but transmitted, 
 or rather a particular phase of trans- 
 mitted evidence. What they both had 
 in their minds when speaking of real 
 reported evidence was, I have little 
 doubt, the transmitted or reported evi- 
 dence of those continuing facts or 
 states, which from their permanent 
 character either are, or might under 
 more favorable circumstances possibly 
 become, capable of being manifested 
 to the actual senses of a tribunal. 
 But evidence is none the less ' trans- 
 mitted,' none the more real or im- 
 mediate, merely because the fact with 
 which it has to deal is capable of be- 
 ing manifested, and might possibly 
 have been manifested, to the percep- 
 tions of the inquirer, unless it actu- 
 ally be so manifested. For it is not 
 the quality of the fact which is the 
 subject of proof, that must determine 
 how evidence should be classed, but 
 
 the nature of the means employed to 
 prove it. Thus, as we have just seen, 
 even a human action may, under ex- 
 ceptional circumstances, become the 
 subject of direct real evidence in a 
 court of law. Moreover, if the com- 
 mission of an offense or contempt in 
 the presence of a tribunal affords real 
 evidence of that offense, surely when 
 any other offense is committed, or any 
 other act performed in the presence 
 of a witness, and by him reported or 
 communicated to the court, it must 
 follow that his testimony can be noth- 
 ing else than ' real reported evidence,' 
 as it is denned by those two writers; 
 and if this be so, then in no conceiv- 
 able respect does their real reported 
 evidence differ, either from personal 
 evidence in general, as they describe 
 it, or from what we prefer to desig- 
 nate transmitted evidence; since it 
 appears that it does not of necessity 
 differ from these last even as regards 
 the nature of the fact with which it 
 has to deal." Gulson, Philosophy of 
 Proof, § 235. 
 
 4. " Evidence is either real or per- 
 sonal. By real evidence is meant evi- 
 
33 Inference and Relevancy Considered. § 24. 
 
 denee is properly classified as personal ; and the reason is a funda- 
 mental one, and is, in reality, the controlling factor in this matter 
 of classification. It is that the classifications of evidence must, of 
 necessity, be made from the standpoint of the tribunal ; i. e., they 
 relate almost exclusively to judicial evidence. When a percipient 
 witness observes a physical object, to him the evidence is real. But 
 what, in reporting it, he states to the tribunal is not a physical but 
 a physchological fact — the mental state of the witness. The evi- 
 dence is therefore personal. 
 
 The court may, indeed, and frequently does, occupy as to certain 
 things brought before it the position of the percipient witness; 
 these facts constitute real evidence of the physical fact. But it 
 would scarcely be possible that the court should be able directly to 
 perceive,' by the aid of its senses — and so obtain real evidence of — ■ 
 the psychological fact, of the thought, feeling, intention of another 
 person whether itself derived, or not, from what in natural evi- 
 dence might be obtained from things and so constitute real evidence. 
 The physical manifestations of the psychological fact may, it is 
 true, be perceived by the court and so constitute real evidence, but 
 the existence and nature of this psychological fact would not, prop- 
 erly speaking, be perceived. The mind of the percipient tribunal 
 would, at best, merely draw an inference, more or less accurate, 
 from these manifestations as to the psychological state; but the 
 manifestations, corning to it from human beings, would not be real 
 but personal evidence. The inference itself would not usually be 
 classed as evidence at all; the supposition is that evidence is the 
 physical means for producing belief — 'the statements of the wit- 
 ness, his conduct, demeanor, etc., while under observation. The 
 inference is treated under such a classification, as a part of the 
 process of reasoning, and is merely the mental result of a relation 
 between the psychological fact and the manifestation, which rela- 
 tion has been termed relevancy. 
 
 denoe of which any object belonging others. Personal evidence is that 
 
 to the class of things ia the source, which is afforded by a human agent; 
 
 persons also being included, in respect either in the way of discourse, or by 
 
 of such properties as belong to them voluntary signs. Evidence supplied 
 
 in common with things. This sort of by observation of involuntary changes 
 
 evidence may be either immediate, of countenance and deportment comes 
 
 where the thing comes under the cog- under the head of real evidence." 
 
 nizance of our senses; or reported, Best, Ev., § 28. 
 where its existence is related to us by 
 
 Vol. I. 3 
 
§ 24. Law of Evidence. Si 
 
 It is the peculiarity of a document that it is a physical fact or 
 set of physical facts acting as the vehicle or channel for the con- 
 veyance, through the sense of sight, of a psychological fact or set of 
 such facts, thoughts or ideas. On its presentation, a court may 
 readily obtain real evidence of the material or physical portion of 
 the document. It may have these in its very substance, as the 
 water mark of the paper, its texture, apparent age, freedom from 
 interlineations and the like. The physical facts may be placed 
 upon the surfaces of the material substance, as the color and fresh- 
 ness of the ink, the formation of the characters, if any, of the hand- 
 writing, 5 the form and arrangements of the conventionalized 
 symbols used in the writing. But all these physical facts are also 
 the vehicle for, and, to a certain extent, are the manifestations of 
 certain invisible psychological facts — thought, feeling, intention 
 — any mental state or condition. 6 On scientific or philosophical 
 principles Mr. Gulson appears also to be entirely correct in saying 
 that the judge, in inspecting a document, is shown by the written 
 characters upon the paper as to the meaning of the writer, in an 
 indirect or circumstantial way. In all cases involving sense-per- 
 ception by the tribunal of the evidence of a witness, whether the 
 witness speaks orally as in giving his testimony in court upon the 
 witness stand in the hearing of the court, or speaks visually through 
 the conventional characters of a document, the really important, 
 the probative thing, that which overcomes the mental inertia of 
 the court and so causes it to act, is not the physical sound or sight 
 which expresses the mental state of the declarant, but this mental 
 state itself. That which acts upon mind is not material objects, 
 objective phenomena; it is rather the mental inference, the exer- 
 cise of the reasoning faculty, or, perhaps, occasionally the intention, 
 which produces the effect. It is frequently of assistance to remem- 
 ber that the law of evidence in its fundamental conception deals 
 only with probative facts the relevancy of which is that of logic 
 and has no direct concern with what shall be deemed a res gestae 
 or constituent fact, the relevancy of which is that of substantive 
 law. Prominent among these probative facts are the oral state- 
 ments of witnesses or the verbal declarations of documents when 
 used in their assertive capacity, i. e., as proof of the existence of 
 the facts stated. Clearly, that which produces the conviction that 
 the oral statement or the verbal declaration announces the truth 
 
 5. Infra, § 2185. 6. Infra, § 43. 
 
35 Fallacy of Gulson's View. § 24. 
 
 is not the mere physical fact of the verbal or writen utterance, but 
 the proposition of experience, that under all the circumstances of 
 the case, including the psychological facts of knowledge and absence 
 of controlling motive to misrepresent, the utterance would not have 
 been made had it not been true. To say that a court learns the 
 meaning, the mental state of the witness or the declarant in a 
 document bv the circumstantial evidence of the statement which 
 appears or the substances which it reads, seems entirely justified. 
 Judicial evidence presents problems not of physics, but of psy- 
 chology. Eut the mental states of the witness or declarant are not 
 perceived by the court. Consequently, they do not constitute real 
 evidence, but personal, for they emanate from a person who alone 
 can be properly said to perceive, i. e., to know them by a direct act 
 of consciousness. Psychological facts are, necessarily, established 
 by personal evidence. 
 
 The essential fallacy in Mr. Gulson's position, is, however, it 
 would seem, demonstrated in another way. If its correctness were 
 conceded, it would prove entirely too much. The result of such 
 a step as that proposed by him would be not only to eliminate 
 documentary evidence as a vehicle or instrument of proof, but to 
 eliminate, in any classification, also oral or personal testimony 
 which he still desires to retain, and reduce all media of proof or 
 instruments of evidence to the single one of perception. Evidence 
 by perception is a term denoting all facts — necessarily physical — 
 which the court perceives by the use of its senses. This perception 
 is not in the least limited to the sense of sight. It may occur on 
 the employment of any sense, including that of hearing. "When 
 the oral testimony of a witness is delivered in court, the tribunal 
 hears it as fully as the court would perceive a document submitted 
 to it. It perceives the tone of the voice, the hesitancy, the caution 
 or hastiness, all the complicated facts of behavior or demeanor 7 and 
 may draw inferences as to relevant psychological facts regarding 
 the witness — his knowledge, truthfulness, motive to misrepresent 
 and the like — 'as readily as it can gather the mental or moral 
 characteristics of a writer from his handwriting. The court can 
 as easily perceive for itself that a witness is blind, deaf, hard of 
 hearing or is a negro, as it can see that a document looks old or 
 has a peculiar texture or, perhaps — 'though this is by no means 
 so certain — that it purports to be a deed. This is clearly evidence 
 
 7. See Evidence by Perception. 
 
§ 24. Law of Evidence. 36 
 
 by perception — what Mr. Gulson, following Bentham and Best, 
 calls real evidence. But is it also real evidence — proof furnished 
 by things; or, is it, on the contrary, personal ? Mr. Gulson, to fol- 
 low his reasoning in case of a document, must claim that it is real. 
 But assuming this also to be correct ■ — as it scarcely seems to be — 
 still, what shall be said as to the far more important element of the 
 witness' testimony, the psychological fact in the witness' mind 
 of which the oral testimony is an expression, as the physical de- 
 meanor and appearance is a manifestation ? Is the thought of the 
 witness conveyed to the consciousness of the court by the use of 
 language real evidence, because the court hears the expression and 
 perceives the manifestations? If, on the contrary, his thought, 
 conveyed by oral testimony to the hearing of the court, be — as it 
 certainly would seem to be — personal evidence, no reason is per- 
 ceived why the thought of a writer, conveyed to the consciousness 
 of the court by the sense of sight, through the medium of written, 
 instead of spoken language should not be regarded as' personal 
 evidence also. 
 
 § 25 (Subdivisions of Evidence; Oral and Documentary 
 Evidence) ; Conclusions Reached. — To sum up the results of this 
 examination into the proper scope of " documentary evidence," it 
 may be taken (1) that as a species of evidence, a classification into 
 oral evidence and documentary evidence would be of little or no 
 value. (2) That as a medium of proof, documents have a recog- 
 nized and valuable place, sharing with the oral testimony of wit- 
 nesses and with perception the class of media of proof. (3) That 
 the oral testimony of witnesses is properly confined to the 
 psychological facts, such as thought, and the like, which are con- 
 veyed to the tribunal by means of oral testimony, i. e., the verbal 
 statements of witnesses. (4) That " documentary evidence " is 
 confined to such psychological facts, including thought and the 
 like, as are conveyed to the consciousness of the tribunal by the 
 medium of written language carried by any material substance. 
 (5) That the third medium of proof, perception, 1 may properly 
 be used to denote all physical facts, including the expression or 
 manifestation of psychological facts, whether the immediate 
 source of these facts is a person or a thing, which the court perceives 
 by the use of its own senses. It may be added that in connection 
 with the treatment of documents as a medium of proof, it has 
 1. See Evidence by Perception. 
 
37 Real Evidence; Bckthaii's View. § 25. 
 
 seemed appropriate to treat the requirements of substantive law or 
 various branches of procedure especially affecting the use of docu- 
 ments and their distinctive effect in evidence, under this heading 
 of documentary evidence. 
 
 § 26. (Subdivisions of Evidence); Positive and Negative Evi- 
 dence. — The term " positive evidence " has been used as synony- 
 mous with " direct," ] even by so great a jurist as Chief Justice 
 Shaw of Massachusetts. 2 A more accurate use of the term " posi- 
 tive " is that by which it is employed as opposed to " negative " — 
 positive evidence being denned as direct evidence as to the existence 
 of an alleged fact, negative evidence being used to indicate the case 
 where a tribunal is asked to infer the nonexistence of the fact in 
 question from the circumstance that the witness did not perceive 
 it. 8 Certainly the distinction is of little if any practical impor- 
 tance. Besides being a mere restatement of the difference, on a 
 particular set of facts, between direct and circumstantial evidence, 4 
 it is usually very much a matter of accident whether a witness 
 states that an alleged fact did not exist, or s on the other hand, 
 gives the reason which lies at the basis of the direct assertion, viz. : 
 that he did not perceive its occurrence and would have done so 
 had it occurred. Moreover, as Bentham 6 says : The only really ex- 
 isting facts are positive facts. "A negative fact is the nonexistence 
 of a positive one, and nothing more." 
 
 § 27. (Subdivisions of Evidence) ; Real and Personal Evidence ; 
 Bentham's View. — The distinction between real and personal evi- 
 dence has proved one fertile in confusion. The fundamental 
 difficulty does not lie in the main line of cleavage — real evidence, on 
 the one hand, being the evidence furnished by things — Latin, res; 
 
 1. Kentucky. — Davis v. Curry, 2 2. Com v. Webster, 5 Cush. (Mass.) 
 
 Bibb (Ky.) 338 (1810). 295,310 (1850). 
 
 Maryland. — Cooper v. Holmes, 71 3. Falkner v. Behr, 75 Ga. 671, 674 
 
 Md. 20, 281, 17 Atl. 711 (1889). (1885). 
 
 -Niles v. Rhodes, 7 Illustration. — The distinction be- 
 
 Mich. 374 (1859). tween positive and negative testimony 
 
 New York. — Pease v. Smith, 61 may be illustrated thus: It is posi- 
 
 N. Y. 477, 484 (1875). tive to say that a thing did or did not 
 
 Pennsylvania. — Bash v. Bash, 9 Pa. happen ; it is negative to say that a 
 
 St. 260, 262 (1848), "positive" and witness did not see or know of an 
 
 " clear and satisfactory." See also event's having transpired. McConnell 
 
 Schrack v. McKnight, 84 Pa. St. 26, v. State, 67 Ga. 633 (1881). 
 
 30 (1877), "positive" and "satis- 4. Supra, § 15. 
 
 factory." 5. Works, VI, 217, 218. 
 
§ 27. Law of Evidence. 38 
 
 personal o-n the other, being evidence furnished by persons, as this 
 distinction was originally formulated by Bentham. His primary 
 division into species of judicial evidence- 1 is thus conveniently 
 summarized by Mr. Gulson: 2 (1) Real and personal evidence; 
 (2) voluntary and involuntary personal evidence; (3) depositional, 
 testimonial and documentary evidence; (4) oral and scriptitious 
 depositional testimony; (5) direct and circumstantial evidence; 
 (6) ordinary and makeshift evidence; (7) preappointed and un- 
 preappointed evidence; (8) original and unoriginal evidence; (9) 
 evidence ah intra, and evidence ah extra. The distinction between 
 real and personal evidence is thus stated by Bentham: 3 "Per- 
 sonal evidence, that which is afforded by some human being — by 
 a being belonging to the class of persons : real evidence, that which 
 is afforded by a being belonging, not to the class of persons, but to 
 the class of things." This is perfectly clear. It is a natural di- 
 vision — one supposed by its author to be inherent in the nature 
 of things. It has no relation to any particular view point; nor to 
 the operation of volition. It is announced as an absolute, uncon- 
 ditioned division based upon the reality or essential nature of 
 things. 4 Bentham proceeds, in two subsequent divisions, to adopt 
 classifications among species of evidence which are more closely re- 
 lated to jurisprudence, and in which the basis of division is respect- 
 ively (1) the exercise of volition, (2) the relation of the tribunal 
 to the original act of perception. Relative to the existence of voli- 
 tion, Bentham says : 8 " Voluntary personal evidence may be 
 termed, all such evidence as is furnished by any person by means 
 of language or discourse ; or by signs of any other kind, designed 
 by him to perform the function, and produce the effect of dis- 
 course. Testimonial is the term by which evidence of this descrip- 
 
 1. Bentham, Rationale of Jud. Ev., also objectionable by reason of its in- 
 bk. I, c. 4. exactness. Persons are physical ob- 
 
 2. Gulson, Philosophy of Proof, jects and so fall under the designation 
 § 217. of things and the evidence furnished 
 
 3. Bentham, Rationale of Jud. Ev., by them would therefore be properly 
 bk. 1, c. 4, p. 53. designated as real evidence. 
 
 4. The distinction, it will be ob- It ia important to observe carefully 
 served, is one of general philosophy this circumstance, that persons are 
 rather than of jurisprudence. It is, material objects and also a source 
 moreover, of but slight practical from whence proceed manifestations 
 value. For, as will be seen later, any of mind — know ledge, reason, above 
 particular bit of real evidence becomes all, will. 
 
 personal to any but the original per- 5. Bentham's Rationale of Jud. Ev., 
 
 cipient witness. The classification is bk. I, c. 4, p. 53. 
 
39 Real Evidence ; Best's View. § 27. 
 
 tion will henceforward be designated. To the head of involuntary 
 personal evidence may be referred all such personal evidence as, 
 being the result, sign, and expression, of some emotion, is ex- 
 hibited not only not in consequence of any act of the will directed 
 to that end, but frequently in spite of the will and every exertion 
 that can be made of it. To this head belong, for example, all in- 
 voluntary modifications of which the deportment,, and 'all involun- 
 tary changes of which the countenance, is susceptible." Evidence 
 of which the person to be affected is the original percipient, i. e., 
 verifies or ascertains to be true by the exercise of his own perceptive 
 faculties and evidence which he learns from others, is stated by 
 Bentham 6 as constituting, respectively, evidence ab intra and evi- 
 dence ab extra. " The evidence by which, in any mind, persuasion 
 is capable of being produced, is derived from one or other or both 
 of two sources : from the operations of the perceptive or intellectual 
 faculties of the individual himself, and from the supposed opera- 
 tions of the like faculties on the part of other individuals at large. 
 For distinction's sake, to evidence of the first description, the term 
 evidence ab intra may be applied ; to evidence of the other descrip- 
 tion, evidence ab extra. The modifications of which evidence ab 
 intra is susceptible, are perception, attention, judgment, memory; 
 imagination, a faculty little less busy than any of the others, and 
 but too frequently operating in the character of a cause of per- 
 suasion, being excluded, as not appearing capable of being with 
 strict propriety ranked among the modifications of evidence. Evi- 
 dence ab extra has place, in so far as the persuasion has its source 
 or efficient cause in the agency of some person or persons other than 
 he whose persuasion is in question. The sort of agency from which 
 such persuasion is derived, is either discourse or deportment." 
 These classifications seem fairly simple and intelligible — if not 
 valuable. 
 
 § 28. (Subdivisions of Evidence; Real and Personal Evi= 
 dence); Best's View. — The difficulties lie, not in Bentham's treat- 
 ment, but in that of Best. Best has adopted Bentham's division of 
 evidence into real and personal; but, impressed possibly with its 
 lack of inherent value and exactness, has attempted to join with it 
 Bentham's additional classification, cited above, as to the influence 
 of volition and the question of whether the evidence is gained by 
 
 G. Bentham's Rationale of Jud. Ev., bk. I, c. 4, p. 51. 
 
§ 28. Law of Evidexce. 40 
 
 the immediate perception of the judicial tribunal or other seeker 
 for truth or is, on the other hand, reported to the tribunal or other 
 inquirer by another person. As Best very truly says, 1 his own 
 statement of the distinction between real and personal evidence has 
 " slightly deviated from the definition given in 1 Benth. Jud. Ev. 
 53, 54." " Evidence is either real or personal. By real evidence 
 is meant evidence of which any object belonging to the class of 
 things is the source, persons also being included, in respect of such 
 properties as belong to them in common with things. This sort of 
 evidence may be either immediate, where the thing comes under 
 the cognizance of our senses; or reported, where its existence is 
 related to us by others. Personal evidence is that which is afforded 
 by a human agent ; either in the way of discourse, or by voluntary 
 signs. Evidence supplied by observation of involuntary changes 
 of countenance and deportment comes under the head of real 
 evidence." 2 
 
 This classification of real and personal evidence obviously an- 
 nounces several propositions in excess of that stated by Bentham. 
 Among these are: (1) Real evidence may be either immediate or 
 reported. (2) The involuntary action of a witness is not personal 
 but real evidence. These additional propositions seem entirely 
 inconsistent with Bentham's original definition of the distinction 
 between real and personal evidence, and much confusion has neces- 
 sarily resulted from using the phraseology of Bentham's simple 
 distinction to cover additional and subsequent classifications based 
 on the difference between volition and its absence and between 
 direct judicial perception and the information furnished to the 
 tribunal by some other person testifying either as a witness or 
 through documents concerning facts perceived by him. But Mr. 
 Best's additional propositions are not only confusing but erroneous. 
 It is not, in any sense which is valuable to the cause of justice, 
 true that real evidence may be immediate or reported; nor is it 
 true that involuntary action on the part of a human being is evi- 
 dence furnished by a thing. 
 
 Involuntary Human Action not Real Evidence. — The idea of 
 Best that evidence of human action not controlled by the will is real 
 evidence, seems to proceed from a failure to distinguish between the 
 respective meanings of the terms testimony and evidence. When 
 Bentham is defining testimony he may well require that such a 
 
 1. Best, Ev., § 28, note (q). 2. Best, Ev., § 28. 
 
41 Volition Not a Tktje Test of Eeal Evidence. § 28. 
 
 term should be understood as implying the voluntary action of 
 the witness. 3 But it is not questionable that evidence may be 
 presented to the tribunal or other person by the involuntary action 
 of any one as well as by his intended or volitional action and, 
 indeed, Bentham concedes the truth of this by including " de- 
 portment " as among the means by which evidence may be com- 
 municated directly to the percipient person, judge, jury or wit- 
 ness. 4 A familiar illustration of this fact may suffice, if any 
 illustration be deemed necessary. A defendant is indicted for sell- 
 ing intoxicating liquor to A, knowing him to be a minor. A, as 
 a witness, testifies to the circumstances of the sale and, possibly, 
 as to his age. This is his testimony — all into which his volition 
 directly enters as a factor. What shall be said as to his appear- 
 ance, physically, as it is presented to the judge and jury from the 
 witness stand ? Is it doubtful that any legitimate inferences which 
 the jury reasonably may see fit to draw, either as to A's actual age 
 or the defendant's knowledge with regard to it is evidence in the 
 case ? Yet these phenomena are largely beyond the control of the 
 will of the witness. 
 
 Volition not the True Test. — The objection to Best's definition 
 goes still deeper than the apparent confusing of the terms " tes- 
 timony " and " evidence." 5 The presence or absence of volition 
 is not a true point of differentiation between persons and things; 
 i. e., between real and personal evidence. The true test is fur- 
 nished rather by the existence or nonexistence of mental action. 
 Things and persons are distinguished, properly, as the physical and 
 the psychological are distinguished, as matter is opposed to mind. 
 Our classification of facts as being either physical or psychological 6 
 seems a sound one. Under the operation of such a distinction, it 
 would be possible to allow a due place for the physical qualities 
 of men and other animals possessing mental powers. However 
 
 3. " Testimonial is the term by 5. Best is not alone in this par- 
 which evidence of this description tieular confusion. It is probably the 
 will henceforward be designated." reason why Mr. Justice Stephen, in 
 Bentham, Rationale of Jud. Ev., defining evidence in terms of its 
 bk. I, c. 4, p. 54. media omits all reference to percep- 
 
 4. " The sort of agency from which tion. Stephen, Dig. Law of Ev., c. 1, 
 such persuasion is derived, is either ait. 1. 
 
 discourse or deportment." Bentham, 6. Infra, § 43. 
 
 Rationale of Jud. Ev.,* bk. I, c. 4, 
 p. 52. 
 
§ 28. Law of Evidence. 42 
 
 this may be, no propriety is perceived for selecting a single mental 
 power, such as will, and making its existence the test between 
 persons and things, i. e., between personal and real evidence, 
 leaving the operation of other mental powers to be an attribute 
 of certain physical objects classified as " things." !Nor does such 
 a test work out satisfactorily in practice, whether the evidence 
 presented be that furnished by the physical attributes of an in- 
 dividual who presents himself in court or that arising out of his 
 spontaneous, unintended acts. It would seem clear that where the 
 source of the evidence is a person, it should be classed as personal 
 rather than as real. 
 
 Real Evidence and Evidence hy Perception. — Best's definition 
 of the classification of real and personal evidence seems to be 
 quite as seriously mistaken in adding Bentham's definition of the 
 db intra and ah extra? to his definition of real and personal evi- 
 dence as ho has been in adding Bentham's distinction between vol- 
 untary and involuntary to which reference has been made. Ben- 
 tham's thought in this connection is a good one — that a marked 
 difference in probative force exists between evidence which the 
 court perceives for itself and evidence as to which the percipient 
 witness informs the court concerning what he has seen ; or, more 
 properly, as to the inferences which his mind has drawn from 
 phenomena that his senses have presented to it. There is no limi- 
 tation in Bentham's view, in dealing with evidence which is 
 directly perceived by the court, that it should be or be thereby 
 created real evidence. It is apparently Best's conception that this 
 classification of real evidence as a term coextensive with whatever 
 the court perceives for itself 8 is in accordance with Bentham's 
 definition of real and personal evidence. 
 
 § 29. (Subdivisions of Evidence; Real and Personal BvU 
 dence) ; Mr. Gulson's View — The view expressed by Best as to 
 the proper meaning of the term " real evidence " has been en- 
 
 7. Bentham, Rationale of Jiid. Bv., the cognizance of our senses; or re- 
 bk. I, c. 4, p. 52. ported, where its existence is related 
 
 8. "Again, evidence is either real or to us by others. Personal evidence is 
 personal. By real evidence is meant that which is afforded by a human 
 evidence of which any object belong- agent; either in the way of discourse, 
 ing to the class of things is the or by voluntary signs. Evidence sup- 
 source, persons also being included, in plied by observation of involuntary 
 respect of such properties as belong changes of countenance and deport- 
 to them in common with things. This ment come under the head of real evi- 
 sort of evidence may be either im- dence." Best, Ev., § 28. 
 
 mediate, where the thing comes under 
 
43 Keal Evidence; Gulson's View. § 29. 
 
 dorsed by tlie opinion of Mr. Gulson. 1 In speaking of the court's 
 use of real evidence in connection with the class of facts known as 
 events, acts of conduct, as distinguished from more permanent 
 facts, such as states, he says : " The cases in which a legal tribunal 
 13 qualified to bring its own senses to bear upon facts of this 
 transient kind are, to say the least of it, somewhat rare. Best, as 
 we have seen, cites 2 the instance of a contempt of court, or offence 
 committed in the presence of a tribunal, in which case the act 
 occurs, as it were, at the very time and place of trial, or, which 
 is the same thing, is investigated at the very time and place at 
 which it occurs ; and thus the act, though in a high degree transient, 
 does not assume towards the judicial proceeding the aspect of a 
 terminated fact. In this case, as Mr. Best justly observes, the 
 evidence is both real and direct. In admission, confession, or 
 other acknowledgment made in open court is another instance of 
 an act upon which a judicial tribunal is capable of exercising its 
 perceptive faculties; though in this case, it should be remarked, 
 the evidence does not assume so direct an aspect in relation to 
 the questions at issue, as in the preceding instance. 
 
 " So, also, the demeanour of a witness who gives evidence in a 
 court of justice is cited by Mr. Best as an illustration of peal evi- 
 dence. But it is not the demeanour only of the witness that is 
 made manifest by real evidence. In the case of oral evidence, the 
 whole act of the witness in making his statement is brought home 
 to the senses of the tribunal. ISTot only do the jury hear the words 
 of which the statement consists, but they see, moreover, who is 
 the speaker, as well as his manner or demeanour when telling his 
 story. This, however, can scarcely be regarded as a good instance 
 of real evidence, because the matter established, — the statement 
 made by the witness, — is not fact, but evidence; but it may be 
 useful, when comparing the proving power of oral testimony with 
 that of a written statement produced in court, to bear in mind 
 that ' testimony ' is itself addressed entirely to the senses of the 
 jury." 3 
 
 1. Gulson, Philosophy of Proof, to them in common with things. 
 §§ 322, 323. Thus where an offense or contempt is 
 
 2. " ' Eeal evidence ' — the evidentia committed in presence of a tribunal, 
 rei vel facti of the civilians — means it has direct real evidence of the fact." 
 all evidence of which any object be- Best, Ev., § 196. 
 
 longing to the class of things is the 3. Ctulson, Philosophy of Proof, 
 
 source; persons also being included in §§ 322, 323. 
 respect of such properties as belong 
 
§ 30. Law of Evidence. 44 
 
 § 30. (Subdivisions of Evidence; Real and Personal Evi= 
 dence); Stephen's View. — It is one of the few fundamental errors 
 of Mr. Justice Stephen's classification of evidence that it entirely 
 omits perception as a medium of evidence. To repeat his state- 
 ment, already frequently referred to, "'Evidence' means — (1) 
 Statements made by witnesses in court under a legal sanction, in 
 relation to matters of fact under inquiry; such statements are called 
 oral evidence; (2) Documents produced for the inspection of the 
 court or judge ; such documents are called documentary evidence." 1 
 Clearly ho place is left for evidence derived from any facts which 
 the court perceives for itself. As is obvious in the nature of 
 things and as will appear abundantly from the cases, there are 
 facts which do not consist of the statements of witnesses or docu- 
 ments produced for inspection of the court.- Under what head, 
 then, does Mr. Justice Stephen classify facts of this nature ? Pos- 
 sibly they have been overlooked by him, in the necessary incom- 
 pleteness of a first attempt to introduce simplicity into a confused 
 mass — a veritable indigesta moles of ambiguous decision. It 
 may be conjectured that he is following Bentham's use of the term 
 " testimony " without noticing that the term " evidence " covers a 
 broader scope. 2 Or, perhaps^ an insight into his view is afforded 
 by the intimation at another place in the Digest of the Law of 
 Evidence. 3 " Why, it is asked, put judicial notice under the gen- 
 eral head of Proof ? Is not this a strange heading : ' Part II. Of 
 Proof. — Chapter I : Facts which need not be Proved ? ' There 
 is an apparent verbal opposition, no doubt, which I have removed 
 by a change in the title of the chapter, but the opposition is only 
 apparent and verbal. I believe the arrangement to be logically 
 correct, and I have accordingly maintained it. By Proof I mean 
 the means used of making the court aware of the existence of a 
 given fact, and surely the simplest possible way of doing so is to 
 remind the court that it knows it already. It is like proving that 
 it is raining by telling the judge to look out of the window. It 
 has been said that judicial notice should come under the head of 
 Burden of Proof, but surely this is not so. The rules as to burden 
 of proof show which side ought to call upon the court to take 
 judicial notice of a particular fact, but the act of taking judicial 
 notice, of consciously recalling to the mind a fact known, but not 
 
 1. Stephen, Dig. Law of Ev., o. 1, 3. Stephen, Dig. Law of Ev. (3d 
 art. 1. May ed.), Preface, p. 26. 
 
 2. Supra, § 27 n. 5. 
 
45 Eeal Evidence and Evidence by Peeceptioit. § 30. 
 
 for the moment adverted to, is an act of precisely the same kind 
 as listening to the evidence of a witness or reading a document — 
 that is, it belongs to the general head of proof." 4 The informa- 
 tion acquired by a judge by looking out the window that it is 
 raining is spoken of as a matter of judicial cognizance. This is 
 an illuminating instance of evidence by perception — knowledge 
 acquired by the court through the use of its own faculties of sense 
 perception ; — what Mr. Gulson, following Bentham and Best, 
 speaks of as real evidence. But clearly the court cannot take 
 judicial notice of a fact not notorious in its nature, 5 i. e.; part of 
 the stock of common knowledge. 
 
 § 31. (Subdivisions of Evidence; Real and Personal Evi- 
 dence); Conclusions reached — Adopting the distinction between 
 real and personal evidence as usable, which will be hereafter done, 
 so far as the terms are employed at all, 1 it must be obvious that 
 this distinction to have any forensic value must be taken from 
 the standpoint of the tribunal, i. e., as a distinction of judicial 
 evidence. That which the tribunal perceives of an evidentiary 
 nature furnished by a thing, a physical object, is real evidence; 
 that which it perceives of an evidentiary nature furnished by a 
 person, is personal evidence. In other words, that evidence is 
 personal which is furnished to the tribunal by persons, and real 
 evidence, that which is furnished to the tribunal by things. If 
 this mental concept of the viewpoint of the tribunal be abandoned, 
 the distinction has no value, and only confusion results from its 
 use. 
 
 Thus let it be assumed that the standpoint of the tribunal be left 
 and that of the percipient person who subsequently narrates to the 
 tribunal what he has observed be adopted. The witness has seen 
 a house, a tree — any physical object. To him this evidence of 
 his sense perception 2 is furnished by things — it is therefore real 
 evidence. But as the statement of the witness comes to the 
 tribunal, it is personal. Best designates such testimony as re- 
 ported real evidence. Yet as most personal evidence is in the 
 same category, viz., consists of statements as to the inferences de- 
 rived by the witness from physical objects, no actual distinction 
 is furnished. The evidence, real to the witness, has become per- 
 
 4. Stephen, Dig. Law of Ev. (3d 1. See Thayer, Prelim. Treat., 280, 
 May ed.), Preface, p. &6. 281, in notis. 
 
 5. Infra, § 699. 2. See Evidence by Pekception. 
 
§ 31. Law of Evidence. 46 
 
 sonal to the tribunal. The phrase " reported real evidence," will, 
 therefore, not be adopted. 
 
 Beat Evidence and Evidence by Perception. — It by no means 
 follows that because real evidence is properly regarded as the evi- 
 dence furnished by things only when such things are perceived by 
 the tribunal itself, that all which the tribunal sees, hears or other- 
 wise perceives for itself is real evidence. That which the court 
 perceives for itself is evidence by perception; one of the three 
 media or instruments of proof; witnesses 3 and documents 4 being 
 the othei; two. 
 
 Physical Aspect of Persons. — Most closely approximating 
 real evidence is that class of facts which is furnished by 
 an inspection by the tribunal of the physical form of a human 
 body. That a witness is black, yellow or white; that he 
 has lost a leg ; that he appears young, middle-aged or old ; this and 
 much more of the same nature clearly is open to the perception 
 of the court and from it inferences are drawn by the tribunal. 
 Under Mr. Stephen's definition — " 'Evidence' means — (1) State- 
 ments made by witnesses in court under a legal sanction, in rela- 
 tion to matters of fact under inquiry; such statements are called 
 oral evidence. (2) Documents produced for the inspection of the 
 court or judge; such documents are called documentary evi- 
 dence " B — it is not evidence at all, being neither " Statements 
 made by witnesses in court under a legal sanction, in relation to 
 matters of fact under inquiry," nor " Documents produced for the 
 inspection of the court or judge." No propriety is perceived for 
 classifying persons as a separate species of physical objects in one 
 connection and not in others. The source of the evidence is a 
 person. It is therefore personal evidence ; both under Bentham's 
 definition 8 and in the nature of things. Where the effort is to 
 show that real evidence and evidence by perception cover precisely 
 the same class of facts' it would be necessary to treat the evidence 
 as real for it is clearly evidence by perception. 
 
 Involuntary Acts. — The suggestion of Best that the terms real 
 evidence and evidence by perception cover the same ground seems 
 to grow more untenable as the element of mental manifestation, 
 although uncontrolled by the will, grows larger in proportion to 
 
 3. See Witnesses. 6. Bcntham, Rationale of Jud. Ev., 
 
 4. See Documentary Evidence. bk. I, c. 4, p. 53. 
 
 5. Stephen, Dig. Law of Ev., art. 1. 7. Supra, § 28. 
 
-47 Involuntaey Evidence of Witnesses. § 31. 
 
 the physical or material element. Such facts, when observed by 
 the tribunal, may not only constitute evidence but evidence of 
 very important character. This is especially true in judging of 
 the credibility of witnesses. It is precisely the opportunity of 
 acquiring this sort of involuntary evidence furnished by persons 
 which constitutes the advantage in reaching truth possessed by a 
 trial court as compared with an appellate tribunal. It is also the 
 basis for the requirement that the oral testimony of a percipient 
 witness shall be deemed primary evidence 8 and the production of 
 such evidence insisted upon by the court until a sufficient justifica- 
 tion is shown for proposing a report of it. In many cases the 
 facts perceived by the observing tribunal are so numerous, subtle, 
 interblended and interacting as to elude the possibility of extension 
 on a record for the consideration of an appellate court or even 
 formulated in the mind of the observer at all. Thus, for example, 
 a witness hesitates and halts in giving his testimony, as if seeking 
 for the right word, in which to clothe his idea. Whether this hesi- 
 tancy be due to a desire to give the precise shade of meaning re- 
 quired by adherence to the exact truth or is due to an effort to 
 recall the details of a fabricated story which he and others have 
 memorized may be an important fact as to which it is usually much 
 easier to draw a correct inference than to assign the reasons for 
 having made it. According to the definition of Mr. Justice 
 Stephen 9 these involuntary acts are not evidence. Assuming, as 
 seems clear, that such manifestations of a mental state constitute 
 evidence, is it real or personal? These statements which the wit- 
 ness is making — the narrative of facts to which he is testifying — 
 are personal evidence. They are intended, volitional; affected by 
 self-interest, bias, lack of memory, love of invention, partisanship 
 — all subjective psychological states or conditions. Can it fairly 
 be said that the manner of telling his story, the reaching of the 
 mind, for example, after something false and fabricated, which 
 first resided in imagination and lies entirely in memory, this in- 
 ability to find any safe guidance in the reality of things, is not 
 equally personal evidence? This peculiarity may shine through 
 the testimony of the witness in spite of every effort of the will. 
 But, as has been seen, 10 this lack of volition does not render the 
 evidence real, if otherwise properly classed as personal. The 
 
 8. Infra, § 466. 10. Supra, § 28. 
 
 9. Supra, § 5 n. 10. 
 
§ 31. Law of Evidence. 48 
 
 manner seems part of the oral statement, when considered in its 
 probative effect. That which produces, or fails to produce, a sense 
 of conviction is not simply the language of the witness but the 
 normal effect of his language, plus or minus the inferences to be 
 drawn from manifestations of the witness' subjective mental state 
 or condition. It can scarcely, it would seem, properly be said that 
 part of the probative effect of the oral testimony of a witness is 
 derived from a person and part from things ; that inferences from 
 the mere statement is personal evidence and, so far as involuntary 
 manifestations of subjective or psychological states are shown, that 
 it is evidence furnished by things. The source of each is the per- 
 son testifying ; we shall, therefore, regard it as personal evidence. 
 Yet, though personal, it is clearly evidence by perception. If, 
 therefore, the classification of involuntary evidence furnished by 
 persons is to be deemed personal evidence, the field of evidence by 
 perception must be extended beyond that of real evidence. Indeed, 
 it is this element of involuntariness which constitutes much of the 
 distinctive force of this species of evidence by perception and fairly 
 entitles it to separate consideration. 
 
 Voluntary Acts. — If it be not already apparent that evidence by 
 perception cannot justly be limited to the scope of real evidence 
 as suggested by Best and endorsed by Mr. Gulson, 11 it would seem 
 convincing to notice the many voluntary acts of persons which 
 are constantly being perceived by the court, and conduce to its final 
 action. An entire transaction — as where the parties are guilty 
 of contempt of court by a mutual assault in open court — may take 
 place in presence of the presiding judge. More frequently the 
 entire conduct of the parties and their witnesses in court is subject 
 to direct perception by the judge and jury during the course of the 
 trial, whether the latter is in progress or not. Probative inferences 
 may well be drawn from this source of information — which is 
 clearly perception. And yet under no definition has it been treated 
 otherwise than as personal evidence. 
 
 We may, therefore, feel justified in concluding that " real evi- 
 dence " is a term which covers such facts as are presented to the 
 perceptive faculties of the court and jury by things ; and that per- 
 sonal evidence is a term which denotes such facts as have their 
 origin or source in persons whether viewed in a physical or mental 
 capacity or regarded as acting in an involuntary or voluntary man- 
 
 11. Supra, § 29. 
 
49 Evidence as a Science. § 31. 
 
 ner ; and that such portion of personal evidence as falls within the 
 direct observation of the judge or jury, constitutes, together with 
 real evidence as above defined, evidence by perception. 12 
 
 § 32. Secondary Meanings of the Term " Evidence." — i It seems 
 appropriate that the subsidiary or secondary meaning of the 
 term " evidence," that is evidence treated as a science, or regarded 
 as an art should receive brief attention at this point. 1 This sub- 
 ordination must be understood as merely relative to the purposes 
 of a particular treatise. Jurisprudence stands sorely in need of a 
 science of evidence. Judicial administration, both in the work 
 of trial and appellate courts would be greatly facilitated and ex- 
 pedited were the art of evidence more clearly formulated and better 
 understood by the vast majority of practitioners. To accord the 
 physical means appropriate for this creation of a particular mental 
 state, priority over the skill of the user of these means and the 
 basic principles upon which he may use them to best effect, might 
 be regarded, it might be thought, somewhat analogous to deeming a 
 treatise upon palettes, brushes and paints, their classification and 
 adaptability to certain ends as of a higher or more important 
 nature than a consideration of the rules taught by experience for 
 the use of these things in the fine art of painting or of the under- 
 lying principles by the employment of which the masters of the 
 art have produced their wonderful effects of harmony and beauty. 
 However, except incidentally and in a subordinate capacity, little 
 consideration can be afforded to what are, perhaps, the higher ranges 
 of the subject of evidence. 
 
 § 33. (Secondary Meanings of the Term "Evidence"); 
 
 Evidence as a Science. — While the present treatise will, it is hoped, 
 prove of practical value to practitioners and students of the sub- 
 ject, it will not be forgotten that the science underlies the art of 
 evidence and that the elucidation and general acceptance of a 
 sound scientific basis for the establishment of rules of practical 
 administration of the art of evidence is not only entirely feasible 
 but would be of great advantage to the administration itself. The 
 rules and practical administration of evidence — the law of evi- 
 
 12. See Evidence by Pebception. scientific aspect of evidence to ita 
 
 1. It is, perhaps, fitting that the mechanical or so called practical side 
 
 obvious fact should be stated that in the phrase is used in an extremely 
 
 speaking of any subordination of the limited and qualified sense. 
 
 Vol. I. 4 
 
§ 33. Law of Evidence. 50 
 
 dence — may fairly be defined as being that part of the doing of 
 judicial justice which concerns itself with the ascertainment of 
 truth. There is in reality, much justification for the language of 
 Judge Davis in the case of Hubbell v. United States : J " Evidence, 
 in its narrow and technical sense, is a machine for the discovery 
 of truth fettered and restrained by municipal law and by local 
 regulations, which vary greatly in different countries." That jus- 
 tice should be done in any case it is first essential that the truth 
 of the matter be ascertained. It is as to this preliminary requisite 
 to the just action of any tribunal with which the law of evidence, 
 whether regarded as a science or as an art, exclusively concerns 
 itself. The object of the law of evidence is, therefore, that of all 
 scientific inquiry — the establishment of truth by the use of the 
 perceptive and reasoning faculties. To the same extent that 
 psychology and logic — formulating the principles or rules which 
 govern or underlie perception and reason — are natural sciences, 
 the law of evidence may also constitute a natural science. In 
 other words, the underlying, fundamental principles of mental 
 action, which most effectively lead the mind to the discovery of 
 truth; and what application, or practice, of these principles will 
 most satisfactorily tend to elicit the truth as to the existence of a 
 fact disputed in judicial proceedings, do not, when considered in 
 and of themselves, depend on any rules of substantive law or pro- 
 cedure, but upon causes inherent in the reality and nature of things 
 in physical and mental states of being. 
 
 This is not true either of substantive or positive law or of the 
 rules or canons of procedure. By contrast, these are practical and 
 utilitarian rather than controlled by principles in the natural order. 
 The substantive law, for example, has in mind the attainment of 
 practical rather than scientific ends. It seeks to establish and 
 enforce such rules of conduct as, on the whole, are most productive 
 of happiness and protection to the members of society. It pre- 
 scribes that which in the average case, in view of the stage of 
 social development attained, is most in the public interest. It 
 may change its commands as social conditions alter. The end 
 in view may remain constant ; but the means by which substantive 
 law seeks to attain it are always, as it were, in a state of fluctuation. 
 
 Still more controlling is the effect of varying views of public 
 policy upon the field of procedure, or practical administration. 
 
 1. 15 Ct. of Cl. 546, 606 (1879). 
 
51 Evidence, Substantive Law and Peoceduee. § 33. 
 
 As applied to the trial of legal controversies, procedure has indeed, 
 as will be hereafter seen, 2 certain general principles or canons. 
 It seeks to preserve the substantive legal rights of the parties to 
 prove their respective contentions, to obtain the judgment of the 
 jury rather than that of witnesses, to make use of correct reasoning 
 and the like. But as in case of substantive law, and to an even 
 greater extent, the means used to attain the ends which the judicial 
 function proposes to itself and even the relative importance of 
 these ends are found to vary in accordance with the view which 
 society, as represented upon the bench, takes of its interest. This 
 is an eminently desirable proceeding. It would probably be for 
 the benefit of the administration of justice were the conservatism 
 of substantive law less firmly engrafted upon the rules of adminis- 
 tration; could its essentially utilitarian character be more fully 
 recognized and the needs of present social conditions be given 
 a greater relative influence than tbose of two or three centuries 
 ago. The only point to which attention is at present sought to be 
 directed is that the conditions under which both substantive law, 
 and in a still greater measure, the law of procedure, perform their 
 allotted tasks are such as to make it impossible to formulate them 
 as a science. They are controlled by public policy; operating 
 through more or less empirical rules, whereas the law of evidence, 
 regarded in and of itself, is dominated exclusively by the object 
 of verifying facts, i. e., the attainment of truth, and may, there- 
 fore, properly be considered as a science. 
 
 The phrase — " considered in and of itself " — is, however, a 
 qualification of great importance upon the truth of the foregoing 
 statement. Unfortunately, it is one which it is extremely difficult, 
 and under present conditions, practically impossible, to attain. 
 In other words, it would be hard to segregate the field of the law 
 of evidence from the respective provinces of substantive law and 
 procedure, announced and enforced as the three frequently are, by 
 the same judge, in the same breath and often with but little regard 
 for accuracy of statement or for any other than the immediate 
 purposes of the ruling which he is making. The rules appropriate 
 to the exercise of these three judicial functions by reason of this 
 and other causes, to be, to some extent, hereafter, briefly stated, 
 have become so interblended, in part through ignorance, careless- 
 ness or inadvertence, and in part, by design for the concealment 
 
 2. Infra, §§ 332 et seq. 
 
§ 33. Law of Evidence. 52 
 
 of judicial legislation of which its authors,. in most cases, should 
 rather have been proud, that any attempt to unravel so tangled a 
 skein is a task attended with no small difficulty and with indif- 
 ferent hope of success. Yet it seems plain that some such attempt 
 must, of necessity, be made if any degree of clearness is to attach 
 to the consideration of the subject of the law of evidence. 
 
 § 34. (Secondary Meanings of the Term "Evidence"; 
 Evidence as a Science) ; Influence of Procedure. — The manner in 
 which the rules of pleading are confused with those in the law of 
 evidence by predicating an admissibility of the factum probans 
 which is, in reality, properly predicated only of the ultimate factum 
 probandum is elsewhere stated. 1 But the administrative function 
 of the court in administering the rules of evidence, which is obvi- 
 ously a matter of procedure apart from the rules themselves, has 
 been productive of much confusion to the law of evidence in itself 
 considered, and has also materially affected the present content of 
 the law of evidence. This has been greatly to its detriment as a 
 formulated set of principles for the attainment of truth. Indeed, 
 in many instances, the influence of substantive law upon the law 
 of evidence, to which reference will be made, 2 was in reality, first 
 created through the mechanism of the court's function of adminis- 
 tering the rules of evidence. This is particularly true in the mat- 
 ter of presumptions. 3 As will be more fully considered hereafter, 
 it is an eminently proper exercise of the judicial function of 
 administration that the repeated action of successive juries should 
 have the effect of creating a rule of presumption as to what is 
 proper and reasonable under like circumstances. This is legitimate 
 legal growth and tends to the creation of certainty in the rules of 
 law. In the evolution of substantive law from procedure, to which 
 reference is elsewhere made, 4 it was apparently felt that this could 
 best be done by an intimation from the court to the jury as to 
 what they would be justified in doing e. g., adopting a particular 
 inference. Should this advice prove acceptable to the jury and 
 well adapted to the ends of justice, the rule might well grow into a 
 matter of requirement, the announcement of a rule of law that, in 
 the absence of evidence to the contrary, the law would presume or 
 assume that the inference previously regarded merely as suitable 
 for adoption by the jury, was the correct one. Should the rule be 
 
 1. Infra, § 36. 3. Infra, § 1082. 
 
 2. Infra, § 35. 4. Infra, § 10S6. 
 
53 Assumptions of Administration. § 34. 
 
 one affecting rights of property, e. g., that the jury might from 
 twenty years' undisturbed open, notorious and adverse enjoyment 
 of an incorporeal hereditament presume the existence of a lost 
 grant, it would be almost inevitable that the subsequent step in the 
 process should be taken, i. e., that the presumption of law should 
 be announced as a conclusive presumption of law — in reality, a 
 rule of substantive law. This method of judicial legislation had 
 the additional advantage that it not only introduced consistency 
 into the practical results of litigations and kept right reason in 
 the position of a guide but it effectually concealed, under the 
 phraseology of the law of administration, the fact that it was, in 
 effect, legislation. Carried through, quietly and as a matter of 
 routine discharge of the judicial function, the fiction that the newly 
 created law had always been the law from the earliest days took 
 no apparent damage. What did suffer injury as a result of the 
 process was the uniformity and consistency of the law of evidence 
 — not only by the direct introduction into its field of propositions 
 of substantive law, based on no special desire for the attainment 
 of truth, but growing out of considerations of public policy with 
 which the law of evidence has but little, if any, direct concern ; but 
 to still more subtle and deep reaching injury which grew, in time, 
 as a perhaps unexpected corollary, that as the substantive rights of 
 the parties were forced to figure in the livery of the adjective law 
 of evidence, the rulings made in the course of administering that 
 law were the subject of appeal or exception to an appellate court, 
 a result extremely prejudicial to the accurate, speedy and com- 
 plete attainment of justice through litigation. 
 
 In much the same way, and largely on account of the rights of 
 parties on appeal regarding rulings on points in the law of evi- 
 dence to which attention has just been called, the practical admin- 
 istration of the law of evidence has introduced a large number of 
 so-called presumptions — apparently rules of law but, in reality, 
 assumptions or provisional rulings in the course of administration 
 as to the burden of evidence. 5 In discharge of his obvious adminis- 
 trative duty to expedite trials, so far as may be consistent with the 
 substantive rights of the parties, 8 a presiding judge is amply justi- 
 fied and perhaps, in a sense, require to eliminate, so far as possi- 
 ble, all uncontroverted matters, and all matters not seriously 
 contested, with a view to bringing out and trying, as speedily as 
 
 5. Infra, § 967. 6. Infra, §§ 544 et seq. 
 
§ 34. Law of Evidence. 54 
 
 convenient, the real question which the parties are desirous of pre- 
 senting for consideration. In so doing, he is well warranted in 
 making certain assumptions — that acts apparently regularly done, 
 so far as presented, are actually regular in all particulars, that 
 officials have done their duty, that there is no fraud, illegality or 
 the like. These are merely provisional assumptions, 7 designed to 
 assist in getting at the gist of the case as rapidly as possible. They 
 are announced by a statement that a prima facie case has been 
 made out; i. e., that the burden of evidence 8 as to a given point 
 has been sustained. As the usual method for shifting this burden 
 of evidence — usually and erroneously called the " burden of 
 proof " — is by the establishment of a presumption of law 9 such 
 a ruling is apt to take the form of saying that it is a presumption 
 of law in favor of official regularity, against fraud, in favor of 
 legality and the like. These also are commonly treated as part of 
 the law of evidence and still further disguise the simplicity and 
 scientific correctness of the fundamental natural principles upon 
 which the law of evidence, considered as a science, itself rests. 
 
 § 35. (Secondary Meanings of the Term "Evidence"} 
 Evidence as a Science); Open Influence of Substantive Law — 
 
 When compared with the intimate relations existing between the 
 law of evidence and the rules of procedure or administration, the 
 field of positive, or as it has seemed best to call it, substantive law 
 is, in the nature of things, comparatively distinct, and the line be- 
 tween it and that of evidence clearly marked. The reason for this 
 is entirely obvious and consists in the fact that rules of procedure 
 and the law of evidence both lie in a still wider division of the 
 corpus juris or entire body of law — namely, that of what Ben- 
 tham called the adjective law, to which the substantive law is in 
 direct contrast, both in name and proper operation. In brief, the 
 substantive law prescribes the nature and extent of the rights and 
 duties which persons, real or artificial, have as between each other 
 or toward the state; while the adjective law regulates the manner 
 in which rights are made available or these duties enforced. A 
 priori, it would seem, as if so broad a line of demarcation might 
 be difficult to pass without obvious impropriety and immediate 
 detection. This is, indeed, in part true where the substantive law 
 directly comes into the field of evidence, introducing its considera- 
 
 7. Infra, §§ 1184 et seq. 9. Infra, § 1082. 
 
 8. Infra, §§ 967 et seq. 
 
55 Open Influence of Substantive Law. § 35. 
 
 tions of public policy and, as it were, engrafting them upon a set 
 of rules adjusted upon scientific principles, for the verification of 
 facts or the ascertainment of truth. This important subject — of 
 the direct influence of substantive law upon the adjective law of 
 evidence will be considered later in detail and no apparent necessity 
 exists for anticipating to any considerable extent, what is to be 
 more fully treated hereafter. It may, however, be conducive to 
 clearness to notice, at this point, that the direct effect of substantive 
 law is, in main, accomplished in one of five ways: (1) The sub- 
 stantive law may affix a definite probative weight to a particular 
 inference of fact. As a true science, the law of evidence recog- 
 nizes no probative force other than that prescribed by the logic of 
 experience. But the substantive law may prescribe that, in the 
 absence of evidence to the contrary, the judge and jury shall as- 
 sume that a certain inference of fact is, prima facie, correct — as 
 where the inference of death drawn from seven years of unex- 
 plained absence without knowledge on the part of those likely to 
 possess it in case the person in question were alive, is assumed to 
 be the correct one. 1 (2) The substantive law, on the contrary, may 
 nullify the reason by prescribing that the inferences arising from 
 the statements of a single witness shall not, in certain cases, be 
 deemed prima facie sufficient; 2 but that other inferences, 
 i. e., additional evidence — from which such inferences may be 
 drawn — should be furnished in corroboration. Thus it may be 
 provided on any criminal trial for perjury that the falsity 
 of the statement made by the accused shall be proved by 
 more than the uncorroborated evidence of a single witness. 3 (3) 
 The substantive law may forbid evidence to be given upon certain 
 subjects as state secrets, the information essential to public justice 
 or the like; 4 or that persons standing in certain relations shall not 
 be witnesses for or against each other, as in case of husband or 
 wife. 6 (4) Substantive law may prescribe, on the other hand, that 
 persons standing in certain definite relations to the propositions in 
 issue, or to the evidence sought to be elicited, shall not be re- 
 quired to testify, either generally or on certain topics, but may 
 claim a privilege of silence regarding such matters. (5) The sub- 
 stantive law may require that only a certain form of proof, e. g., 
 
 1. Infra, §§ 1091 et seq. 4. See Pbtvtlege. 
 
 2. See Witnesses. 5. See Privilege. 
 
 3. See Witnesses. 
 
§ 35. Law of Evidence. 56 
 
 writing, shall be received as evidence, in certain connections, as 
 where a will is required to be proved by an instrument in writing. 
 
 § 36. (Secondary Meanings of the Term "Evidence"; 
 Evidence as a Science); Concealed Influence of Substantive Law — 
 
 Much more subtle, pervasive and confusing are the cases in which 
 substantive law is introduced indirectly into the field of the law 
 of evidence. This is done by the employment of the terms, 
 phraseology and nomenclature appropriate only to the uses of the 
 law of evidence to cover propositions of substantive law. The 
 instances in which this is done, are most frequently introduced 
 by the phrase " evidence is admissible to prove " or " evidence is 
 not admissible to prove " a given fact. The peculiarity is that in 
 many such cases, the evidentiary fact, the factum pro-bans, is well 
 calculated to prove the fact to the proof of which it is directed, 
 i. e., the factum probandum. The real cause for rejecting the 
 former fact is that the latter fact is not provable under the rules of 
 substantive law, or that the ultimate factum probandum — the 
 constituent fact at the end of the chain of probative facts would be 
 excluded by these rules. The real difficulty lies in a failure to dis- 
 tinguish accurately between the function of a probative fact and 
 that of a constituent one. What is properly factum probans is a 
 question in the law of evidence. What among possible facta pro- 
 banda are constituent facts, i. e., are relevant to the existence of or 
 constitute the right claimed or liability asserted, is determined by 
 the component elements of this right or liability as these are placed 
 in issue by the pleadings. The question of admissibility is there- 
 fore determined, by the law of pleading, back of which stands the 
 substantive law under which the right or liability is claimed. What 
 is factum probandum is a question, primarily, of pleading. That 
 is, what propositions of fact are placed in issue in any given case 
 is a question of pleading. 1 What are the component facts 2 or 
 subordinate propositions involved in proof of a proposition in 
 issue, and whether the constituent facts, 3 i. e., the material facts 
 in the res gestce of the case would, if proved, be sufficient to 
 establish the right or liability claimed or asserted in a proposition 
 in issue, are questions of substantive law. When, therefore, evi- 
 dence is offered to prove a factum probandum which is not relevant 
 to any issue in the case, that which blocks the path to admissibility 
 
 1. Infra, § 932. 3. Infra, § 47. 
 
 2. Infra, § 45. 
 
57 Concealed Influence of 'Substantive Law. § 36. 
 
 is primarily the law of pleading, secondarily, the substantive 
 law relating to the particular subject. It will be observed that 
 these difficulties relate entirely to the admissibility of the ultimate 
 factum probandum, nothing being suggested as to any lack of evi- 
 dentiary quality or legal admissibility in the factum probans to 
 establish the existence of the factum probandum were the latter 
 itself provable. When, in such a case, the admissibility is predi- 
 cated or denied as to the factum probans, instead of the ultimate 
 factum probandum it is obvious that a proposition in the law of 
 pleading or of substantive law has been unwarrantably transferred 
 into the field of the law of evidence. It is further clear that the 
 entire corpus juris of substantive law can readily be placed within 
 the boundaries of the law of evidence by the use of these simple 
 formularies : " Evidence is admissible to prove " or " evidence is 
 inadmissible to prove," a certain fact. Perhaps the most con- 
 spicuous instance of this process is found in connection with the 
 so called " parol evidence rule." The familiar rule is announced 
 as one in the law of evidence : Parol testimony cannot be received 
 to contradict, vary, add to or subtract from the terms of a valid 
 written instrument. 4 In truth there is no objection to the evi- 
 dence of the varying or contradictory facts on the ground that the 
 evidence of them is " parol " or oral. " If verbal matter, i. e., 
 spoken language is to be proved at all, no mode of proof is so 
 legitimate or appropriate for the purpose as the oral statements of 
 a witness who has heard the words spoken." s The obstacle to 
 proving oral statements contradictory of or varying the terms of 
 the valid written instrument is not that they are proved by oral 
 testimony but that, under the substantive law relating to docu- 
 ments, a contradictory or varying oral statement, made prior to 
 or at the time of the execution of a written instrument is not 
 provable at all. The factum probans, the oral testimony of the 
 percipient witness, is clearly admissible to prove the prior or con- 
 temporaneous verbal statement, did the substantive law permit 
 proof of it. As it does not, and as it is the factum probandum 
 which is not admissible, to lay the stress of the rule upon the 
 admissibility of the factum probans transfers a rule of substantive 
 law, thus indirectly into the province of the law of evidence. 
 
 § 37. (Secondary Meanings of the Term "Evidence"); 
 
 The Art of Evidence. — Except to a very limited extent and prin- 
 4. Bee Paboi, Evidence. 5. Gulson, Philosophy of Proof, § 447. 
 
§ 37. Law of Evidence. 58 
 
 cipally in connection with the examination of witnesses, 1 the con- 
 sideration of evidence as an art lies outside the scope of the present 
 treatise. That there is such an art of presenting evidence in 
 accordance with the fundamental natural principles underlying 
 the science is abundantly attested by the daily usage of successful 
 practitioners. That it is capable of being taught and consciously 
 employed seems equally free from doubt. Probably few reforms 
 in legal procedure would be more salutary and conducive to the 
 speedy and successful dispatch of judicial business than the de- 
 velopment of a class of advocates well trained in this art of evi- 
 dence. The delays in judicial administration which result from 
 a pure ignoratio elenchi — a misstating of the real issue in a 
 case — constitutes no inconsiderable portion of the difficulty ex- 
 perienced by American courts in despatching the business before 
 them. The law of evidence is rather a means than an end ; more 
 of a tool than a product. Consequently, it is of at least equal 
 practical value to the barrister to know how to use his tool as 
 to become acquainted with its configuration. Such a treatment of 
 the subject is however, as has been said, foreign to the purpose of 
 the present treatise. 
 
 1. See Witnesses. 
 
59 Definitiox of Fact § 38. 
 
 CHAPTER H. 
 
 FACTS. 
 
 " Fact " defined, 38. 
 
 other definitions, 39. 
 " Matter of fact," 40. 
 Matter of law, 41. 
 Matter of opinion, 42. 
 Classification of facts, 43. 
 
 physical and psychological, 43. 
 
 simple and compound, 44. 
 
 component facts, 45. 
 
 component and probative, 46. 
 
 res gestae and constituent, 47. 
 an illustrative instance, 48. 
 
 compound, component and constituent, 49. 
 
 positive and negative, 50. 
 
 principal and probative, 51. 
 deliberative facts, 52. 
 
 states and events, 53. 
 Belevancy, 54. 
 
 objective, 55. 
 
 subjective, 56. 
 
 direct, 57. 
 
 indirect, 58. 
 
 logical, 59. 
 
 deliberative, 60. 
 
 Ze<7aZ, 61. 
 
 " /acis m issue," 62. 
 
 ZegraZ reasoning, 63. 
 
 General order and scope of treatise, 64. 
 
 § 38. " Fact " Defined — These definitions of the term evidence 
 as constituting the physical means for inducing belief in the truth 
 of. some matter of fact — meaning proposition or expression of 
 fact — are devoid of definite meaning until an approximately 
 accurate definition as to what is to be understood by the term 
 " fact " which all such definitions of the term " evidence " uni- 
 formly employ, has been gained. Scientifically speaking — a 
 fact is that which exists — either in the world of matter or in that 
 
38. 
 
 Facts. 
 
 60 
 
 of mind. " We may define a fact as a reality of nature, existing 
 or perceptible in the present or the past, and having its seat either 
 in matter or in mind." 1 Mr. Justice Stephen abandons in his 
 third edition the brave attempt of previous editions to define this 
 protean term " fact " 2 and contents himself with saying 3 that 
 " fact includes the fact that any mental condition of which any 
 person is conscious exists." This means, we may assume, merely 
 that a fact may be psychological, as well as physical — a classifi- 
 cation to which reference is elsewhere made. 4 
 
 § 39. (" Fact " Defined); Other Definitions Professor Thayer 1 
 
 states more at length the thought that fact is that which exists, 
 stated elsewhere, 2 " The fundamental conception is that of a thing 
 
 1. Gulson, Philosophy of Proof, 
 pt. 33, § 49. 
 
 2. "'Fact' means: (1) Everything 
 capable of being perceived by the 
 senses. (2) Every mental condition 
 of which any person is conscious. 
 Every part of any fact is itself a. 
 fact." Stephen, Dig. Law of Ev., 
 ed. 1, c. 1, art. 1. The critic in the 
 Solicitors' Journal may be assumed to 
 have had no small part in determining 
 this course. Of Hr. Stephen's defini- 
 tion of "fact," he writes: "But 
 what is a fact? It is, by article 1 
 '(1) everything capable of being per 
 ceived by the senses ; (2) every mental 
 condition of which any person is con 
 scious.' " Solicit. Jour., vol. 20, p 
 869. Again he says : " But, further 
 it is not true to say that the issue is 
 always as to the existence or non- 
 existence either of a ' thing perceived 
 by the senses,' or of a ' mental 
 condition.' Take the case of an 
 action brought to recover damages 
 for injury sustained in a street 
 accident, or against a bailee for negli- 
 gent custody. That the one party did 
 in fact strike against and injure the 
 other, that the goods were in fact 
 lost out of the custody of the bailee, 
 may be admitted, but there still re- 
 mains the cardinal question, was neg- 
 ligence imputable to the defendant? 
 But negligence is neither a thing 
 
 capable of being perceived by the 
 senses, nor is it a mental condition 
 of which a person is conscious. It 
 is the nonconformity of the defend- 
 ant's conduct with an imaginary 
 standard of reasonable care, which the 
 jury have to derive from their knowl- 
 edge and experience of life, and to 
 apply to the circumstances of the 
 case." Solicit. Jour., vol. 20, p. 869. 
 The critic himself attempts a defini- 
 tion : " Fact means commonly an act 
 or an event, and not a thing; it may 
 at least as well mean a quality of 
 an act, person, or thing, as a thing 
 perceived by the senses or a mental 
 condition." Solicit. Jour., vol. 20, p. 
 870. " To define ' fact is an attempt 
 of much the same kind as to define 
 ' matter ' or ' mind ; ' and the occasion 
 is an apt one for remembering the 
 maxim that definition is a dangerous 
 thing in law, and, acting under this 
 caution, we should propose that the 
 interpretation of the word ' fact * 
 should be left to common sense and 
 common understanding, which have 
 not hitherto found much difficulty in 
 dealing with it." Solicit. Jour., vol. 
 20, p. 870. 
 
 3. Digest, Law of Ev., c. 1, art. 1. 
 
 4. Infra, § 43. 
 
 1. Prelim. Treat. Ev., 191. 
 
 2. Supra, § 38. 
 
61 Bentham's Classification of Facts. § 39. 
 
 as existing, or being true. It is not limited to what is tangible, or 
 visible, or in any way the object of sense ; things invisible, mere 
 thoughts, intentions, fancies of the mind, when conceived of as 
 existing or being true, are conceived of as facts. The question of 
 whether a thing be a fact or not, is the question of whether it is, 
 whether it exists, whether it be true. All inquiries into the truth, 
 the reality, the actuality of things, are inquiries into the fact 
 about them. Nothing is a question of fact which is not a question 
 of the existence, reality, truth of something ; of the rei Veritas." 
 
 As defined in the cases, certain aspects of the term " fact " other 
 than as denoting an existence, have attracted the attention of the 
 courts. Among other attributes is that of fixity or unchangea'ble- 
 ness. 3 There is also the attribute of accomplishment — something 
 effected or achieved.* Still the idea of bare existence, which seems 
 to underlie these various concepts, has not been overlooked in the 
 cases. 8 
 
 The Object of Evidence. — Fact has been denned as that which 
 may be proved — though it would seem more accurate to regard 
 the only object of evidence, as being the truth of a proposition 
 rather than the existence of a fact. 6 "A fact, as the term is used 
 in legal proceedings, is an event; a thing done or said; an act or 
 action, which is the subject of testimony. The condition or state 
 of mind at a given time is a fact. If any emotion is felt, as joy, 
 grief, or anger, the feeling is a fact. If the operations of the 
 mind produce an effect, as knowledge, skill, intention, this effect 
 on the mind is a fact. When the mental processes lead up to and 
 .produce a desire or intention to do a certain thing, such state of 
 mind is a fact. Willfulness is a desire or intention to produce a 
 certain result ; hence, willfulness is a fact." 7 
 
 Bentham. — " Facts at large, whether considered as principal or 
 as evidentiary, may be divided into classes, according to several 
 different modes of division. . . . Distinction the first. — Facts 
 physical, facts psychological. The source of the division here is, 
 
 3. Huber v. Guggenheim, (U. S.) 6. This, however, seems to have been 
 89 Fed. 598, 601 (1898). directly disputed. Lawrence v. 
 
 4. Gates v. Haw, 150 Ind. 370, 50 Wright, 9 N. Y. Super. Ct. (2 Duer) 
 N. E. 299 (1898). 673, 674 (1853). 
 
 5. "A 'fact' is defined to be 'a 7. Barr v. Chicago, St. L., etc., R. 
 thing done, reality, not supposition, Co., 10 Ind. App. 433, 37 N. E. 814 
 action, deed." (Walker's Dictionary.) 815 (1894). 
 
 Lackey v. Vanderbilt, (N. Y.) 10 
 How. Pr. 155, 161 (1854). 
 
§ 39. Facts. 62 
 
 the sort of beings in which the fact is considered as having its seat. 
 A physical fact is a fact considered to have its seat in some inani- 
 mate being ; or, if in an animate being, by virtue, not of the quali- 
 ties by which it is constituted animate, but of those which it has 
 in common with the class of inanimate beings. A psychological 
 fact is a fact considered to have its seat in some animate being ; and 
 that, by virtue of the qualities by which it is constituted animate. 
 . . . Distinction the second. — Events, and states of things. — 
 Source of the division in this case, the distinction between a state 
 of motion and a state of rest. By a fact is meant the existence of 
 a portion of matter inanimate or animate, either in a state of mo- 
 tion or in a state of rest. . . . Distinction the third. — Facts 
 positive and negative. In this may be seen a distinction, which 
 belongs not, as in the former case, to the nature of the facts them- 
 selves, but to that of the discourse which we are under the necessity 
 of employing in speaking of them. In the existence of this or that 
 state of things, designated by a certain denomination, we have a 
 positive, or say, an affirmative fact; in the nonexistence of it, a 
 negative fact. But the nonexistence of a negative fact is equivalent 
 to the existence of the correspondent and opposite positive fact; 
 and unless this sort of relation be well noted and remembered, great 
 is the confusion that may be the consequence. The only really 
 existing facts are positive facts. A negative fact is the non- 
 existence of a positive one, and nothing more; though, in many 
 instances, according to the mode of expression commonly em- 
 ployed in speaking of it, the real nature of it is disguised." 8 
 
 Best . — The definition of Best 9 follows closely upon that of Ben- 
 tham. " Confining ourselves henceforward to truths of fact — the 
 proper object of the present treatise — we shall first direct atten- 
 tion to some divisions of them, which, as connected with juris- 
 prudence especially, it will be convenient to bear in mind. In the 
 first place, then, facts are either physical or psychological. By 
 ' physical facts ' <are meant, such as either have their seat in some 
 inanimate being, or if in one that is animate, then not by virtue 
 of the qualities which constitute it such ; while ' psychological 
 facts ' are those which have their seat in an animate being, by 
 virtue of the qualities by which it is constituted animate. Thus, 
 the existence of visible objects, the outward acts of intelligent 
 agents, the res gestae of a lawsuit, etc., range themselves under the 
 
 8. Bentham, Jud. Ev., bk. I, c. 3. 9. Best, Ev., §§ 12, 13. 
 
63 Definition of Fact; Holland. § 39. 
 
 former class; while to the latter belong such as only exist in the 
 mind of an individual; as for instance, the sensations or recollec- 
 tions of which he is conscious, his intellectual assent to any propo- 
 sition, the desires or passions by which he is agitated, his animus 
 or intention in doing particular acts, etc. Pyschological facts are 
 obviously incapable of direct proof by the testimony of witnesses ; 
 their existence can only be ascertained either by confession of the 
 party whose mind is their seat — index animi sermo — or by pre- 
 sumptive inference from physical facts." 10 " There are two other 
 divisions of facts which deserve to be noted. One is, that they are 
 either events or states of things. By an ' event ' is meant some 
 motion or change, considered as having come about either in the 
 course of nature, or through the agency of human will ; in which 
 latter case it is called ' an act/ or 'an action.' The fall of a tree 
 is ' an event,' the existence of the tree is ' a state of things ; ' but 
 both are alike ' facts.' The remaining division of facts is into 
 positive or affirmative, and negative; a distinction which, unlike 
 both the former, does not belong to the nature of facts themselves, 
 but to that of the discourse which we employ in speaking of them. 
 The existence of a certain state of things is a positive or affirma- 
 tive fact, the nonexistence of it is a negative fact. But the only 
 really existing facts are positive ones — for a negative fact is noth- 
 ing more than the nonexistence of a positive fact; and the non- 
 existence of a negative fact is equivalent to the existence of the 
 correspondent and opposite positive fact." 
 
 Holland. — "Holland's definition of fact is best understood by 
 receiving it in the way in which he has given it. 11 " ' Facts ' 
 (Thatsachen, Faits), which have been inadequately denned as 
 ' transient causes of sensation,' are either ' events ' or ' acts.' 
 (1) 'Events' (Ereignisse, zufallige Umstande, Zufall, Casus, 
 Evenements) may be either movements of external nature, such as 
 a landslip, the increase of a flock of sheep, the death of a relative, 
 or an accidental fire ; or may be acts of a human being other than 
 the human being whose rights or duties are under consideration. 
 Lapse of time and change of place are among the events which are 
 most productive of legal consequences. 12 (2) 'Acts' (Handlungen, 
 
 10. Mascard de Prob. Concl., 94; Windscheid, Pand. 1, 291. Stat. 43 
 1 Benth., Jud. Ev., 83, 145 ; 3 Benth., and 44 Vict. c. 9, was passed " to re- 
 Jud. Ev., 6. move doubts as to the meaning of 
 
 11. Holland, Juris. (10th ed.), c. expressions relative to Time in Acts 
 8, p. 101. of Parliament and other legal instru- 
 
 12. Savigny, System, III, p. 297; ments." 
 
§ 39. Facts. 64 
 
 Actes) , in the widest sense of the term, are movements of the will. 
 Mere determination of the will are ' inward acts.' Determinations 
 of the will which produce an effect upon the world of sense are 
 ' outward acts.' ' The inner stage of an act,' says a recent writer, 
 ' ends with the determination (Entschluss), to which it is guided 
 by a final cause (Zweck). The outer stage (die That) is the 
 realization of the former in the external world by the help of nat- 
 ural laws, such as gravity.' 1S Jurisprudence is concerned only 
 with outward acts. 1 * An 'Act ' may therefore be denned, for the 
 purposes of the science, as ' a determination of will, producing 
 an effect in the sensible world.' 15 The effect may be negative, in 
 which case the act is properly described as a ' forbearance.' ' : 
 Sir George Cornewall Lewis thus defines " fact" : " By a 
 matter of fact I understand anything of which we obtain a con- 
 viction from our internal consciousness, or any individual event 
 or phenomenon which is the object of sensation. It is true that 
 even the simplest sensations involve some judgment, when a 
 witness reports that he saw an object of a certain shape and size, 
 or at a certain distance, he describes something more than a mere 
 impression on his sense, of sight, and his statement implies a 
 theory and explanation of the bare phenomenon. When, however, 
 this judgment is of so simple a kind as to become wholly uncon- 
 scious, and the interpretation of the appearances is a matter of 
 general agreement, the object of sensation may, for our present 
 purpose, be considered a fact. A fact, as so defined, must be 
 limited to individual sensible objects, and not extended to general 
 expressions or formulas, descriptive of classes of facts, or sequences 
 of phenomena, such as that the blood circulates, the sun attracts 
 the planets, and the like. Propositions of this sort, though de- 
 scriptive of realities, and therefore, in one sense, of matters of 
 fact, relate to large classes of phenomena, which cannot be grasped 
 by a single sensation, which can only be determined by a long 
 
 13. Ihering, Der Zweck im Recht, haupt die hervorgebrachte Verand- 
 I, p. 33. erung und Bestimmung des Daseyns. 
 
 14. " Nee consilium habuisse noceat, Zur Handlung aber gehort nur das- 
 nisi et factum secutum fuerit." Dig. 1. jenige was von der That im Entschu- 
 16) 53 - lusse liegt, oder im Bewusstsein war, 
 
 15. The "Entschluss des Willens" was somit der Wille als das seinige 
 plus the " Aeusserung des Willens " is anerkennt." Hegel, Prop&deutik, 
 " That," which may be of omission or Einl., § 9. 
 
 of commission. " Die That ist uber- 
 
65 Mattejj of Law. § 3& 
 
 series of observations, and are established by a process of intricate 
 reasoning." 16 
 
 § 40. "Matter of Fact." — It will be noticed that in Prof. 
 Greenleaf 's definition of the term " evidence " as given above 1 
 which states the accepted nomenclature on the subject — "The 
 word evidence, in legal acceptation, includes all the means by 
 which any alleged matter of fact, the truth of which is submitted 
 to investigation, is established or disproved " 2 — it is not the 
 truth of a " fact " which is submitted to judicial investigation 
 and to proof of the truth of which evidence is directed ; it is said 
 to be some " matter of fact " concerning which these statements 
 are made. What, then, is " matter of fact " and how is it related 
 to the term " fact ? " As that of a species to a genus. For ju- 
 dicial purposes, "fact" as a genus, is divided into three species 
 (1) matter of law, (2) matter of opinion, and (3) matter of 
 fact. No very clear differentia3 indicate these several species. It 
 may, indeed, be said that any facts not clearly falling within the 
 first or second species are deemed to be comprised in the third. 
 In other words, whatever falls within the genus " fact " which is 
 not clearly " matter of law " or " matter of opinion " is properly 
 classed as " matter of fact." 
 
 It will be necessary to consider in detail the relation of matter 
 of law and matter of fact in the next chapter, especially, as these 
 subjects are partitioned, in English practice, between the judge 
 and the jury. 3 
 
 § 41. Matter of Law — Obviously, within the definition of 
 the term " fact " given supra, 1 the existence of a rule of law is a 
 fact. This is at once perceived and conceded when the rule of 
 law is other than one embraced within the field of domestic 
 jurisprudence — the law of the forum. The existence of a rule of 
 foreign law is, by the great weight of authority, 2 a question of 
 fact. But it is otherwise as to rules of municipal or domestic 
 law — the commands of the sovereign power of the jurisdiction 
 under which the court is itself constituted. Knowledge and en- 
 forcement of these laws is, so far as the judge is concerned, part 
 
 16. Lewis, Authority in Matters of 3. Infra, §§ 67 et seq. 
 
 Opinion, c. 1, § 1. 1. Infra, § 38. 
 
 1. Supra, § 5 n. 8. 2. Infra, §§ 154 et seq. 
 
 2. Greenleaf, Ev. (15th ed.), c. 1, 
 § 1. 
 
 Vol. I. 5 
 
§ 41. Facts. 66 
 
 of the judicial office. It is a function of government — part 
 of the machinery by which the sovereign controls its subjects and 
 makes its will effective. It has seemed wise, partly as conducive 
 to the proper demarkation of the respective provinces of the court 
 and jury, 3 to segregate such matters of fact from facts of a differ- 
 ent relation to the administration of justice under the general 
 term " matter of law." As the Supreme Court of West Virginia 
 say : 4 "As distinguished from the law, a fact may be taken as that 
 out of which the point of law arises, that which is asserted to be 
 or not to be, and is to be presumed or proved to be or not to be, 
 for the purpose of applying or refusing to apply a rule of law." 
 
 § 42. Matter of Opinion. — Viewed apart from jurisprudence, 
 the fact that a witness has drawn a particular inference, reached 
 a given conclusion or performed a particular act of judgment, is 
 merely a fact. But there are strong administrative reasons for 
 separating such facts from facts in general. It has been deemed 
 desirable not only that the function of the judge should be pre- 
 served from the intrusion of the jury, and his special field reserved 
 to him under the term " matter of law " but also that the special 
 field of the jury's action — that of applying their judgment to the 
 verification of facts constituent of the issue in any case — should 
 be preserved from the intrusion of the witnesses. The witnesses are 
 to state facts observed by or known to them — not to reason about 
 them. The jury will draw the inferences, employ the determin- 
 ating or reasoning faculties, " judge of their evidence." ' In a 
 general way, it may be added, that so large 'an element of in- 
 ference as may be involved in the statement of a fact or is re- 
 quired by the limitation upon ordinary powers of expression, 2 
 on the part of the witness, or lack of coordinating power in the 
 jury, 8 will be permitted. 
 
 Other inferences constitute matter of opinion as to which a 
 witness is not permitted to testify; but all such inferences — 
 especially in case of conclusions or acts of judgment, where the 
 element of reasoning predominates — or where the inference re- 
 lates to a subject not material to the issue in the case, are rejected. 
 " Matter of opinion " thus defined in the law of evidence — the 
 involution of the element of inference or reasoning to an extent in 
 
 3. Infra, §§ 67 et seq. 1. Infra, §§ 1796 et seq. 
 
 4. Hillings !'. Hulings Lumber Co., 2. Infra, §§ 1801, 1812, 1814. 
 38 W. Va. 351, 18 S. E. 620 (1893). 3. Infra, § 1814. 
 
67 Physical and Psychological Pacts. § 42. 
 
 excess of that required for a simple statement of fact — is thus re- 
 ferred to by Lewis : " Doubts, indeed, frequently arise as to the 
 existence of a matter of fact, in consequence of the diversity of the 
 reports made by the original witnesses, or the suspiciousness of 
 their testimony. A matter of fact may again be doubtful, in conse- 
 quence of the different constructions which may be put upon ad- 
 mitted facts and appearances, in a case of proof by (what is 
 termed) circumstantial evidence. Whenever such doubts exist they 
 cannot be settled by a direct appeal to testimony, and can only be 
 resolved by reasoning; instances of which are afforded by the 
 pleadings of lawyers and the disquisitions of historians upon con- 
 tested facts. When an individual fact is doubted upon reasonable 
 grounds, its existence becomes a matter of opinion. The existence 
 of such a fact, however, is not a general or scientific truth, but 
 a question to be decided by a consideration of the testimony of 
 witnesses." * This meaning of the term will be distinguished 
 from one with which the law of evidence has no concern, viz. : 
 Those propositions which from their nature do not admit of 
 determination of verification as matters of fact, but are neces- 
 sarily like matters of theological or political belief, matters held 
 by the judgment but incapable of external proof. 
 
 " Matters of opinion, not being disputed questions of fact, are 
 general propositions or theorems relating to laws of nature or 
 mind, principles and rules of human conduct, future probabilities, 
 deductions from hypotheses and the like, about which a doubt may 
 reasonably exist. All doubtful questions, whether of speculation 
 or practice, are matters of opinion. With regard to these, the ulti- 
 mate source of our belief is always a process of reasoning." B 
 
 § 43. Classification of Facts; Physical or Psychological. — Classi- 
 fying facts in general, according to whether they are within or 
 without the body of the observer, they may be divided into (1) 
 physical, of which the knowledge of the observer comes through the 
 perception of the senses; and (2) psychological, comprising feel- 
 ings, emotions and other phases of the mind of which the latter is 
 intuitively aware. It may well bo that the mind is aware only of 
 changes in its states of consciousness. 1 Still, it is entirely possible 
 
 4. Lewis, Authority on Matters of dependently of inference, is, in every 
 Opinion, c. 1, § 1. case, the same, namely, our own in- 
 
 5. Lewis, Authority on Matters of tuitive feelings." Gulson, Phil, of 
 Opinion, c. 1, § 1. Proof, § 30. 
 
 1. " All that we actually know, in- 
 
§ 43. Facts. 68 
 
 to distinguish between a change in consciousness due to the in- 
 fluence of external sense perception taking its origin or reacting 
 from contact with a physical object on the one hand, and, on the 
 other, a change of consciousness caused, so to speak, by the reaction 
 of consciousness directly upon itself. The first is the mind's per- 
 ception of a physical fact. The second is its recognition of a 
 psychological one. In the former process, as is more fully consid- 
 ered elsewhere, 2 is presented, in all cases, even the simplest, a 
 necessary element of inference, the exercise of the faculty of rea- 
 son, which lies, as it were, between the physical object and the 
 mind's awaredness of its nature and qualities. In the latter there 
 is a mere apprehension by the mind without the aid of sense per- 
 ception and " unassisted by any effort of the reasoning powers 
 beyond that amount of judgment which is involved in the pro- 
 gress from the feeling of which we are conscious to a belief in the 
 existence of the thing that we feel." 3 It may, however, well be 
 as pointed out by Mr. J. S. Mill 4 that what the mind assumes to 
 be intuition is merely an inference too rapid for conscious apprecia- 
 tion of its several steps. 
 
 Physiological Facts. — There is, indeed, a third class of facts, of 
 limited range, intermediate between the physical and the psycho- 
 logical fact, partaking, to a certain extent, of the attributes of 
 each. These are they which are perceived by the mind not as 
 influencing or affecting it from some physical object without the 
 observer but from a physical object within or upon the observer. 
 This is objectively rather than subjectively perceived by the mind. 
 The observer is conscious of a certain physical or bodily condition. 
 Thus, an injured person may be aware of certain sensations in his 
 bodily frame. He knows where to locate them. The feeling of 
 pain arising in his mind is a purely psychological fact, which is 
 elsewhere denominated a mental state. 5 But as a mental state — a 
 thought, emotion, feeling, phase of the mind — consciousness, 
 while aware of its existence, is unable to assign it location. Re- 
 garding the cut, bruise or other physical sensation, consciousness 
 can identify not only the feeling but the source from which it 
 comes, its nature and location, as would be the case of an ordinary 
 
 2. Infra, § 1801. really the result of a very rapid in- 
 
 3. Gulson, Phil, of Proof, § 32. ferenoe, may seem to be apprehended 
 
 4. " We may fancy that we see or intuitively." Mill, System of Logic 
 feel what we in reality infer. A (8th ed.), Introd., 20. 
 
 truth, or supposed truth, which is 5. Infra, §§ 2643 et seq. 
 
69 Simple and Compound Facts. § 43'. 
 
 physical object .external to the observer. The difference, however, 
 is that so far as relates to the nature, source and location of the 
 bodily condition the mind's knowledge is gained rather by intuition 
 than by perception. One is conscious of his bodily condition in the 
 same way that he is conscious of his own existence. 6 The facts of 
 which the mind is thus conscious may well be termed bodily facts. 
 We should then have three classes of facts corresponding to the 
 three methods by which they are cognized by the mind. (1) 
 Psychological facts, which have their seat in the mind only and 
 are known to the observer by intuition or pure consciousness; (2) 
 Physiological facts which have their seat in the corporal frame of 
 the observer and are known to him by that form of consciousness 
 called sensation, and (3) Physical facts, which have their seat in 
 the material world and are known to the observer by that form of 
 sensation called perception. 7 
 
 It will be possible, however, to eliminate from a practical consid- 
 eration of the subject the second class of facts, viz., physiological 
 facts, leaving for consideration only those which are psychological 
 or physical — as we shall, in general, prefer to call them, physical 
 facts and mental states 8 or conditions. 9 For the state of our bodily 
 organs is, in essence, a physical fact. All that is necessary to make 
 any bodily injury, for example, an object of direct perception is to 
 look at it, touch it or otherwise bring it under the observation of 
 a perceptive faculty of sight, touch or the like. It is true that we 
 may also cognize it by a mere act of consciousness — by intuition 
 or instinctively. But so considered, it in no substantial way 
 differs from psychological facts, as above defined. It has seemed 
 best to classify physiological with physical facts, and to divide all 
 facts into psychological and physical. 
 
 § 44. (Classification of Facts); Simple and Compound As 
 
 will be seen later regarding inferences, 1 facts of a comparatively 
 simple nature may unite to form compound facts of a greater 
 degree of complexity, these in turn joining with others to form a 
 fact still more involved, and so on to an indefinite extent. An 
 
 6. " Examples of truths known to of our feelings ; to feel our sensations ; 
 
 us by immediate consciousness, are and to perceive material objects." 
 
 our own bodily sensations and mental Gulson, Phil, of Proof, § 39. 
 
 feelings." Mill's Logic (8th ed.), 8. Infra, §§ 2643 et seq. 
 
 Introd., §§ 4, 19. 9. Infra, §§ 2638 et seq. 
 
 1. "We are said to be conscious 1. Infra, §§ 1797 et seq. 
 
§ 44. Facts. 70 
 
 absolutely simple, uncompounded, indivisible fact apparently does 
 not exist in nature as commonly presented to perception. Even 
 the simplest act to which a single name is attached in language 
 as of a unit is in reality upon closer inspection found to be a series 
 or collection of simpler acts. " I cannot," says Gulson, 2 " even 
 take a step, or ring the bell, without performing a series or com- 
 bination of movements, though they be all comprised in a single 
 expression of fact. And we must accept the complex expression of 
 fact as the fact. It is as impossible to dissect a fact, whether of 
 this or of any other kind, into its ultimate elements, as it is to dis- 
 cover the indivisible particles of which a material object is com- 
 posed. In theory we can conceive a fact absolutely simple, for 
 example, the existence of an atom in a state of rest, an instanta- 
 neous perception in the mind, etc. In practice, there is nothing of 
 this kind ; a fact, though it may be spoken of as a single fact, is 
 still in reality an aggregate of facts. 3 Where 'a fact formed any 
 ■constituent part of a principal fact, it would not be itself an evi- 
 dentiary fact, nor would the proof of it offer an instance of cir- 
 cumstantial evidence." 4 
 
 § 45. (Classification of Facts) ; Component Facts. — In any in- 
 vestigation, judicial or other, in which the existence of a right is 
 claimed or a liability asserted, the truth of certain special facts 
 which, when united, make up or compose such right or liability, 
 is necessarily involved. It seems proper to designate these facts as 
 component. 1 Proof of these facts is absolutely essential to proof of 
 "the proposition submitted to investigation. They, or more prop- 
 
 2. Gulson, Philosophy of Proof, existence, non-existence, nature, or ex- 
 pt. 94, § 116. tent of any right, liability, or dis- 
 
 3. Dumont, Ev., 11. ability asserted or denied in any such 
 
 4. Gulson, Philosophy of Proof, 171, case would by law follow." Stephen, 
 i 300. Dig. Law of Ev. (3d ed.), c. I, art. I. 
 
 1. These are the " facts in issue " Although, in strictness, material facts 
 as the term is used by Mr. Justice brought out in an investigation 
 Stephen : " The expression ' facts in where there are no pleadings, can- 
 issue' means — (1) All facts which, not properly be either said to be "in 
 by the form of the pleadings in any issue " or component facts but are 
 action, are affirmed on one side and rather of the class of facts to which 
 denied on the other. (2) In actions the term constituent, has been as- 
 in which there are no pleadings, or signed. A fact in issue is a fact 
 in which the form of the pleadings is which was necessarily and immedi- 
 such that distinct issues are not ately found under the pleadings in 
 joined between the parties, all facts the cause. Potter v. Baker, 19 N. H. 
 from the establishment of which the 166, 167 (1848). 
 
71 Simple Facts Defined. § 45. 
 
 erly, their existence is essential to the truth of the proposition in 
 issue. To put the same idea in a slightly different form, every 
 proposition of fact submitted to investigation may be regarded as 
 subdivided into a number of subordinate or secondary propositions 
 of fact, each of which must be true if the main or primary propo- 
 sition itself be true. If each of these subordinate propositions of 
 fact be true, the main proposition is of necessity established. If 
 •any of these subordinate propositions fails to be established as 
 true, the effort to establish the main proposition has failed. In a 
 sense, this may be regarded as the splitting up of a compound or 
 complex fact — which as has been seen, 2 may be of any degree of 
 complexity — into the necessary minor facts which are its com- 
 ponent parts and all of which are necessary to its existence. 
 
 It is, for example, asserted that A killed B. This proposition is 
 submitted to investigation. But its truth involves and is dependent 
 upon that of several subordinate or minor propositions. As these 
 make up the main proposition, they may here be called component. 
 It must be shown (1) A was present at a given time and place. 
 (2) B was present at the same identical time and place. (3) A 
 set in operation a force which acted upon the body of B. (4) The 
 result of this action was a certain wound or injury to the body of 
 B. (5) Of this wound or injury B subsequently died. Taken 
 collectively these minor or subordinate facts or propositions of fact 
 establish the more comprehensive fact or proposition of fact that 
 A killed B and may properly be said to be component parts of this 
 proposition. If it be conceded that, as in case of poison sent from 
 a distance and taken by B in a physical absence of A, that A is 
 constructively present wherever the force set in motion by him 
 continues to operate, it may also be affirmed that if any of 
 these subordinate propositions of fact is untrue, the more com- 
 prehensive proposition cannot be true. All complex facts may thus 
 be resolved into these which are more simple. " In theory," says 
 Mr. Dumont, 3 " we can conceive a fact absolutely simple ; for 
 example, the existence of an atom in a state of rest, an instanta- 
 neous perception in the mind, etc. In practice, there is nothing of 
 this kind; a fact, though it may be spoken of as a single fact, is 
 still in reality an aggregate of facts." * 
 
 2. Supra, § 44. 4. Supra, § 44. 
 
 3. Dumont, Ev., 11. 
 
§ 45. Facts. 72 
 
 While this is essentially true, it lias been deemed practically ex- 
 pedient to treat as a simple fact any existing state of matter or 
 mind which may be ascertained or verified by a single act of per- 
 ception or intuitive consciousness. 
 
 In a judicial proceeding where there are pleadings it may be 
 more convenient to regard these component facts as the splitting up 
 of the main proposition or expression of fact into certain minor 
 propositions or expressions of fact, which compose and are essential 
 to the truth of the main proposition of fact. It would thus appear 
 that legal investigations stand in no different position from other 
 inquiries so far as relates to the matter of component facts or propo- 
 sitions of fact. The essential difference between natural and ju- 
 dicial inquiries attaches to another matter — the relation which 
 the component facts or propositions hold to the compound fact or 
 proposition. This difference may be considered under two sub- 
 stantially similar aspects of the same fact: (1) That which pre- 
 scribes the number and nature of the subordinate propositions 
 which must be shown to be true in order that the main proposition 
 shall be deemed to be established as alleged. (2) That which 
 determines whether proof of the existence of certain component 
 facts does or does not establish the truth of the main proposition 
 submitted to investigation. 
 
 In an investigation in pais the elements of a complex proposition 
 of fact are prescribed by the nature or reality of things. In case 
 of a judicial inquiry, these elements of a proposition in issue are 
 determined, in an artificial or in a sense, arbitrary, manner, by the 
 rules of substantive law. Such elements, component facts or sub- 
 ordinate propositions of fact, make up the definition, in matter 
 of law s of the right or liability asserted in the action. Thus, 
 assume the proposition submitted to judical investigation to be — 
 A committed larceny from B. The subsidiary propositions of fact 
 may be thus stated: (1) A took into his possession certain per- 
 sonal property. (2) This personal property was owned by B. 
 (3) A took and carried away these articles. (4) A did so intend- 
 ing to use this personal property as his own and to deprive B of 
 his use of the same. Each of these subsidiary propositions of fact, 
 taken singly, forms an integral part of the main proposition and 
 taken collectively, they are identical with it. Still, it is obvious 
 that the subsidiary propositions are the elements of the criminal 
 
 5. Infra, §§ 65 et seq. 
 
73 Constituent and Probative Kelations. § 45. 
 
 offence of larceny and are prescribed, not by a necessity inherent 
 in the nature of things, but by the view of public policy entertained 
 by the law-making power of the forum and formulated into the 
 substantive law regulating that particular offense. 
 
 It merely reverses the statement to say that while the suf- 
 ficiency of the component facts, or subsidiary proposition of fact to 
 make, by their union or combination the compound fact or main 
 proposition, presents, in the case of an investigation in pais a ques- 
 tion of fact determined by reasoning based on experience, the same 
 question in a judicial inquiry is one of law. . 
 
 It is important to observe that in neither case, i. e., neither in 
 an investigation in pais nor in a judicial inquiry, is the component 
 fact or proposition evidentiary or probative of the existence of the 
 compound fact or proposition. It is equally true that no pro- 
 bative or evidentiary fact can be either a compound or a com- 
 ponent fact. 
 
 It is further to be observed, as a corollary from the above state- 
 ments, that the component facts as formulated by the pleadings in 
 a judicial proceeding have no proper connection with the immediate 
 field of evidence. Evidence deals with that which exists in nature 
 — mental or physical. Component facts are merely propositions 
 of the intellect, formulated by a process of reasoning, empirical 
 or legal, as guides to what the rules of law require should be 
 established by the evidence in any particular case. Such facts, 
 being purely intellectual concepts, have no necessary connection 
 with the world of nature. 8 
 
 § 46. (Classification of Facts); Component and Probative. — 
 
 The relation between a compound fact and its component facts 
 is essentially different from that between an evidentiary and a 
 principal one, between a factum probans and a factum probandum 
 whatever be the degree of approximation to the res gestw and 
 through these and the component facts to the proposition in issue. 
 First, a component fact is comprised in, and part of, its com- 
 pound fact. The latter, at least in its present form, does 
 not exist unless the component fact also exists. If the compound 
 
 6. A fact in pleading is a ciraun- tion and effect, though in common 
 
 stance, act, event, or incident, and parlance the terms " fact " and 
 
 ■widely different from a truth, which " truth " are often used as synony- 
 
 is the legal principle which declares mous. Drake v. Cockroft, (N„ Y.) 1 
 
 or governs the facts and their opera- Abb. Pr. 203, 205 (1855). 
 
§ 46. Facts. 74 
 
 fact exists, its component facts, of necessity, also exist. The 
 cause of this inseparable relation is obviously that the component 
 facts are rather postulates of the reasoning faculty than actual 
 existences in the realm of nature. They therefore occupy a 
 mathematical or geometrical relation to the main fact which they 
 compose, for much the same reason that it may be axiomatically 
 announced that the whole is equal to the sum of its parts. 
 
 On the contrary, a probative or evidentiary fact (factum pro- 
 bans) is something extrinsic to and entirely outside of the prin- 
 cipal fact (factum probandum), it is externalized as part of ob- 
 jective nature. The evidentiary or probative fact may exist and 
 the principal fact not exist ; or, on the contrary, the probative fact 
 may not be true and the factum probandum still exist. Thus, in 
 the case of a larceny by A of the goods of B 1 the compound fact 
 of the larceny cannot be true, in the form stated, unless the com- 
 ponent facts be all true, e. g., that A took and carried away 
 certain personal property ; and, on the other hand, if the compound 
 fact or proposition of fact that A committed • a larceny of the 
 goods of B be established, the subsidiary or component fact or 
 proposition of fact that A took and carried away the personal 
 property in question is also established. But should it be neces- 
 sary to establish the fact of the taking and carrying away by evi- 
 dence, taking is to be regarded as factum probandum. In proof 
 of it, the fact is offered that shortly after the alleged larceny, 
 A spent money more freely than before that time. Evidently this 
 fact is entirely extrinsic to the fact of taking and carrying away. 
 The free spending of money may exist and yet A be entirely inno- 
 cent of the larceny ; or it may be true that he may not have spent 
 the money as claimed and yet have taken and carried away the 
 goods in question. The underlying reason for this is that the 
 step from the factum probans to the factum probandum is one 
 of logical inference. As will be more fully considered in another 
 place, 2 this inference of the unknown from proof of the known, 
 the deductive logic from experience depending, as it does, for its 
 major premise upon a general proposition which can never be 
 more than highly probable, can seldom do more than furnish the 
 mind with a probability of a more or less convincing sort. But 
 the relation between a component fact and the compound legal 
 
 1. Supra, | 45. 2. Infra, §§ 1728 et seq. 
 
75 Constituent and Kes Gest^s Facts. § 4:6. 
 
 fact of right or liability is one of definite certainty under a fixed 
 requirement of law. 
 
 With the legal relevancy which exists between the compound 
 fact or proposition and its component fact or proposition of fact 
 the law of evidence has no concern. The establishment of the 
 component facts or propositions, establishes, ipso facto, as a matter 
 of law, the compound or more comprehensive proposition. Per 
 contra, it is the natural effort of a litigant against whom redress or 
 punishment is asked from the court, to seek to disprove or render 
 to a sufficient degree doubtful by proof of suitable probative or 
 deliberative facts the existence of a component fact or proposition 
 of fact; being well aware that every component fact must be 
 shown to exist if the compound proposition is to be proved and 
 made the basis of judicial action. 
 
 § 47. (Classification of Facts); Res Gestae and Constituent. — 
 
 The res gestae of a judicial inquiry are that portion of the natural 
 occurrences, a portion, as it were, of the world's aggregate of 
 happenings or existences, out of which the right claimed or lia- 
 bility asserted comes into being. 
 
 To employ a much used and, indeed, greatly abused phrase like 
 res gestw in the distinctive sense in which it is employed in this 
 treatise may seem to call for explanation. The thought of action 
 or doing something has, in large measure, ceased to be associated 
 with res gestw. The growing and fairly convenient use of the 
 term — one which cannot but continue — carries with it the idea 
 of proximity to the ultimate proposition submitted to investigation. 
 The phrase is too well established, too seductively ambiguous, 
 presents too great an appearance of learned exactness to be 
 replaced. It is, perhaps, too late to hope to confine it to any one 
 of its several meanings. The use above selected seems to har- 
 monize the conflicting meanings as well as any. Constituent facts 
 are those among the res gestw facts which are material to the 
 existence of this right or liability. 1 The res gestw are usually 
 
 1. The simple question to be tried presents it. Adams v. Way, 33 Conn, 
 
 on the general issue is whether the ma- 160, 168 (1864). 
 
 terial facts alleged in the declaration Res gestae and constituent facts dis- 
 
 are true. By " material," in this con- languished. — While constituent facta 
 
 nection, is not meant " of legal suf- are found in or inferred from the res 
 
 ficiency," but whether they constitute gestw the relation between the two ia 
 
 a part of the plaintiff's case as he rather in the nature of the exhibition 
 
§ 47. 
 
 Facts. 
 
 76 
 
 placed before the tribunal by witnesses, because it is they and they 
 alone which are the ultimate objects of direct proof or through 
 probative facts which stand to them in a relation of objective 2 
 relevancy. It is true that use of witnesses may be largely 
 diminished or entirely dispensed with and the res gestae never- 
 theless be before the tribunal for its action. A libelous letter, 
 with an admission by the defendant in open court of its authorship 
 and publication, may, for example, furnish the res gestae in an 
 action of libel. The judge himself may even become the original 
 percipient witness as when a contempt of court is committed in 
 his presence. But such simplicity is not characteristic. Facts are 
 not, as a rule, presented to the tribunal in the shape of component 
 or even of constituent facts but rather as a mass of circumstances 
 beginning frequently in order to secure clearness at a point 
 logically removed from these component or constituent facts. 
 
 § 48. (Classification of Facts; Res Gestae and Constituent); 
 
 An Illustrative Ikstance. — . Thus take the oral testimony of an eye 
 witness and recur to proof of the proposition previously cited, 1 
 
 of a mechanical mixture than classifi- 
 cation into genus and species. The 
 differentiation of each of these two sets 
 or classes of facts from other facts 
 is a different one for each. The res 
 gestce are an artificially segregated 
 part of the world happenings; they 
 are differentiated from other facts by 
 physical conditions and limitations, 
 cohering, among themselves, by rela- 
 tions of time, space or causation. 
 They are thus separated from other 
 facts by the circumstance that these 
 others possess different natural condi- 
 tions, occurred at a different time, in 
 another place, were the effects of a 
 separate chain of causes. Constitu- 
 ent facts are segregated from other 
 facts in the res gestce by possessing 
 a relation of relevancy, constituent in 
 its nature, to an objective exter- 
 nal to the res gestce; — the truth of a 
 proposition in issue. While the res 
 gestte are subject to observation and 
 to be resolved into their simplest 
 elements for judicial use; in the form 
 of constituent facts, they may well be 
 
 evolved by the reasoning faculty from 
 more simple res gestce or even from 
 other less complicated constituent 
 fact s . Toward any given obj ecta ve, the 
 entire relevancy of a given res gestce 
 lies in such of its number as are con- 
 stituent. The balance of the res 
 gestce are facts of a secondary degree 
 of relevant force ; — constituent, cor- 
 roborative, deliberate or the like. 
 Many of the res gestce may be abso- 
 lutely inert and inactive, in a constitu- 
 ent sense; yet these inert facts may 
 perhaps need only a change in the 
 objective to become at once constitu- 
 ent of another right or liability; 
 while facts formerly constituent, may 
 thus become inert quoad the new 
 objective. In other words, any col- 
 lection of res gestce is a combination 
 of actual natural states or events, 
 certain of whose individual elements 
 may have constituting relations as to 
 the existence of various rights or lia- 
 bilities. 
 
 2. Infra, §55. 
 
 1. Supra, § 45. 
 
77 Res Gestae; an Illustkative Instance. § 48. 
 
 that A killed B. It is not usually proved, in so many words, that 
 the component propositions there mentioned are true. On the 
 contrary, the witness is, after being asked as to his name, age, resi- 
 dence, business and the like, much more apt to make a statement 
 in reply to questions of counsel, which placed in narrative form 
 would run more nearly as follows : " On a certain day (naming 
 it) about six o'clock in the afternoon, I was at the liquor saloon 
 called the White Hen at the corner of Fourteenth street and 
 Eighth avenue. I had a glass of ale ; had only one and had drunk 
 nothing intoxicating before on that day. I left the saloon at five 
 minutes past six by the clock. I noticed the clock as I left the 
 building. I walked rapidly up Eighth avenue, going north on the 
 west side of the avenue, walking rapidly, until I came to another 
 saloon called the Old Lion, on the southwest corner of Eighth ave- 
 nue and Twentieth street. According to my best recollection and 
 judgment, I should say that it had taken me about fifteen minutes 
 to walk up. As I entered I saw A standing at the bar drinking. 
 I had known him for several years, had first met him about a dozen 
 years before, and repeatedly since that time. A had apparently 
 been drinking heavily, was much under the influence of liquor and 
 greatly excited. He asked me to drink with him. I told him that 
 he had had enough and advised him to ' let up.' I sat down at a 
 table and began reading a paper. I might have been reading for 
 about five or ten minutes when my attention was attracted by the 
 opening of the front door and I saw B enter. I had known B but 
 slightly, though for some years I had nodded to him in passing. 
 I saw A immediately upon seeing B draw a pistol and point it at 
 him, shouting ' Damn you, you have broken up my home ; I said 
 I'd shoot you at sight and, by God, I will ! ' I saw a flash from 
 the pistol in A's hand, heard a report, saw B fall with the words, 
 ' Boys, A has shot me like a dog, and all for nothing.' B, so far 
 as I could see, was entirely unarmed. A immediately left the 
 room. On running to B, I found that he was apparently uncon- 
 scious, breathing heavily and with a wound on his left side from 
 which blood was flowing freely. A messenger was sent for a doctor, 
 but before he arrived B's heavy breathing ceased. Shortly after 
 the physician arrived and after a short examination, pronounced 
 that B was dead." 
 
 A physician very probably is subsequently called as a witness, 
 and after giving his name, age, residence, profession and, perhaps, 
 
§ 48. Facts. 78 
 
 some statement as to place of graduation and length and range of 
 professional practice, testifies in answer to questions substantially 
 as follows: "About 6.30 p. m. of the day in question I was called 
 on in my office by some one who did not give me his name and 
 requested to come to a drinking place on the corner of Eighth ave- 
 nue and Twentieth street, on the southwest corner, to a man 
 who had been dangerously injured. I immediately went; the 
 man was pointed out to me as B; I felt for the pulse but could 
 find none. There was no respiration which I could detect; the 
 body was cold. I was satisfied that the man was dead. Upon re- 
 moving a portion of the clothing for the purpose, I found a wound 
 about an inch and a half above the left nipple, such as might have 
 been caused by a bullet. I probed to a certain extent and found 
 that the course of the wound was toward the right at a definite 
 angle and slightly upward. I subsequently made an autopsy upon 
 the body, traced the course of the bullet more accurately as striking 
 certain bones, severing certain arteries or ligaments, piercing cer- 
 tain organs and finally landing in the fleshy portion of the back 
 from which I removed the bullet I now produce and identify. 
 Such a bullet wound is almost invariably fatal, was well calculated 
 to produce death, and, in my judgment, in this case, did pro- 
 duce it." 
 
 Thus, it will be noted, that the res gestae facts are of various 
 degrees of legal relevancy 5 to the right or liability involved in the 
 inquiry. It will be seen that certain of the res gestae facts men- 
 tioned in the above illustration are what might be called prelimi- 
 nary facts designed to give coherence, smoothness and plausibility 
 to the narrative. The entire set of occurrences during a certain time 
 and in a particular locality are all placed before the jury in their 
 objective setting — in the natural correlation in which they hap- 
 pened. It is the province of legal reasoning 6 as exercised by the 
 jury, to determine which are the material constituent facts, those 
 which constitute the elements of the liability charged against A, 
 the selective principle in this discrimination being the existence of 
 the component facts 7 in which the liability of A is expressed by 
 the substantive law of homicide. The same legal reasoning will 
 decide as to how far the constituent facts establish the component 
 ones, and as to how far the rule of law is correctly stated in the 
 component facta. 
 
 5. Infra, § 61. 7. Supra, § 45. 
 
 6. Infra, § 63. 
 
79 Component and Constituent Facts. § 48. 
 
 In respect to the relation which the facts testified to by these 
 two witnesses — the ordinary and the skilled observer 8 — stand 
 to the compound proposition that A killed B or to the five com- 
 ponent or subordinate propositions of fact into which the com- 
 pound proposition seems separable, 9 it is at once obvious that they 
 present great and essential differences which must be steadily 
 held in view by those who seek definite conceptions of 
 the differentiations of fact, and more especially what is meant 
 by the familiar but extremely versatile and elusive phrase 
 the res gestae. It is apparent that even in this short space 
 of less than an hour, from the time when the first witness 
 left for the locus of the principal transaction until the time 
 of B's death, there are, so far as is related to proof, by 
 logical reasoning based on logical relevancy between facts of the 
 main proposition that A killed B, at least three distinct stages 
 or periods. (1) That prior to B's entering the door; (2) that 
 between B's entering the door and A's leaving the room; (3) that 
 following A's leaving the room. It is equally clear that the 
 important of these periods is the second. All before B enters the 
 door derives its relation to the proposition A killed B merely 
 because it leads up to and throws light upon what happened while 
 A and B were together, or as to the credit to be given the witness' 
 account of it, while the third derives its total constituent value 
 from the consideration that it gives definiteness to or throws light 
 upon the occurrences of the middle. In this case, those of the 
 third throw light on the facts of the second by giving the effect of 
 causes set in operation during that period. In the second lie 
 all the facts which in their immediate or more remote effects 
 create or constitute the truth of the proposition that A killed B. 
 
 What then cure the constituent facts, as that term is used in 
 connection with a judicial inquiry? To bring the subject more 
 closely within the domain of the law of evidence, let it be assumed 
 that it is formally charged by the sovereign, through the prosecut- 
 ing officers, by indictment that A has murdered B. In what 
 respect, so far as the constituent use of the facts detailed by the 
 friend and the physician — is the situation affected by the change ? 
 In at least two particulars, (a) A new component element is 
 added — a new subordinate proposition must be proved — viz., 
 
 8. Infra, §§ 1836 et seq., 1947 et seq. 9. Supra, § 45. 
 
§ 48. Facts. 80 
 
 a certain subjective attitude — a mental state — on the part of A. 
 This act must, at common law at least, have been done with 
 deliberate malicious- intent, with malice aforethought, (b) The 
 number and nature of the component facts which make up or com- 
 pose the compound proposition — A murdered B — and the suffi- 
 ciency of any particular set of facts to compose or constitute the 
 truth of this main proposition, are no longer questions to be de- 
 cided by logical relevancy, i. e., by logical reasoning based upon 
 human experience of the nature of things, but matters of law to 
 be determined by the will of the sovereign in the form of sub- 
 stantive law — thereby creating to the facts proved a relation not 
 of logical but of legal relevancy 10 and calling for the exercise of 
 legal rather than logical reasoning. 11 
 
 Reverting to the detail of facts stated by the two witnesses, 12 
 let it be applied to the new proposition — A murdered B. In some 
 very important particulars, the situation does not appear to be 
 in the least changed. The relation of the three periods to each 
 other and to the compound or main proposition remains unchanged. 
 The facts prior to B's entering the door which may well be called 
 preliminary facts 13 continue to affect the truth of the main or 
 compound proposition, which, for the sake of brevity may well be 
 called the issue 14 — simply as they throw light forward on the 
 second. The facts of the third continue to be probative only as 
 they throw light backward upon the second. Such facts may 
 properly be designated as subsequent facts. 15 In the second period 
 with the addition of the fact of actual death projected from it 
 into the third, lie the constituting or constituent facts. Were the 
 second period blotted out, neither the preliminary facts of the 
 first or the subsequent facts of the third would have any tendency 
 to establish the truth of the issue. If, for example, the first wit- 
 ness had left the saloon before B entered it, the evidence in the 
 case would then amount merely to a walk between two drinking 
 
 10. Infra, § 61. common-law pleading. The word, 
 
 11. Infra, § 59. 'issue' (referring, now, to issues of 
 
 12. Supra, § 48. fact as distinguished from those of 
 
 13. Infra, § 1760. law) came to denote the fact, in re- 
 
 14. " The ' issue ' then, was literally gard to which the parties, through the 
 the exitus, exit or emergence of the sifting process of the pleadings, at 
 contending parties, from the field of length reached the respective attitudes 
 preparatory altercation, and entrance of affirmation and denial." Demarest, 
 upon the stage of trial. The forma- Hints for Forensic Practice, p. 11. 
 tion of an issue was the end of all 15. Infra, § 1751. 
 
81 Compound, Component and Constituent Facts. § 48. 
 
 saloons, a recognition of A in a certain mental and physical 
 state, the partial perusal of a- newspaper, the summoning of a 
 physician for B; the latter's discovery that B was dead and a 
 statement as to the probable cause of his death. Absolutely 
 nothing would remain in the way of evidence which fastens any 
 responsibility on A. For it is the peculiar and essential character- 
 istic of the facts of the second period that out of them arises, if at 
 all, the right or liability asserted. In fact, if the right or liability 
 is found to exist, these facts constitute it. They have therefore 
 been designated constituent facts. To the entire mass of objective 
 happenings detailed by the direct observers of these constituent 
 facts has been applied somewhat arbitrarily but, it is hoped, not 
 without justification, 16 the term res gestae. 
 
 Probative Effect of Constituent Facts. — While, as has been 
 said 17 a constituent fact is not evidentiary of the existence of a 
 component fact — this relation in- a judicial inquiry being a matter 
 of law — it well may happen that one constituent fact may be 
 evidentiary as to the existence of another. Thus, in case of the 
 larceny by A of the goods of B. Here A's felonious intent is 
 obviously a constituent as well as a component fact or an element 
 of the offense. Its existence may, however, be inferred from the 
 existence of the other constituent facts — that is they are evi- 
 dentiary facts as to its existence. In other words, it frequently 
 happens that the same facts which establish the other component 
 facts, establish the intent also. 
 
 § 49. (Classification of Facts); Compound, Component and 
 
 Constituent — What, then, is the relation between compound, com- 
 ponent and constituent facts as presented in a judicial investi- 
 gation? Is the relation one of inference? Do the constituent 
 facts furnish an inference as to the existence of the component 
 facts or as to the truth of the facts in issue 1 — or even as to the 
 existence of the main or compound proposition, the issue itself? 
 Undoubtedly, in the proposition of fact A killed B, there is 
 reason for regarding the facts of the second period of the supposed 
 story of the witnesses as evidentiary of the truth of the main 
 proposition, in so far as they fulfil the conditions imposed by the 
 existence of its component parts. In other words, it may well be 
 
 16. Supra, §47. 1. Supra, § 45, 45 n. 1. 
 
 17. Supra, § 44 n. 4. 
 
 Vol. I. 6 
 
§ 49. Facts. 82 
 
 considered that these facts unite to make up a complex minor 
 premise of which the conclusion is the proposition that A killed 
 B. 2 But in the judicial inquiry as to the truth of the proposition 
 A murdered B there enters an element which creates an essential 
 difference — the element of substantive law — the mandate of the 
 sovereign. The relation of the component facts to the compound 
 proposition — of the facts in issue to the issue itself — is, as has 
 been said, 3 a matter of law. The component facts are those whose 
 propositions constitute the allegations of a properly framed 
 pleading charging the existence of the right or liability claimed or 
 asserted in any action, civil or criminal. The sufficiency of the 
 component facts — the allegation of whose existence thus con- 
 stitutes a pleading may be raised by a demurrer to such a plead- 
 ing — and is clearly a matter of law. The existence of these com- 
 ponent facts is part of the definition, in point of law, of the 
 main proposition, i. e., of the issue. These component facts are 
 the requirements of substantive law expressed in terms of fact, 
 they establish the legal standard up to which the facts proved in 
 the case are to come in order to establish the truth of the main 
 proposition asserted. The main proposition is not one of fact. 
 Therefore it lies outside the domain of logic. ~No new syllogism can, 
 as in case of the proposition A killed B establish the truth of the 
 proposition A murdered B. Therefore the constituent facts of the 
 second period of our evidence in the case assumed, are not evi- 
 dentiary in any proper sense, of the truth of the proposition in 
 issue. A fact, or set of facts cannot prove the existence of a 
 matter of law. It can, at best, but show that certain conditions, 
 under which the law becomes operative have been fulfilled. 
 
 Nor for the same reason, can it truly be said that the constituent 
 facts are involved into and form part of a more complex fact 4 as 
 may well happen in cases where only the verification of fact is con- 
 cerned — and so constitute the component or compound fact, or 
 proposition of fact. Tacts can no more constitute a rule of law 
 than they can prove the existence of one. 
 
 Relation Between Component and Constituent Facts. — If then 
 the constituent facts neither prove the main proposition in issue 
 nor the component facts or minor propositions of fact into which 
 the issue may be resolved, what do they actually constitute ? They 
 
 2. Infra, §§ 1729 et seq. 4. Supra, § 45. 
 
 3. Supra, § 45, 45 n. 5. 
 
83 Positive and Negative Propositions. § 49. 
 
 constitute the final or primary facts, to whichj when established to 
 their satisfaction, the court or jury, as the case may be, will apply 
 the rule of law involved in the main proposition — the issue. 
 When this rule is applied and stretched over the res gestce facts to 
 ascertain what they mea-n, in terms of law, it will be found long 
 enough to require proof of all the component propositions which 
 make up the main proposition. In other words, component facts 
 are part of the rule, furnished by the court, and applied by it or 
 by the jury. The constituent facts are those to which the rule is 
 applied. If the main proposition is established it is because the 
 facts do not fall short when the rule is placed over them. The res 
 gestce constitute the mass of fact out of which the right or liability 
 asserted arises if it arise at all. Constituent facts cannot be said 
 to prove the existence of a right or liability except in the secondary 
 sense in which a board may be said to prove to be ten feet long 
 when measured by a rule. That which really " proves " or tests is 
 the rule itself. The court or jury, as the case may be, apply the 
 rule of law to the res gestce — including, of course, the constituent 
 facts. This rule of law, an essential element of the main proposi- 
 tion of fact, has upon it certain markings which divide and 
 define its length. These, when expressed in terms of fact, make 
 up the component facts. In other words, component facts are the 
 nodules, markings, articulations, or whatsoever term may be pre- 
 ferred, expressed in terms of fact, which together constitute the 
 rule of law when applied to determining whether the res gestce 
 have constituted the right claimed or liability asserted. The neces- 
 sity for and advantage in the use of these nodules, notches or artic- 
 ulations is an incident of the law of pleading and, therefore, in 
 judicial investigations where there are no pleadings, the rule of 
 law is applied, without them, directly to the constituent facts. 
 
 § 50. (Classification of Facts) ; Positive and Negative. — It has 
 
 been said by high authority 1 that all facts may be classified aa 
 positive or negative. This statement is true rather of propositions 
 than of facts. In the nature of things, all facts must be positive. 
 For, as Bentham more accurately says, 2 " the only really existing 
 facts are positive facts. A negative fact is the nonexistence of a 
 positive one, and nothing more. But it is otherwise of propositions 
 of fact. We may, and frequently do, predicate, both in judicial 
 
 1. Best, Ev., § 13. 2. Rationale of Jud. Ev., bk. I, s. 50. 
 
§ 50. Facts. 84 
 
 or other inquiries, the nonexistence of a fact." As Mr. Dumont 
 says : 3 "At first sight it appears singular to speak of a negative 
 fact; but everything is a fact which is susceptible of being an- 
 nounced in a proposition. It is a fact that I have been in such and 
 such a place; that I have not been there is likewise a fact. To 
 speak otherwise would be to speak unintelligibly." Owing in 
 part to the ambiguity and uncertainty of language, and partly 
 to the lack of precision in those who handle it, much difficulty fre- 
 quently arises as to whether a negative fact or a positive one is 
 asserted. Negative predications may be made of positive facts; 
 and positive predications of negative facts. For, as treated by 
 logic, the positive or negative quality of a proposition is determined 
 by whether the copula — that which connects the subject with the 
 predicate is positive or negative in form, as where, for example, 
 it is said that A is or is not, 4 " a good man. In ordinary discourse, 
 the accepted test of whether a statement is positive or negative is, 
 in a similar way, as to whether the negative particles not, never, 
 nowhere are or are not employed in connection with the verb. But 
 this seems superficial and, on the whole, unsatisfactory. A propo- 
 sition, negative in form, may well be positive in substance ; a state- 
 ment in form positive, may in reality be negative. Indeed, the 
 same proposition may be made positive or negative at will — it 
 being obvious that it is not material to the meaning whether the 
 existence of a fact be affirmed or its nonexistence be denied; or 
 whether its nonexistence be affirmed or its existence be denied. The 
 proposition, in either form, is positive in the first case and nega- 
 tive in the second. This becomes perhaps clearer if the copula be 
 left positive in all cases, and the negative quality if it exist, be 
 stated in the predicate. For it is evident that the real difference 
 between a positive and a negative proposition is not as to whether 
 the statement is negative or positive in form, but as to whether it 
 is a negative or a positive state or condition which is predicated 
 of the subject. A statement which affirms a positive or denies a 
 
 3. Dumont, Ev., p. 10, note. subject; as ' Caesar is dead.' A nega- 
 
 4. Whately, Logic, 38. "A propo- tive proposition is that in which the 
 sition being a portion of dis- predicate is denied of the subject: as, 
 course in which something is af- ' C&sar is not dead.' The copula in 
 firmed or denied of something, the this last species of proposition con- 
 first division of the propositions is sists of the words, is not, which are 
 into affirmative and negative. An the sign of negation ; is being the sign 
 affirmative proposition is that in of affirmation." Mill, Logic, bk. I, 
 which the predicate is affirmed of the 106, p. 51-a. 
 
85 Positive and Negative Facts. § 50. 
 
 negative fact is positive; one which affirms a negative fact or de- 
 nies the existence of the corresponding positive one, is negative. 
 This substitution of the form of the predicate for the form of the 
 copula, as a test between negative and positive propositions, is 
 rendered the more easy by the fact that for every positive name 
 or term, there exists, or may readily be framed, a corresponding 
 negative name or term. 5 It amounts to the same thing whether 
 it is affirmed that A was licensed, or denial is made that he is un- 
 licensed; or, on the other hand, it is asserted that A was absent 
 from the scene of a crime or it is denied that he was present. The 
 first statement is positive, however framed ; the latter is negative 
 though the word " not " does not appear in the statement of it. 
 
 The ambiguities and varied meanings of words are such that it 
 is, at times, difficult to decide whether a term, in reality, denotes 
 a negative state as of a mere nonexistence or something more posi- 
 tive. " Many negative terms, which are such in sense only, have 
 led to confusion of thought from their real character being im- 
 perfectly perceived : e. g., ' Liberty,' which is a purely negative 
 term, denoting merely ' absence of restraint,' is sometimes con- 
 founded with ' Power.' It is to be observed that the same term 
 may be regarded either as positive, or as privative or negative ac- 
 cording to the quality or character which we are referring to in 
 our minds ; thus of ' happy ' and '" miserable,' we must regard the 
 former as positive and the latter (unhappy) as privative, or vice 
 versa, according as we are thinking of enjoyment or of suffer- 
 ing." 6 On the other hand, words apparently positive in form, 
 may, in reality, be negative. in substance, i. e., predicate nonex- 
 istence. " By health, is meant nothing more than the absence, the 
 nonexistence of disease; by minority, the individual's nonarrival 
 at a certain age ; by darkness, the absence of light ; and so on." 7 
 Bentham's rule is still workable. " For satisfying himself whether 
 in the case of a certain fact, it is the existence or the nonexistence, 
 
 5. " Another principal division of ever except that particular thing or 
 names is into positive and negative. things. These negative names are em- 
 Positive, as man, tree, good; negative, ployed whenever we have occasion to 
 as not man, not tree, not good. To speak collectively of all things other 
 every positive concrete name, a corre- than some thing or class of things." 
 sponding negative one might be framed. Mill, Logic, bk. I, 51, 52, p. 26a. 
 After giving a name to any one thing, 6. Whately, Logic, 82. 
 or to any plurality of things, we 7. Bentham, Rationale, Jud. Ev., 
 might create a second name which bk. 1, 50. 
 should be a name of all things what- 
 
§ 50. Facts. 86 
 
 the presence or the absence of it, that is in question, the course a 
 man may take is to figure to himself the corresponding image; he 
 ■will then perceive whether, by the expression in question, it is the 
 presence or the absence of that same image that is indicated and 
 brought to view." 8 But enough has been said to indicate the gen- 
 eral nature of the difficulty which makes the distinction between 
 negative and positive facts of importance regarding the law of 
 evidence. 
 
 The important consideration in connection with negative facts 
 is the greatly increased difficulty of establishing by evidence the 
 truth of a negative proposition, i. e., of proving the nonexistence 
 of a fact. A positive fact — an existence — is capable of being 
 verified. If physical, it may be verified, its existence ascertained, 
 by perception, the employment of the sense faculties of the ob- 
 server. 9 If the fact be a psychological one, it may be recognized 
 by a direct act of consciousness. As Bentham puts it, 10 " In most 
 cases, we cannot perceive nonexistence or absence. We can only 
 infer it from something existing and present which we do per- 
 ceive." This is, of course, not universally true. Certain negative 
 facts, mere absences or nonexistences of their positive correlative 
 terms seem capable of direct perception. Thus, cold is merely the 
 nonexistence of heat, yet we may be fairly said to perceive it. In 
 a certain sense, we may be said to perceive darkness, though simply 
 the nonexistence or withdrawal of light. It is not an improper use 
 of language to say that we are conscious of the absence or nonex- 
 istence of sound, i. e., of silence. In all such cases — as of the 
 cessation of a customary or pleasurable state — we may be said 
 to be conscious of a lack, to an extent which, coming to the con- 
 sciousness through the sense, differs but slightly, if at all, from 
 perception. But, in general, a negative fact cannot be perceived 
 but. must be inferred. Proof, therefore, of a positive fact is much 
 easier, in the usual case, than disproof of such a fact, i. e., the 
 proof of a negative fact. This is in part because an absence is not 
 apt to attract attention unless the thing absent be, as in the case of 
 heat, light or sound, something with which we are familiar or 
 so striking a fact that it could scarcely fail to attract attention. 
 
 8. Bentham, Rationale Jud. Ev., Gulson, Philosophy of Proof, p. 446, § 
 bk. 1, p. 50. 512. 
 
 9. " For it is undeniable that proof 10. Rationale, Jud. Ev., bk. I, p. 
 is intrinsically more simple, more cer- 50. 
 
 tain, and more direct than disproof." 
 
87 'ClBCUMSTANTIAL PROOF OF NEGATIVE FACTS. § 50. 
 
 It is for this reason that one who testifies to a positive fact, 
 e. g., that he noticed a certain detail of an accident, is deemed, as 
 a rule, more credible than he who affirms the negative fact that it 
 did not occur. But the more fundamental difficulty in the estab- 
 lishment of a negative fact, or the truth of a negative proposition, 
 lies on the surface. All evidence rests, at some degree of remote- 
 ness from a particular fact, upon perception. With the compara- 
 tively few exceptions mentioned supra, a negative fact — as being 
 a mere absence or nonexistence of a correlative positive — is not 
 perceptible, therefore is not susceptible of direct proof. The 
 most that can be done in the way of proof of the negative fact — 
 or, if the expression be preferred, the disproof of the correlative 
 positive — is the proof of some positive fact, the existence of which 
 is inconsistent with the existence of the correlative positive fact, 
 and then infer the nonexistence of the latter from the ex- 
 istence of the former. Take, for example, the case above 
 suggested of one who has observed an accident and testifies 
 that a certain detail — observed by others — did not occur. 
 Apparently, this is testifying to a negative fact — that a cer- 
 tain detail did not occur. But in reality he cannot, of his own 
 knowledge, testify to such a fact. He did not perceive that a cer- 
 tain thing did not happen. He could not observe that it did not 
 happen. In most cases there would be nothing to call his attention 
 to the fact that this detail did not happen. What the witness can 
 properly testify to are certain positive facts, e. g., that he was 
 present during the time of the alleged occurrence, that he was 
 watching the transaction carefully, that there was nothing to im- 
 pede his observation or to divert his attention; that he observed 
 that certain things happened — ■ not including the detail in dispute 
 and that he did not perceive it. He may, or may not, be per- 
 mitted to state that, in his opinion, he would have seen it if it had 
 happened. The court may decline to permit this to be done for it 
 is this precise inference which it is proposed, on his behalf, to ask 
 the jury to draw, viz. : That he would have seen or otherwise ob- 
 served it had it happened, and, as he did not observe it, it did not 
 happen. This is the negative factum probandum. In other words, 
 while a negative fact presents peculiar difficulties in the way of 
 direct proof, it may be established inferentially or, by the more 
 customary phrase, circumstantially. 
 
§ 50. Facts. 88 
 
 But this proof of a negative fact by proving an inconsistent 
 positive one is possible only where a single witness is thus able to 
 cover with his perceptive faculties the entire time and place in- 
 volved in the transaction. The difficulties of establishing a negative 
 fact are immensely increased when the time and place of the al- 
 leged occurrence are extended beyond this range. Thus, a crime 
 is committed in the absence of percipient witnesses. A is accused 
 of having committed it. He relies on the fact that he was not in 
 the neighborhood of the locus at that time. To establish that nega- 
 tive fact directly would be one of great difficulty, if not impossi- 
 bility. A will usually be reduced, almost of necessity, to an 
 attempt to establish a positive inconsistent fact, i. e., that at the 
 time when the crime must have been committed, he was at another 
 place, sufficiently distant from the locus to prevent his reaching 
 there in time to commit the crime as charged. This may involve 
 the use of several witnesses covering an extended time and, possi- 
 bly, a number of localities at considerable distances from each 
 other. The difficulties of proof will be found to increase as the 
 time to be covered as to when the offense might have been com- 
 mitted is extended. This difficulty becomes insuperable in cases 
 where a longer period than can be covered by any single act of per- 
 ception or the connected use of any set of witnesses is involved in 
 the inquiry, where a number of years, amounting to a considerable 
 portion of a lifetime or even a longer time. Such a situation 
 arises where the proposition to be established is that A has not 
 been intoxicated for the last ten years, that he was never married, 
 that he never told a lie, at no time made a will, or the like. Direct 
 proof of such a negative proposition is manifestly impossible; 
 while the only inconsistent positive fact or series of facts would 
 seem to be proof of a different employment for the person in ques- 
 tion at all times when the fact to be disproved could have happened. 
 This is quite as impossible of proof as the negative fact itself. It is 
 chiefly in connection with such cases that the court, in determining 
 the quantum of evidence required for a prima facie case will regard 
 the respective ability of the parties to produce evidence on the 
 point. 11 It is clear that the disproof of these negative propositions 
 — amounting to the affirmance of a positive proposition — is, by 
 comparison with proof of the negative, extremely simple. All that 
 is needed for disproof of the negative, is proof of a single positive 
 
 11. Infra, § 970. 
 
89 Principal and Pkobative Facts. § 50. 
 
 act of intoxication or falsehood within the period named, the pro- 
 duction of a will or the like to maintain the affirmative proposition. 
 
 § 51. (Classification of Facts); Principal and Probative 
 
 According to the classification adopted by Bentham the distinction 
 between a principal and an evidentiary fact is that between a 
 factum probandum and a factum probans. The relation is not as 
 to the proposition in issue but as to the two facts — the fact to be 
 proved and the fact offered as proving or assisting to prove it. 
 In other words the principal fact is not a principal fact as related 
 to the issue but as related to the evidentiary or probative fact. 
 " In every case, therefore, of circumstantial evidence, there are 
 always at least two facts to be considered — < 1. The factum pro- 
 bandum, or say, the principal fact — the fact, the existence of 
 which is supposed or proposed to be proved — the fact evidenced 
 to, the fact which is the subject of proof. 2. The factum pro- 
 bans — the evidentiary fact — the fact from the existence of 
 which that of the factum, probandum is inferred." 1 Bentham 
 it may be observed, apparently limits the terms factum pro- 
 bans and factum probandum to facts other than the oral 
 testimony of witnesses, or statements contained in documents. 
 Whether there is, in point of principle, any valid distinction be- 
 tween oral testimony or documents — in this particular — or, in 
 other words, how far direct evidence is itself circumstantial — will 
 be a subject for consideration elsewhere. 2 B.ut, at this point, the 
 important consideration to be observed is that the relation between 
 the principal and the evidentiary fact as conceived by Bentham was 
 one purely of logic and was without necessary relation to the 
 proposition in issue, except that the factum probandum in any case 
 stands a step nearer in point of logical sequence to the proposition 
 in issue than does the fact which is evidentiary to its existence. 
 It is, however, necessary for reasons to be immediately stated, to 
 distinguish the principal facts from two other classes of fact with 
 which it is constantly in danger of being confused: (1) Pacts 
 standing within the inner circle, as it were, around the proposition 
 
 1. Rationale of Jud. Ev., bk. V, c 1. inference the truth of a principal fact, 
 
 " In any inquiry the identical facts may foe denominated an evidentiary 
 
 proposed for investigation are called one." Gulson, Philosophy of Proof, 
 
 principal facts; while any fact that is Wi § 122. 
 
 sought, not for its own sake, but be- 2. See Witnesses. 
 cause it has a tendency to establish by 
 
§ 51. Facts. 90 
 
 in issue or where there are common law pleadings around the com- 
 ponent facts. These are the facts out of which the right or liability 
 claimed or asserted in that proposition arises, if at all. To these 
 it has been deemed proper to apply the designation of constituent 
 facts 8 or, as it is somewhat less accurately said, the res gestae- 1 
 (2) It is further necessary to distinguish these probative or evi- 
 dentiary facts from the component facts so-called; i. e., from those 
 subordinate facts or expressions or propositions of fact which, 
 when asserted, state in any judicial inquiry where there are 
 common law pleadings, in terms of fact, the rule of substantive 
 law which announces or formulates the right or liability involved 
 in that inquiry. The constituent or res gestae facts must, indeed, 
 be established by evidence and each, therefore, is a factum pro- 
 bandwm to be proved by some factum probans — including, in 
 ease of direct evidence, so-called, the oral statements of witnesses. 
 But while the factum probandum may be a constituent or res gestae 
 fact, it is not necessary that it should stand in this rank, but may 
 stand in any relation of logical order to such facts. Whatever be 
 the logical relation of the factum probandum in any particular 
 instance to the constituent or res gestae facts, the use of the desig- 
 nation factum probandum .connotes and implies that there is an- 
 other fact, still further removed than itself in logical connection, 
 from the constituent or res gestae facts, and to which it stands in 
 the relation of the subject of proof, and which is evidentiary of its 
 existence; to wit, a factum probans. 
 
 An anomaly of code pleading may make such a statement inac- 
 curate. As contrasted with common law pleading and statutory 
 pleading which adopts common law pleading as its basis, code 
 pleading, distinctively so called, states the constituent rather than 
 the component facts. This circumstance must be kept constantly 
 in mind while dealing with the rulings of certain courts. 5 The 
 ultimate facta probanda are these constituent facts. Here the 
 line of proof — the proper subject of evidence — ceases. 6 The 
 
 3. Supra, § 47. 6. Caywood v. Farrell, 175 111. 480, 
 
 4. Supra, § 47. 51 N E. 775, 776 (1898) ; Read v. 
 
 5. An " ultimate or issuable fact " State Ins. Co., 103 Iowa 307, 72 
 is one essential to the claim or de- N. W. 665, 668, 64 Am. St. Rep. 180 
 fense, and which cannot be stricken (1897) ; Kahn v. Central Smelting 
 from the pleading without leaving it Co., 2 Utah 371, 375, 376 (1878). 
 insufficient. Meyer v. School Dist. Where, in legal proceedings, from 
 No. 31, 4 S. D. 420, 57 N. W. 68, 69 the facts in evidence, the result oan be 
 ( 1893 ) . reached by an exact process of rational 
 
91 Constituent Relevancy a Matter of Law. § 52 
 
 sequel — the relation between the constituent or res gestae facts, on 
 the one hand, and the component facts on the other, is one of legal 
 reasoning, 7 with which the law of evidence has no immediate con- 
 cern, except to supply the res gestce or constituent facts on which 
 it is to operate. 
 
 The nexus or connection between the factum probans and the 
 factum probandum is therefore one of -logic. Beginning at 
 the outermost range of relevancy which the court will admit, the 
 fact — the first factum probandum is established by the aid of a 
 factum probans — including the statements of witnesses — or 
 number of them. The factum probandum, so established now be- 
 comes in turn a factum probans for the verification, establishment 
 or proof of a new factum probandum one step nearer in point of 
 logical connection to a constituent or res gestce fact. This last 
 factum probandum becomes factum probans and the process con- 
 tinues until the factum probandum becomes a constituent or res 
 gestce fact. Each step up to this point is based on a logical in- 
 ference. With the proof of a constituent or res gestce fact the 
 logical sequence stops; for the next steps, the inference from the 
 constiteunt or res gestce facts to the component facts, through thesn 
 to the truth of the proposition in issue, or as to the existence of the 
 right or liability asserted or claimed, are not matters of fact or of 
 logical reasoning. Reason at once enters an entirely different 
 field, the legal field, and the deduction from either set of these 
 facts — constituent or component — is a matter of law. 
 
 § 52. (Classification of Facts; Principal and Probative); 
 
 Deliberative Facts — Deliberative facts, in the original significance 
 
 reasoning adopted in the investigation Post v. Williams, 33 Conn. 147 
 
 of proof, it becomes an ultimate fact, ( 1865 ) . 
 
 to be found as such. Levins v. Ro- "Adjudicated Facts." — The infer- 
 
 vegno, 71 Cal. 273, 12 Pac. 161, 162, ferences produced in whole or in 
 
 164 (1S86). part by weighing evidence and the 
 
 It is these " inferential " facts as credit to be given witnesses are called 
 
 contrasted with the evidentiary facts, facts, as denoting adjudicated facts, 
 
 which the jury reach by a process of which can only be retried by an appel- 
 
 reasoning which the court will require late court having jurisdiction in the 
 
 should be stated by the jury in any trials of such facts. Nolan v. New 
 
 special finding. Woodfill v. Patton, York, etc. R. Co., 70 Conn. 159, 39 
 
 76 Ind. 575, 579, 40 Am. Rep. 269 Atl. 115, 43 L. R. A. 305 (1898). 
 
 (1881) ; Locke et dl. v. The Mer- See also Credit Co. v. Howe 
 
 chants National Bank, 66 Ind. 353 Sewing Mach. Co., 54 Conn. 357, 
 
 (1879). See also Witham v. Earl of 8 Atl. 472, 476, 1 Am. St. Rep. 
 
 Derby, 2 Wils. 48 (1744). Probative 123.(1886). 
 
 or evidentiary facts are not included. 7. Infra, §§ 59, 63. 
 
§ 53 Facts. 92 
 
 of the term, comprise that species of judicial evidence which as- 
 sists the tribunal in weighing the truth of a party's contention or 
 the credibility of the witnesses or other proof by which it is estab- 
 lished. Deliberative facts enable the court or jury to exercise ade- 
 quately and accurately the function of judging. They explain, 
 elucidate or qualify the probative or res gestae facts in such a way 
 as to determine the evidentiary weight that shall be accorded them. 
 They are placed, as it were, in the mental scales, together with the 
 probative or res gestae facts to assist in striking the proper balance. 
 Such facts are probative; but possess that slight degree of pro- 
 bative relevancy which may properly be spoken of as deliberative. 1 
 Such circumstances have no strong logical tendency to establish 
 a fact in the res gestae j at most, they tend to render in greater or 
 less degree the existence of such a fact probable or improbable. 
 Most frequently, perhaps, they are used by the reus or nonactor, 
 i. e., the party not having the burden of proof ; and are infirmative 
 in their operation upon the contention to which they are directed. 
 Much of the scope of the cross-examination as to credit consists in 
 bringing out facts of this nature. For example, the fact that a 
 witness is related to one of the parties and has had a violent quarrel 
 with the other in itself, tends to prove no fact in the res gestae. But 
 a party may well offer evidence of such circumstances to be 
 weighed by the jury with the probative or res gestae facts. 
 
 The use of the evidence, however, is by no means confined to the 
 nonactor nor is its operation necessarily infirmative. The actor 
 may corroborate his evidence-in-chief or reinforce it upon rebuttal 
 by the use of facts of but slight individual probative force which 
 have the sole office of rendering the facts already established in 
 some degree more probable. The actor may, in like manner, offset 
 the deliberate facts established by the opponent by using others of 
 the same species. 
 
 Into the same class may properly fall the facts of circumstantial 
 evidence which, though separately of but slight probative foroe, 
 unite by their nice adjustment or other mutual corroboration to 
 establish the existence of the res gestae in a manner which is 
 properly to be regarded as strongly probative. 
 
 § 53. (Classification of Facts) ; States and Events ■ Bentham 
 
 distinguishes as a classification of facts between events and states 
 of things. 1 Best adopts the same distinction and assigns Ben- 
 
 1. Infra, § 60. 1. Rationale, Jud. Ev., bk I, 47. 
 
93 Continuance the Test oe Action. § 53 
 
 tham's reasons for making it. 2 "By an event," says Best, "is 
 meant some motion or change considered as having come about 
 either in the course of nature or through the agency of the human 
 will, in which latter case it is called an act or action. The fall 
 of a tree," he goes on, "is an event, the existence of a tree is a 
 state of things, but both are alike facts." The essential point of 
 difference here indicated is that between motion and rest. What- 
 ever embodies motion is an event ; that which is attended by a con- 
 dition of rest is a state of things. Such a distinction one may 
 venture to observe, with deference to these two eminent authorities 
 who have placed the students of the law of evidence under such 
 heavy obligations, is, in reality, superficial and inaccurate. It is 
 true that motion usually attends an event and that its absence gen- 
 erally characterizes a state of things. It is equally true that a state 
 of things is usually of a more permanent and enduring nature 
 than an event, which frequently, by comparison, appears to be es- 
 sentially transient. But in truth, duration in time or the presence 
 or absence of motion are equally fallacious when treated as dif- 
 ferentice between events and states. A brief shower of rain, for 
 example, while it continues, is evidently a state of things. Yet 
 it is attended with motion and is soon over. When it is over, it 
 ceases to be a state of things and is merely a passed event. In 
 other words, a state of motion is, while it continues, as much a 
 state of things as would be the existence of a tree. The real test 
 between an event and a state of things is seen to be the element of 
 continuance. A state of things is viewed by the speaker as continu- 
 ing; an event is looked upon as something which is over and 
 passed. 
 
 80 of that species of events spoken of as acts or actions. It is 
 undoubtedly a general experience that such events are transitory, 
 i. e., that they soon become events. For during the time of their 
 continuance they are apparently states of things. This is most 
 plainly seen where the act extends, as it well may do — for as has 
 been seen 3 a series of acts, however long continued, is merely an 
 act of greater complexity — over a considerable period of time. 
 Thus, the existence of a war, which consists of a series of acts, how- 
 ever long continued, is properly spoken of as a state of war. A 
 man's life, though covering a series of acts done over many years, 
 is only an event after it is over. While it continues, it is clearly 
 
 2. Best, Ev., § 13. 3. Supra, § 44. 
 
§ 53 Facts. 94 
 
 a state of things. The conclusion that continuance rather than 
 either duration or lack of motion characterizes a state of things, 
 seems confirmed by the circumstance that where the limitation of 
 our mental faculties prevents our receiving either from a physical 
 or psychological fact the impression of continuance, we do not 
 speak of it as a state of things. Thus the flash of a gun, the in- 
 stantaneous mental perception of it, would scarcely be spoken of 
 as a state. 
 
 But there is grave doubt as to whether the distinction itself ex- 
 ists in the reality of things. Only the continuous renewal of the 
 operation of a cause or combination of causes — which operation, 
 of minute duration, properly constitutes an event — enables a 
 given state of things to exist. A book, for example, is held at 
 arm's length. While this continues it is, according to common ac- 
 ceptance, a state of things. When the book is placed upon the 
 table the state of things is over, and the holding at arm's length 
 has become an event. Its happening when regarded as fully com- 
 pleted, might even have been properly spoken of as a future event. 
 Even, however, while the state of things continues and the book is 
 held at arm's length, there is at the end of each conceivable divi- 
 sion of time a completed event — having successfully held a book 
 at arm's length under the influence of volition exerted through 
 muscular energy. It is merely this constant renewal of such mus- 
 cular energy, this succession of events which, in fact, constitutes a 
 state of things. " The. truth of the matter appears to be that all 
 facts, whether they be properly called states or events, are transient 
 or permanent in an infinitely varying degree, from the transit of 
 a flash of lightning or the passage of a thought, to the continuance 
 of the motions of the heavenly bodies or the duration of the ex- 
 istence of the universe itself, and that it is impossible to draw any 
 exact line between facts of the more transient and those of the 
 more permanent order." * 
 
 From the standpoint of the law of evidence, however, the distinc- 
 tion will continue to be of importance. It need not be pointed 
 out that only facts, however numerous or complicated, which con- 
 stitute to the observer, whether a witness or the tribunal itself, pre- 
 sent existences or states of things, can be the subject of perception 
 and, consequently, of personal knowledge. Completed events can 
 be learned only by information derived from others — results of 
 
 4. Gulson, Phil, of Proof, § 119. 
 
95 Logical and Legal Kelevanoy. § 54: 
 
 their past perception of what were to them, at that time, continu- 
 ing states of things. Such information usually contains also infer- 
 ences of fact deduced by the informants from the data thus fur- 
 nished them by their sense perception. Only such events, as were 
 at the time of their observation cognized by perception of the 
 witnesses as states of things then continuing, can be presented to 
 the court or jury by oral testimony. It follows also that evidence 
 which the court or jury gain by perception 5 is confined to states of 
 things and does not extend to events which have not been previously 
 observed as states of things. 
 
 § 54. Relevancy. — The relation between a factum probans and 
 a factum probandum by virtue of which the former tends to estab- 
 lish the existence of the latter is logical relevancy. The relation, in 
 natural order, as detected by experience, or evolved by reason, or 
 out of which is evolved the evidentiary quality of a probative fact, 
 is direct relevancy in its logical sense. It is essential that the 
 distinction between the probative force which establishes the exist- 
 ence of the factum probandum from proof of the factum probans 
 and the relation between the two by virtue of which this probative 
 quality exists should be constantly observed. These are merely 
 different ways of viewing the same two facts. But the treatment 
 of these different aspects by the law of evidence is sharply variant. 
 The first — the probative force or effect — is considered under 
 the heading of presumption x and inference. 2 The latter — the 
 logical relation — between the two is discussed under the heading 
 of probative relevancy. 3 Logical relevancy is conveniently treated 
 as of two kinds — corresponding in general to extra-judicial 4 and 
 judicial 5 evidence, viz. (1) objective relevancy and (2) subjective 
 relevancy — viewing the matter from the standpoint of the wit- 
 ness in case of oral testimony or of the declarant in connection 
 with documentary evidence. Considered in its relation to the con- 
 stituent fact, logical relevancy may be direct or indirect. 
 
 It may further be convenient to consider briefly the relations 
 subsisting between logical and legal relevancy, 8 especially in con- 
 nection with the nexus between constituent (or res gestae) and 
 component facts and between these component facts and the main 
 proposition in issue or under investigation. 
 
 5. See Evidence by Perception. 4. Infra, § 6. 
 
 1. Infra, §§ 1082 et seq. 5. Supra, § 7. 
 
 2. Infra, §§ 1026 et seq. 6. Infra, §§ 61, 63. 
 
 3. Infra, §§ 1709 et seq. 
 
§ 55 Facts. 96 
 
 § 55. (Relevancy); Objective. — Objective relevancy is a re- 
 lation arising in the world of matter, as distinguished from the 
 realm of mind. The res gestce — 'the artificially segregated part 
 of the world's happenings involved in the judicial inquiry, and 
 every fact in it, can only be separated artificially, for logical pur- 
 poses, practical convenience and the like. In the order of nature, 
 each fact is coordinated, dove-tailed into the universe of matter. 
 It is the result of many causes and will itself be the cause of many 
 effects. As Professor Greenleaf says : * " The affairs of men con- 
 sist of a complication of circumstances so intimately interwoven 
 as to be hardly separable from each other. Each owes its birth to 
 some preceding circumstance, and, in its turn, becomes the pro- 
 lific parent of others; and each, -during its existence, has its in- 
 separable attributes, and its kindred facts, materially affecting its 
 character and essential to be known in order to a right understand- 
 ing of its nature." 
 
 Every individual fact not only thus comes under the law of 
 causation; it must occur under certain fixed conditions of time 
 and space. By virtue of this immutable, universally imposed con- 
 dition, every event must necessarily stand in certain fixed relations 
 of time to all prior or subsequent events. It must also be coordi- 
 nated, in space, locality, environment with what are rather infe- 
 licitously called the " surrounding circumstances." 
 
 This order of nature furnishes valuable guaranties for truth and 
 is particularly important in testing, upon cross-examination, 2 
 the objective probability or improbability of the story which a 
 witness has told the court. It may suffice for present purposes to 
 say that objective relevancy is the relation which exists in the 
 order of nature, between a fact and those coordinated with it. 
 Stephen's definition of " relevancy " — as a term is an excellent 
 statement of what, for purposes of differentiation, we have pre- 
 ferred to call objective relevancy. " The word ' relevant ' means 
 that any two facts to which it is applied are so related to each 
 other that according to the common course of events one either 
 taken by itself or in connection with other facts proves or renders 
 probable the past, present, or future existence or nonexistence of 
 the other." 3 
 
 1. I. Greenl. on Ev., 15th ed., § 3. Stephen, Dig. Law of Ev., 
 108. May's Ed., art. I. "A fact rele- 
 
 2. See Witnesses. vant to the issue, or relevant 
 
97 Subjective Relevancy; Adequate Knowledge. § 56 
 
 >§ 56. (Relevancy); Subjective — Subjective relevancy deals 
 with the realm of mind. It is chiefly confined, in its operation, 
 to judicial evidence, 1 i. e., to the oral statements, the testimony of 
 witnesses, given in court, or the written declarations of the author 
 of a document. It will be observed that the distinction between 
 objective and subjective in this connection is taken from the stand- 
 point of the witness and not, as in case of many other classifications 
 of fact, e. g., into real and personal or judicial and extrajudicial, 
 from that of the tribunal. The question is one of credibility, of 
 weight, of power for producing belief in the minds of a tribunal. 
 The question is one of the most difficult, intricate and puzzling to 
 which the intellect of man can be devoted. The workings of the 
 mind, as manifested in oral or written declarations, are frequently 
 utterly inscrutable to human insight. Even in the best regulated 
 \ minds there appears to be a certain element of unmotivated pur- 
 poseless conduct. To other minds, the intellectual pleasure of 
 fabrication, even without personal advantage, seems irresistible. 
 When contrasted with the orderly processes of objective relevancy, 
 those of subjective relevancy seem chaotic, bewildering, untrace- 
 able. For practical purposes, an assumption, fairly sustained by 
 experience, may reasonably be made, viz., that one who knows the 
 truth about a matter will state it correctly, unless he has some 
 controlling motive to misrepresent it. The question of subjective 
 relevancy — the credibility, cogency, belief -enforcing quality, 
 of the witness' statement — resolves itself into a double query: 
 (1) How much did the witness know, what opportunities had he 
 for observing or acquiring knowledge, how great was his ability to 
 coordinate correctly, to infer and state truly? (2) Was the wit- 
 fact, is one which, though not in dentiary facts." Gulson, Philosophy 
 itself forming any constituent part of of Proof, 435, § 499. 
 the actual subject of inquiry, is yet "A fact in issue, though it may 
 
 connected by a legitimate inference perhaps be correctly described as 
 (or by a series of such inferences) 'material,' cannot with strict pro- 
 with a fact in issue; in other words, priety be called a relevant fact." Gul- 
 a relevant fact is one that raises a- son, Philosophy of Proof, 435, § 500. 
 fair presumption of some principal " In short, what is called irrelevant 
 fact." Gulson, Philosophy of Proof, evidence almost invariably presents 
 435, § 499. itself in the shape of the proof of ir- 
 
 " On the other hand, a fact may be relevant facts by legitimate means." 
 said to be irrelevant to the issue Gulson, Philosophy of Proof, 437, § 
 when it is neither itself a fact in is- 501. 
 sue, nor is connected by a legitimate 1. Supra, § 7. 
 
 inference with any principal or evi- 
 
 Vol. I. 7 
 
§ 57 Facts. 98 
 
 ness under any motive to misrepresent which, in view of the other 
 facts known to the tribunal, will reasonably lead to the inference 
 that it exerted a controlling influence on the mind of the de- 
 clarant ? 2 In other words, the elements of subjective relevancy 
 are, (1) adequate knowledge, (2) absence of controlling motive 
 to misrepresent. 3 
 
 § 57. (Relevancy); Direct — Kelevancy is a state of relation. 
 Unless and until conditioned, it may well be regarded as a link 
 connecting any given fact in point of time, with varying degrees 
 of remoteness, with all other facts, prior or subsequent, and in all 
 directions of space. In a state of nature, the existence of any given 
 fact, according to general experience, renders probable, in a greater 
 or less degree, the existence of a large number of other facts. 
 Under the law of causation, the given fact is related, running 
 backward, from effect to cause, to a large number of antecedent 
 facts. Tracing forward into time, from cause to effect, it is rele- 
 vant to a large number of subsequent ones. All time, prior or 
 subsequent, is connected with the time of its occurrence. All space 
 stands in definite relation to the location of its occurrence. Sub- 
 jective relevancy, unconditioned, is in a similar position. The 
 entire realm of mind is coordinated and related in much the same 
 way as is the realm of matter. Any given act, in its mental or 
 moral aspect, is the resultant of a very large number of previous 
 states of consciousness, the ramifications of which it is impossible 
 to trace. In turn, it gives rise to consequences in the subjective 
 mental conditions which cannot well be counted. To all of these 
 psychological facts, prior or subsequent to itself, any artificially 
 segregated act of consciousness stands in some degree of relevancy. 
 Until its relations are conditioned by something which can direct 
 thought along some given line of causation, or establish some fixed 
 
 2. The presence of a motive to mis- tiff wins the suit ; and hence the testi- 
 representation which might fairly be mony of such a witness should not be 
 assumed to be controlling was in the received, and such ' evidence r ought 
 earlier judicial administration deemed • not to be given." Holland t\ Ingram, 
 to furnish reason for excluding the (S. C. 1851) 6 Rich. Law 50, 52. 
 evidence of the declaration from the The rule persists down to the pres- 
 jury. Thus the Supreme Court ent time in connection with the excep- 
 of South Carolina says: "Belief tions to hearsay, where, as a general 
 cannot be given to one who has rule, the existence of Us motn is re- 
 been hired by the plaintiff to ap- girded as reason for excluding the un- 
 pear as a, witness in the case, and who sworn statement of the declarant. 
 is to be paid a certain sum if plain- 3. Infra, §§ 2698 et seq. 
 
99 Indieect Relevancy; Deliberative Facts. § 58 
 
 point as a goal toward which proof may verge, relevancy cannot 
 be said to be either direct or indirect. 
 
 That which conditions relevancy into direct and indirect in 
 any judicial inquiry are the material facts in the res gestce of the 
 case, the facts which constitute the right or liability asserted. The 
 entire mass of intercorrelated, mutually relevant, facts, at once 
 assumes a definite arrangement dependent upon the assertion of a 
 constituent fact of which proof must be offered. The proponent 
 may start his proof of a material res gestce fact as far back over 
 the links of the chain of causation as the court, under all the cir- 
 cumstances of the case, shall deem not too remote to be helpful to 
 him or the jury. He may then prove the existence of the several 
 links in the chain until the ultimate factum probandum, the res 
 gestce fact is reached. This is the direct line of proof, the direct 
 lineal relevancy. Any res gestce fact may be proved in this way. 
 
 § 58. (Relevancy); Indirect — Establishing the direct line of 
 proof, in and of itself, makes other potentially direct relevancy in- 
 direct or collateral. It is as natural and inevitable as that laying 
 out and constructing a road should create sides for it. Other rele- 
 vant relations persist but in a subordinate, collateral 1 and inciden- 
 tal capacity. As Frederick Pollock says : " Facts may be relevant 
 to one another not only when they are links in the same chain, 
 but when they are links in two chains having a common link in 
 some other part of their length; that is, when they are effects of 
 the same cause or causes of the same effect. It is not the case, 
 however, that facts are always relevant when they answer this 
 description, for there are many facts of a general kind, such as 
 the known uniformities of nature, whose occurrence in a sequence 
 of events can afford no ground for inference as to whether any 
 other particular fact does or does not occur as another link in the 
 same sequence, or as a link in another sequence branching from 
 it." 2 These collateral relevancies, the indirectly relevant facts 
 placed in a position relatively inferior as to probative force by the 
 establishment of direct lines through the natural correlations of 
 things, are nevertheless not without many valuable uses. While 
 the direct lines of proof — the probative facts — < establish the ex- 
 istence of the constituent facts, in an objective sense, the mission 
 of the collateral, indirectly relevant facts is to test, by corroborat- 
 
 1. Summerour v. Felker, 103 Ga. 2. 26 Port. Rev. (N\ S. 20) 385. 
 
 254, 29 S. E. 448, 450 (1897). 
 
§ 59 Facts. 100 
 
 ing or disproving, confirming or discrediting, the evidentiary force 
 which the proof of these probative and consistent facts would 
 otherwise exert on the mind. Of this nature are the so-called 
 deliberative facts. 3 A perfectly plausible story may be proved as 
 constituent facts, complete in itself, apparently harmonious in its 
 details. But if true it must have had a large number of collateral 
 relevancies. No portion, as has been said, of the world's happen- 
 ings, as given in the res gestae, can take place without these direct 
 and collateral relations of time, space or causation. The tribunal 
 will insist — and it is an important mission of cross-examination 4 
 to carry this desire into effect — that the alleged res gestae be men- 
 tally put back, so far as possible, in its original place among these 
 interrelevant natural occurrences with a view to noticing how 
 they stand the test. If the alleged res gestae fit and dovetail into 
 the surrounding relevancies, the result is corrobative, in proportion 
 to the nicety and unforeseen nature of the adjustment. If the 
 test fail, the prima facie case established by proof of the constitu- 
 ent facts is correspondingly discredited. If it shall appear, upon 
 the making of the test, that the res gestae are entirely inconsistent 
 with the collateral or indirect relevancies — as where a prisoner 
 said to have committed an offense satisfactorily establishes an 
 alibi — the prima facie case is disproved. The method by which 
 this test is objectively or subjectively applied is by proof of the 
 deliberative facts, from which are formed, as it were, the fades 
 of the irregular causal, temporal and spatial surface into which 
 the corresponding angles of the res gestae facts will be found to 
 fit if the truth has been correctly stated and rightly understood. 
 
 § 59. (Relevancy); Logical — "The law furnishes no test of 
 relevancy. For this it tacitly refers to logic and general experi- 
 ence — assuming that the principles of reasoning are known to its 
 judges and ministers, just as a vast multitude of other things are 
 assumed as already sufficiently known to them." 1 As is more 
 fully stated elsewhere, 2 relevancy, so far as relates to the matter 
 of proof — the connection between a factum probans and a factum 
 probandum is concerned — or, as Bentham prefers to call it, be- 
 
 3. Supra, § 47. of his case, tending to establish his 
 
 4. See Witnesses. plea? Garner v. State, 76 Miss. 515, 
 The test of whether a fact inquired 25 So. 363, 364 (1898). 
 
 of in cross-examination is collateral 1. Thayer, Prelim. Treat., 865. 
 
 is this: Would the cross examining 2. Infra, §§ 1721 et seq. 
 
 party be entitled to prove it as a part 
 
101 No Legal xheoby op Kelevancy. § 59 
 
 tween the evidentiary and the principal fact — is a question of 
 logic, with which law, either in its substantive or adjective form 
 has nothing to do. The only test is that of experience ; and to fol- 
 low it, presents in practice, little, if any, difficulty except the 
 question of what degree of probative force may be deemed by a 
 presiding judge helpful to himself and to the jury. In other 
 words, 3 the question of remoteness presents the principal difficulty 
 of administration in connection with logical relevancy. This is 
 one of administration. The determination of this question in any 
 particular case is conditioned by the existence of so many vari- 
 ables, in the stage of the case, the state of the evidence, the proba- 
 bility of procuring more satisfactory evidence and the like, as 
 scarcely to permit the application of a more general rule. 
 
 No Particular Theory of Relevancy Imposed on the Law of 
 Evidence. — ~Vhile no practical difficulty is anticipated in deter- 
 mining as to the existence of logical relevancy in any given case, 
 the attempt to impose upon the administration of justice the limita- 
 tions of any particular system of logic as to the precise manner in 
 which this logical relevancy acts or in what it consists, as was 
 essayed by Stephen in his first edition, 4 and by certain of his 
 
 3. "Whether it be out of regard effect of the same cause; a cause of 
 to the general want of time and con- the same effect : or when the one shows 
 venient opportunity; or to the nature that the other must or cannot have 
 of the questions discussed, and the occurred, or probably does or did exist, 
 ordinary methods of mankind in judg- or not, or that any fact does or did 
 ing of the practical problems of life exist, or not, which in the common 
 and business, and the practical im- course of events would either have 
 possibility of running an inquiry out caused or have been caused by the 
 into fine details; or to the nature of other." Stephen, Dig. Law Ev. (1st 
 our popular tribunal, the jury, or for ed. ), c. 2 3 art. 9. 
 
 whatever reason; we have principles Stephen's original conception of 
 of exclusion which limit the inquiry, relevancy is found in the Indian Evi- 
 and so the evidence, to matters that dence Act of 1872, which was the fruit 
 have a clear and obvious bearing and of his work as legal member of coun- 
 a plainly appreciable weight, as con- oil. Indian Ev., Act I of 1872, Acts 
 trasted with what is slight, conject- of the Gov. Gen. of India, p. 1. Under 
 ural, and remote ; and to matters Chapter 2 at sections 7 and 11 of 
 which do not unnecessarily tend to the act it is provided: 
 complicate and confuse the determina- " Facts whioh are the occasion, 
 tion of the issue." Thayer, Prelim. cause, or effect, immediate or other- 
 Treat. 272. wise, or relevant facts or facts in 
 
 4. " Facts, whether in issue or not, issue, or which constitute the state of 
 are relevant to each other when one things under which they happened, or 
 is, or probably may be, or probably which afforded an opportunity for 
 may have been — the cause of the their occurrence or transaction, are 
 other; the effect of the other; an relevant. 
 
§ 59 
 
 Facts 
 
 102 
 
 critics, 5 seems injudicious and was very properly abandoned 
 by Stephen with characteristic fairness and openness to correction. 
 However convincing seem the merits of Mill's system of 
 inductive reasoning, it is scarcely safe to assume that it is 
 
 " Facts not otherwise relevant 
 are relevant: — (1) If they are incon- 
 sistent with any fact in issue or rele- 
 vant fact; (2) If by themselves or in 
 connection with other facts they make 
 the existence or nonexistence of any 
 fact in issue or relevant fact highly 
 probable or improbable." 
 
 Mr. Stephen somewhat amplified 
 this statement in the introduction to 
 his English edition of the Act; and 
 the general principle is stated to be, 
 in effect, that all facts are relevant to 
 one another which appear to be links 
 in the same chain of consequence: 
 " Facts may be regarded as relevant 
 which can be shown to stand either in 
 the relation of cause or in the rela- 
 tion of effect to the fact to which 
 they are said to be relevant." 
 
 5. Among the more valuable of 
 these was Mr. George Clifford 
 Whitworth, of the Bombay Civil Ser- 
 vice, who comments entertainingly 
 upon the theory of relevancy advanced 
 by Stephen in the Indian Evidence 
 Act by pointing out the relative value 
 omitted by Mr. Stephen, of what we 
 had called indirect relevancy, but 
 which Pollock, 26 Fort. Rev. (Sept. 
 1876), prefers to call collateral rele- 
 vancy and truly deems to be as 
 important at times as the direct or 
 lineal relevancy to which alone Mr. 
 Stephen directs his definition. 
 
 And Mr. Whitworth, in his pam- 
 phlet on the subject, quoted by Mr. 
 Pollock in the Fortnightly Review, 
 for September, 1876, at page 385, 
 after commenting on the general sub- 
 ject, thus proceeds : " There are four 
 classes of facts which aid in deter- 
 mining a. fact in issue: — • (1.) Any 
 part of the fact alleged or any fact 
 implied by the fact alleged. (2.) 
 Any cause of the fact. (3.) Any 
 effect of the fact. (4.) Any fact hav- 
 
 ing a common cause with the fact in 
 issue. And it is not the whole of 
 these facts that are of use. Some 
 facts connected with the fact in issue 
 in one of the four ways mentioned 
 may be of a general nature, existing 
 whether or not the fact in issue 
 happened, and therefore indicating 
 nothing as to whether it happened 
 or not. For example: A is charged 
 with the murder of B by pushing 
 him over a precipice. Here the fall 
 of B to the ground after he was 
 pushed over is as much a cause of 
 his death as the pushing over, and as 
 much an effect of the push as his 
 death is. But gravitation is a general 
 fact and exists all the same whether 
 B went over the precipice or not, and 
 proof of it is therefore needless." 
 
 A further criticism is made that 
 Stephen enters on no adequate at- 
 tempt in this connection to pre- 
 scribe a limit of probative force be- 
 yond which no inference can reason- 
 ably be drawn. Mr. Whitworth there- 
 fore, places as a limitation upon his 
 definition of relevancy the qualifica- 
 tion that " No fact is relevant to 
 another unless it makes the existence 
 of that other more likely." As a test 
 for ascertaining this limit of rational 
 belief-generating probative force he 
 proposes the following rules: 
 
 " Rule 1. No fact is relevant which 
 does not make the existence of a fact 
 in issue more likely or unlikely, and 
 that to such a degree as the judge 
 considers will aid him in deciding the 
 issue. 
 
 " Rule 2. Subject to Rule 1, the fol- 
 lowing facts are relevant: (1.) 
 Facts which are part of, or which are 
 implied by, a fact in issue; or which 
 show the absence of what might be 
 expected as a part of, or would seem 
 to be implied by, a fact in issue. (2.) 
 
103 Systems of Logic Othee than that of Mill. § 59 
 
 a perfect or a final word on the subject. Early systems 
 as that of Aristotle and the schoolmen have claims for judi- 
 cial adoption in greater simplicity and practical compre- 
 hensibility. Among systems since those of Hamilton and 
 
 Facts which are a cause, or which 
 show the absence of what might be 
 expected as a cause, of a fact in issue. 
 (3.) Facts which are an effect, or 
 which show the absence of what might 
 be expected as an effect, of a fact in 
 issue. (4.) Facts which are an effect 
 of a cause, or which show the absence 
 of what might be expected as an effect 
 of a cause, of a fact in issue. 
 
 " Rule 3. Facts which affirm or deny 
 the relevancy of facts alleged to be 
 relevant under Rule 2 are relevant. 
 
 " Rule 4. Facts relevant to relevant 
 facts are relevant." 
 
 Mr. Frederick Pollock, while appre- 
 ciative of the merits of Stephen's 
 work, deems the combination of sev- 
 eral attempted scientific definitions 
 with a loosely phrased sweeping 
 popular sequel to be itself unscientific. 
 To take but a single extract from 
 his very suggestive discussion of this 
 subject (26 Fort. Rev. p. 387): "Mr. 
 Stephen himself says in his note that 
 the general principle ' might no doubt 
 be expressed very shortly by saying 
 that every fact is relevant to every 
 other, if it affect3 in any definite way 
 the probability of its occurrence. 
 This, however, would throw no light 
 on the question how facts affect the 
 probability of the occurrence of other 
 facts.' But now what says the text? 
 Stephen, Dig. Ev. . ( 1st ed. ) , chap. 3, 
 art. 9, quoted supra, § 59 u. 4. It 
 tells us that there are four defined 
 ways in which ' facts affect the 
 probability of the occurrence of other 
 facts,' and also an undefined number 
 of undefined ways, coinciding to an 
 undefined extent with those already 
 named. In truth, instead of choosing 
 between a scientific analysis and a 
 popular general statement, it gives us 
 both at once ; and we are left to guess 
 as best we can how much more, if 
 
 anything, is meant to be included in 
 the popular form of the proposition 
 than in the exact one." 
 
 Of Mr. Whitworth's rules Mr. Pol- 
 lock says that while the strictures 
 made by him on Stephen's definition 
 of relevancy are sound, that they are 
 no less applicable to Mr. Whitworth's 
 own rules. He further observes re- 
 garding Mr. Whitworth's rules that 
 "his first rule, which limits the defi- 
 nition by showing what is not rele- 
 vant, is a practical abandonment of 
 the scientific form of the others; and 
 in dealing with the illustrations of 
 the Evidence Act he seems to assume 
 once or twice the converse of this rule, 
 namely that a fact is relevant which 
 (to the intuitive judgment of common 
 sense, and to an appreciable extent) 
 makes the existence of a fact in issue 
 more likely or unlikely. The grounds 
 on which the judgment of common 
 sense proceeds may perhaps be capable 
 in every case of being exhibited in 
 terms of the more definite rules; but 
 then it should be made clear, even 
 to superfluity, that the definite rules 
 are of themselves sufficient." Mr. Pol- 
 lock proceeds to inquire into the 
 basis upon which Mr. Stephen and 
 Mr. Whitworth felt it necessary to add 
 a popular definition, of wide scope, 
 following an attempted scientific 
 classification of the grounds of rele- 
 vancy. " Is it felt " he says, " that 
 after all it may not be quite safe to 
 trust the logical rule to cover every- 
 thing without the help of .nore largely 
 and loosely framed additions? Not- 
 withstanding all that has been done 
 by Mill and others to elucidate the 
 nature of inductive proof, it is still 
 quite possible to doubt whether the 
 process of inference can be completely 
 and accurately expressed in any 
 formal canons; and it may be wise to 
 
§ 59 
 
 Facts. 
 
 104 
 
 Mill are various groups, each in its way helpful, which assert 
 the value of what may be called respectively the metaphysical, 
 the psychological or the empirical point of view in treating the 
 matter, following, in so doing, previous schools of thought. 6 The 
 generally accepted substratum upon which these various philosophi- 
 cal modes of viewing the field of logic have all been constructed, 
 is itself amply sufficient for practical purposes. Instinct and 
 judicial intuition as to the existence of a logical relevancy be- 
 tween two given facts, will, as a matter of reasonable certainty, 
 continue to be the test actually employed by the courts. It seems 
 hardly necessary to cumber the consideration of the subject of logi- 
 cal relevancy with insistance upon any special logical system, even 
 one so valuable as that of Mr. Mill. It is safer to wait until some 
 more general consensus shall have been reached upon a point now 
 in the very arena of debate. It will be better to adopt the philoso- 
 phy of Bentham : " Hitherto," he says, " the operation of judg- 
 ing of the degree of connection, of the closeness of the connection, 
 between a principal fact and an alleged evidentiary fact, has been 
 
 leave room for this doubt in an ex- 
 position of the logical rules which is 
 intended for men's practical guidance. 
 If such is the intention, however, it 
 would be more clearly shown by some 
 such rearrangement of Mr. Stephen's 
 ninth article as follows : " Facts, 
 whether in issue or not, are rele- 
 vant to each other — when the one 
 shows that the other must or cannot 
 have occurred, or probably does or did 
 exist, or not ; or that any fact does or 
 did exist, or not, which in the common 
 course of events would either have 
 caused or have been caused by the 
 other; and in particular when one is, 
 or probably may be, or probably may 
 have been — the cause of the other; 
 the effect of the other; an effect of 
 the same cause; a cause of the same 
 effect." 26 Fort. Rev. p. 386. 
 
 6. " The science of logic, having 
 been created by the inventive and 
 penetrating genius of Aristotle and 
 afterwards systematized by the school- 
 men, was enlarged by the sagacious 
 divinations of Bacon, who indicated 
 its applications to natural philosophy, 
 
 and freed it from much of the need- 
 less subtlety of the schools. Since the 
 publication of the Novum Organon, 
 the fundamental processes of thought 
 connected with reasoning have been ex- 
 plored by Locke, Leibnitz, and the 
 metaphysicians who have followed in 
 their steps: and of late years, logical 
 science has, in this country, received 
 much illustration and improvement 
 from the writings of Archbishop 
 Whately, Dr. Whewell, and Mr. 
 John Mill; of whom, the first has im- 
 proved the form of the scholastic logic, 
 and adapted it to the wants of mod- 
 ern students ; the second has ex- 
 pounded the philosophy of induction, 
 and of its subsidiary processes as ap- 
 plied to the whole field of the physical 
 sciences; while the latter has deter- 
 mined the province of logic with pre- 
 cision, has established its first princi- 
 ples on a sound basis, and has systema- 
 tized the methods of observation and 
 deduction for all the subjects of 
 scientific research." Lewis, Authority 
 in Matters of Opinion, c. I, § 1. 
 
105 Delibebative Relevancy Defined. § 60 
 
 an operation of the instinctive class ; an operation which has never 
 been attempted to be subjected to rule, or at least to any other 
 rules than what have been completely arbitrary and irrational. 
 To take the business out of the hands of instinct, to subject it to 
 rules, is a task which, if it lies within the reach of human facul- 
 ties, must at any rate be reserved, I think, for the improved 
 powers of some maturer age." 7 Nor is it quite possible to exclude 
 from the mind a doubt as to whether a logical or scientific defini- 
 tion of relevancy is a legitimate topic in the law of evidence. This 
 feeling is happily expressed by Mr. Frederick Pollock. 8 " But 
 I find myself compelled to go beyond any suggestion of verbal and 
 logical amendments. I tbink it extremely doubtful whether the 
 logical theory of proof, which is common to all knowledge, should 
 appear as part of the law of evidence at all, though I fully agree 
 with Mr. Stephen that one cannot understand the law of evidence 
 without some previous understanding of the nature of proof in 
 general. Legislation affecting the tenure of land is very likely to 
 do more harm than good, unless it is guided by sound economic 
 knowledge, nor can its objects and effect be appreciated without 
 such knowledge; but who would think of incorporating the eco- 
 nomic definition of rent in an agricultural holdings act? Again, 
 there can be no inheritance without death, and the fact of death 
 must be proved; but the physiological definition of death is cer- 
 tainly no part of the law of succession. It appears to me that a 
 legal text-writer, and still more a legislator, should confine him- 
 self as much as possible to the questions proper to his own science, 
 and avoid mixing up the substance of the law with propositions 
 which belong to other branches of knowledge, or are common to all 
 alike. If the law of evidence is to embody the canons of inductive 
 logic to the extent of Mr. Whitworth's rules or Mr. Stephen's ninth 
 article, I do not see why it should stop short of giving a complete 
 exposition of them, and landing us, perhaps, in the thick of a 
 purely metaphysical controversy on the true meaning of cause." 
 
 § 60. (Relevancy; Logical); Deliberative — The probative re- 
 lation of a deliberative fact 1 to the existence of one in the res 
 ge&tm may well be spoken of as deliberative relevancy. It is a 
 relation of logical relevancy where the connection between the evi- 
 
 7. Rationale of J\ld. Ev., bk. I, o. 1. Supra, § 47. 
 Ill, 44. 
 
 8. 26 Fortnightly Bev. (n. s. 20), 
 388. 
 
§ 61 Facts. 106 
 
 dentiary and principal fact is a slight one. This may arise from 
 one of several causes. The uniformity which is invoked as the 
 basis of probative force may be one which is merely empirical, i. e., 
 based upon no recognized principle. Such a uniformity may be 
 in dispute ; as where it is plain that A did a particular act because 
 he had a motive for doing so. Experience may even show that the 
 causal relation relied upon if it exist at all is but an unreliable 
 one. In these and similar cases the deliberative fact would, stand- 
 ing alone, possess little or no probative relevancy. A number of 
 such facts may, however, by corroborating each other or reinforc- 
 ing other circumstances which are individually more probative 
 contribute to the whole no small portion of an evidentiary power 
 upon which a jury may reasonably be permitted to act. 
 
 § 61. (Relevancy); Legal — AH relevancy is not, however, that 
 of logic. Only of relevancy in its aspect of proof, the relation 
 which makes one fact probative or evidentiary as to the existence 
 of another, is logic the supreme arbiter and guide. Logical or pro- 
 bative relevancy is concerned, in judicial acceptation, with the 
 relation between facts which gives rise to an inference with regard 
 to existence. One fact, it is familiar, is logically relevant to an- 
 other when proof of the one rationally grounds an inference as to 
 the existence of that other. In all proof, there is this element of in- 
 ference of the existence of the unknown from proof of the known. 
 But with the establishment of the res gestce the use of proof, the 
 operation of experience, and, on principle, the function of the jury, 
 at once and finally cease and determine. Eelevancy, however, may 
 well exist as is hereafter more fully indicated, between a given 
 fact and the proposition in issue where the operation of the fact 
 said to be relevant is entirely apart from any attempt to establish 
 the existence of a fact nearer in causal relation to the proposition 
 under investigation. But relevancy between two facts exists wher- 
 ever proof of one fact gives rise to belief, i. e., suggests a reason- 
 able inference not as to the existence of that other fact but its 
 possession of some other intrinsic quality, property, attribute, or of 
 some external relation to another fact. The link, in other words, 
 between the two facts said to be relevant may not be that of proof 
 as to existence, but of an adjustment, similarity in any particular 
 respect or other mutual relation. For example, one fact may fairly 
 be said to be relevant to another if, under a certain established 
 
107 Legal or Constituent Relevancy. § 61 
 
 standard, it corresponds with, creates or constitutes it. But such 
 a relevancy is not that of logic; but is adjusted and determined 
 by the nature of the standard employed, the nature of the result 
 which the facts are to constitute. 
 
 It has been said, for example, that the direct, the lineal, course 
 of logical relevancy is determined by the legal nature and bearing 
 of the constituent facts, and that the line of probative, evidentiary 
 facts ends there. In other words, that the line of evidence, proper 
 scope of the law of evidence, properly so-called, ends with the 
 establishment of the res gestce. 1 That is to say, in a judicial 
 inquiry the constituent facts are not themselves selected arbitrarily 
 but are, on the contrary, determined by their relevancy, appro- 
 priateness, constituency, relation and sustaining quality to certain 
 other facts, i. e., the component facts, or subsidiary propositions 
 or expressions of fact, in terms of which the right or liability in- 
 volved in the inquiry has been formulated, affirmed or denied in 
 the pleadings. The adjustment between the component facts or 
 expressions of fact and the constituent facts has been reached by 
 the work of counsel or prosecuting officials at a stage anterior to 
 trial and represents an attempt to state the res gestce in the terms 
 of the right or liability, civil or criminal, to which, in the view 
 of the pleader they give rise. In any fairly scientific system of 
 pleading the allegations perform a double office. They state the 
 constituent elements or component propositions of fact which con- 
 stitute the right or liability asserted ; and, in the second place, they 
 assert that these constituent elements exist or that the component 
 propositions or expressions of fact are true, with regard to the 
 res gestce of the particular case under investigation. The suf- 
 ficiency of the allegations of the first class raises a question of 
 law which may be presented to the court in the form of a de- 
 murrer. They are, as it were, the constituent allegations of the 
 right or liability. This is a question as to the relevancy — con- 
 stituent relevancy we have preferred to call it — 'as the term is 
 used in the Scots law, 2 of the allegations to sustain the right or 
 
 1. Svpra, § 47. issue. Whart. Ev., § 20. In Scotch 
 
 2. Relevancy. — As a quality of evi- law, the relevancy is the justice or 
 dence, " relevancy " means applicabil- sufficiency in law of the allegations 
 ity to the issue joined. Relevancy is of a party. A plea to the relevancy 
 that which conduces to the proof of is therefore analogous to the demurrer 
 a pertinent hypothesis; a pertinent of the English courts. Black, Law 
 hypothesis being one which, if sus- Diet., in verba, 
 
 tained, would logically influence the 
 
§ 62 Facts. 108 
 
 liability involved in the inquiry. The second element in the 
 allegations serves to adjust the pleadings more closely to the res 
 gestae facts as the latter are found by the jury. 
 
 Two inquiries at once arise: (1) What is the nature of the 
 relevancy existing between the constituent and the component 
 facts? (2) What is the nature of the relevancy which exists be- 
 tween the component facts or expressions of fact and the right or 
 liability asserted or denied ? In answering them, it will at once 
 occur to the mind; that an entirely distinct element has been 
 added to the logical relevancy, based on experience, which has been 
 hitherto dominant in establishing the res gestae — from which the 
 constituent facts have been selected or inferred ; and that this new 
 element furnishes the selective principle in determining which of 
 the res gestae facts are material to the component facts and so are 
 constituent of the right or liability. It so becomes clear that this 
 new element is the substantive or positive law of the subject 
 which confers the right or imposes the liability. Such a rule is 
 entirely outside the logic of experience, is arbitrary, of legal rather 
 than mental allegiance and relations. The selection of certain res 
 gestae facts as material to the existence of this right or liability 
 is, therefore, an attempt to formulate the facts of a particular 
 transaction, when observed by the tribunal or proved to its 
 satisfaction by testimony or documents, into the terms of this 
 proposition of substantive law which formulate or condition the 
 right or liability. 3 In other words, were the tribunal to perceive 
 for itself the entire res gestae, as in the case of a contempt in open 
 court referred to by Best, 4 no matter of logical or probative rele- 
 vancy would be involved. The only question would be one of 
 law. So, were the res gestae facts agreed upon by the parties or 
 stated, as an opening, by counsel having the burden of proof, the 
 province of evidence would have been passed and the only question 
 remaining would be a legal one. 
 
 § 62. (Relevancy; Legal); "Facts in Issue." — The foregoing 
 
 considerations lead us to inquire whether failure to distinguish 
 
 between the relevancy of logic and that in which substantive law 
 
 3. Whatever the evidential facts generally said to be a mixed question 
 
 may be, the question whether they of law and fact. Hulings r. Hulings 
 
 make out a case or not is a question Lumber Co., 38 W. Va. 351, 18 S. E. 
 
 of. law, so whether the evidence tends 620, 627 (1893). 
 
 to show fraud is a question of law. 4. Supra, § 29 n. 2. 
 There being such evidence, fraud is 
 
109 Res Gestae Facts not "Facts in Issue." § 62 
 
 furnishes a portion of the test has introduced an element of am- 
 biguity and confusion into Mr. Justice Stephen's " Digest." 
 " Evidence," says Mr. Stephen, with certain exceptions and addi- 
 tions not important in this connection, " may be given in any pro- 
 ceeding of any fact in issue, and of any fact relevant to any fact 
 in issue." 3 These terms are more fully defined later : " The 
 expression 'facts in issue' means: (1) All facts which, by the 
 form of the pleadings in any action, are affirmed on one side and 
 denied on the other. (2) In actions in which there are no plead- 
 ings, or in which the form of the pleadings is such that distinct 
 issues are not joined between the parties, all facts from the estab- 
 lishment of which the existence, nonexistence, nature or extent of 
 any right, liability or disability asserted or denied in any such 
 case would by law follow. The word ' relevant ' means that any 
 two facts to which it is applied are so related to each other that 
 according to the common course of events one either taken by itself 
 or in connection with other facts proves or renders probable the 
 past, present, or future existence or nonexistence of the other." 2 
 It would seem that in this definition logical and legal relevancy 
 are used, under the general term, relevancy, without distinction. 
 " Facts in issue " are evidently facts which we have preferred to 
 call component facts. 3 ISTo constituent or res gestce fact is placed 
 in issue by the pleadings. Such a fact never becomes a fact in is- 
 sue; at most, it can only become a fact in dispute, 4 " or contro- 
 
 1. Stephen, Dig. Law of Ev., c. XI, of the defendant. The court held that 
 art. 2. the use of the word " fact," as equiv- 
 
 2. Stephen, Dig. Law Ev., 3d ed., alent to allegation, while not accurate, 
 c. I, art. 1. could not have prejudiced the de- 
 
 3. Subordinate or component propo- fendant, for the meaning which was 
 sitions of fact may well have been intended to he conveyed was reason- 
 adopted as a more accurate expression. ably certain. State v. Harris, 97 Iowa 
 The issues are not facts but proposi- 407, 66 N. W. 728, 729 (1896). 
 tions or expressions of fact. 4. The expression " fact in issue," 
 
 This habit of speaking of the sub- as used in the general statement of 
 ordinate propositions of fact as the rule that a judgment is res judi- 
 " facts " component, as we have called cata only as to those facts which 
 them, while inaccurate, seldom leads were in issue, means that matter on 
 to much confusion. Thus, in a which the plaintiff proceeds by his 
 criminal prosecution, the court in- action and which the defendant con- 
 structed that the defendant pleaded troverts by his pleadings; but the 
 not guilty, which plea put in issue facts offered in evidence to establish 
 every material fact involved in the the matter in fact are not themselves 
 crime charged, but, before he could " facts in issue," although they may 
 be convicted, the state must establish be controverted. So, when a deed is 
 beyond a reasonable doubt the guilt merely offered as evidence to show a 
 
§ 62 Facts. 110 
 
 versy. 5 Between these facts in issue and the right or liability which 
 they assist to formulate the relation is one of legal relevancy. So 
 facts directly relevant to facts in issue, to wit, constituent facts sus- 
 tain to the component facts a relation of legal relevancy, one in which 
 the rule of law is a controlling factor and test. On the other hand, 
 probative facts, those which establish the existence of res gestae or 
 constituent facts, the facta probantes stand to their respective 
 facta probanda in a relation of logical relevancy. In a lesser 
 degree of probative force and in a more collateral manner deliber- 
 ative facts, in relation to the facts tested by them, stand also in a 
 relation of logical relevancy. Thus, Mr. Stephen appears to have 
 used relevancy as a term embracing indifferently and without 
 warning, both logical and legal relevancy. His only definition of 
 the term relevancy is that of logical relevancy which he treats as 
 all-embracing. As the constituent facts are an attempt to 
 formulate the res gestae facts into terms of law, the component 
 facts are an attempt to state the law in terms of fact. The com- 
 ponent facts are the analysis of a rule of law of which the con- 
 stituent facts are an attempted synthesis, both in terms of fact. 
 By this double process the component facts are, as it were, super- 
 imposed upon the constituent facts and a test thereby established 
 as to whether the constituent facts have really established or made 
 out the right or liability asserted, or that portion of it placed in 
 issue by the pleadings. The relation between these two sets of 
 facts, constituent and component, may be one of relevancy, but not 
 of logical relevancy. The establishment of the proposition in issue 
 by the correspondences between the constituent and the component 
 facts is determined, in part at least, by legal reasoning, with which 
 logic has no exclusive function. This is, so far as possible, 6 
 within the inviolable province of the jury — the judging of their 
 
 title, whether in a real or personal of the court is conclusive, while a 
 
 action, the title is the fact which is in fact in controversy is only collater- 
 
 issue. The deed is a fact in contro- ally adjudicated. It must be a fact 
 
 versy; but, so far as the suit is con- immediately found according to the 
 
 cerned, it is incidental and collateral, pleadings, not that on which the 
 
 not a matter necessary of itself to the verdict was merely based. Caperton 
 
 finding of the issue. King v. Chase, v. Schmidt, 26 Cal. 479, 494, 85 Am. 
 
 15 N. H. 9, 15, 17, 41 Am. Dec. 675 Dec. 1S7 (cited in Glenn v. Savage, 
 (1844). 14 Or. 567, 573, 13 Pac. 442, 446) 
 
 5. Applegate v. Dowell, 15 Or. 513, (1864). 
 
 16 Pac. 651 (1887). A fact in issue 6. Infra, §§ 1801 et seq. 
 is a fact on which the determination 
 
Ill General Oedee and Scope of Teeatise. §§ 63, 64 
 
 evidence. To this form of relevancy, no designation seems more 
 appropriate than that of legal or constituent relevancy. 7 
 
 § 63. (Relevancy; Legal); Legal Reasoning As has been re- 
 peatedly observed, one fact is legally relevant to another when an 
 inference can legally be drawn from the one as to the existence of 
 the other. In other words, legal relevancy imports the possibility 
 of legal reasoning. The relation between the constituent and the 
 component facts and the further step from the component facts 
 to the truth of the main proposition in issue is determined by this 
 legal reasoning. Reasoning from probative to constituent facts is 
 thus seen to be a conclusion of fact, while any reasoned result from 
 the' constituent or res gestce facts is a matter of legal reasoning. 1 
 This class of reasoning is merely reasoning in general motivated 
 and conditioned by a rule of substantive law. 2 This, it must be 
 remembered, is entirely outside of and in general occurs at a subse- 
 quent stage of the proceedings to that of evidence. As Professor 
 Thayer puts it, " The function of scrutinizing the material which 
 it has once got, of observing its implications and the effect of one 
 part on another, of comparing and inferring, does not belong to the 
 region of the law of evidence. To the hungry furnace of the rea- 
 soning faculty the law of evidence is but a stoker." 3 
 
 § 64. Gfeneral Order and Scope of Treatise. — While an exact and 
 complete classification of topics in the law of evidence upon any 
 
 7. It is to be regretted that it has late court, and cannot be reviewed at 
 
 seemed necessary to use a term to retrial on appeal), and it does not 
 
 which Professor Thayer has already denote those inferences drawn by the 
 
 affixed a different meaning: the more trial court from the facts ascertained 
 
 strongly probative quality of logically and settled by it. Nolan v. New 
 
 relevant facts on which alone the York, N. H., etc., R. Co., 70 Conn, 
 
 court will permit the jury to act. 159, 39 Atl. 115, 43 L. R. A. 305 
 
 Thayer, Prelim. Treat., 517. This (1898). 
 
 question of remoteness, however, seems 2. " Let it be distinctly set down, 
 
 more closely connected with an ad- then, that the whole process of legal 
 
 ministrative principle rather than argumentation, and the rules for it, 
 
 with a rule of evidence. essential as these are, and forever 
 
 1. The word " fact," as employed pressing upon the attention, are 
 in the statement of the rule that errors mainly an affair of logic and general 
 of law can be reviewed, while errors experience, not of legal precept.'' 
 of fact cannot, denotes those con- " I say mainly, because the reason- 
 elusions reached by the trier from ing process, in its application to par- 
 sifting testimony, weighing evidence, ticular subjects, gets always a tincture 
 and passing on the credit of the wit- from the subject-matter." Thayer, 
 nesses (conclusions which are not Prelim. Treat., 271. 
 within the jurisdiction of the appel- 3 Thayer, Prelim. Treat.., 271. 
 
§ 64 Facts. 112 
 
 definite principle is probably rendered impossible by the inter- 
 blending nature of the subject matter, it has seemed most natural 
 to classify these various topics according as they involve a greater 
 or less proportion of the element of administration as compared 
 to that of procedure. The subject has accordingly been arranged 
 in an order corresponding to the degree in which the flexible ad- 
 ministrative power of the judge, conditioned by the use of reason, 
 may fairly be said to be exercised ; — the influence of rigid rules 
 of substantive law relating to procedure, which differ in no ma- 
 terial way, in scope and operation, from other rules of substantive 
 law, being, as it were, to a corresponding extent displaced. 
 
 The first volume deals with the subject of judicial administra- 
 tion itself. After certain preliminary definitions, it considers the 
 general nature and powers of the judicial office and the canons or 
 principles upon which sound administration of its functions pro- 
 ceeds. It deals briefly with the development of the institution of 
 the jury and its office, present and potential, in the administration 
 of justice ; — including some consideration of the relative duties 
 of the two branches of the tribunal, as all this has been established 
 by the substantive law. The first volume concludes with some 
 statement as to the general atmosphere of previously acquired 
 Knowledge, Judicial, Common and Special, in which the vital 
 functions of judicial administration can alone be satisfactorily 
 discharged ; — knowledge being an essential requisite to the use of 
 reason by which all the processes of judicial administration are 
 carried on, tested and conditioned. 
 
 The second volume discusses topics in the law of evidence in 
 which the element of administration is least operative and the 
 power of precedent and procedure reaches its highest point. 
 Although some admixture of administrative action is essential, it 
 yields readily to the dominating influence of procedure. Topics 
 so affected are those, such as Burden of Proof, Presumptions, 
 Admissions, Confessions, and Evidence at a Former Trial, which 
 are direct survivals of the formal period of legal evolution and 
 have come into the rational stage of legal growth bearing strong 
 marks of their origin. 
 
113 Judicial Administration and Media of Proof. § 64 
 
 The third volume is concerned with the exclusionary rule in 
 respect to " opinion evidence." It deals mainly with the matter 
 of reasoning by witnesses, with or without the element of observa- 
 tion. In treating this subject the psychological acts have been 
 divided into three classes. To the first, the term Inference has 
 been applied. Observation is supreme in this field and reasoning is 
 at its lowest point of efficiency. In the second species, Conclusion, 
 a larger element of reasoning is found, while in Judgments, by 
 which the third class is designated, reasoning, to which observation 
 is no longer yoked, is given unimpeded force. It is here that we 
 have what is properly the field of the expert. 
 
 The fourth volume discusses branches of the law of evidence 
 which reveals an increasing influence of the element of judicial 
 administration. While its treatment covers primarily questions 
 relating to logical or probative Relevancy and considers the opera- 
 tion of the rule of substantive law under which the litigants are 
 entitled to the use of reason, the underlying administrative basis 
 upon which the practical application of these procedural rules 
 rests becomes more obvious. The great exclusionary rules of 
 procedure, rejecting Hearsay, Res inter Alios actae or Character 
 Evidence are considered, not only in and of themselves, but as 
 actually employed and modified, extended or depressed, in scope 
 and operation, by the courts under their social mandate of admin- 
 istering justice. Some consideration is also given, in this connec- 
 tion, to the two great rational rules relating to the admissibility 
 of unsworn statements used in their assertive capacity, which have 
 been designated, for convenience, the Relevancy of Spontaneity 
 and the Relevancy of Regularity, respectively, by which the mod- 
 ern law of evidence seeks to relieve the administration of justice 
 from certain of the more injurious effects of the anomalous Hear- 
 say Rule by means of the reasonable expedient of admitting the 
 extrajudicial statement where the danger of self-serving invention 
 on the part of the declarant is eliminated by the semi-automatism 
 of reflex, uncerebrated action. 
 Vol. I. 8 
 
CHAPTER III. 
 
 LAW AND FACT. 
 
 Law and fad;; a third conception, 65. 
 
 Law defined, 66. 
 
 A divided tribunal, 67. 
 
 Who should apply rule of law, 68. 
 
 (1) judge authoritatively announces rule of law, 69. 
 
 civil cases, 70. 
 criminal cases, 71. 
 
 double jeopardy, 72. 
 
 public policy, 73. 
 
 confusion of law, 74. 
 
 differing views, 75. 
 
 (2) jury ascertain constituent facts, 76. 
 
 (3) application of law to constituent facts, 77. 
 Coke's maxim considered, 78. 
 
 ad quwstionem facti non respondent judices, 79. 
 incidental findings, 80. 
 
 preliminary facts conditioning admissibility, 81. 
 function of the jury, 82. 
 administrative details, 83. 
 ad quaestionem juris non respondent juratores, 84. 
 collateral rulings, 85. 
 General verdicts, 86. 
 
 matter of law for the jury, 87. 
 an incidental power, 88. 
 More rational expedients, 89. 
 inferences of fact, 90. 
 agreed statements of fact, 91. 
 
 power to draw inferences, 92. 
 express authority needed, 92. 
 a different view, 93. 
 effect of agreement, 94. 
 advantages to be expected, 95. 
 special verdicts; statutory, 96. 
 special interrogatories ; 97. 
 common law, 97. 
 statutory, 98. 
 
 [114] 
 
115 Synopsis. 
 
 criminal cases excluded, 99. 
 object of special findings, 100. 
 administration by the court, 101. 
 objectionable questions, 102. 
 number of interrogatories, 103. 
 form of question, 104. 
 time of requesting submission, 105. 
 form of answers, 106. 
 answers must be responsive, 107. 
 effect of general verdicts, 108. 
 effect of special answers, 109. 
 inconsistency, 110. 
 
 the inconsistency irreconcilable, 111. 
 trial judge's attitude, 112. 
 how advantage is taken of inconsistency, 113. 
 effect of granting a new trial, 114. 
 error and prejudice, 115. 
 judge sitting as jury, 116. 
 Matters of argument, opinion or judgment, 117. 
 
 sound reasoning, 118. 
 Matter of law, 119. 
 Meaning of words, 120. 
 Use of reason; by others, 121. 
 reasonable time, 122. 
 negligence, 123, 
 
 action of the judge, 124. 
 duty of the jury, 125. 
 probable cause, 126. 
 
 province of the jury, 127. 
 Construction of documents, 128. 
 
 surrounding circumstances, 129. 
 probative writings, 130. 
 statutes, 131. 
 
 limits of judicial action, 132. 
 function of the jury, 133. 
 collateral facts, 134. 
 ambiguity, 135. 
 Construction of oral contracts, 136. 
 a question of fact, 137. 
 province of jury, 138. 
 
§§ 65, 66 Law and Fact. 116 
 
 Demurrers to evidence, 139. 
 
 versus motions to direct a verdict, 140. 
 
 demurrers and nonsuits, 141. 
 
 English rule, 142. 
 
 American rule, 143. 
 
 court sitting as a jury, 144. 
 Certainty of law, 145. 
 
 oroad legal precepts, 146. 
 
 (1) presumption of law, 147. 
 
 (2) tentative rulings, 148. 
 "no evidence for the jury," 149. 
 
 rules of negligence, 150. 
 Trial hy inspection, 151. 
 nul tiel record, 152. 
 
 judgment of sister state, 153. 
 foreign law, 154. 
 unwritten, 154. 
 
 province of the jury, 155. 
 written, 156. 
 
 use of skilled witnesses, 157. 
 function of administration, 158. 
 English practice, 159. 
 judicial assumptions, 160. 
 rate of interest, 161. 
 foreign records, 162. 
 
 § 65. Law and Fact; A Third Conception — But it is obvious that 
 these conceptions of evidence and. fact are incomplete and in- 
 adequate for the present purpose until supplemented and unified 
 by a third fundamental conception, that of law. Law supplies to 
 the rules of evidence much of their form and all their objective. 
 Not only do the substantive law ] and that regulating judicial pro- 
 cedure 2 deeply affect the rules of evidence and the canons of its 
 administration, but evidence on the trial of any issue is con- 
 ditioned by its relevancy to the proof of constituent facts and 
 of these facts to the existence of a right or liability, which, in turn, 
 is determined by law. It is, therefore, essential to consider in 
 what way law is to be regarded in this connection. 
 
 § 66. Law Defined. — Law may, for municipal or domestic judicial 
 purposes, be defined as a rule of conduct prescribed by the sovereign 
 1. Supra, § 35. 2. Supra, § 34. 
 
117 A Chaeacteeistic of English Jueispeudence. § 67 
 
 of the forum upon its subjects and enforced by a sanction. 1 
 Naturally, unconfined by relation, the word is one of wide sig- 
 nificance. As Salmond says, 2 " In its widest and vaguest sense 
 the term law includes any rule of action ; that is to say, any stand- 
 ard or pattern to which actions (whether the acts of rational agents 
 or the operations of nature) are or ought to be conformed." 3 The 
 body of municipal law is of necessity a growing and changing 
 system. These characteristics of growth and changing are essential 
 to its usefulness. " The law, if it is to be an efficient and work- 
 able system, must needs be blind to many things, and the legal 
 theory of things must be simpler than the reality. Partly by de- 
 liberate design, therefore, and partly by the errors and accidents 
 of historical development, law and fact, legal theory and the truth 
 of things, are far from complete coincidence. We have ever to dis- 
 tinguish that which exists in deed and in truth, from that which 
 exists in law." 4 " Laws are in theory," as Hooker says, " ' the 
 voices of right reason ' ; they are in theory the utterances of jus- 
 tice speaking to men by the mouth of the state; but too often in 
 reality they fall far short of this ideal. Too often they ' turn 
 judgment to wormwood,' and make the administration of justice 
 a reproach." B 
 
 § 67. A Divided Tribunal — The form of the English law of 
 evidence, at any period of its not very extended existence, is unin- 
 telligible without constant mental reference to what is perhaps the 
 most salient and fundamental feature of English jurisprudence — 
 the separation of the judicial tribunal for the trial of causes into 
 two component parts of judge and jury. Only where such a 
 division of function exists is it necessary to segregate " matter of 
 law " from " matter of fact " with the care and precision with 
 
 1. " Law is a rule set by a politi- signifies a rule of action, and is ap- 
 cal superior to political inferiors and plied indiscriminately to all kinds of 
 enforced by a sanction." Austin, action, whether animate or inanimate, 
 
 ; Province of Jurisprudence. " The law rational or irrational. Thus we say, 
 
 J is the wisdom and justice of the the laws of motion, of gravitation, of 
 
 organized commonwealth, formulated optics or mechanics, as well as the 
 
 for the authoritative direction of those laws of nature and of nations." 
 
 to whom the commonwealth has dele- Blackstone, Comm., I, 38. " We term 
 
 gated its judicial functions." Sal- any kind of rule or canon whereby 
 
 mond, Jurisp. (2ded.), 13. actions are framed a law." Hooker, 
 
 2. Jurisp. (2d ed.), p. 39. Ecc. Pol., I, 3, 1. 
 
 3. Other definitions. — "Law, in its 4. Salmond, Jurisp. (2d ed.), 18. 
 most general and comprehensive sense, 5. Salmond, Jurisp. (2d ed.), 19. 
 
§ 67 
 
 Law and Fact. 
 
 118 
 
 which the English law finds it necessary to insist upon so artificial 
 a distinction. In order to obtain approximately clear conceptions 
 of what is meant by these terms " matter of law " and " matter of 
 fact " to which some consideration has been given in the last two 
 chapters, it will be necessary before proceeding to the more full 
 consideration of the various functions and relations of the judge 
 and jury, as will shortly be hereafter done, 1 to consider in this 
 preliminary chapter the relation between the respective provinces of 
 judge and jury, at common law, in an English or American court, 
 in respect to this distinction between " matter of law " and " mat- 
 ter of fact." In general it may be said that it is error to instruct 
 the jury that they are to judge of the law 2 or of its constitution- 
 ality. 3 Political considerations of the rights of the citizen ad 
 related to the prerogative of the crown, presented in a highly 
 controversial form to the people of England in the seventeenth and 
 eighteenth centuries, have made this topic one upon which there 
 is a wealth of feeling. 4 The zeal of counsel defending desperate 
 
 1. Infra, §§ 163 et seq., 269 et seq. 
 
 2. Alabama. — Washington v. State, 
 63 Ala. 135, 35 Am. Rep. 8 (1879); 
 Batre v. State, 18 Ala. 119, 122 (1850) 
 (gaming) ; Pierson v. State, 12 Ala. 
 149 (1847). 
 
 Arkansas. — Sweeney v. State, 35 
 Ark. 586, 601 (1880) (murder). 
 
 Indiana. — Townsend v. State, 2 
 Blackf. 151 (1828). 
 
 Michigan. — Hamilton v. People, 29 
 Mich. 173, 189-193 (1874). 
 
 New Hampshire. — Pierce v. State, 
 
 13 N. H. 536 (1843). 
 
 Ohio. — Montgomery v. State, 11 
 Ohio 424 (1842); Robbing v. State, 
 8 Ohio St. 131, 148, 149, 166 (1857). 
 
 Bouth Carolina. — State v. Drawdy, 
 
 14 Rich. Law 87 (1866). 
 
 United States. — United States v. 
 Battiste, 2 Sumn. 240, Fed. Cas. No. 
 14,545 (1835). 
 
 England. — Levi v. Milne, 4 Bing. 
 195 (1827). 
 
 8. Com. v. Anthes, 5 Gray 186 
 <1855) ; Pierce v. State, 13 N. H. 537 
 (1843) (intoxicating liquor). 
 
 Connecticut permits this. State v. 
 Thomas, 47 Conn. 546, 552, 36 Am. 
 
 Rep. 98 (1880). But the rule, ration- 
 ally reckless and anti-social, is in 
 deserved disfavor with the judges. 
 Thus where the trial judge erroneously 
 stated to the jury that the supreme 
 court had held a section of the law 
 against the sale of intoxicating liquor 
 to be constitutional — which the court 
 would have done had the question 
 come before them. Park, C. J., said: 
 " The most that can be said is that 
 the jury were misled into taking the 
 only view of the law that they could 
 correctly have taken. The defendant 
 lost a possible chance of the jury's 
 erroneously deciding the law in his 
 favor. This ground for a new trial 
 does not commend itself to our sense 
 of justice. But we need not decide 
 whether, if that were the precise state 
 of the case, it would be a sufficient 
 ground for granting a new trial. This 
 court had in fact decided the ques- 
 - tion as to the validity of the statute." 
 State v. Thomas, 47 Conn. 546, 552, 
 36 Am. Rep. 98 (1880). 
 
 4. Kentucky. — Montee v. Com., 3 
 J. J. Marsh. 132, 149 (1830). 
 
 Massachusetts. — Com. v. Porter, 10 
 
119 Should Judge or Juey Apply Rule of Law ? 
 
 68 
 
 criminal cases has, moreover, been quick to take advantage of some 
 so-called "right" of the jury to return a verdict of acquittal in 
 disregard of the rules of law which the judge has directed them 
 to apply to the constituent facts. Notwithstanding these conten- 
 tions, while the contrary has been at times held, 5 the view that 
 even in criminal oases the jury are to receive and apply the rule 
 of law as announced by the court is supported by the great weight 
 of authority. 6 
 
 With the policy of the law it seems to be conceded that the jury 
 are not concerned. 7 
 
 § 68. Who Should Apply Rule of Law Legal reasoning, as has 
 
 just been seen, 1 so far as applies to matter of fact, with which 
 alone evidence is concerned, consists in the application of facts to a 
 legal standard of rights and liabilities prescribed by substantive 
 law. In the ordinary judicial action this legal reasoning upon 
 facts is the application of a rule of substantive law to the con- 
 
 Mete. 263, 283 (1845); Com. v. 
 Knapp, 10 Pick. 477, 496 (1830); 
 Coffin v. Coffin, 4 Mass. 2, 25 (1808). 
 
 Michigan. — Hamilton v. People, 29 
 Mich. 173, 189 (1874). 
 
 New York. — People v. Croswell, 3 
 Johns. Cas. 337 (1804). 
 
 Ohio. — Montgomery v. State, 11 
 Ohio 424, 427 (1842). 
 
 Pennsylvania. — Pennsylvania v. Bell, 
 Add. 156, 160 (1793). 
 
 United States. — United States v. 
 Eattiste, 2 Surnn. 240, 243, Fed. Cas. 
 No. 14,545 (1835). 
 
 England. — Devizes v. Clark, 3 A. 
 & E. 506 (1835) ; Macclesfield v. Ped- 
 ley, 4 B. & Ad. 403 ( 1S33 ) ; Mosley 
 V. Walker, 7 B. & C. 53, 56 (1827) ; 
 Bushell'a Case, Vaugh. 135, 143 
 (1670) ; Rex V. Withers, 3 T. R. 428 
 (1789) ; Rex v. Woodfall, 5 Burr. 2661 
 (1770) ; Rex v. Wilkes, 4 Burr. 2527 
 (1770); Rex v. Owens, 18 How. St. 
 Tr. 1203 [case 525] (1752); Franck- 
 lin's Case, 17 How. St. Tr. 625 [case 
 489] (1731); Fuller's Case, 14 How. 
 St. Tr. 517 [case 422] (1702) ; Har- 
 grave's Notes, 1 Inst. 155b; 1 
 Chase Tr. 34. 
 
 5. Infra, §§ 71, 86. 
 
 6. Alabama. — Washington v. State, 
 63 Ala. 135, 35 Am. Rep. 8 (1879) ; 
 Batre v. State, 18 Ala. 119 (1850). 
 
 Arkansas. — Sweeney v. State, 35 
 Ark. 586 (1880) ; Pleasant v. State, 
 13 Ark. 360 (1853). 
 
 Massachusetts. — Com. v. Rock, 10 
 Gray 4 (1857); Com. v. Anthes, 5 
 Gray 185 (1855). 
 
 Michigan. — Hamilton v. People, 29 
 Mich. 173, 189 (1874). 
 
 New Hampshire. — Pierce v. State, 
 
 13 N. H. 536 (1843). 
 
 New York. — Duffy v. People, 26 
 N. Y. 588 (1863). 
 
 Ohio. — Montgomery v. State, 11 
 Ohio 424, 427 (1842); Robbins V. 
 State, 8 Ohio St. 131 (1857). 
 
 Pennsylvania. — Pennsylvania v. Bell, 
 Add. 156, 160 (1793). 
 
 South Carolina. — State v. Drawdy, 
 
 14 Rich. Law 87 (1866). 
 
 United States. — United States v. 
 Morris, 1 Curt. 23, Fed. Cas. No. 
 15,815 (1851) ; Georgia v. Brails- 
 ford, 3 Dall. 1, 4 (1794). 
 
 7. State v. Buckley, 40 Conn. 247 
 (1873) ; State V. Miller, 53 Iowa 154, 
 156, 157, 4 N. W. 900 (1880). 
 
 1. Supra, §§ 59, 63. 
 
§ 69 Law and Fact. 120 
 
 stituent facts, as defined above. 2 In other words, before it can be 
 ascertained by the tribunal as to whether the right or liability 
 asserted or denied in the proceeding can be regarded as established 
 or shown not to exist, three steps, one of law, one of logic and one 
 partly of law and partly of logic, i. e., of legal reasoning must be 
 taken by the tribunal, or one of its component parts. That is to 
 say, (1) a rule of law must be formulated and announced; (2) 
 the ultimate facts must be ascertained; (3) the rule of law must 
 be applied to these ultimate constituent facts and determine in this 
 way whether the right or liability has been established. These 
 several steps will briefly be considered in this order. Only as to 
 who is entitled to take the third step — that of applying the rule 
 of law to the constituent facts — is there confusion among the 
 authorities and lack of symmetrical and scientific development in 
 the law of evidence. 
 
 §69. (Who Should Apply Rule of Law) ; (1) Judge Authori- 
 tatively Announces Rule of Law — The first step is taken by the 
 judge. He is to formulate and announce the rule of law govern- 
 ing the existence, in matter of law, of the right or liability . 
 asserted. This is part of the judge's function of administration 
 in point of law with which the jury have no concern. It is the 
 universally recognized duty of the jury, 1 even in criminal cases, 2 
 to follow the rulings of the judge as to matter of law. 3 These in- 
 structions as to rules of law the judge will give so far as required 
 by the state of the evidence, either sua sponte, of his own motion, 4 
 or at the request of the parties," even in criminal cases. 6 This, 
 for the purposes of the trial, is authoritative ; revision or correction, 
 so far as needed, is the work of other judges, nothing of the kind 
 being allotted to the jury. 7 
 
 2. Supra, § 47. 132, 149 (1830) ; Com. v. Porter, 10 
 
 1. Higginbotham v. Campbell, 85 Mete. 263 (1845) ; Coffin v. Coffin, 4 
 Ga. 638, 11 S. E. 1027 (1890). Mass. 2, 25 (1808) ; Montgomery V. 
 
 2. Infra, § 71. State, 11 Ohio St. 424, 427 (1842) ; 
 
 3. Council v. Teal, 122 Ga. 61, 49 Nels v. State, 2 Tex. 280 (1847). 
 
 S. E. 806 (1905) ; Com. v. Bock, 10 6. Montee v. Com., 3 J. J. Marsh. 
 
 Gray 4 (1857). 132 (1830). 
 
 4. State v. Stonum, 62 Mo. 596 7. Hamilton v. People, 29 Mich. 173, 
 (1876) ; State v. Matthews, 20 Mo. 55 193 (1874). No independent exami- 
 (1854). nation into the law is permissible in 
 
 5. Montee v. Com., 3 J. J. Marsh. the jury-room. Newkirk v. State, 27 
 
121 
 
 Juey not to Judge Law in Civil Cases. 
 
 § 70 
 
 § 70. (Who Should Apply Rule of Law; [/] Judge Authori- 
 tatively Announces Rule of Law) ; Civil Cases. — In civil causes 
 the jury have encroached upon the province of the court to declare 
 the law and require the jury to observe it only to a very limited 
 extent; and have gradually been dislodged from such advantages 
 in this respect as they may be said to have gained for any other 
 than political reasons. It has been plausibly suggested that the 
 reason why juries were ever permitted to determine the law in 
 civil cases, was, in part, at least, the fact that early jury trials 
 were usually held at the bar of the full court, whose judges, giving 
 varying rules of law, were practically forced to leave all the com- 
 ponent parts of the issue, law as well as fact, to the general verdict 
 of the jury. 1 
 
 Local Laws. — As quasi matter of fact, the jury, for example, 
 have been considered, in a few cases, as entitled to find the law 
 to be different from that announced to them by the court, should 
 the law be one of a local nature. 2 This may be regarded as un- 
 tenable. 8 
 
 Ind. 1 (1866) ; Merrill v. Nary, 10 
 Allen 416 (1865) ; Harrison v. Hance, 
 37 Mo. 185 (1866) ; State v. Smith, 6 
 R. I. 33 (1859). 
 
 Law books in jury-room. — Books of 
 the law . — even the statute book 
 should be excluded from the jury 
 while deliberating on their verdict. 
 State v. Kimball, 50 Me. 409, 418 
 (1861) ; Merrill v. Nary, 10 Allen 416 
 
 ( 1865 ) ; Harrison v. Hance, 37 Mo. 185 
 
 (1866) ; [overruling, in part, Hardy 
 v. State, 7 Mo. 607 (1342)]; Burrows 
 V. Unurn, 3 C. P. 310 (1838). 
 
 New trial.. — The improper conduct 
 in using law books in the jury-room is 
 not, necessarily, so prejudicial as to 
 require that the judge presiding at the 
 trial should set aside the verdict. 
 State v. Hopper, 71 Mo. 425 (1880) ; 
 People v. Gaffney, 14 Abb. Prac. (N. 
 S.) 37 (1872). See also Wilson v. 
 People, 4 Parker Cr. E. 619, 632 
 (1859) ; Grandolfo v. State, 11 Ohio 
 St. 114, 118 (1860). 
 
 Under circumstances of aggravation 
 
 the judge may, however, properly exert 
 his administrative powers to the end 
 of granting a new trial. Among such 
 circumstances are wilful and con- 
 scious violation of law, — as where the 
 volume is removed from the court- 
 room secretly. Newkirk v. State, 27 
 Ind. 1 (1866) ; People v. Hartung, 4 
 Parker Cr. E. 256 (1859); State V. 
 Smith, 6 E I. 33 (1859). 
 
 1. Thayer, Prelim. Treat., 253. 
 
 2. Sparf V. TJ. S., 156 TJ. S. 51, 110, 
 15 Sup. 273 (1895). 
 
 8. Connecticut. — State v. Gannon, 
 75 Conn. 206, 52 Atl. 727 (1902). 
 
 Massachusetts.— Com. v. Porter, 10 
 Mete. 263 (1845). 
 
 New Hampshire. — State v. Hodge, 
 50 N. H. 510, 522 (1869). 
 
 United States. — U. S. v. Battiste, 2 
 Sumn. 240, 243, Fed. Gas. No. 14,545 
 (1835). 
 
 England. — Levi v. Milne, 4 Bing. 
 195 (1827). 
 
 Co. Litt. 155b, Hargrave's note 276. 
 
§§ 71,72 
 
 Law and Pact. 
 
 122 
 
 § 71. (Who Should Apply Rule of Law; [/] Judge AuthorU 
 tatively Announces Rule ot Law); Criminal Oases — Juries are 
 not judges of the law in criminal cases. 1 
 
 § 72. (Who Should Apply Rule ot Law; [/] Judge AuthorU 
 tatively Announces Rule of Law; Criminal Cases); Double 
 
 Jeopardy. — In criminal cases, the court may direct a verdict for 
 the defendant but not against him. 1 The entire power of the jury 
 to deal with the rules of law in any case is incidental to their right 
 
 The peculiarity in criminal cases 
 
 to render a general verdict. 2 
 
 1. Alabama. — Batre v. State, 18 
 Ala. 119 (1850). 
 
 Indiana. — Townsend v. State, 2 
 Black, 151 (1828). 
 
 Massachusetts. — Com. v. Anthes, 5 
 Gray 185 (1855). 
 
 Missouri. — Hardy v. State, 7 Mo. 
 607 (1842). 
 
 New Hampshire. — State v. Hodge, 
 50 N. H. 510 (1869)-; Pierce v. State, 
 13 N. H. 536 (1843). 
 
 New York. — Duffy v. People, 26 N. 
 Y. 588 (1863). 
 
 Ohio. — Robbins v. Stale, 8 Ohio St. 
 131 (1857). 
 
 Pennsylvania. — Com. v. McManus, 
 143 Pa. St. 64, 86, 21 Atl. 1018, 22 
 Atl. 761 (1891). 
 
 United States. — Sparf v. V. S. 156 
 U. S. 51, 15 Sup. Ct. 273 (1894). 
 The rule is not affected by the 
 circumstance that it is the legal 
 right of a jury to return a gen- 
 eral verdict and that this draws 
 after it, as a necessary consequence, 
 that they incidentally pass on the law. 
 In so doing, they are not at liberty to 
 exercise their own reason and judg- 
 ment against the statement of law by 
 the judge, to adjudicate on the law — 
 as, unquestionably, they may do as to 
 the fact. Com. v. Anthes, 5 Gray 
 (Mass.) 185, 209 (1855). 
 
 A contrary view as to the right of 
 a jury to deal with questions of law 
 in criminal cases is held in several 
 jurisdictions. 
 
 Kentucky. — Montee v. Com. 3 J. J. 
 Marsh, 132, 151 (1830). 
 
 Louisiana. — State v. Jurche, 17 La. 
 Ann. 71 (1865). 
 
 Maine. — State v. Snow, 18 Me. 346 
 (1841). 
 
 New Jersey. — Drake v. State, 30 N. 
 J. Law, 422 (1863) (criminal libel). 
 
 Tennessee. — Nelson v. State, 2 
 Swan, 482 (1852). 
 
 Vermont. — State v. Crotean, 23 Vt. 
 14 (1849). 
 
 United States. — State of Ga. v. 
 Brailsford. 3 Dall. 1 (1894). 
 
 There is, however, an obvious dis- 
 tinction between a right and an ex- 
 cessive exercise of power which can 
 neither be prevented or corrected. 
 
 Parties or their counsel are per- 
 mitted, in criminal cases, to address 
 the jury, under the general superin- 
 tendence of the Court, upon all the 
 ■ material questions involved in the is- 
 sue including such questions of law as 
 come within it. Com. v. Porter, 10 
 Mete. (Mass.) 263,287 (1845). "The 
 jury are the exclusive judges of the 
 fact in every criminal case, but not of 
 the law in any case. They are bound 
 to receive the law from the court and 
 to be governed thereby." 
 
 Texas Code Crim. Pro., art. 676. 
 
 1. Infra, n. 3. 
 
 2. Devizes V. Clark, 3 A. & E. 506 
 (1835); Bushell's Case, Vaugh. 135 
 (1670); Macclesfield v. Pedley, 4 B. 
 & Ad. 397, 403 (1833). See also Mor- 
 ley v. Walker, 7 B. & C. 40, 
 53, 56 (1827); 1 Chase Tr. 34. 
 " Upon the whole, the result is 
 that the immediate and direct right 
 
123 
 
 A Powee to Set Aside the Law. 
 
 § 72 
 
 consists merely in this; that where such a general verdict is one 
 of acquittal, the judge cannot set it aside. 3 Under an almost uni- 
 versal constitutional provision, one accused of crime cannot twice 
 be placed in jeopardy for the same offense. 'Changed social con- 
 ditions seem greatly to have impaired the basis of public policy 
 upon which the rule originally rested. 4 Be this as it may, the fact 
 of the provision against double jeopardy has given rise to the con- 
 ception that as the work of the jury in acquitting contrary to the 
 rule of law formulated by the court could neither be prevented, 
 revised, nor punished, 5 therefore, they had a right to disregard the 
 instructions of the court. "This power, instead of being called 
 a power to judge of the law, should rather be regarded as a power 
 to set aside the law in a given instance; and it is believed that 
 
 of deciding upon questions of law is 
 entrusted to the judges; that in a 
 jury, it is only incidental; that, in 
 the exercise of this incidental right, 
 the latter are not only placed under the 
 superintendence of the former, but are 
 in some degree controllable by them 
 and therefore that in all points of law 
 arising on a trial juries ought to 
 show the most respectful deference to 
 the advice and recommendations of 
 judges; nor is it any'small merit in 
 this arrangement that, in consequence 
 of it, every person accused of a crime 
 is enabled, by the general plea of not 
 guilty to have the benefit of a trial in 
 which the judge and jury are a check 
 upon each other." Hargrave's Notes, 
 1 Inst. 155b. 
 
 3. " It was never yet known, that 
 a verdict was set aside by which the 
 defendant was acquitted in any case 
 whatsoever, upon a criminal prosecu- 
 tion." King V.Jones, 8 Mod. 201, p. 
 S08 (1724). Per Pratt, C. J. 
 
 4. The rule is manifestly based upon 
 the fondness of the English law for 
 safeguarding its criminal from the 
 (now vanished) severity of its own 
 operation, which, whether an element 
 of strength or weakness, in judicial 
 administration, is at least one of its 
 salient features. The prohibition 
 against double jeopardy gives no sup- 
 port to the claim that the jury may 
 
 disregard the law laid down by the 
 Court in criminal cases. Duffy v. 
 People, 26 N. Y. 588, 591 (1863). 
 
 5. Attaint. — The earlier practice 
 provided a punishment of the jury for 
 false verdicts by way of attaint. This 
 led to a disinclination to finding gen- 
 eral verdicts which alone involved this 
 risk; — a special verdict throwing on 
 the court the duty of applying the law 
 to the facts. In mishap or miscon- 
 duct in legal reasoning lay the chance 
 for punishment. It was openly ad- 
 vised that: in view of the attaint, 
 special verdicts be returned. Thus in 
 Coke on Littleton, the text of the 
 author is as follows: — "Also in such 
 case where the inquest may give their 
 verdict at large, if they will take upon 
 them the knowledge of the law upon 
 the matter, they may give their ver- 
 dict generally, as is put in their 
 charge," etc. Coke, in commenting 
 offers this shrewd suggestion: — '"Al- 
 though the jurie, if they will take 
 upon them (as Littleton here saith) 
 the knowledge of the law, may give a 
 general verdict, yet it is dangerous 
 for them so to doe for if they doe mis- 
 take the law, they runne into danger 
 of an attaint; therefore to find the 
 speciall matter is the safest way, 
 where the case is doubtfull." Co. 
 Litt, 228a. See also, Co. Litt., 155b. 
 
§ 73 Law and Fact. 124 
 
 the popular affection for the system of trial by jury lies largely 
 in the fact that this system involves a popular prohibition upon 
 the execution of the law in hard cases." 6 Such is the general view 
 of American courts who very properly distinguish sharply be- 
 tween a right and an uncorrectible abuse of power. 7 
 
 § 73. (Who Should Apply Rule of Law; [/] Judge AuthorU 
 tatively Announces Rule of Law; Criminal Cases); Public 
 
 Policy. — No zeal for a client could well be more anti-social than 
 that which leads an attorney (in the American sense) to urge the 
 jury to award his client a verdict of acquittal under a rule of law 
 invented or devised by themselves. 1 While it cannot be doubted 
 that a principal claim of the jury to popular favor is, as has just 
 been said, its traditional ability to defy, in a general verdict, the 
 law of the land as announced by the judge, grave public dangers 
 necessarily grow out of notorious lawbreaking similar to those 
 which would arise from any other open and successful infraction of 
 the rules of law. The natural result is that persons legally guilty 
 are permitted to escape punishment. To this extent, the evil is 
 part of an emotional indulgence to those accused of crime, ac- 
 counted for in its inception, if not justified, by the rigor of early 
 English criminal codes; but now unmitigatedly evil in an enlight- 
 ened age and under humane laws. Not even, however, does the per- 
 sonal interest of one accused of crime lie in the direction of having 
 
 6. 2 Thomp. on Tr. 2133. in ethics, in law is very shadowy and 
 
 7. State v. Ford, 37 La. Ann. 443, unsubstantial. He who has the legal 
 465 (1885); State v. Tally, 23 La. power to do anything has the legal 
 Ann. 677, 678 (1871) ; United States right. No court should give a bind- 
 v. Greathouse, 4 Sawy. 457, 464, 2 ing instruction to a jury which they 
 Abb. 364, Fed. Cas. Ho. 15,254 (1863). are powerless to enforce by granting 
 See also State v. Scott, 12 La. Ann. a new trial if it should be disregarded. 
 386 (1857); State v. Ballerio, 11 La. They may present to them the obvious 
 Ann. 81 (1856) ; State v. Scott, 11 considerations which should induce 
 La. Ann. 429 (1856). Pennsylvania them to receive and follow their in- 
 maintains a contrary view. — taking a structions, but beyond this they have 
 position which seems entirely anoma- no right to go. The argument in favor 
 lous : " It has been strongly contended of their taking the law from the 
 that, though the jury have the power, court is addressed very properly ad 
 they have not the right, to give a ver- verecundiam. The court is appointed 
 diet contrary to the instruction of the to instruct them, and their opinion is 
 court upon the law ; in other words, the very best evidence of what the law 
 that to do so would be a, breach of is." Kane v. Com., 89 Pa. 522, 525 
 their duty and a violation of their (1879). Per Sharswood, C. J. 
 
 oath. The distinction between power 1. Pennsylvania v. Bell, Add. 156, 
 
 and right, whatever may be its value 160 (1793). 
 
125 Juries as Legislators in Criminal Cases. § 74 
 
 the jury violate their oaths by applying to the facts a different rule 
 of law from that formulated for them by the courts. In time of 
 popular clamor, more eager for the sacrifice of a victim than a 
 search for the true offender, the rule of law laid down by the court 
 may be the sole protection of innocence. A lawless jury may be 
 as dangerous to him as a lawless mob. 2 '"If the court had no 
 right to decide the law, error, confusion, uncertainty and licen- 
 tiousness would characterize the criminal trials, and the safety of 
 the accused might be as much endangered as the stability of public 
 justice certainly would be." 3 
 
 § 74. (Who Should Apply Rule of Law; [/] Judge Authoru 
 tatively Announces Rule of Law; Criminal Cases); Confusion 
 
 of Law. — An evil still greater than lack of protection to any in- 
 dividual accused of crime, lies in the consideration that, unless the 
 jury take the rule of law as announced by the court, all certainty 
 in the law itself is at an end. Each application of a rule of law 
 to a known state of facts amounts to a construction of the rule of 
 law in terms of fact. To permit casual bodies of twelve untrained 
 men, selected by lot from the community, to construe the law, 
 would introduce such an element of confusion as to what that law 
 is as would amount to an intolerable abuse and degradation of the 
 administration of justice. 1 More than this, under such circum- 
 stances, " Jurors would become not only judges but legislators as 
 
 2. Pennsylvania v. Bell, Add. 156, no security whatever, either that the 
 160 (1793) ; "United States v. Battiste, innocent may not be condemned or 
 2 Sumn. 240, 243 (1835). "Parties that society will have any defense 
 charged with crime need the protec- against the guilty." Hamilton v. 
 tion of the laws against unjust con- People, 29 Mich. 173, 191 (1874). 
 victions quite as often as the public "For miserable would be our situa- 
 needs it against groundless acquittals. tion if our lives depended not on fixed 
 Neither can be safe without having the rules, but on the feelings which might 
 rules of law defined and preserved, and happen to be excited in the jurors who 
 beyond the mere discretion of any were to try us. If in the case of one 
 one." Hamilton v. People, 29 Mich. man, compassion pervert the con- 
 173, 191 (1874). struction of the law to acquit, in the 
 
 3. Montee v. Com., 3 J. J. Marsh. case of another resentment may per- 
 132, 151 (1830). vert it to condemn; and whenever 
 
 1. Hamilton r. People, 29 Mich. 173, guilt may thus escape from punish- 
 
 191 (1874) ; Duffy v. People, 26 N. ment, innocence may be no longer a 
 
 Y. 588, 591 (1863). " If the court is shield." Pennsylvania V. Bell, Add. 
 
 to have no voice in laying down these 156, 160 (1793). 
 rules, it is obvious that there can be 
 
§ 75 Law and Fact. 126 
 
 well." 2 Nor is this all. " If the jury were at liberty to settle 
 the law for themselves, the effect would be, not only that the law 
 itself would be most uncertain, from the different views which 
 juries might take of it, but, in case of error, there would be no 
 remedy or redress of the injured party; for the court would not 
 have any right to review the law as it had been settled by the jury. 
 Indeed, it would be almost impracticable to ascertain what the 
 law, as settled by the jury, actually was." 3 
 
 § 75. (Who Should Apply Rule of Law; [/] Judge Authori- 
 tatively Announces Rule of Law; Criminal Cases); Differing 
 
 Views — The great authority of Blackstone, especially in his 
 emphatic statement that a jury is the palladium of English 
 liberty, has been a powerful force in impeding the symmetrical 
 growth of judicial administration. In several jurisdictions 
 more powers in dealing with the rule of law than are gen- 
 erally judged to be in the public interest have, by statute or con- 
 stitution, been conferred upon the jury. 1 The same results 
 authorizing the jury to invent or improvise a rule of law for them- 
 selves, in criminal cases, has been occasionally effected by judicial 
 
 2. Duffy v. People, 26 N. Y. 588, from the rule given them by the judge. 
 591 (1863). Dickens v. State, 30 Ga. 383 (1860) 
 
 3. State v. Hannibal, 37 La. Ann. Keener v. State, 18 Ga. 194 (1855) 
 619,620 (1885); States. Ford, 37 La. Berry v. State, 10 Ga. 511 (1851) 
 Ann. 443, 465 (1885) ; Nicholson V. Holder v. State, 5 Ga. 441 (1848). In 
 Com., 96 Pa. 503, 505 (1880) ; United later cages this ruling has been re- 
 States v. Battiste, 2 Sumn. 240, 243, versed. For example, the following 
 Fed. Cas. No. 14,545 (1835). See charge was sustained: "That they 
 also State v. Drawdy, 14 Rich. Law were the judges of the law and the 
 87 (186). i facts, so as to enable them to apply 
 
 1. Hudelson v. State, 94 Ind. 426, the law to the facts, and bring in a 
 
 429 (1883) ; Powers v. State, 87 Ind. general verdict; but that they had no 
 
 145, 156 (1882); State V. Ford, 37 right to make law; the law was laid 
 
 La. Ann. 443, 465 (1885) ; State V. down in the Code; it was the province 
 
 Miller, 75 N. C. 74 (1876) ; R. S. of the court to construe the law and 
 
 Ind. 1881, §§ 64, 1823. give it in charge, and of the jury to 
 
 In Georgia a code provision is as take the law as given, apply it to the 
 follows : — " The jury in all criminal facts as found by them, and bring in 
 cases sha'l be the judges of the law a general verdict." Anderson v. State, 
 and the facts." Const. Ga., art I, 42 Ga. 9, 32, 34 (1871). This has 
 § 2, par. I (1877); Georgia Code 1883 continued to be the law. Ridenhauer 
 § 5019. Under this provision the v. State, 75 Ga. 382 (1885) ; Dan- 
 earlier cases held that the jury might forth f. State, 75 Ga. 614 (1885) ; 
 determine that the law was different Hill v. State, 64 Ga. 454 (1880). 
 
127 
 
 Juet Empowered to Judge of Law. 
 
 § 75 
 
 decision. 2 Among these jurisdictions are Illinois, 3 Indiana, 4 
 Louisiana, 5 Maine, 6 Massachusetts, 7 Pennsylvania, 8 Tennessee 9 and 
 Vermont. 10 
 
 2. An erroneous instruction by the 
 court will, even in states where the 
 jury are judges of the law, be ground 
 for a new trial. Clem i>. State, 42 
 Ind. 423, 447 (1873) ; State v. Rice, 
 56 Iowa 431, 9 N. W. 343 (1881). 
 
 3. Adams v. People, 47 111. 376, 
 Hor. & Th. Cas. Self Def. 208 (1868) ; 
 Fisher v. People, 23 111. 283 (1860) ; 
 Schnier V. People, 23 111. 17, Hor. & 
 Th. Cas. Self Def. 285 (1859). But 
 see Mullinix V. People, 76 111. 
 211 ( 1875 ) . "It is the duty of the 
 jury to accept and act upon the law, 
 as laid down to you by the court, un- 
 less you can say, upon your oaths, 
 that you are better judges of the law 
 than the court." Mullinix v. People, 
 76 111. 211 (1875) ; Accord:— Fisher 
 v. People, 23 111. 283 (1860). 
 
 4. Stout v. State, 96 Ind. 407 
 (18S4) ; Heagy v. State ex rel., 85 
 Ind. 260 (1882); Fowler v. State, 85 
 Ind. 538 (1882) ; Reiser v. State, 83 
 Ind. 234 (1882) ; Harvey v. State, 40 
 Ind. 516 (1872) ; Williams v. State, 
 10 Ind. 503 (1858); Daily V. State, 
 
 10 Ind. 536 ( 1858 ) ; Lynch v. State, 9 
 Ind. 541 (1857) ; Murphy v. State, 6 
 Ind. 490 (1855); Carter v. State, 2 
 Ind. 617 ( 1851 ) ; Warren V. State, 4 
 Blackf. 150 (1836); Townsend V. 
 State, 2 Blackf. 151 (1828). 
 
 5. State v. Vinson, 37 La. Ann. 792 
 ( 1885 ) ; State v. Saliba, 18 La. Ann. 
 35 (1866); State V. Jurche, 17 La. 
 Ann. 71 (1865); Tresca v. Maddox, 
 
 11 La. Ann. 206, 209 (1856). But 
 see State v. Ford, 37 La. Ann. 
 443, 465 (1885) ; State V. Vinson, 37 
 La. Ann. 792 (1885) ; State v. Han- 
 nibal, 37 La. Ann. 619 (1885) ; State 
 v. Johnson, 30 La. Ann. Pt. II, 904 
 (1878) ; State v. Jurche, 17 La. Ann. 
 71 (1865). "If you believe that you 
 know more law than the judge does, 
 you can believe so." State v. John- 
 son, 30 La. Ann. (Pt. II.) 904 (1878). 
 
 Rather inconsistently the Court 
 
 spoke approvingly of a charge 
 informing the jury of " their clear 
 duty to accept and apply the 
 law as laid down for them by the 
 judge." State v. Vinson, 37 La. Ann. 
 792 (1885). PerFennerJ. 
 
 6. State v. Snow, 18 Me. 346 (1843). 
 
 7. Com. f. Porter, 10 Mete. 263, 
 283 (1845) ; Coffin V. Coffin, 4 Mass. 
 2, 25 (1808). • 
 
 8. " Judges may still be partial and 
 oppressive, as well from political as 
 personal prejudice, and when a jury 
 are satisfied of such prejudice, it is 
 not only their right, but their duty, 
 to interpose the shield of their pro- 
 tection to the accused." Kane v. 
 Com., 89 Pa. 522, 527 (1879) per 
 Sharswood, C. J. " One of the most 
 valuable securities guaranteed by our 
 Bill of Rights." Kane v. Com., 89 Pa. 
 522, 527 (1879) per Sharswood, C. 
 J. " It is in perfect accordance with 
 the spirit of our legal institutions 
 that courts should decide questions of 
 law, and the juries of facts; the 
 nature of the tribunals naturally 
 leads to this division of duties, and 
 it is better, for the sake of public 
 justice, that it should be sq: when 
 the law is settled by a court, there 
 is more certainty than when done by 
 a jury; it will be better known and 
 more respected in public opinion. 
 But if you are prepared to say that 
 the laws is different from what you 
 have heard from us, you are, in the 
 exercise of a constitutional right, to 
 do so." United States v. Wilson, 
 Baldw. 78, 99 (1830). This instruc- 
 tion of Mr. Justice Baldwin has been 
 endorsed by Chief Justice Sharswood 
 as representing his personal prefer- 
 ence. Kane V. Com., 89 Pa. 522, 33 
 Am. Rep. 787 (1879). 
 
 9. Hannah v. State, 75 Tenn. (11 
 Lea) 201 (1883). 
 
 10. State v. Croteau, 23 Vt. 15 (1849). 
 
§§ 76, 77 Law and Fact. 128 
 
 A growing tendency is observable among courts conceding the 
 power of the jury to judge the law in criminal cases, to modify or 
 explain away the peculiarity of their administrative position — 
 bringing their rulings more nearly into correspondence with the 
 general weight of authority. 11 
 
 § 76. (Who Should Apply Rule of Law); (2) Jury Ascertain 
 
 Constituent Facts. — Speaking generally, the second step — that of 
 ascertaining the constituent facts — is admittedly for the jury. 1 
 This is the rule even in states like Louisiana, 2 which by constitu- 
 tional provision makes the jury judges of both law and fact in 
 criminal causes. ' 
 
 § 77. (Who Should Apply Rule of Law); (3) Application of 
 Law to Constituent Facts — The application of the law to the facts 
 is partly one of logical and partly of legal reasoning. On funda- 
 mental administrative principles, little doubt would seem to exist 
 as to which branch of the mixed tribunal should apply the rule 
 of law to the constituent facts as being best calculated to do so 
 with advantage to the cause of justice. To a certain extent, apply- 
 ing a rule of any kind to a set of facts, amounts to a construction 
 of the rule. Such a process is an attempt to define an intellectual 
 proposition in terms of fact. When it is asked as to whether in 
 case of legal commands their construction in this form or any 
 other, is best intrusted to one branch or the other of the mixed 
 tribunal, reason would seem to point to that portion of the court 
 which is familiar with these rules and is charged with the duty of 
 announcing them, rather than to that branch which knows nothing 
 on the subject. It is of recognized social importance that the rule 
 of law should be as uniform and applied as accurately as possible. 
 For the attainment of this uniformity and accuracy, two subjective 
 qualities are highly beneficial, if not absolutely necessary, to any 
 one who would apply or construe a rule of law. These are knowl- 
 edge and a lively sense of responsibility for the social consequences 
 of the course adopted. Either mental quality, without the other, 
 is of but slight administrative value. Both are united in the well- 
 balanced judge. Both are absent from the average jury. 
 
 11. State v. Ford, 37 La. Ana. 443 (1857) ; United States r. Greathouse, 
 
 (1885). 4 Sawy. 457, 464, 2 Abb. 364, Fed. 
 
 1. Fowler V. State, 85 Ind. 538, 541 Cas. No. 15,254 (1863). 
 (1882); State v. Hannibal, 37 La, 2. State v. Tisdale, 41 La. Ann. 338, 
 
 Ann. 619, 620 (1885); Robbins v. 6 So. 579 (1889). 
 State, 8 Ohio St. 131, 148, 149, 166 
 
129 Scientific Sepaeation of Functions. § 77 
 
 Knowledge of the rules of law is ex hypothesi, with the judge. 
 Habits of legal reasoning, trains of legal thinking, the' philosophiz- 
 ing quality, the correct estimate of legal values in terms of fact, 
 are part of the judicial training. Even where, as by no means 
 always happens, the presiding judge is able to communicate to the 
 jury the precise meaning of the rule of law which they are to 
 apply to a particular set of constituent facts, the rule comes to 
 them entirely apart from their ordinary experience, far from their 
 usual modes of thinking, and divorced from the appropriate set- 
 ting among other rules of law which it occupied in the judge's 
 mind and generally unaccompanied by the capacity for sound legal 
 reasoning which has come and can only come from years of exercise 
 and other training. 
 
 A sense of social obligation, a feeling of responsibility for the 
 wider effects of litigation, grows in the mind of a conscientious 
 judge as a sort of instinct. It is the crowning privilege of the 
 judicial office. But of necessity, it is developed by experience and 
 requires imagination dealing with a special line of considerations. 
 It implies power to disregard the appeal of the sympathies and 
 other emotions as applied to individuals subject to immediate per- 
 ception and contact for the sake of a moral obligation to a large 
 number of indeterminate persons whose claims to supreme con- 
 sideration are discerned only by a process of reasoning. Ade- 
 quately to discharge this function of administration involves a 
 high sense of duty and strong powers of inhibition against emotion- 
 alism. It would scarcely be anticipated, a priori, that a casual 
 tribunal to whose daily thinking such considerations are alien, 
 which is taken at short notice from the midst of a community 
 perhaps strongly excited on the subject and which well knows that, 
 without fear of punishment, it is soon to dissolve back into the gen- 
 eral mass of the community, now shaken by adverse or friendly 
 feelings carefully fanned by the enthusiasm of counsel, would 
 display much of the influence of a desire to advance the interest 
 of society beyond what society demands should be awarded, in 
 favor of punishment, or its absence, on a particular occasion. 
 
 Upon a natural scientific division of matter of law and matter 
 of fact, the jury should find simply the constituent facts. To the 
 judge should fall the duty of announcing the rule of law and ap- 
 plying it to the constituent facts found by the jury. In other 
 
 Vol. I. 9 
 
§ 78 Law and Fact. 130 
 
 words, both the rules of law and their application — 'judicial 
 knowledge 1 and legal reasoning 2 — are " matter of law." 
 
 It is unfortunate, from the standpoint of administrative sym- 
 metry and precision, that under the Tudors and Stuarts, political 
 considerations should have led the growing forces of Democracy 
 to assert the right of the jury to apply the rule of law to the facts 
 found by them ; while the contention of the Royalist party sought 
 to impose its will upon the nation by the scientifically reasonable 
 claims of the judges to perform this essential act in the adminis- 
 tration of justice. The success of Democracy was therefore ac- 
 companied and, to a certain extent, signalized by the formulating 
 of the unsound administrative canon that legal reasoning, the 
 application of the law to the facts, is a matter of fact for the jury. 
 
 § 78. Coke's Maxim considered — It may be accepted as settled 
 that whatever be the proper relation between law and fact on a 
 jury trial, no such simple division exists as that all matters of law 
 are for the judge; all matters of fact are for the jury, which has 
 had a wide vogue in England 1 and America. 2 The so-called maxim 
 ■ — ad quaestionem facti non respondent judices, ad quaestionem 
 juris non respondent juratores — was a favorite with Lord Coke 
 and was by him 3 attributed to Bracton. It was, however, never 
 more than partially true. 
 
 1. Infra, §'§ 570 et seq. Mich. 343, 49 N. W. 483 (1887); 
 
 2. Supra, §§ 59, 63. Toulman V. Swain, 47 Mich. 82, 10 
 
 1. Welstead v. Levy, 1 Mood. & N. W. 117 (1881). 
 
 Rob. 138 (1831) ; King v. Dean of St. Missouri. — Straus v. Kansas, etc., 
 
 Asaph, 3 T. R. 428 note (1789). R. Co., 86 Mo. 421, 432 (1885). 
 
 2. Arkansas. — Sibley i\ Ratliffe, 50 New York. — New Jersey Steamboat 
 Ark. 477, 30 S. W. 686 (1888). Co. v. New York City, 109 N. Y. 621, 
 
 Illinois.— Scott V. People, 141 111. 15 N. E. 877 (1888). 
 
 195, 30 N. E. 329 (1892). Oregon.— State v. Huffman, 16 Oreg. 
 
 Indiana. — Barker V. State, 48 Ind. 15, 16 Pac. 640 (1888). 
 
 163 (1874); Townsend v. State, 2 Pennsylvania. — Curry v. Curry, 114 
 
 Blackf. 151 (1828). Pa. St. 367 (1886). "I hold it the 
 
 Kentucky. — Thomas' ex'r v. Thomas, most sacred constitutional right of 
 
 15 B. Mon. 178 (1854). every party accused of a crime, that 
 
 Maryland. — Charleston, etc., Co. v. the jury should respond as to the facts 
 
 Corner, 2 Gill 410 (1844). and the Court as to the law." United 
 
 Massachusetts. — Com. ». Robinson, States v. Battiste, 2 Sumn. 240, Fed. 
 
 146 Mass. 571, 581, 16 N. E. 452 Cas. No. 14,545 (1835). Per Story, J. 
 
 (1888) ; Com. v. Anthes, 5 Gray 185, 3. Isaak v. Clark, Rolle, 59: 2 
 
 202 (1855). Bulstr. 314 (1614). 
 
 Michigan. — Weasels V. Beeman. 66 
 
131 Incidental Findings by the Judge. §§ 79, 80 
 
 § 79. (Coke's Maxim Considered); "Ad Quaestionem Faoti 
 Bon Respondent Judices." — So far as regards the first branch of 
 the statement — 'that judges do not decide questions of fact — the 
 announcement is so transparently false as not to be essentially 
 misleading. 1 The only facts with which the jury is concerned are 
 constituent facts, i. e., material facts in the res gestae relevant to 
 the issue raised by the pleadings; 2 or, where there are no plead- 
 ings, to the existence of the right or liability involved in the in- 
 quiry. Other questions of fact are normally for the court. 
 
 It is a distinct object of judicial administration that the atten- 
 tion of an easily distracted jury should continue focussed upon the 
 few and simple issues of the case itself by the elimination from 
 their consideration of all other questions of fact. 3 
 
 § 80. (Coke's Maxim Considered; "Ad Quaestionem Facti 
 Non Respondent Judices ") ; Incidental Findings. — In the course 
 of judicial administration the judge, even when sitting with a 
 jury, has the duty of deciding a large number of questions of fact 
 as they arise. On any trial " carried on at once before court and 
 jury " 1 such questions are incessantly arising. Whether an expert 
 is sufficiently qualified to make his " opinion " of value to the 
 jury; a document has been "attested;" a confession offered in 
 evidence is " voluntary ; " whether the nonproduction of a docu- 
 ment has been sufficiently explained — these and other subsidiary 
 or preliminary questions of fact 2 can, under the rules of common 
 law procedure, be decided only by the judge. 3 
 
 1. " Courts pass upon a vast num- Infra, § 47. 
 
 ber of questions of fact that do not 3. Com. v. Porter, 10 Mete. 263, 276, 
 
 get on the record or form any part per Shaw, C. J., (1845). 
 
 of the issue. Courts existed before 1. Com. v. Porter, 10 Mete. (Mass.) 
 
 juries; juries came in to perform only 263, 284 (1845). 
 
 their own special office; and the 2. Zipperlen v. Southern Pac. Co., 
 
 Courts have continued to retain a (Cal. App. 190S) 93 Pac. 1049. 
 
 multitude of functions which they (whether a party is surprised by the 
 
 exercised before ever juries were evidence of his witness). 
 
 heard of, in ascertaining whether dis- 3. California. — Fairbank v. Hugh- 
 
 puted things be true. In other words, son, 58 Cal. 314 (1881). 
 
 there is not, and never was, any such Illinois. — Miller v. Metzger, 16 111. 
 
 thing in jury trials as an allotment 390, 393. (1855). 
 
 of all questions of fact to the jury. Massachusetts. — Com. v. Robinson, 
 
 The jury simply decides some ques- 146 Mass. 571, 16 N. E. 452 (1888). 
 
 tions of fact." Thayer, Prelim. Treat. ( Existence of general plan ) ; Com. 
 
 185. V. Porter, 10 Mete. 263, 287 (1845). 
 
 2. State v. Hodge, 50 N. H. 510, Pennsylvania. — Semple v. Gallery, 
 
 522 (1S69). 184 Pa. 95, 39 Atl. 6 (1898). 
 
§ 81 
 
 Law and Fact. 
 
 132 
 
 § 81. (Coke's Maxim Considered; "Ad Quaestionem Facti 
 Non Respondent Judices ") ; Preliminary Facts Conditioning Ad- 
 missibility. — It is true that many such findings of fact are not 
 final. The judge is of necessity the executive officer of the mixed 
 tribunal and must deal with a number of preliminary or provi- 
 sional findings. 1 It readily may happen that the admissibility of 
 particular testimony is dependent upon or conditioned by the exist- 
 ence of a preliminary fact. The court could, were the facts relating 
 to the matter definitely ascertained, easily decide such questions ; 
 as, for example, whether a witness is disqualified by interest, 2 
 whether one to whom a communication was made was, at the time, 
 
 England. — Doe v. Davies, 10 Q. B. 
 314, 323 (1847); Bartlett v. Smith, 
 11 M. & W. 483 (1S43). " Ordinarily, 
 questions of fact are exclusively for 
 the jury, and questions of law for the 
 court. But when, in order to pass 
 upon the admissibility of evidence, the 
 determination of a preliminary ques- 
 tion of fact is necessary, the court in 
 the due and orderly course of the trial 
 must necessarily determine it, as far 
 as is necessary for that purpose, and 
 usually without the assistance, at that 
 stage, of the jury." Com. v. Bobinson, 
 146 Mass. 571, 581 (1888). "It is 
 the province of the judge who presides 
 at the trial to decide all questions as 
 to the admissibility of evidence." Gor- 
 ton v. Hadsell, 9 Cush. 508, per 
 Metcalf J. (1853). "It may in short 
 be stated as a universal rule that the 
 Court always decides whether there 
 has been any evidence upon a partic- 
 ular point, when there exists a legal 
 necessity to produce such evidence in 
 order to warrant the introduction of 
 evidence upon some other point; to 
 this extent the Court decides questions 
 of fact." Holly v. State, 55 Miss. 434, 
 430 (1S77). " Whatever else may be 
 the value of the separation of ques- 
 tions which arise in a Court of Justice 
 into questions of fact and of law, 
 the separation is not, in practice, 
 very rigidly adhered to." Sir William 
 Markby, Law and Fact, Law Mag. & 
 Bev., 4th Ser., Vol II., 317. 
 
 "It is also his province to decide 
 any preliminary question of fact, how- 
 ever intricate, the solution of which 
 may be necessary to enable him to de- 
 termine the other question of admis- 
 sibility." Bartlett v. Smith, 11 M. & 
 W. 483 (1843). Whether the record 
 of a foreign judgment is properly au- 
 thenticated is a question for the trial 
 judge. Clark v. Eltinge, 38 Wash. 
 376, 80 Pac. 556 (1905). 
 
 1. Demonstration or the elimination 
 of all doubt is not reqiiired. It is 
 only necessary that there should be so 
 much evidence as to make it proper 
 to submit the whole evidence to the 
 jury. Com. v. Bobinson, 146 Mass. 
 571 (1888). "The court in the due 
 and orderly course of the trial must 
 necessarily determine it as far as is 
 necessary for that purpose, and usu- 
 ally without the assistance, at that 
 stage, of the jury." Com. v, Bobin- 
 son, 146 Mass. 571, 16 N. E. 453 
 (1888). 
 
 2. " Whether a witness is interested 
 upon this or that given state of facts 
 is n question of law for the Court; 
 whether the facts exist as claimed by 
 one party or the other is a question of 
 fact, which, when presented in the 
 form of the preliminary inquiry as 
 to the competency of witness, may 
 be determined by the Court, or, in 
 the exercise of their discretion, by the 
 jury." Bartlett v. Hoyt, 33 N. H. 
 151, 165 (1856). 
 
133 Facts Conditioning Admissibility. § 81 
 
 a legal adviser, 3 or the like. This it could do under the general 
 administrative canon 4 that, where the necessary facts are found, 
 admitted, or not controverted, the court -will apply the rule of law 
 to them ; or, perhaps more properly, state the facts in terms of law, 
 their legal effect, or, in other words, as a matter of law. If he 
 reject the evidence on the ground that the preliminary fact does 
 not exist, his action practically amounts to a ruling, in point of 
 law, that the jury could not rationally find that it existed. Should 
 he conclude to submit the evidence to the jury, his action involves 
 making a ruling that, as a matter of law, the jury might rationally 
 find from the evidence in the case the existence of the qualifying 
 fact, and, by consequence that of the disputed fact itself. 
 
 Controversy as to Facts. — Where a serious conflict exists upon 
 the evidence as to the existence of a conditioning or qualifying 
 fact on which the admissibility of a particular piece of evidence 
 is directly dependent, the judge may adopt one of several expedi- 
 ents: (1) He may hear the evidence and adjudicate as to the 
 existence of the qualifying fact, 5 hearing the evidence as offered 
 by both 'sides, and not in presence of the jury. 6 When he has 
 decided whether the evidence in support of admissibility is such 
 that the jury might rationally act on it, he will proceed as in a 
 case where the evidence is uncontroverted. 7 It has been held that 
 the propriety of the judges finding in this connection will not be 
 reviewed in an appellate court. 8 It has been suggested that in a 
 criminal case, the court, to find a fact against the prisoner, must 
 be satisfied of the truth of the matter beyond a reasonable doubt. 9 
 The better view is to the effect that no such limitation on the 
 court's action exists. 10 (2) He may ask the jury to find, specific- 
 ally, as to the existence of the qualifying fact ; and, upon receiv- 
 ing their report, proceed as where the evidence is uncontroverted. 
 Or, (3) he may leave the entire matter to the jury, to whom it 
 must ultimately go on the question of weight, under suitable in- 
 structions directing them as to their proper course in the event that 
 they find, or fail to find, the existence of the qualifying fact. The 
 
 3. Hartford P. Ins. Co. v. Rey- 7. Infra, §§ 38S et seq. 
 
 nolds, 36 Mich. 502, 504 (1877). 8. Com. V. Robinson, 146 Mass. 571, 
 
 4. Infra, gi 385 et seq. 16 N. E. 453 (1888). 
 
 5. Cleve v. Jones, 7 Exeh. 421 9. Lipscomb v. State, 75 Miss. 559, 
 (1852) per Parke, B. 23 So. 210 (1898). 
 
 6. State v. Shaffer, 23 Oreg. 555, 10. Com. v. Robinson, 146 Mass. 
 558, 32 Pac. 545 (1893) (dying declara- 571, 16 N. E. 458 (1888). 
 
 tions). 
 
§ 82 Law and Fact. 134 
 
 reason assigned for this course by the Supreme Court of Michi- 
 gan 11 is that it " does not properly belong to a judge to decide 
 upon the truth of matters which have come out during the exami- 
 nation of witnesses who conflict." But when these facts are not 
 ascertained, because disputed, or for some other reason, the 
 course is an easy not to say indolent one. It has the adminis- 
 trative infelicity that it calls upon the jury to do legal reasoning, 
 for which they are by no means well fitted; while the matter of 
 weight is always one of logical reasoning. They are, indeed, called 
 upon to determine the probative weight of the evidence, but they 
 should properly be confined to the use of logical reasoning; and 
 not, without good cause, be required to diverge into reasoning 
 which is legal. 
 
 § 82. (Coke's Maxim Considered; "Ad Quaestionem Facti 
 Non Respondent Judices ") ; Function of the Jury. — It has been 
 suggested that certain preliminary questions of fact, e. g., the 
 identity of a person heard through a telephone, 1 should be left to 
 the jury. This may be and frequently is true so far as relates to 
 the granting of probative weight to a particular piece of evidence ; 
 the judge may decline to pass upon such a preliminary question, 
 leaving the jury to find as to the preliminary fact as well as the 
 others, and decide accordingly, following appropriate instructions 
 given by himself. Common practice permits a presiding judge, who 
 feels that a jury may reasonably find to either effect regarding the 
 existence of a disputed fact preliminary to the admissibility of 
 evidence, to submit the evidence in its entirety to the jury, in- 
 structing them to regard or disregard it according as they shall 
 find as to the existence of the preliminary fact upon which its 
 admissibility is dependent. 2 But making such preliminary find- 
 ings is not a recognized and essential part of the jury's duty. 
 
 11. Hartford F. Ins. Co. v. Rey- In strictness, however, a litigant is 
 
 nolds, 36 Mich. 503 (1877). entitled to have the competency of 
 
 1. American Nat. Bank v. First evidence passed upon by the judge him- 
 Nat. Bank, (Tex. Civ. App. 1906) 92 self. Com. v. Robinson, 146 Mass. 571, 
 S. W. 439. 581, 16 N. E. 452 (1888); Com. V. 
 
 2. Central of Georgia By. Co. v. Culver, 126 Mass. 464 (1879). 
 Harper, 124 Ga. 836, 53 S. E. 391 Infra, § 409. 
 
 (1906). (Sanity of plaintiff) ; Com. 
 v. Culver, 126 Mass. 464 (1879) 
 (Voluntary nature of confession). 
 
135 Jury May Find Facts in Teems of Law. §§ 83-85 
 
 § 83. (Coke's Maxim Considered; "Ad Quaestionem Fact! 
 Non Respondent Judices ") ; Administrative Details. — It lias been 
 said to be error for the presiding justice to leave such a pre- 
 liminary question to the jury. 1 
 
 § 84. (Coke's Maxim Considered); "Ad Quaestionem Juris Non 
 Respondent Juratores." — The second division of the rule — that 
 the jury are not to answer questions of law — is more nearly 
 accurate than is its associated branch of the rule. Their 
 power of applying the rule of law announced by the judge 
 to the constituent facts found by them and to returning a 
 general verdict 1 seems, however, to approximate closely to deal- 
 ing with a question of law. Such a verdict construes the rule of 
 law in terms of constituent facts — and, to that extent, announces 
 a proposition of law. For example, when a jury on an action for 
 negligence, find the constituent facts, they are acting as the ex- 
 ponents of experience and as triers of fact upon the principles of 
 logical reasoning. When they go further and say that, under an 
 announcement by the court of a rule of law that reasonable care 
 should be used, that a given defendant is or is not liable, they have, 
 in effect, as it would seem, construed the rule of law, under the 
 use of legal reasoning, in terms of the constituent facts. As is 
 more fully stated elsewhere, 2 it is the substantive right of a party 
 to have the judge exercise his allotted functions. He will not, 
 therefore, as a rule, submit questions of law to the jury. 3 
 
 § 85. (Coke's Maxim Considered; "Ad Quaestionem Juris 
 Non Respondent Juratores"); Collateral Rulings So far as the 
 
 jury have invaded the natural province of the court as to 
 what rule of law shall be applied to the facts, and to what is proper 
 legal reasoning in applying this rule to the facts, i. e., construing 
 the rule of law in terms of faet — this has happened only in con- 
 nection with the constituent facts and as an incidental part of the 
 jury's privilege of finding these facts in the form of a general 
 verdict. 1 In other words, the jury, having the duty of finding the 
 
 1. Bartlett v. Smith, 11 M. & W. 3. Thomas v. Thomas, 15 B. Mon. 
 
 433 (1843). It is, however a com- 178 (1S54) ; Hickey v. Ryan, 15 Mo. 
 
 mon practice for the judge to call in 63, 67 (1851) ; Fugate v. Carter, 6 
 
 the aid of the jury to assist him. Mo. 267, 273 (1840); United States 
 
 O'Connor v. Hallinan, 103 Mass. 547 v. Carlton, 1 Gall. 400, Fed. Cas. No. 
 
 (1870). 14,725 (1813). 
 
 1. Infra, § 86. 1. Infra, § 86. 
 
 2. Infra, § 409. 
 
§ SO Law and Fact. 13 G 
 
 constituent facts, may find them either in terms of fact — which 
 is normal ; or they may go further, by returning a general verdict, 
 and find them in terms of law, which seems abnormal. 
 
 Collateral Matters. — > Where the ruling as to the law concerns 
 a collateral matter, as in connection with the admissibility of evi- 
 dence, statements as to the issue raised by the pleadings, 2 whether 
 the evidence is sufficient in law to support a verdict 3 or the like, 
 the power and duty of the court to make an authoritative ruling 
 tor the purposes of the case are unchallenged in any quarter. 4 
 Here, as elsewhere, the jury cannot properly fail to accept as 
 authoritative in good faith the rule of law announced by the judge. 
 The jury may refuse to follow evidence admitted by the judge, 
 but they cannot disregard it. 5 For the court to instruct the jury 
 that they may so act is error. 6 
 
 § 86. General Verdicts — The distinctive feature of the func- 
 tion of the jury, as commonly exercised by them in returning 
 a general verdict, is the determination as to the truth con- 
 cerning a controverted proposition of fact placed in issue by 
 the parties in their pleading. 1 This determination is the ulti- 
 mate fact to which alone the law attaches immediate conse- 
 quences. 2 The truth as to this proposition in issue is, in 
 other words, the rei Veritas which the jury are to declare, the 
 
 2. Missouri Coal and Oil Co. v. England. — Rex v. Atwood, 1 Leach. 
 Hannibal, etc., R. Co., 35 Mo. 84 464 (17S8). 
 
 (1864); Dassler v. Wisley, 33 Mo. 5. Com. r. Knapp, 10 Pick. 477, 
 
 498 (1862). 496 (1830) ; Rex v. Atwood, 1 Leach. 
 
 3. Harris v. Woody, 9 Mo. 113 464 (1788). 
 
 ( 1845 ) ; Cole r. Hebb, 7 Gill & J. 20 6. Thomason v. Odum. 31 Ala, 103 
 
 (1835) ; Davis r. Davis, 7 Har. & J. (1857) ; Degraffenreid r. Thomas, 14 
 
 36 (1826) ; Tyson r. Rickard, 3 Har. Ala. 681 (1848) ; Robinson v. Ferry, 
 
 & J. 109, 116 (1810). 11 Conn. 460 (1836) ; Ratliff V. Hunt- 
 
 4. Alabama. — Campbell v. State, 23 ley, 5 Ired. 545 (1845). 
 
 Ala. 45, 75 (1853) ; Scott l\ Coxe, 20 1. Bennison r. Jenison, 12 Jur. 4S5 
 
 Ala. 294 (1852). (1848); Bartlett v. Smith, 11 M. & 
 
 Connecticut. — Robinsonr.Ferry.il W. 483 (1843). 
 
 Conn. 460 (1836). 2. "Matter of Evidence" are the 
 
 Florida, — Carter v. Bennett, 6 Fla. subsidiary facts — statements of wit- 
 
 214 (1855). nesses, declarations in documents, in- 
 
 Kentucky. — Carrico r. McGee, 1 spection of the tribunal, etc. — con- 
 Dana 5 (1833). stituting the basis of an inference as 
 
 Massachusetts. — Gorton r. Hadsell, to this ultimate fact. See Littleton's 
 
 9 Cush. 508 (1852). Case, 10 Co. 56b. 
 
 Virginia. — Claytor r. Anthony, 6 
 Rand. 285 (1828). 
 
137 Eight to Keturn a General Veedict. § 86 
 
 declaration being their veritatis dictum or veredid. Trials do 
 not primarily concern themselves with determining the truth of 
 propositions of fact so much as with the legal consequences which 
 follow such a determination. It is these consequences which in 
 many eases it is the province of the jury to declare. This is 
 implied in the general finding for one party or the other in a civil 
 case, in finding a defendant guilty or not guilty in a criminal 
 prosecution. Thus the result announced in such a general verdict 
 is a composite one, blending a decision as to certain constituent 
 facts with the application of a rule of law to them. 3 That it is the 
 duty of the jury in thus blending the fact and law into a composite 
 result to take the rule of law to be as stated by the presiding judge 
 is entirely settled. 4 The right of the jury, by returning a general 
 verdict, to. make for themselves the application of the rule of law 
 as stated by the court to the constituent facts ascertained by them 
 is equally settled. 5 They may, in all cases, civil 9 or criminal, 7 
 return a general verdict. In the absence of regulation by statute, 8 
 the jury may decline to return any other verdict than a general 
 one, 9 although the court may have required special findings. It 
 follows from this power and practice of the jury to return a gen- 
 eral verdict that the whole matter of law as well as of fact must be 
 
 3. "Ordinarily he [the judge] de- 263 (1845); Mayor v. Clark 3 A. & 
 dares to the jury what the law is E. 506 (1835). 
 
 upon the fact which they find, and 7. " It was never yet known that a 
 
 then they compound their verdict of verdict was set aside by which the de- 
 
 the law and fact thus ascertained." fendant was acquitted in any case 
 
 Eyre C. J. in Gibson v. Hunter, 2 H. whatsoever, upon a criminal prosecu- 
 
 Bl. 187 (1793). tion." King V.Jones, 8 Mod. 201, 208, 
 
 4. Supra, § 69. per Pratt, C. J. (1723). 
 
 5. Kane i\ Com., 89 Pa. 522, 526 A power which is uncontrollable 
 (1879): Rex v. Woodfall, 5 Burr. has been deemed, by certain judges, to 
 2661 (1770); Francklin's Case, 17 be practically a right. It has accord- 
 How. St. Tr. 625 (1731); Bushell's ingly been laid down as law that a 
 Case, Vaughan 135, 6 How. St. Tr. jury in a criminal case have the right 
 999, 1008, 1013, 1014 (1670). "In to judge of both law and fact by a, 
 both these instances the jury may, if general verdict. Erving v. Cradock, 
 they think proper, take upon them- Quincy (Mass.) 553, 558-572 (1761); 
 selves to determine, at their ovm ha»- Georgia v. Brailsford, 3 Wall. (U. S.) 
 ard, the complicated question of fact (1794) ; 1 Bish. Crim. Proc, §§ 977, 
 and law and, without either special 983-988; 2 Thomp. Trials, § 2133. 
 verdict or special case, may find a 8. Infra, §§ 96, 98 et seq. 
 verdict absolutely either for the 9. Devizes v. Clark, 3 A. & E. 506 
 plaintiff or defendant." 3 Black. & Ad. 397, 403 (1833); Moseley v. 
 Com - 378 - Walker, 7 B. & C. 40, 53, 56 (1827). 
 
 6. Com. v. Porter, 10 Mete. (Mass.) 
 
§ 86 Law and Fact. 138 
 
 stated and explained to the jury so that they may fully understand 
 and apply it to the facts. 10 
 
 This position the jury has gained in spite of a long-continued 
 effort on the part of English judges for reasons satisfactory to 
 them, and still of great moment, to confine the jury, in certain 
 cases, to determining the truth as to the proposition in issue; re- 
 serving to themselves the application of the rule of law to the fact 
 when so ascertained. 
 
 The permanent gains in function made by the court on the prov- 
 ince of the jury are to be seen in connection with negligence, 11 
 reasonable diligence, 12 and especially as to probable cause in false 
 imprisonment 13 and malicious prosecution. 14 
 
 The political aspect of this essentially administrative matter as 
 to which branch of the mixed tribunal shall do the legal reasoning 15 
 by applying the rule of law to the constituent facts, is distinctly 
 visible throughout the stages of the discussion regarding it, both 
 in England and America. Hence the infelicity of the result from 
 an administrative point of view, and the consequent unwisdom 
 of continuing the arbitrary and inverted arrangement under 
 changed political conditions where the rights of the citizen are no 
 longer imperiled by the overshadowing power of the prerogatives 
 of the crown. 
 
 In England responsibility for seditious libel was the connection 
 in which the right of the jury to find a general verdict was con- 
 tested. Royal judges, representing and appointed by the party 
 against whom these libels were directed, contended for the admin- 
 istrative rule, in itself just and sound, that the jury should find 
 the facts, e. g., the fact of publication, and that the court would 
 apply the rule of law to the constituent facts. 16 Sound, in point 
 of principle, as the rule might have been, it meant, under the cir- 
 cumstances, curbing the right of citizens to complain of grievances 
 or to criticize the acts of government. On this issue, purely polit- 
 ical, the Whig party, from whom the criticism of government pro- 
 ceeded, waged its warfare and finally succeeded. Their leader at a 
 particular period in the House of Commons, Charles James Fox, 
 
 10. Higginbotham r. Campbell, 85 13. Infra, § 126. 
 Ga. 638 (1890); Cain v. Porter, 10 14. Infra, § 126. 
 Meto. (Mass.) 263 (1845); Com. v. 15. Supra, § 68. 
 
 McManus, 143 Pa. St. 64 (1891). 16. Rex v. Woodfall, 5 Burr. 2661 
 
 11. Infra, § 123. (1770) ; Rex V. Shipley, 3 T. R. 428 
 
 12. Infra, § 122. n (1789). 
 
139 Jury May Act Contrary to Judge's Orders. § 87 
 
 introduced and carried an act usually known as Fox's Libel Act, 17 
 which set this matter as to the right of a jury to return a general 
 verdict at rest, so far as England itself was concerned, by expressly 
 providing that on such prosecutions it should be the right of the 
 jury to return a general verdict, passing not only upon the facts 
 but applying the rule of law to them. Clearly, neither of these 
 contestants for the success of certain political views were greatly 
 concerned as to which of the proposed methods of conducting a 
 jury trial was best adapted, as a matter of administration, to the 
 effective doing of justice. That question seems at present an open 
 one and worthy of consideration. 
 
 In the American States the contest settled by Fox's Libel Act 
 was regarded, as in England, as being of great political impor- 
 tance to the rights of the people. The rule essentially of adminis- 
 tration or, at most of procedure, upon this point has accordingly 
 been given the high honor of being inscribed into most of the State 
 constitutions, it being provided, for example, in Pennsylvania, 
 that " in all indictments for libel, the jury shall have the right 
 to determine the law and the facts under the direction of the court, 
 as in other cases." I8 Other jurisdictions, with great uniformity, 
 have enacted similar provisions, statutory 19 or constitutional. 
 
 Very strong arguments in favor of the contrary view, in point 
 of administrative principle, may be found among the American 
 courts. Prominent among these is the opinion of chief justice 
 Lewis (in which Chief Justice Livingston concurred) 20 where, 
 after an elaborate review of the authorities, 21 the conclusion is 
 reached that Lord Mansfield was right in holding that judges 
 had power to determine, after the fact of publication has been 
 found, as to whether a given publication was or was not libellous. 
 
 § 87. (General Verdicts) ; Matter of law for the Jury The 
 
 jury may insist upon returning a general verdict, in any given 
 case, even when requested to make special findings or return a 
 special verdict, unless, as has been said, the matter is otherwise 
 regulated by statute. Under such circumstances the jury neces- 
 
 17. Stat. 32 Geo. Ill, c. 60. (1770) ; Rex V. Wilkes, 4 Burr. 2527 
 
 1C. Const, of Penn., Art. I, § 7. (1770) ; Rex v. Owens, 10 How. St. 
 
 19. People V. Croswell, 3 Johns. Cas. Tr. App. 194 ( 1752 ) ; Francklin's 
 337 (1S04). Case, 17 How. St. Tr. 625 (1731); 
 
 20. People v. Croswell, 3 Johns. Cas. Fuller's Case, 14 How. St. Tr. 517 
 337 (1804). (1702) ; Rex V. Withers, 3 T. R. 428 
 
 21. Rex v. Woodfall, 5 Burr. 3661 (1789). 
 
§ 88 Law and Tact. 140 
 
 sarily apply the rule of law, furnished by the court, to the con- 
 stituent facts found by them. To this extent matter of law, the use 
 of legal reasoning, falls to the jury. It has been seen that on ad- 
 ministrative principles, the better course is for the jury to find the 
 constituent facts and return them to the judge that he may apply 
 to them the rule of law. This is the ancient function of the jury 
 as witnesses of facts covered by their veredict, veredictum, or 
 verdict. It corresponds with the relation in the civil law be- 
 tween the praetor and the judex — under which a formula giving 
 instructions in points of law was sent to the trier of fact. Such a 
 division of function between judge and jury is further in accord- 
 ance with the more intelligent and scientific relations between 
 law and fact existing under chancery practice where the chancellor 
 might at any time satisfy his conscience and receive the benefit of 
 common experience by taking the findings of a jury as to matters 
 of fact, while reserving the right of applying the rule of law to the 
 facts so found. 
 
 § 88. (General Verdicts; Matter of Law for the Jury); An 
 
 Incidental Power. — It is to be observed that the power of the jury 
 to apply the law to the constituent facts, which would seem anom- 
 alous upon fundamental principles, is an incidental one. Only 
 when the jury are themselves required to find the constituent 
 facts and in connection with the discharge of such a duty may the 
 jury apply the law to the facts. ISTo practice exists under which 
 the jury are to apply the rule of law, announced by the court, to 
 constituent facts found by others, or to such facts when admitted 
 not disputed or established beyond the point of successful con- 
 tradiction. In all such cases, there being no necessity for the 
 jury to find the constituent facts, there is neither reason nor op- 
 portunity for them to exercise legal reasoning concerning them; 
 i. e., to apply to them the rule of law. The normal function of the 
 presiding judge is not disturbed and he, as a matter of course, 
 applies the rule of law. It might almost be said that the jury, hav- 
 ing the duty of finding the ultimate facts on a given issue may, 
 at their option or as required by the court, find these facts either in 
 terms of logical or of legal reasoning, i. e., either in terms of logic 
 or those of law. But, if the jury do not find the faot, they cannot 
 find the law. The incidental follows only where the principle 
 exists. If, for any reason, there is, as the common phrase goes, 
 " nothing for the jury to try," no suggestion arises from any 
 
141 Constituent Facts Must be Fully Found. §§ 89, 90 
 
 source that they have the right to apply the law to these constituent 
 facts. 
 
 In other words, while the rule of administration is frequently 
 implicit, its application is well-nigh universal, that where the con- 
 stituent facts are found and all which remains to determine the 
 action of the court is the application of the measuring rule of law, 
 that the application of this rule is a question of ,law and within 
 the function of the judge. 
 
 Illustrative Instances. — It is not material whether the right of 
 the jury to apply the law is excluded because the constituent facts 
 are agreed by the parties, as in agreed statements, 1 demurrers to 
 evidence 2 or the like ; or because the facts are uncontroverted, as 
 where the court orders a verdict where only one outcome is 
 rationally possible, 3 or, as in the case of the construction of docu- 
 ments* or where direct contempt takes place in presence of the 
 court, 5 the judge is the percipient witness of all the constituent 
 facts. In all such cases, it is not questioned that it is for the judge 
 to apply the rule of law. 
 
 § 89. More Rational Expedients. — The common law judge is 
 not compelled, in all cases, to work out the substantial rights of 
 the parties through the expensive and dilatory method of granting 
 new trials. In certain cases the more normal relations of the 
 judge and jury are maintained — 'the jury finding some or all of 
 the constituent facts and the judge applying the rule of law. 
 
 § 90. (More Rational Expedients) ; Inference of Fact. — 
 
 A main difficulty encountered by a court in applying the 
 rule of law to facts found by a jury, or agreed upon by 
 the parties, is that certain inferences of fact, so called, still 
 remain to be found. The facts are not completely found, that is 
 found up to the logical point at which they are, as it were, ripe 
 for the application of the rule of law. This rule of law can prop- 
 erly, as has elsewhere been said, 1 be applied only to the constituent. 
 facts, 2 the ultimate facts so called. But it frequently happens that 
 the jury in finding the facts or the parties in agreeing on them rest 
 content with finding the probative facts 3 without proceeding to 
 ascertain the constituent facts to be proved by these probative ones. 
 
 1. Infra, § 91. 5. Infra, § 255. 
 
 2. Infra, § 139. 1. Supra, § 61. 
 
 3. Infra, § 390. 2. Supra, § 47. 
 
 4. Infra, §§ 128 et seq. 3. Supra, § 51. 
 
§§ 91, 92 Law and Fact. 142 
 
 Clearly these inferences from the existence of the probative to 
 that of the constituent facts which they tend to establish is for the 
 jury to draw, or, in case of a statement of agreed facts, for the 
 agreement to cover. This administrative requirement that infer- 
 ences from probative to constituent facts should be drawn by the 
 finders or agreers of fact, is frequently announced by saying that 
 inferences of fact are themselves facts. 
 
 § 91. (More Rational Expedients); Agreed Statements of Pact. 
 
 The normal division of functions between the court and jury in 
 the decision of questions of fact may be waived or altered by agree- 
 ment of the parties. Questions of fact may be submitted to the 
 court in the form of an agreed statement. The function of apply- 
 ing the law to the facts is thus transferred to the judge. But 
 the latter when so substituted for the jury by no means of neces- 
 sity exercises the discretionary powers clearly vested in the larger 
 body. Where only the probative facts are agreed upon the defect 
 may be cured by a provision that the court may draw the inferences 
 from the probative to the constituent facts. Unless this is done, 
 the element of experience which the jury might have employed in 
 using the probative facts to ascertain the constituent, cannot prop- 
 erly be supplied by the court. The task is to apply the rule of 
 law to the probative facts. If these fall short by reason of the 
 lack of this element of experience, common knowledge or general 
 observation and the like, the actor loses. 
 
 § 92. (More Rational Expedients; Agreed Statements of 
 Fact); Power to Draw Inferences; Express Authority Needed 
 
 It has been deemed by certain courts advisable 1 and even neces- 
 sary 2 that power to draw inferences other than those necessary, as 
 matter of law, 3 should be conferred totidem verbis if the court is 
 to exercise it. 
 
 Otherwise the province of the judge is limited in the original 
 instance, to finding the effect of the facts thus stated on the record 
 
 1. Cole v. Northwestern Bank, L. 3. Later v. Haywood, "(Ida, 1908) 
 R. 10, C. P. 354 (1875). 93 Pac. 374; Mayhew v. Durfee, 138 
 
 2. Schwartz v. Boston, 151 Mass. Mass. 584 (1885). A finding of ulti- 
 226 (1890) ; Old Colony By. Co. v. mate facts includes a finding of all 
 Wilder, 137 Mass. 536 ( 1884 ) ; Kins- probative facts necessary to sustain a 
 ley v. Coyle, 58 Pa. St. 461 (1868); finding of the ultimate facts. Later 
 Diehl »). Ihrie, 3 Whart. (Pa.) 143 v. Haywood, (Idaho, 1908) 93 Pac. 
 
 (1837) ; Byam v. Bullard, 1 Curt. C. 374. 
 C. 100 (1852). 
 
143 Agreed Facts ; Effect of Stipulation. §§ 98, 94 
 
 as matter of law 4 and that of an appellate court to saying whether 
 the ruling -was right, or, if erroneous, what it should be; not, as 
 in case of a finding of fact, as where the court is permitted to 
 draw inferences of fact, 5 whether there was any evidence warrant- 
 ing a finding. 6 
 
 § 93. (More Rational Expedients; Agreed Statements of 
 Fact; Power to Draw Inferences) ; A Different View. — The ac- 
 tion of the parties in attempting to dispose of their difference in 
 the manner adopted connotes a desirei to secure final adjustment 
 by the court's judgment, and may reasonably be regarded as im- 
 plying liberty to use a certain discretion in drawing inferences 
 from the facts stated. Even, therefore, in the case of stipulations 
 where no express power of drawing inferences of fact has been con- 
 ferred, certain judges have asserted and exercised the right of 
 drawing these inferences, 1 while declining ,to exercise the same 
 power in dealing with the facts found by a jury in the form of a 
 special verdict. 2 
 
 § 94. (More Rational Expedients; Agreed Statements of 
 Fact) ; Effect of Agreement. — But where a case is tried on an 
 
 4. Koppel v. Massachusetts Brick to be "conclusive"); Cochrane v. 
 
 Co., (Mass. 1906) 78 N. E. 128; Boston, 1 All. (Mass.) 480 (1861). 
 
 Schwartz v. Boston, 151 Mass. 296 6. Schwartz v. Boston, 151 Mass. 
 
 (1890). In a case presented on an 226 (1890). 
 
 agreed statement of facts which does 1. Jackson v. Whitbeck, 6 Cowen 
 not provide that the court may draw (N. Y.) 632, 634 (1827) ; Whitney v. 
 inferences of fact, the plaintiff cannot Sterling, 14 Johns. (N. Y.) 215, 217 
 recover unless the matters stated en- (1817) ; Tancred v. Christy, 12 M. & 
 title him to a judgment as a matter W. 316, 324 (1843) ; King v. Leake, 
 of law. Coffin v. Artesian Water Co., 5 B. & Ad. 469 (1833). But see, 
 193 Mass. 274, 79 N. E. 262 (1906). contra, under the Code, Clark v. Wise, 
 "The only question presented by it 46 N. Y. 612 (1871). Where a 
 is the question of law whether, upon cause is tried to the court on a 
 the facts stated, the plaintiff has made stipulation as to the facts in detail, 
 a case which entitles him to judgment. but not embracing an ultimate 
 Unless, upon such facts, with the in- fact in issue, it is the duty of the 
 evitable inferences, or, in other words, court to find such fact if it may be 
 . such inferences as the law draws from inferred from the stipulated facts, 
 them, a case is made out, the court and such a finding is entitled to the 
 would consider that the plaintiff has same weight as one based on conflict- 
 not sustained the burden of proof and ing evidence. Crisman v. Lanterman, 
 therefore is not entitled to judgment." 149 Cal. 647, 87 Pac. 89 (1906). 
 Old Colony By. v. Wilder, 137 Mass. 2. Tancred v. Christy, 12 M. & W. 
 536 (1884). 316, 324 (1843) ; King v. Leake, 5 B. 
 
 5. Charlton v. Donnell, 100 Mass. & Ad. 469 (1833). 
 229 (1868) (where the finding is said 
 
§ 95 Law asd Fact. 144 
 
 agreed statement of facts, it is not necessary that the court should 
 make separate findings of fact and law. 1 Where the facts are 
 agreed on they are equivalent to facts found by the court. 2 
 Though findings of fact are not necessary to the validity of a judg- 
 ment in a case submitted for decision on an agreed statement of 
 facts, the court is not thereby precluded from making such find- 
 ings. 3 
 
 § 95. (More Rational Expedients) ; Advantages to Be Expected. 
 
 — It can scarcely be asserted that the present division of function 
 as between judge and jury as to which should apply the rule of law 
 to the constituent facts, possesses elements of permanent stability. 
 The position, on the contrary, seems one of unstable equilibrium. 
 Should it happen in some cases that it is for the judge to make the 
 application, and that, in other cases, not essentially differing, it is 
 for the jury to do so, it would seem to suggest that a more basic 
 principle of administration would be desirable. To dogmatise in 
 such a matter is foolish as well as futile. That the jury should, in 
 all cases, find the existence of all constituent facts about which a 
 dispute exists between the parties, leaving the court, in all cases, to 
 apply the rule of law, has certain attractive features as a satis- 
 factory rule of administration. 
 
 (1) It would preserve to the cause of judicial adminis- 
 tration the maximum efficiency of each branch of the joint 
 tribunal, and with it the minimum of friction and error. The 
 court is familiar with law, and psychological facts as revealed 
 in the courtroom. Of these the jury are ignorant, while possessing 
 knowledge of human nature as it exists in the world at large. The 
 courtroom is far too apt to limit the mental horizon of the judge. 
 For the latter truly to teach the jury law and the ways of wit- 
 nesses and advocates within the time limits and practical condi- 
 tions of a trial would be as miraculous as for the judge to gain 
 an adequate ability to understand the point of view from which 
 the average layman sees certain important sets of facts. 
 
 (2) It fixes a well-defined responsibility. — In the executive 
 and legislative branches of government, it has come to be 
 regarded as axiomatic that in order for a nation, state or 
 
 1. Cincinnati, N. 0. & T. P. By. 929, 77 C. C. A. 179, 7 L. E. A. 
 Co. v. Hansford & Son, 100 S. W. 251, (N, S.) 1094 (1906). 
 
 30 Ky. L. Rep. 1105 (1907). 3. Towle v. Sweeney, (Cal. App. 
 
 2. Anderson v. Messinger, 146 Fed. 1905) 83 Pac. 74. 
 
145 The Impotency of Amekican Judges. § 95 
 
 municipality to receive the best service, it is essential that 
 responsibility should not be divided or indeterminate. On the 
 contrary, it is regarded as very much in the public interest 
 that there should be an absolute and untransferable duty 
 on someone, somewhere, for the reaching of results. Central- 
 ized power under popular control has succeeded as a politi- 
 cal ideal that of a distribution of power among many coordinate 
 branches as a safeguard against the danger of centralization. To 
 obtain the political results for which it is seeking, Democracy re- 
 quires responsibility on the' part of its servants. It has come to 
 recognize that to hold these servants to responsibility, it must give 
 them power. A principle of government can scarcely be of tran- 
 scendent value in connection with the executive and legislative 
 branches of government and be of no value in respect to the judicial. 
 Yet, in America the benefits of this elsewhere axiomatic proposi- 
 tion still remain to be applied to forensic jurisprudence. • The 
 theory that it is safe to trust no one with power, in discharging a 
 public office lest he should abuse it or become a danger to liberty 
 — the idea of distribution, of checks and balances, so that each 
 part of the scheme alone can accomplish nothing by itself, but is 
 limited by the power of others — discarded elsewhere alike by 
 political men and students of institutions, here has unchallenged 
 operation. 
 
 The present relations between judge and jury are a clear in- 
 stance of the old theory of the value of divided responsibility and 
 enumerated powers. The judge, indeed, has powers and on him 
 is the responsibility of announcing the rule of law affecting the 
 propositions raised by the pleadings. But, in a majority of in- 
 stances, he has no ability to apply it to the facts, no right to direct 
 the jury in applying it, except to the purely negative extent of 
 nullifying their work when he thinks that they have not done it 
 correctly. The jury, in a limited sense, have power, indeed, to 
 find the ultimate, constituent facts. But in so doing, the judge is 
 forbidden, in most cases, to give them any aid from his experience. 
 All which the court can do, in this respect, is to rule as requested 
 upon the tenders of counsel and to content himself with knowing 
 when he sees the jury misled, that he can at least set aside the ver- 
 dict, if unsatisfactory to himself. With an appellate court swift to 
 reverse his rulings, even upon matters of pure administration, un- 
 able to do more than maintain order and veto the work of a jury 
 Vol. I. 10 
 
§ 95 Law and Fact. 146 
 
 which he cannot guide, it should scarcely furnish ground for sur- 
 prise that jurists of the highest qualifications for judicial office 
 should feel that so perfunctory and fruitless a performance of pub- 
 lic duty affords no opportunity for efficient social service. The jury 
 have power, indeed, to render general verdicts applying the law 
 given them by the judge to the constituent facts found by them. 
 But this is done under no sufficient feeling of responsibility. Their 
 action is not final, and therefore carefully to be considered. The 
 judge may nullify it, if he see fit. 'No facts are specified as the 
 basis of a verdict; no line of reasoning, for which the jury hold 
 themselves responsible, is indicated. 1 A sphinx-like puzzle is 
 handed to the court. If the ingenuity of counsel or of the judge 
 can guess at a reasonable basis on which it may be sustained, the 
 verdict will be allowed to stand as res adjudicata between the 
 parties as to facts which must have been found in order that it 
 should have been reached. These the jury itself might unani- 
 mously have repudiated. 
 
 The method here suggested — that of requiring the jury to find 
 all constituent facts and report them to the court, with skilled 
 clerical assistance if necessary in doing so, directing the judge 
 to apply the rule of law to these facts, giving his reasons in award- 
 ing judgment, and allowing parties aggrieved to appeal, on a record 
 so made up — might fairly be expected to fix a far more definite 
 responsibility on each branch of the tribunal while conferring 
 upon it the corresponding and qualifying extension of power. The 
 jury would be placed publicly on record and their good faith and 
 reasoning powers demonstrated; a finality might safely be con- 
 ceded to such findings as could not, with social safety, be given 
 to a general verdict. To the judge, in like manner, taking the 
 facts found by the jury, having the power to perfect, the law to 
 the highest social usefulness, the public opportunity of doing so 
 
 1. " If caprice is not to be approved, hand, is untrained to his task, and 
 
 how can we consistently prefer jury also is completely irresponsible. He 
 
 to judge? A judge is, by reason of does not even give his reasons for the 
 
 his training and position, the least view he has chanced to take. At the 
 
 liable to the influence of the irrele- close of a trial he disappears from 
 
 vant. The dignified traditions of his publicity and the leaded type of the 
 
 office, and the need for reasoned deci- evening papers. He retires at once to 
 
 sion, compel him to devote to a case the obscurity from which he should 
 
 all that ability which his experience never have emerged. - ' 20 Jurid. Rev., 
 
 ensures. A juryman, on the other pp. 71, 72. 
 
147 Check the Emotionalism of the Juey. § 95 
 
 affords the stimulus for strenuous and careful work which could 
 be created only in this way. 2 
 
 (3) It Would Check the Emotionalism of the Jury. — This 
 defect in the work of the jury is not an affection so much of the 
 brain, as of the heart. It comes from a large sense of what is 
 fair in a general way, not a little mixed, at times, with a pleasur- 
 able sensation of being able to relieve hardship, or gratify a justi- 
 fiable resentment, at slight personal cost. But the same jurymen 
 who would follow an impulse to be generous with other persons'' 
 estates would hesitate to stultify themselves intellectually by find- 
 ing the existence of a specific fact which they knew did not exist. 
 The pleasurable self-consciousness of intellectual prowess is as 
 much a mental characteristic of the average man as is the sensa- 
 tion of exercising vicarious philanthrophy or being able to assist 
 in punishing a social enemy with whom he has no sympathy. 
 In other words, the same man who will regard his oath as a jury- 
 man as calling upon him to administer a rough kind of natural 
 subjective justice, will feel that it constrains him to find specific 
 individual facts to the best of his ability. The distinction is a fine 
 one; but he takes it. 3 A further advantage of exceptional value 
 
 2. " If serious criminal cases were stated to support a correct conclusion, 
 
 to be tried by judges without juries, it is impossible to state good reasons 
 
 I think that notps should be taken for a bad one." 20 Jurid. Rev., p. 73. 
 
 both by the judge and, in capital 3. In jurisdictions where the jury 
 
 cases, by a shorthand writer as well; may find a general verdict in the case 
 
 and I think the judge should give his but must also return answers to spe- 
 
 reasons for his decision, and that if cial interrogatories of fact, this peeu- 
 
 he did not. give them in writing they liarity of the jury's action is brought 
 
 should be taken down by a shorthand into strong relief. It is the result of 
 
 writer and read and corrected by the extended experience that while the 
 
 judge. In such cases I think there impulse of the jury to the gratifica- 
 
 should be an appeal both on law and tion of their sympathies or antipa- 
 
 on the facts to the Court for Crown thies may cause great eccentricity in 
 
 Cases Reserved, or whatever court the general verdicts, that the answers 
 
 might be substituted for it. In com- to special interrogatories are much 
 
 paring trial by jury with trial by a more closely in accordance with the 
 
 judge without a jury, I assume the evidence; that where crucial facts had 
 
 establishment of such » form of trial been found under the influence of 
 
 as this." Stephen's Hist, of the Crim. emotion their lack of harmony with 
 
 Law of England, Vol. I, p. 567 facts found under purely intellective 
 
 [quoted with approval in 20 Jurid. conditions usually point out and 
 
 Rev., p. 72]. "As has been aptly said, segregate findings of facts so vitiated, 
 
 the necessity of reasoned judgment is See "Special Interrogatories to Juries" 
 
 the best security for soundness of deci- by W. W. Newton, 20 Am. Law Rev., 
 
 sion; for while bad reasons may be 366. 
 
§ 95 Law and Fact. 148 
 
 is found in the fact that part of a given verdict might be set aside; 
 leaving the balance to stand. 
 
 (4) It Makes the Action of the Jury Productive of the Most 
 Comprehensive Results. — Where the jury find the constituent 
 facts, each of such facts may fairly be judged as res judicata be- 
 tween the parties. 4 A fact once established by verdict of a jury, 
 if allowed by the court to stand, may well be regarded as a finality. 
 In other words, a finding set aside as to part, may be given effect 
 as to the remainder. If, for example, a verdict be set aside on 
 the ground that damages are excessive, the only issue on a retrial 
 might well be as to the amount of damages, the issue as to lia- 
 bility being concluded. A further advantage of permitting the 
 jury to find the constituent facts in specie lies in the consideration 
 that all such facts, whether given effect by the court or not, may 
 be used to throw a light upon the action of the jury which will be 
 of the highest consequence in acting upon a motion for a new 
 trial. Instead of guessing at the basis of the jury's action and 
 setting it aside as a whole, it may be possible with the additional 
 information afforded to see that an apparently sustainable verdict 
 is really a miscarriage of justice; or, on the contrary, it may 
 appear that action at first sight irrational is, in reality, well 
 grounded. 
 
 (5) Final Adjudication is reached with the Minimum of De- 
 lay and Expense. — It is no small part of the delay and expense of 
 litigation, under the present system, that the appellate court is 
 obliged to send the rock of Sisyphus down to the foot of the hill of 
 repeated trials, in order that the suitor may roll it laboriously up 
 again — perhaps to meet a similar rebuff. If the appellate courts, 
 especially the court of last resort, could, if furnished with a proper 
 
 4. There is much value in the tion in any subsequent proceedings? 
 
 suggestion of Stephen: "Might it It seems monstrous that, when Orton 
 
 not be wise to authorize the su- had been prosecuted to conviction for 
 
 perior courts to give a certificate, perjury, the fact that he was Orton 
 
 if they thought proper to do so, of and not Tichborne, and the fact that 
 
 the existence of any matter of fact Tichborne was dead, should have been, 
 
 which had been duly established be- as far as the law went, open to future 
 
 fore them in a suit bona fide contested, dispute, and that it should have been 
 
 on the application of the successful necessary to procure a private Act of 
 party, such certificate to be evidence ■ Parliament to furnish satisfactory 
 
 of the matter stated in it. and rais- proof of these facts for future use." 
 
 ing a presumption of their truth Stephen's Dig. Law of Ev., (3d ed.) 
 
 ■whenever they are brought into ques- Pref. 33. 
 
149 Danger of Pekjuby Lessened. § 95 
 
 record, 5 make the order in the case which it feels the trial court 
 should have made, or, in default of such power, should be able to 
 direct the trial court precisely what order it desires it to make in 
 the matter, an obvious saving in time and cost would at once 
 result. This may be done, at present, in causes in equity where 
 the facts are all before the appellate court on a master's report. 
 The difficulty in following, in actions at law, so excellent a practice 
 consists largely in the circumstance that only a limited record is 
 before the appellate court raising merely questions of law. But 
 obviously, if the entire set of constituent facts to which the trial 
 judge has applied the rule of law are to be before the court of last 
 resort, no reason appears why the appellate court should not di- 
 rect precisely what order it judges should be made when the rule 
 of law is more carefully and accurately applied to the same facts. 
 It will be noted that this requirement, is that the constituent facts 
 be found. To report the evidence — as is frequently done, adds 
 so greatly not only to the expense and hazard of litigation as itself 
 to constitute, in many cases, a flagrant abuse of administration; 
 but makes it extremely difficult for the appellate court to discover 
 in the mass of undigested material before it, in view of the limited 
 time accorded counsel for argument, precisely what are the points 
 intended to be presented to them. 
 
 (6) Perjury would be minimized in at least one particular. — 
 An additional advantage of no small consequence reasonably to 
 be anticipated from the course suggested lies in the fact that 
 changes of testimony by parties at a retrial of a cause once heard 
 in an appellate court would be in measure prevented by this defi- 
 nite finding, once for all, of the constituent facts. It is notorious 
 that, under the system at present existing, parties who have dis- 
 covered in a court of last resort precisely what evidence is now 
 needed to their success, regard themselves as sent back to a retrial 
 for the purpose of procuring or inventing it. " It frequently 
 happens," says the New York court of appeals, 6 " that cases appear 
 and reappear in this court after three or four trials, where the 
 
 5. While in a trial to the court all thus avoid the necessity of remand- 
 evidence clearly incompetent and im- ing the cause for the admission of 
 material should be rejected, a liberal material evidence erroneously rejected, 
 practice should be adopted in admit- Begginger v. Martin, (Wash. 1907) 
 ting evidence, so that the Supreme 92 Pac. 674. 
 
 Court, in case of an appeal, will on 6. Walter v. Syracuse Rapid Tran- 
 
 a trial de novo have all material sit Railway Company, 178 N. Y. 50 
 
 facts before it for consideration and (1904). 
 
§ % Law and Fact. 150 
 
 plaintiff on every trial has changed his testimony in order to meet 
 the varying positions on the case upon appeal. It often happens 
 that his testimony on the second trial is directly contrary to hia 
 testimony on the first trial, and, when it is apparent that it wa3 
 done to meet the decision on appeal, the temptation to hold that 
 the second story was false is almost irresistible." 
 
 § 96. (M ore Rational Expedients); Special Verdicts; Statutory. 
 
 — While it may be doubtful whether, as is said, the rendering of 
 special verdicts is as ancient a practice, on the part of the jury, 
 as returning general verdicts, it is, at least, unquestioned that the 
 habit of rendering special verdicts is one of considerable an- 
 tiquity. 1 The difference between a special verdict and the answers 
 to special interrogations, considered elsewhere, 2 is obvious and 
 fundamental. The interrogations inquire as to the existence of 
 one or more constituent facts. 3 The special verdict finds them 
 all. 4 As is said in an early Indiana case, 6 by a special verdict is 
 meant, " not an isolated fact, tending to support or defeat 
 an issue, but it is an issue joined between the parties, 
 arising upon a cause of action in the complaint, and a denial 
 of it in the answer, or upon a defense set up in the answer, 
 put in issue by the reply." The purpose of a special verdict is 
 " to exhibit the facts of the case in such a manner that the court 
 can decide according to law, and relieve the jury from the necessity 
 of deciding legal questions on which they may have doubts. To 
 justify the court in rendering a judgment for the plaintiff on a 
 special verdict, the verdict must exhibit all the facts which it was 
 necessary for the plaintiff to prove in order to recover." 6 No 
 special interrogatories can be propounded, as of right, by a party 
 when a special verdict is asked. 7 Should the jury have the option 
 to return either a special or a general verdict, they need return 
 special answers only in case they decide to return a verdict in 
 general form. 8 
 
 1. First Nat. Bank v. Peck, 8 Kan. 6. Pittsburg, etc., R. Co., V. 
 660 (1871); Ross's Case, 12 Ct. of Spencer, 98 Ind. 186 (1884); Goldsby 
 CI. 565 (1876). v. Robertson, 1 Blackf. 247 (1823). 
 
 2. Infra, §§ 98 et seq. 7. Chapin v. Clapp, 29 Ind. 614 
 
 3. Hazard Powder Co. v. Viergufcz, (1868) ; Rosser v . Barnes, 16 Ind. 502 
 6 Kan. 471, 486 (1870); Smith V. (1861). 
 
 Warren, 60 Tex. 462 (1883). 8. Hendrickson v. Walker, 32 Mich. 
 
 4. Housworth v. Bloomhuff, 54 Ind. 68 (1875). 
 487 (1876). 
 
 5. Bird V. Lanius, 7 Ind. 615 
 (1856). 
 
151 Common Law Interrogations of the Juey. § 97 
 
 § 97. (More Rational Expedients; Special Interrogatories) ; 
 
 Common Law. — The judge may protect the rules of law, fixed or 
 inchoate, from interference by the jury in a specific case by re- 
 quiring from them the special findings of fact, and using these as 
 the basis of the application of the rule of law by himself. As the 
 political importance of the jury has declined, and attention has be- 
 come focused upon its usefulness in a judicial capacity, the value 
 of general verdicts has been less esteemed, and the old practice of " 
 requesting special findings of fact has increased in popularity with 
 judges 1 frequently acting under legislative sanction. 2 The course 
 undoubtedly tends to the symmetry of the law, and its regularity 
 in administration, for reasons elsewhere stated. 3 
 
 The right to interrogate the jury, on returning a general verdict, 
 as to the method in which they reached their conclusion in certain 
 particulars has, indeed, been denied in England, 4 and by courts in 
 this country, in the absence of agreement by the parties. 5 The 
 practice, however, has obtained in certain sections of America, 
 e. g., the presiding judge may ask the jury whether they read cer- 
 tain papers improperly taken by them to their consultation-room. 8 
 " Where the judge is surprised by the verdict, it is not unusual 
 to ask the jury upon what principle it was found." 7 If the ground 
 assigned by the jury for their action could not support it, the ver- 
 dict is set aside. 8 The answers to such interrogations may also 
 be used as part of a bill of exceptions or on motion for a new trial 
 based on the insufficiency of evidence. 9 Other courts have been 
 bolder and have directly submitted interrogations to the jury for 
 
 1. Atchison, etc., Ry. Co. v. Mor- 13 N. H. 191 (1842). See Barston v. 
 gan, (Kan.) (1890), 22 Pae. 995; Sprague, 40 N. H. 27 (1859); John- 
 Maceman v. Equitable Co., (Minn. son v. Haverill, 35 N. H. 74 (1857). 
 1897) 72 N. W. 111. 6. Hix v. Drury, 5 Pick. 296 (1827). 
 
 2. "All the statutes provide that if 7. Pierce v. Woodward, 6 Pick. 206 
 the special interrogatories are incon- (1828). See also Roehe v. Ladd, 1 
 sistent with the general verdict they Allen, 436 (1861) ; Stiles v. Granville, 
 shall prevail over the latter." Spe- 6 Cush. 458 (1850); Spoor v. Spooner, , 
 cial Interrogatories to Juries, 20 12 Mete. 281 (1847) ; Dorr v. Fenno, < 
 Amer. Law Rev. 382. 12 Pick, 521 (1832). 
 
 3. Infra, §§ 95, 95 n. 3, 100 n. 5. 8. Parrott v. Thacher, 9 Pick. 426 
 
 4. Mayor of Devizes v. Clark, 3 A. (1830). See Spurr v. Shelburne, 131 
 & E. 506 (1835). Mass. 429 (1881). 
 
 5. Allen, etc., Co. v. Aldrich, 9 Fost. 9. Monies v. City of Lynn, 119 
 63 (1854) ; Willard v. Stevens, 4 Fost. Mass. 273 (1876); Mair v. Bassett, 
 271 (1851). 117 Mass. 356 (1875); Lawler v. 
 
 Such consent has also been held not Earle, 5 Allen, 22 (1862). 
 to be necessary. Walker v. Sawyer, 
 
§§ 98-100 Law and Fact. 152 
 
 them to answer. 10 The power of interrogation has been spoken of 
 as an incidental power arising when the jury return a general 
 verdict, 11 to be exercised after the verdict has been returned and 
 l>efore it is received by the court. 12 
 
 § 98. (More Rational Expedients; Special Interrogatories) f 
 
 Statutory — Many states of the American Union have re-enacted, 
 with some variation in detail, the common law practice of submit- 
 ting special interrogatories to the jury. The administrative rules 
 affecting this expedient for arriving at truth are of interest and 
 importance; while the side light which its practical working 
 throws upon the actual capacity of the average jury to deal intelli- 
 gently with questions of fact is highly illuminating. 
 
 A typical statute is that of Indiana : " In all actions, the jury, 
 unless otherwise directed by the court, may, in their discretion, 
 render general or special verdict; but the court shall, at the re- 
 quest of either party, direct them to give a special verdict in writ- 
 ing upon all or any of the issues ; and in all cases, when requested 
 by either party, shall instruct them, if they render a general ver- 
 dict, to find specially upon particular questions of fact, to be stated 
 in writing. This special finding is to be recorded with the verdict. 
 . . - 1 When the special finding of facts is inconsistent with the 
 general verdict, the former shall control the latter, and the court 
 shall give judgment accordingly." 2 
 
 § 99. (More Rational Expedients; Special Interrogatories; 
 Statutory) ; Criminal Cases Excluded — The enabling statutes do 
 not, in the absence of express language, apply to criminal cases. 1 
 In equity causes where the jury is brought in to assist the judge 
 no binding effect attaches to the findings. 2 
 
 § 100. (More Rational Expedients; Special Interrogatories; 
 Statutory); Object of Special Findings — It has been said that 
 the object of answers to special interrogatories is to obtain an ex- 
 planation of a general verdict, 1 and to place upon record the details 
 
 10. McMasters ». West Chester 1. State v. Ridley, 48 Iowa, 370 
 County, etc., Co., 25 Wend. 379 (1841). (1878) ; People v. Marion, 29 Mich. 
 
 11. Johnson v. Haverhill, 35 N. H. 33 (1874). 
 
 74 (1857). 2. Jennings v. Durham, 101 Ind. 
 
 12. Smith V. Putney, 18 Me. 87 391 (1884); Learned V. Tillotson, 97 
 (1841). N. Y. 1 (1884). 
 
 1. Indiana Rev. Stats., 1881, § 546. 1. Hendrickson v. Walker, 32 Mich. 
 
 2. Indiana Rev. Stats., 1881, § 547. 68 (1875). 
 
153 Intellect and Emotion of the Juey. § 100 
 
 of this explanation. 2 In this way an advantage is gained to judi- 
 cial administration which always attends the finding of the facts 
 by the jury, leaving the rule of law to be applied by the court. If 
 the jury finds simply a general verdict, and it should happen later, 
 with greater leisure to investigate the matter, that the judge should 
 be convinced that he had given the wrong rule of law to the jury, 
 the obvious available course is to order a new trial. If the separate 
 findings are before the judge on the record, he may, however, order 
 such a verdict as would have been rendered, had the correct rule 
 been given. 3 The same advantage may well be made to attend the 
 case in an appellate court — with a marked increase in the dis- 
 patch of business. 
 
 Special Finding. — A special verdict or set of findings must set 
 forth the existence of all constituent facts necessary to the actor's 
 case. 4 
 
 Thus is the emotionalism of the jury in part controlled. Much 
 shrewd observation is shown in the suggestion of the supreme 
 court of Kansas — " the main object of special questions is to 
 bring out the various facts separately, in order to enable the court 
 to apply the law accurately, and to guard against any misapplica- 
 tion of the law by the jury. It is a matter of common knowledge, 
 that a jury influenced by a general feeling that one side ought to 
 recover, will bring in a verdict accordingly, when at the same time 
 it will find a certain fact to have been proved which in law is an 
 insuperable barrier to a recovery in accord with the general ver- 
 dict. And this does not imply intentional dishonesty in the jury, 
 or a failure on the part of the court to instruct correctly, but 
 rather a disposition to jump at results upon a general theory of 
 right and wrong, instead of patiently grasping, arranging and con- 
 sidering details. Scarcely any jury will, when questioned as to 
 a single separate fact, respond that it exists without some suf- 
 ficient evidence of its existence. Its response will, as a rule, be 
 correct, if direct, and if not correct, then evasive and equivocal." 5 
 Error may be rectified by checking, by the knowledge furnished 
 
 2. Durfee v. Abbott, 50 Mich. 479 4. Elwood State Bank v. Mock, 40 
 (1883). Ind. App. 685, 82 N. E. 1003 (1907). 
 
 3. Moss v. Priest, 19 Abb. Prac. 5. Morrow v, Commre. Saline Co., 
 314, 1 Rob. 632 (1863). See Dempsey 21 Kan. 484 (1879). 
 
 v. Mayor, etc., 10 Daly 417 (1882) ; 
 Partridge v. Gilbert, 3 Duer, 184 
 (1854). 
 
§ 101 Law and Fact. 154 
 
 by separate findings, erroneous inferences from the facts found; 6 
 a consideration of no small consequence where any verdict is al- 
 lowed to stand for which any logical basis can be assigned from 
 the evidence. 7 
 
 § 101. (Mote Rational Expedients; Special Interrogatories; 
 Statutory) ; Administration by the Court. — The court may, with 
 great propriety, exert its administrative powers so to formulate 
 the interrogations to the jury as to raise material questions, so 
 framed as not to confuse or mislead them 1 — the object being to 
 enable the judge to apply the law to the constituent facts. 2 Where, 
 therefore, the question asked is as to the existence of a probative 3 
 as distinguished from a constituent * fact, it may properly be re- 
 jected. 5 The question should be specific, something more than a 
 mere application of a rule of law to a particular branch of the 
 case. 6 In other words, questions of mingled law and fact, as it is 
 said, should not be permitted. 7 Of such a nature is the scope of 
 a partnership. 8 
 
 On the other hand where the jury, in reply to a proper question 
 state a mere conclusion as to the law the answer may be disre- 
 garded. 
 
 6. Morse v. Morae, 25 Ind. 156 4. Supra, § 47. 
 
 ( 1865 ) ; Cole V. Boyd, 47 Mich. 98 5. Springfield Coal Min. Co. v. Ged- 
 
 (1881). utis, 227 111. 9, 81 N. E. 9 
 
 7. Buntin v. Rose, 16 Ind. 209 (1907) [affirming judgment, 127 
 (1861). 111. App. 327 (1906)]; Amer- 
 
 1. Manning v. Gasharie, 27 Ind. ican Bonding Co. v. State, 40 
 399, 409 (1866) ; Morae V. Morse, 25 Ind. App. 559, 82 N. E. 548 (1907). 
 Ind. 156, 161 (1865); Young v. Fos- 6. Trentman v. Wiley, 85 Ind. 33 
 burg Lumber Co., (1ST. C. 1908) 60 (1882); Todd v. Fenton, 66 Ind. 25 
 S. E. 654; Kampmann v. Rothwell, (1879) ; Toledo, etc., R. Co. v. God- 
 (Tex. Civ. App. 1908) 107 S. W. 120 dard, 25 Ind. 185 (1865) ; Atchison, 
 [judgment modified, (Supp.) 109 S. etc., R. Co. V. Plunket, 25 Kan. 188 
 W. 1089]. (1881). 
 
 2. Plyler v. Pacific Portland Ce- 7. Town of Albion v. Hetrick, 90 
 ment Co., (Cal. 1907) 92 Pae. 56. Ind. 545 (1883) ; Harbaugh V. Cicott, 
 
 Inferences of fact.— If the constit- 33 Mich. 241 (1876) ; Dubois v. Com- 
 
 uent facts found by the jury are am- pau, 28 Mich. 304 (1873). 
 
 biguous, they may be asked for a defi- The construction of an unambig- 
 
 nite inference of fact from them. Ft. uous writing is of this nature. Comer 
 
 Wayne Cooperage Co. I'. Page, (Ind. V. Himea, 49 Ind. 482 (1875); 
 
 App. 1907) 82 N. E. 83. But they Symmes v. Brown, 13 Ind. 318 (1859). 
 
 cannot be asked to draw a conclusion 8. Bonner Tobacco Co. V. Jennison, 
 
 "of law. 48 Mich. 459 (1882) ; Dubois r. Com- 
 
 3. Supra, § 51. pau, 23 Mich. 304 (1873). 
 
155 Administrative Powee in Dealing with Questions. § 101 
 
 Unless the statute is mandatory, the judge may decline to order 
 the submission of interrogatories to the jury, 9 even though a re- 
 quest is seasonably made. Even when the judge has granted the 
 order for the submission of interrogatories he may revoke it at 
 any time before answers to the questions have been returned. 30 A 
 mandatory statute confers upon a party the right to insist upon 
 the allowance of his request,' 1 provided only that it be made at a 
 proper time. It is equally beyond the power of the court to with- 
 draw the questions from the jury. 12 But where a judge who might 
 have refused an order as a matter of discretion actually refuses it 
 on the erroneous supposition that he has no discretion to grant it, 
 the action may be assigned as error. 13 
 
 It is the duty of the interrogating party to bring to the atten- 
 tion of the judge the precise points on which he desires that the 
 jury should be interrogated, and should request the judge to sub- 
 mit them to the jury, whether this be the original application or 
 is intended to supplement the interrogation proposed by his op- 
 ponent. 14 He cannot reasonably expect the trial judge to ascer- 
 tain for him the facts on which an interrogatory should be put, 15 
 any more than he can require the judge to put the questions in his 
 exact language. Clearness, perspicuity, logical arrangement are to 
 be wrought into the questions by the presiding judge. 18 If a 
 party has included matter in his question to which he is not en- 
 titled the court is not required to separate the good from the bad. 
 
 9. McLean v. Burbank, 12 Minn. Noble V. Enos, 19 Ind. 72 (1862) ; 
 530 (1867) ; Dempsey v. Mayor, etc., City of Wyandotte V. Gibbon, 25 Kan. 
 10 Daly, 417 (1882). 236 (1881) ; Johnson v. Husband, 22 
 
 10. Moss V. Priest, 19 Abb. Prac. Kan. 277 (1879) ; Bent v. Philbrick, 
 314, 1 Rob. 632 (1863). See 16 Kan. 190 (1876); Farnsworth v. 
 Dempsey v. Mayor, etc., 10 Daly, Coots, 46 Mich. 117 (1881). 
 
 417 ( 1882 ) ; Ebersole v. Northern 12. Summers v. Greathouse, 87 Ind. 
 
 Cent. Ry. Co., 23 Hun, 114 (1880); 205 (1882); Otter Creek Block Coal 
 
 Fraschiero v. Henriques, 6 Abb. Prac. Co. v. Baney, 34 Ind. 329 (1870). 
 
 (N. S.) 251 (1868). 13. Jaspers v. Lano, 17 Minn. 296 
 
 ll.Clegg v. Waterbury, 88 Ind. 21 (1871). 
 
 ( 1882 ) ; Williamson v. Yingling, 80 14. Bradley v. Bradley, 45 Ind. 67 
 
 Ind. 379 (1881); Campbell v. Fran- (1873). 
 
 kem, 65 Ind. 591 (1879) ; Glasgow V. 15. Missouri Pac. R. Co. v. Beynolds, 
 
 Hobbs, 52 Ind. 239 (1875) ; Miller v. 31 Kan. 132 (1883) ; Foster v. Tur- 
 
 Voss, 40 Ind. 307 (1872) ; Maxwell v. ner, 31 Kan. 58 (1883). 
 
 Boyne, 36 Ind. 120 (1871) ; Malady 16. Missouri Pac. Ry. Co. v. Holley, 
 
 v. McEnary, 30 Ind. 273 (1868) ; 01- 30 Kan. 465 (1883). 
 lam v. Shaw, 27 Ind. 388 (1866); 
 
§ 102 Law and Fact. 156 
 
 He may simply reject the entire question, even after the objection- 
 able portion has been withdrawn by the proponent. 17 
 
 Considerable strictness hedges the right to have interrogations 
 submitted to a jury. Even under a mandatory statute which gives 
 the right to obtain the answers of the jury to special interroga- 
 tories in connection with the rendering of a general verdict, a re- 
 quest for special answers may be refused without impeachment of 
 error, unless the return of a general verdict is also requested. 18 
 Under such circumstances, if the order is granted and the special 
 answers are not accompanied by a general verdict, no judgment 
 can be entered on such findings 18 but a new trial must be granted. 20 
 Where the judge is directed to instruct the jury in writing, a ver- 
 bal instruction is not sufficient. 21 
 
 § 102. (Mote Rational Expedients; Special Interrogatories; 
 Statutory; Administration by the Court); Objectionable Ques- 
 tions — That a fact is compound or complex, inferred from other 
 facts, is the result of one act of judgment, or even of several such 
 acts is no ground for rejecting the findings. 1 The finding must, 
 however, be sufficiently specific to be helpful and must admit of a 
 direct answer. 2 It must go beyond merely restating a general 
 finding on the issue. 3 Whether a fact stated in a complaint is 
 true 4 is too general. If two issues are submitted together in a 
 
 17. Brooker v. Weber, 41 Ind. 426 81. Trentman v. Wiley, 85 Ind. 33 
 (1872). (1882). 
 
 18. Taylor V. Burk, 91 Ind. 252 1. Howard v. Beldenville Lumber 
 (1883) ; Woolen V. Whitacre, 91 Ind. Co., (Wis. 1908) 114 N. W. 1114. 
 502 (1883) ; Williamson v. Yingling, "They can find the facts in great de- 
 88 Ind. 379 (1881); Mcllvain v. State tail, or they can find them in very 
 80 Ind. 69 (1881) ; Cleveland, etc., general or comprehensive terms. And 
 Ry. Co. v. Bowen, 70 Ind. 478 (1880) ; where they find the facts both in de- 
 Killion v. Eigenman, 57 Ind. 480 tail and in general terms, we may 
 (1877) ; Long v. Doxey, 50 Ind. 385 disregard the general findings." At- 
 (1875); Schenck v. Butsch, 32 Ind. chison, etc., R. Co. v. Plunket, 25 
 338 (1869) ; Manning v. Gasharie, 27 Kan. 188 (1881). 
 
 Ind. 399 (1866) ; Michigan Southern, 2. Plyler V. Pacific Portland Cement 
 
 etc., R. Co. v. Bivens, 13 Ind. 263 Co., (Cal. 1907) 92 Pac. 56. 
 
 (1859); Shultz V. Cremer, 59 Iowa 3. Home Ins. Co. v. N. W. Packet 
 
 182 (1882). Co., 32 Iowa 223, 246 (1871). 
 
 19. Woolen v. Whiteacre, 91 Ind. 4. Morse v. Morse, 25 Ind. 156, 161 
 502 (1883); Mcllvain v. State, 80 (1865). See Crane v. Reeder, 25 
 Ind. 69 (1881); Eudaly v. Eudaly, Mich. 304 (1872); Hagan v. Chicago, 
 37 Ind. 440 (1871). etc., Ry. Co., 59 Wis. 139 (1883). 
 
 20. Pea v. Pea, 35 Ind. 387 (1871) ; 
 Paine «\ Lake Erie, etc., R. Co., 31 
 Ind. 283 (1869). 
 
157 
 
 Numbers of Special Interrogatories. 
 
 § 103 
 
 disjunctive form of interrogation, the error is fatal unless cured 
 by instructions. 5 Questions as to the existence of immaterial facts 
 may well be rejected. 6 The court may safely ignore a finding on 
 such a fact, if made; 7 the jury may fail to answer it, with im- 
 punity, 8 as a new trial will not be awarded on such a ground. 9 A 
 party cannot insist that inconclusive 10 or noncontrolling 11 questions 
 should be asked. 
 
 For a reversal of the judge's action prejudices must be shown 
 as well as error. Thus, if a suitable question is improperly 
 refused, but another question covering the same ground is sub- 
 mitted to the jury, there will be no reversal. 12 
 
 Leading questions are not objectionable by reason of possessing 
 that form. 13 In fact, their use is encouraged. 14 
 
 § 103. (More Rational Expedients; Special Interrogatories; 
 Statutory; Administration by the Court); Number of Interroga- 
 tories. — The number of questions may be as objectionable as their 
 form or purport. The great number of such questions has fre- 
 
 5. Howard v. Beldenville Lumber 
 Co., (Wis. 1908) 114 N. W. 1114. 
 
 6. Indiana. — 'Hamilton v. Shoaff, 
 99 Ind. 63 (1884) ; Northwestern Mut. 
 Life Ins. Co. v. Heimann, 93 Ind. 34 
 (1883); Trentman v. Wiley, 85 Ind. 
 33 (1882) ; Manning v. Gasharie, 27 
 Ind. 399, 409 (1866). 
 
 Iowa. — Bonham v. Iowa Cent. Ins. 
 Co., 25 Iowa 328 (1868). 
 
 Kansas. — City of Wyandotte v. 
 White, 13 Kan. 191 (1874); Kansas 
 Pac. Ry. Co. v. Reynolds, 8 Kan. 623, 
 634 (1871) ; First Nat. Bank v. Peck, 
 8 Kan. 660 (1871). 
 
 Michigan. — Sheahan v. Barry, 27 
 Mich. 217 (1873). 
 
 Wisconsin. — Eberhardt V. Sanger, 
 51 Wis. 72 ( 1881 ) ; Singer Mfg. Co. 
 v. Sammons, 49 Wis. 316 (1880). 
 
 7. Mays v. Foster, 26 Kan. 518 
 (1881). 
 
 8. Toulman v. Swain, 47 Mich. 82 
 (1881) ; Tettibone v. Maclem, 45 Mich. 
 381 (1881) ; Finch v. Greene, 16 Minn. 
 355 (1871). 
 
 9. Garretty V. Brazell, 34 Iowa 100 
 (1871); Dively v. Cedar Falls, 27 
 Iowa 227 (1869) ; City of Wyandotte 
 
 v. White, 13 Kan. 191 (1874) ; Kansas 
 Pac. Ry. Co. v. Reynolds, 8 Kan. 623 
 (1871) ; Pettibone v. Maclem, 45 Mich. 
 381 (1881). 
 
 10. City of Wyandotte v. White, 13 
 Kan. 191 (1874); Kansas Pac. Ry. 
 Co. v. Reynolds, 8 Kan. 623, 634 
 (1871) ; Dickerson v. Dickerson, 50 
 Mich. 37 (1883) ; Bonner Tobacco Co. 
 V. Jenison, 48 Mich. 459 (1882); 
 Swift V. Plessner, 39 Mich. 178 (1878) ; 
 Michigan Paneling, etc., Co. v. Par- 
 sell, 38 Mich. 475 (1878); Franken- 
 berg v. First Nat. Bank, 33 Mich. 46 
 (1875). 
 
 11. Campbell v. Frankem, 65 Ind. 
 591 (1879); Frankenberg v. First 
 Nat. Bank, 33 Mich. 46 (1875). 
 
 12. Terry v. Shively, 93 Ind. 413 
 (1883); Scheible v. Slagle, 89 Ind. 
 323 (1883); Hopper v. Moore, 43 
 Iowa 563 (1876) ; Missouri Pac. Ry. 
 Co. v. Reynolds, 31 Kan. 132 ( 1883 ) ; 
 Chilson v. Wilson, 38 Mich. 267 
 (1878). 
 
 13. Rice v. Rice, 6 Ind. 100 (1854). 
 
 14. Marshall v. Blackshire, 44 Iowa 
 475 (1876). 
 
§§ 104, 105 Law and Fact. 158 
 
 quently received the adverse criticism of the court. 1 The advan- 
 tage of receiving such voluminous answers is that, should the jury 
 be excused by agreement from returning a general verdict the 
 answers may be made to serve instead of a special one. 2 This the 
 court may order. 3 This may always be done where the answers 
 cover the entire case. 4 No general verdict need be rendered. 5 
 
 § 104. (More Rational Expedients; Special Interrogatories; 
 Statutory; Administration by the Court); Form of Question. — 
 
 The form of the interrogation submitted to the jury is a matter 
 of administration. 1 
 
 Consequently, the judge may amend or modify the interroga- 
 tions requested by counsel. 2 A party has no right to insist upon 
 the question being stated as he has formulated it ; 3 nor has he any 
 grievance if the substance of his interrogation is given in the lan- 
 guage of the court. 4 Each question should be so drawn by the 
 court as to present a single material proposition to the considera- 
 tion of the jury. 5 
 
 § 105. (More Rational Expedients; Special Interrogatories; 
 Statutory; Administration by the Court); Time of Requesting 
 
 Submission. — It has been suggested that a party desiring that 
 special interrogatories should be put to the jury should ask for 
 them before the trial begins. 1 Such stringency of requirement is 
 not usually enforced and it will be deemed sufficient if the request 
 
 1. City of Indianapolis v. Lawyer, to present evidence of the facts re- 
 38 Ind. 348 (1871) ; Atchison, etc., R. lied on, and the privilege of having 
 Co. v. Plunket, 25 Kan. 188 (1881). the same applied fairly. Tuttle v. 
 
 2. Carr v. Carr, 4 Lans. 314 (1871). Tuttle, (N. C. 1907) 59 S. E. 1008. 
 
 3. Longsdale v. Bonton, 12 Ind. 467 2. Neumeister v. Goddard, (Wis. 
 (1859). 1907) 113 N. W. 733. 
 
 4. Kealing v. Voss, 61 Ind. 466 3. American Co. v. Bradford, 27 
 (1878); Pea V. Pea, 35 Ind. 387 Cal. 360 (1865); Nichols v. State, 
 (1871); Toledo, etc., R Co. v. Ham- 65 Ind. 512 (1879); Campbell v. 
 mond, 33 Ind. 379 (1870); Terre Frankem, 65 Ind. 591 (1879) ; Brooker 
 Haute, etc., R. Co. v. M'Kinley, 33 v. Weber, 41 Ind. 426 (1872); Allen 
 Ind. 274 (1870). v. Davison, 16 Ind. 416 (1861). 
 
 5. Paine v. Lake Erie, etc., R. Co., 4. Allen v. Davison, 16 Ind. 416 
 31 Ind. 283 (1869) ; Crassen V. Swove- (1861). 
 
 land, 22 Ind. 427 (1864). 5. Rosser v. Barnes, 16 Ind. 502 
 
 1. Ormond V. Connecticut Mut. Life (1861) ; City of Wyandotte v. Gibson, 
 
 Ins. Co., 145 N. C. 140, 58 S. E. 997 25 Kan. 236 (1881). 
 
 ( 1907 ) . The exact form of the issues 1. Moss v. Priest, 19 Abb. Prac. 314, 
 
 submitted is immaterial, if under 1 Rob. 632 (1863). 
 them each party has an opportunity 
 
159 Answeks to Special Inteeeogatoeies. § 106 
 
 is made before the arguments begin. 2 The Iowa practice is a fair 
 one: that the interrogating party should submit his questions to 
 the opposing party before the arguments. 3 It is too late when the 
 opposite party has concluded his argument without having seen 
 the interrogatories proposed. 4 A fortiori, it is too late when the 
 jury have returned into court with a verdict, although it has not 
 been received. 5 
 
 § 106. (More Rational Expedients; Special Interrogatories; 
 Statutory; Administration by the Court); Form of Answers. — 
 
 The answers of the jury must be full and unequivocal. 1 It is 
 therefore error to instruct them not to answer a question as to 
 which there is a lack of evidence. 2 The answers must cover every 
 question asked. Even where the existence of a fact is admitted, 3 
 a question as to it must be fully answered. To fail in compelling 
 a jury to return full and specific answers is as much error as it 
 would be to fail to submit the questions at all. 4 It is not suffi- 
 cient for the jury to reply that there is a complete absence of 
 evidence on the subject, 5 but if no answer to the question could 
 materially assist the person asking it, he is not prejudiced. 6 Nor 
 can the jury say that they don't know any thing about the matter. 7 
 It is their business to know or to say that they are unable to 
 answer the question from the evidence in the case. If, however, 
 there is no evidence upon which the jury can answer a question, 
 
 2. Plyler v. Pacific Portland Cement 5. Hairgrove v. Millington, 8 Kan. 
 Co., (Cal. 1907) 92 Pac. 56.; Fleet- 480 (1871). 
 
 wood v. Dorsey, etc., Co., 95 Ind. 491 1. Summers v. Greathouse, 87 Ind. 
 
 (1884) ; Nichols v. State, 65 Ind. 512 205 (1882) ; Maxwell v. Boyne, 36 
 
 (1879); Glasgow v. Hobbs, 52 Ind. Ind. 120 (1871); Bunting. Rose, 16 
 
 239 (1875) ; Malady v. McEnary, 30 Ind. 209 (1861) ; First Nat. Bank v. 
 
 Ind. 273 (1868); Hopper v. Moore, Peck, 8 Kan. 660 (1871). 
 
 42 Iowa 563 (1876). Such a 2. Maxwell v. Boyne, 36 Ind. 120 
 
 request is not in derogation of the (1871). 
 
 ancient right of trial by jury. Pitts- 3. Durfee V. Abbott, 50 Mich. 479 
 
 burg, C. C. & St. L. R. Co. v. Smith, (1883). 
 
 207 111. 486, 69 N. E. 873 (1904). 4. City of Wyandotte v. Gibson, 25 
 
 3. Crosby v. Hungerford, 59 Iowa Kan. 236 (1881). 
 
 712 (1882). Failure to exhibit to 5. Crane v. Keeder, 25 Mich. 304 
 
 counsel before argument is a, good (1872). 
 
 reason for refusing to submit the in- 6. Johnson v. Continental Ins. Co., 
 
 terrogatories to the jury. Sarchfield V. 39 Mich. 33 (1878). 
 
 Hayes, (Iowa 1907) 112 N. W. 1100. 7. Maxwell v. Boyne, 36 Ind. 120 
 
 4. Wabash, etc., Ry. Co. v. Tretts, (1871); Buntin v. Rose, 16 Ind. 209 
 96 Ind. 450 (1884). (1861). 
 
§ 107 Law and Pact. 160 
 
 they are at liberty to say that such is the case. 8 Exactness in 
 answer beyond that rendered possible by the evidence will not 
 be required. Thus, where the evidence placed an occurrence 
 " between 11 :40 and 11 :45 a. m.," the jury are excused from 
 answering as to the " hour and minute " >of the occurrence. 9 
 
 § 107. (More Rational Expedients; Special Interrogatories; 
 Statutory; Administration by the Court) ; Answers Must Be Re- 
 sponsive. — Questions must be answered by the jury in such a way 
 as to be certain, definite and so drawn as to exclude ambiguity. 1 
 The answer must not introduce an alternative statement not em- 
 braced in the question in such a manner as to render it doubtful 
 as to precisely what the jury mean to assert regarding the subject- 
 matter of the question. As, for example, a question as to " ash " 
 wood cannot properly be answered by a statement as to " ash 
 and oak." 2 
 
 Qualifying expressions, " in our judgment " 3 and the like, 
 which are not intended to express any uncertainty or lack of 
 mental belief on the part of the jury in the accuracy of their 
 conclusion may be disregarded. On the other hand, where the 
 jury answer merely as to what they "think," it has been deemed 
 insufficient. 4 
 
 Argumentative answers — those which assign reasons for a con- 
 clusion — will be received where the purport is clear. Thus, 
 where the jury, on being asked whether A at a certain time had 
 a disease of the kidneys for which he received medical treatment, 
 answered — "he may have received medical treatment for that 
 disease, but if he did, he received treatment for a disease he did 
 not have" — it was held that this was equivalent to an answer 
 that he did not have a disease of the kidneys. 5 
 
 " Opinion." As is frequently done in other connections, the 
 jury may return an answer that certain facts, in their opinion 
 
 8. Williamson v. Yingling, 80 Ind. 2. Peters v. Lane, 55 Ind. 391 
 379 (1881). (1876). 
 
 9. Pittsburg, etc., P. Co. v. Wil- 3. Peters v. Lane, 55 Ind. 391 
 liams, 74 Ind. 462 (1881). (1876). 
 
 1. Where special interrogatories are 4. Hopkins v. Stanley, 43 Ind. 553 
 
 submitted to the jury, it is satisfact- (1873). 
 
 ory if the answers to all material ques- 5. Mutual, etc., Ins. Co. V. Cannon, 
 
 tions are sufficiently responsive and 48 Ind. 264 (1874). 
 definite to be fairly certain in mean- 
 ing. Ft. Wayne Cooperage Co. V. 
 Page, (Ind. App. 1907) 82 N. E. 83. 
 
161 Inconsistency with Special Answebs. §§ 108-110 
 
 exist, when it is their meaning, not that they have any doubt on 
 ■the matter, but that such is their settled inference or conclusion. 6 
 
 § 108. (More Rational Expedients; Special Interrogatories; 
 
 Statutory) ; Effect of General Verdicts General verdicts cannot 
 
 be made to take the place of special answers when the latter have 
 been properly requested from the jury. 1 The return of a general 
 verdict, without answering as required, the special interrogatories, 
 will not prevent the judge, before the general verdict is confirmed, 
 from sending it back to the jury and requiring answers to the spe- 
 cial interrogatories also. 2 Definite special answers may well, even 
 under these circumstances, be required. 3 Where the jury cannot 
 agree on a general verdict, their special findings cannot be made 
 the basis of a judgment. 4 
 
 § 109. (More Rational Expedients; Special Interrogatories; 
 Statutory); Effect of Special Answers — Special answers of a 
 jury are without force and effect unless the questions were regu- 
 larly submitted to them by the judge. 1 On the contrary, it is not 
 error to fail to answer an interrogatory not submitted by the 
 court. 2 The special answers are recorded with the general verdict 
 and made part of the record in the same way. 3 
 
 § 110. (More Rational Expedients; Special Interrogatories; 
 Statutory) ; Inconsistency. — It is an almost universal statutory 
 provision, that where a jury return a general verdict and also an- 
 swers to special interrogatories and the two announcements are 
 inconsistent, that the findings of the special answers should prevail. 
 
 The word inconsistent " does not mean that the special find- 
 
 6. City of Cincinnati v. Johnson, 28 v. Thomas, 95 Ind. 361 (1883) ; Aiken 
 
 Ohio Cir. Ct. R. 377 (1905) [judgment v. Ising, 94 Ind. 507 ( 1883 ) ; Watkins 
 
 affirmed, 76 Ohio St. 567, 81 N. E. v. Pickering, 92 Ind. 332 (1883) 
 
 1182 (1907) ]. Elliott l>. Russell, 92 Ind. 526 (1883) 
 
 1. Leavenworth, etc., R. Co. v. Rice, Astley v. Capron, 89 Ind. 167 (1883) 
 10 Kan. 426 (1872). Hervey v. Parry, 82 Ind. 263 (1882) 
 
 2. Tarbox V. Gotzian, 20 Minn. 139 Cleveland, etc., R. Co. v . Bo-wen, 70 
 (1873). Ind. 478 (1880); Fleming v. Potter, 
 
 3. Urbanek v. Chicago, etc., Ry. Co., 14 Ind. 486 (1860). 
 
 47 Wis. 59 (1879). 2. Ogle v. Dill, 61 Ind. 438 (1878). 
 
 4. Leffel v. Leffel, 35 Ind. 76 3. Boots v. Griffith, 97 Ind. 241 
 (1871); Hardin v. Branner, 25 Iowa (1884); Salander v. Lockwood, 66 
 364 (1868). Ind. 285 (1879); Monroe v. Adams 
 
 1. Hamilton v. Shoaff, 99 Ind. 63 Express Co., 65 Ind. 60 (1878); 
 (1884); Cincinnati, etc., R. Co. v. Horn v. Eberhart, 17 Ind. 118 (1861). 
 Heim, 97 Ind. 525 (1884); Graves 
 
 Vol. I. 11 
 
§ 110 Law and Fact. 162 
 
 ings are inconsistent with each other, nor does it mean that some 
 of the special findings are inconsistent with the general verdict; 
 hut it means either that, taken as a whole, the special findings are 
 inconsistent with the general verdict, or that the facts found in 
 one or more of the answers to interrogatories exclude every con- 
 clusion that will authorize a recovery for the plaintiff." 1 Only 
 when one or more of the special findings are inconsistent with any 
 theory on which the plaintiff can recover will a general verdict in 
 his favor be nullified by the special findings. 2 The effect of the 
 inconsistent special finding must not, in such a case, be itself 
 offset or nullified by the effect of some other fact inconsistent 
 with it. In such a case, the general verdict would be allowed to 
 stand. 3 If two special findings are in conflict with each other 
 and with the general verdict, they will be deemed to offset each 
 other and, as foundation of a judgment, both will be disregarded. 4 
 Such findings may, however, reveal such a confusion of thought 
 and entanglement of purposes on the part of the jury as to render 
 it proper to award a new trial. 5 It would be error, under such 
 conditions, to enter judgment in favor of either party. 6 For the 
 results mentioned, the inconsistency must however, appear on the 
 face of the record. 7 As is said by the supreme court of Indiana, 
 " The special findings override the general verdict only when both 
 cannot stand, and this antagonism must be apparent upon the face 
 of the record, beyond the possibility of being removed by any 
 evidence legitimately admissible under the issues, before the court 
 can be successfully called upon to direct judgment in favor of the 
 party against whom a general verdict has been rendered." 8 The 
 inconsistency must be irreconcilable. 
 
 1. Indianapolis, etc., R. R. Co. v. 5. Plyler r. Pacific Portland Cement 
 Stout, 53 Ind. 143, 147 (1876). Co., (Cal. 1907) 92 Pac. 56; Shoe- 
 
 2. Plyler v. Pacific Portland Cement maker v. St. Louis, etc., Ry. Co., 30 
 Co., (Cal. 1907) 92 Pac. 56; New Kan. 359 (1883); Missouri Pac. By. 
 York, etc., E. Co. v. Hamlin, (Ind. Co. V. Holley, 30 Kan. 465 (1883); 
 1908) 83 N. E. 343 [judgment modi- Atchison, etc., E. Co. v. Maher, 23 
 fled, 79 N. E. 1040 (1907)]. Kan. 163 (1879). 
 
 3. Ft. Wayne Cooperage Co. v. Page, 6. Shoemaker v. St. Louis, etc., Ey. 
 '(Ind. App. 1907) 82 N. E. 83; Noakes Co., 30 Kan. 359 (1883). 
 
 V. Morey, 30 Ind. 103 ( 1868 ) ; St. 7. Indianapolis, etc., E. Co. v. Stout, 
 
 Louis, etc., Ey. Co. v. Ritz, 33 Kan. 53 Ind. 143 (1876) ; Amidon V. Gaff, 
 
 404 (1885); Foster v. Gaffield, 34 24 Ind. 128 (1865). 
 
 Mich. 356 (1876); Keeler r. Robert- 8. Amidon v. Gaff, 24 Ind. 128 
 
 son, 27 Mich. 116 (1873). (1865). 
 
 4. Robinson v. Terrier, 82 Ind. 506 
 (1882). 
 
163 
 
 Intendments in Aid of Veedicts. §§ 111, 112 
 
 § 111. (More Rational Expedients; Special Interrogatories; 
 Statutory; Inconsistency); The Inconsistency Must Be Irrecon= 
 cilable. 1 — " It must be remembered that a special finding must be 
 irreconcilably inconsistent with the general verdict, before the 
 latter can be set aside and the former substituted in its place." 2 
 
 Directed verdict. Special findings accompanying a verdict ren- 
 dered on direction of court are immaterial. 3 
 
 § 112. (More Rational Expedients; Special Interrogatories; 
 Statutory; Inconsistency) ; Trial Judge's Attitude. — The admin- 
 istrative power of the court will not be exerted in favor of the 
 special but rather in aid of the general verdict. 1 In other, more 
 customary, words, there is no presumption in favor of the special 
 finding. 2 " The court will not presume anything in aid of the 
 special findings of fact, but on the contrary, will indulge every 
 reasonable presumption in favor of the general verdict." 3 Every 
 
 New York.— W. S. Trust Co. v. 
 Harris, 2 Bosw. 75 (1857). 
 
 Wisconsin. — Davis v. Town of Earm- 
 ington, 42 Wis. 425 (1877); Haas 
 v. Chicago, etc., Ey. Co., 41 Wis. 44 
 (1876) ; Lemke v. Chicago, etc., Ey. 
 Co., 39 Wis. 449 (1876). 
 
 Wyoming. — Chicago, B. & Q. E. Co. 
 v. Morris, 93 Pac. 664 (1908). 
 
 2. Woollen W-Wishmier, 70 Ind. 108 
 (1880). 
 
 3. Missouri, etc., E. Co. v. L. A. 
 Watkins Merchandise Co., 76 Kan. 
 813, 92 Pac. 1102 (1907). 
 
 1. New York, etc., E. Co. v. Ham- 
 lin, (Ind. 1908) 83 N. E. 343 [judg- 
 ment modified, 79 N. E. 1040 (1907)] ; 
 Lassiter v. Jackman, 88 Ind. 118 
 (1882); Bonham v. Iowa Cent. Ins. 
 Co., 25 Iowa 328 (1868). 
 
 2. Indianapolis Traction & Terminal 
 Co. V. Holtzclaw, 40 Ind. App. 311, 
 82 N. E. 986 (1907) ; Lowden v. Penn- 
 sylvania Co., (Ind. App. 1907) 82 
 N. E. 941; Indianapolis, etc., E. Co. 
 v. Stout, 53 Ind. 143, 147 (1876). 
 
 3. Mitchell v. Tell City (Ind. App. 
 1907) 83 N. E. 735 [judgment re- 
 versed on rehearing 81 N. E. 549 
 ( 1907 ) ] ; Indianapolis Traction & 
 Terminal Co. V. Holtzclaw, 40 Ind. 
 App. 311, 82 N. E. 986 (1907) ; Las- 
 
 1. California. — Plyler v. Pacific 
 Portland Cement Co., 92 Pac. 56 
 (1907) ; Leese v. Clark, 20 Cal. 387 
 (1862). 
 
 Indiania. — Croy v. Louisville, etc., 
 Ey. Co., 97 Ind. 126 (1884) ; Ander- 
 son v. Hubble, 93 Ind. 570 (1883); 
 Lassiter v. Jackman, 88 Ind. 118 
 (1882); Woollen v. Wishmier, 70 Ind. 
 108 (1880); Salander v. Lockwood, 
 66 Ind. 285 ( 1879 ) ; Scheible V. Law, 
 65 Ind. 332 (1879); Indianapolis, 
 etc., E. Co. v. McCaffrey, 62 Ind. 552 
 (1878) ; Detroit, etc., E. Co. v. Barton, 
 61 Ind. 293 (1878) ; Wiley v. Pavey, 
 61 Ind. 457 (1878). 
 
 Iowa. — Baird v. Chicago, etc., E. 
 Co., 55 Iowa 121, 7 N. W. 460 (1880) ; 
 Hardin v. Branner, 25 Iowa 364 
 (1868) ; Lamp v. First Pres. Soc, 20 
 Iowa 127 (1865). 
 
 Kansas. — Gripton v. Thompson, 32 
 Kan. 367 (1884) ; Sims v. Mead, 29 
 Kan. 124 (1883) ; Partonier v. Pretz, 
 24 Kan. 238 (1880); Tobie v. Com- 
 mrs. of Brown County, 20 Kan. 14 
 ( 1878 ) ; Hazard Powder Co. v. Vier- 
 gutz, 6 Kan. 471 (1870). 
 
 Michigan. — Dupont v. Starring, 42 
 Mich. 492 (1880). 
 
 Nebraska.- — Ogg v. Shehan, 17 Neb. 
 323, 22 N. W. 556 (1885). 
 
§ 113 Law and Fact. 164 
 
 reasonable administrative attempt will, however, be made to intro- 
 duce and preserve harmony of effect between the special findings 
 and the general verdict. 4 "All presumptions must be made in favor 
 of harmony, when harmony is possible, because both findings are 
 under the same oath." 5 Thus, though a single question and an- 
 swer, taken alone, might seem inconsistent with the general ver- 
 dict, the latter will not be overthrown, if the special answers, as a 
 whole, are consistent with the general verdict. 6 Toward this end, 
 the judge will exert his administrative function in various ways. 
 Thus, if a question has been answered which should not have 
 been asked, he may disregard it. 7 He may withdraw an improper 
 question from the consideration of the jury. 8 But the trial judge 
 cannot force a peace between general verdict and special findings ; 
 nor order the jury to make their special findings so as to har- 
 monize them with their general verdict. 9 
 
 Aided by special answers. On the other hand, a trial judge 
 will be ready to avail himself of any answers to special interroga- 
 tories which tend to support and explain the general verdict. 10 
 
 § 113. (More Rational Expedients; Special Interrogatories; 
 Statutory; Inconsistency) ; How Advantage is Taken of Incon- 
 sistency — The inertia of the court to disturb a general verdict 
 persists further. Even where the statute expressly declares that 
 if the special findings are inconsistent with the general verdict, 
 the judge shall enter judgment in accordance with the findings, 
 still, if the party in whose favor the findings are desires judgment, 
 
 siter v. Jackman, 88 Ind. 118 (1883). v. MoClure, 74 Ind. 108 (1881); Grand 
 
 A fact admitted in the pleadings will Rapids, etc., R. Co. v. Boyd, 65 Ind. 
 
 be assumed to exist, notwithstanding 536 (1879). 
 
 answers to special interrogations. 7. Petrie v. Boyle, 56 Iowa 163 
 
 City of Cincinnati v. Johnson, 38 Ohio (1881); Foster V. Gaffield, 34 Mich. 
 
 Cir. Ct. 377 (1905) [judgment affirmed 356 (1S76). 
 
 76 Ohio St. 567, 81 N. E. 1182 (1907)]. 8. Morse v. Morse, 25 Ind. 156 
 
 4. Close v. Atkins, 39 Iowa 521 (1865). 
 
 (1874) ; Mershon v. Nat. Ins. Co., 34 9. Usher v. Hiatt, 18 Kan. 195 
 
 Iowa 87 (1871); Foster v. Gaffield, (1877) ; People v. Murray, 52 Mich. 
 
 34 Mich. 356 (1876) ; Jones v. Snider, 288 (1883) ; Cole v. Boyd, 47 Mich. 
 
 8 Oreg. 127 (1879). 98 (1881). But see also Mooney V. 
 
 5. Foster v. Gaffield, 34 Mich. 356 Olsen, 22 Kan. 69 (1879). 
 
 (1876). 10. Schillinger Bros. Co. v. Smith, 
 
 6. Strecker v. Conn, 90 Ind. 469 128 111. App. 30 (1906) [judgment 
 (1883); Louisville, etc., Ry. Co. v. affirmed, 225 111. 74, 80 N. E. 65 
 Head, 80 Ind. 117 (1881); MoClure (1907)]. 
 
165 Waiver by Separation of Jury. § 114 
 
 lie must move for it. 1 More than this, he must move for precisely 
 that to which he has become entitled and the court does not propose 
 to aid him. 2 It is not sufficient should the motion cover part of the 
 questions and answers; it must cover them all. 3 Nor is priority 
 conceded, in legal effect to such a motion. It does not foreclose a 
 motion for a new trial. 4 Nor is it an appropriate method by 
 means of which to raise a question as to the adequacy of the 
 special findings for overturning the general verdict. 5 The moving 
 party has, however, a right, if he is only able to get at it and 
 may proceed to enforce it on appeal. 6 A motion for judgment on 
 answers to interrogatories notwithstanding the general verdict 
 must be decided on the special findings and the pleadings alone, 
 and the court cannot consider the sufficiency of the evidence to 
 support the general verdict. 7 The question of inconsistency can- 
 not be raised on a motion for a new trial. 8 
 
 Effect of Separation of Jury. — Should a jury who have failed 
 to answer a question submitted to them finally separate without 
 objection, the error in not answering is waived. 9 So, if unre- 
 sponsive or uncertain answers are returned, separation without a 
 motion to send the jury back for better answers will operate as a 
 waiver of the right to make such a motion. 10 
 
 § 114. (More Rational Expedients; Special Interrogatories; 
 Statutory); Effect of Granting a New Trial As a matter of 
 
 1. Brickley v. Weghorn, 71 Ind. 497 7. Lowden v. Pennsylvania Co., (Ind. 
 (1880) ; Stockton v. Stockton, 40 Ind. App. 1907) 82 N. E. 941. 
 
 225 (1872). 8. Brickley v. Weghorn, 71 Ind. 497 
 
 2. Farley v. Eller, 40 Ind. 319 (1880) ; Vater v. Lewis, 36 Ind. 288 
 (1872). (1871) ; McElfresh v. Guard, 32 Ind. 
 
 3. Byram V. Galbraith, 75 Ind. 134 408 (1869). But see contra, Peters 
 (1881). v. Lane, 55 Ind. 391 (1876). 
 
 4. Nichols V. State, 65 Ind. 512 9. Bradley v. Bradley, 45 Ind. 67 
 (1879) ; Indianapolis, etc., E. Co. v. (1873) ; Vater v. Lewis, 36 Ind. 288 
 McCaffrey, 62 Ind. 552 (1878); Mur- (1871); Long v. Duncan, 10 Kan. 
 ray v. Phillips, 59 Ind. 56 (1877); 294 (1872). 
 
 Brannon V. May, 42 Ind. 92 (1873). 10. Bradley v. Bradley, 45 Ind. 67 
 
 5. Anderson v. Hubble, 93 Ind. 570 (1873); Kansas Pac. By. Co. v. 
 (1883) ; Brickley v. Weghorn, 71 Ind. Pointer, 14 Kan. 37 (1874) ; Arthur 
 497 (1880) ; Stockton v. Stockton, 40 v. Wallace, 8 Kan. 267 (1871) ; Haz- 
 Ind. 225 (1872) ; Adamson v. Rose, ard Powder Co. v. Viergutz, 6 Kan. 
 30 Ind. 380 (1868). 471 (1870); Barkow V. Sanger, 47 
 
 6. United States Health & Accident Wis. 500 (1879). 
 Ins. Co. v. Clark, (Ind. App. 1908) 
 
 83 N. E. 760; Stockton v. Stockton, 
 40 Ind. 225 (1872). 
 
§ 114 Law and Pact. 166 
 
 fact granting the new trial sets aside a special finding. 1 But a 
 motion for a new trial is not a waiver of a motion for a judgment 
 on facts specially found. 2 JSTor can such a motion be used for the 
 purpose of testing the sufficiency, as matter of law, of findings to 
 support a judgment. 3 The insufficiency, however, of the evidence 
 to support the special findings may properly be raised on such a 
 motion. 4 Unless, however, the evidence is furnished to the appel- 
 late court, it will assume that the action of the jury was within 
 the bounds of reason. 5 The relations between the special finding 
 and the general verdict may be used by the trial court to 
 decide as to whether a new trial should be awarded. 6 Such 
 findings are, at times, excellent tests of the mental attitude 
 of the jury and may reveal such a lack of comprehension of 
 the case 7 or some of its more important features 8 as would war- 
 rant a new trial. The same results follow if the special an- 
 swers fail to furnish a fair basis for a judgment upon them. 9 
 The special verdict may, however, aid as well as assist in disturb- 
 ing a verdict on a motion for a new trial. Thus such a finding 
 may show that although the court charged wrongly, the jury were 
 not, in point of fact, misled. 10 But error in law may be com- 
 mitted in awarding a new trial and this also may be shown by the 
 special finding. 11 When a motion for judgment has been properly 
 refused in the trial court, the appellate court will not order a new 
 trial, but direct the entry of the proper judgment by the trial 
 
 1. Hollenbeck v. Marshalltown, 62 7. Atchison, etc., R. Co. v. Brown, 
 Iowa 21 (1883). 33 Kan. 757 (1885). 
 
 2. Leslie v. Merrick, 99 Ind. 180 8. Baldwin v. St. Louis, etc., By. 
 (1884). Co., 63 Iowa 210 (1884). See Mc- 
 
 3. Hartman v. Flaherty, 80 Ind. 472 Carty v. James, 62 Iowa 257 (1883) ; 
 (1881) ; Williamson v. Yingley, 80 Hazard Powder Co. v. Viergutz, 6 
 Ind. 379 (1881); Spraker V. Arm- Kan. 471, 486 (1870). 
 
 strong, 79 Ind. 577 (1881) ; Byram 9. Minneapolis Harvester, etc., Co. 
 
 v. Galbraith, 75 Ind. 134 (1881); v. Cummings, 26 Kan. 367 (1881). 
 
 West v. Cavins, 74 Ind. 265 (1881). 10. Worley v. Moore, 97 Ind. 15 
 
 4. Murray v. Phillips, 59 Ind. 56 (1884) ; Cleveland, etc., R. Co. v. 
 (1877); Howe V. Lincoln, 23 Kan. Newell, 104 Ind. 264, 3 N. E. 836 
 468 (1880). (1885). 
 
 5. Blew v. Hoover, 30 Ind. 450 11. Baird v. Chicago, etc., By. Co., 
 (1868). 61 Iowa 359 (1883) [distinguishing 
 
 6. See Atchison, etc., E. Co. v. Roberts v. Corbin, 28 Iowa 355 
 Weber, 33 Kan. 543 (1885); Union (1869)]. 
 
 Pac. Ry. Co. v. Shannon, 33 Kan. 446 
 (1885). 
 
167 Assumptions in Appellate Couet. § 115 
 
 judge. 12 But in such a case the special findings must clearly en- 
 title the moving party to judgment. 13 
 
 § 115. (More Rational Expedients; Special Interrogatories; 
 Statutory) ; Error and Prejudice — Failure to secure a specific 
 answer may well be regarded as a matter of prejudice. 1 No 
 prejudicial error, however, is committed where an excluded ques- 
 tion is in reality, covered by other questions which have been 
 submitted, 2 whether the latter have been requested or the submis- 
 sion has been made by the judge of his own motion. 3 If the 
 statute require that the special findings be signed by the fore- 
 man of the jury, it is error to receive them without such a signa- 
 ture. 4 But that the error should be deemed prejudicial it is essen- 
 tial that the party should have objected when the answers were 
 received; otherwise, the error is waived. 5 
 
 Reversal, How Secured. — A party who desires effectively to 
 object to the allowance of an interrogation to the jury must take 
 his exception before the jury retire. 6 
 
 Attitude of Appellate Court. — In an appellate court, the ques- 
 tion on reviewing the ruling of a trial court as to the inconsistency 
 between a general verdict and special findings of fact, in most 
 cases is, and in all cases should be, simply as to whether the trial 
 judge used his administrative power unreasonably; or, as is more 
 frequently said, " abused " it. It is practically an equivalent 
 statement to say that every reasonable assumption (usually styled 
 "presumption"). is in favor of the propriety of the trial judge's 
 action. 7 
 
 12. Smith v. Zent, 77 Ind. 474 4. Sage v. Brown, 34 Ind. 465 
 (1881). (1870). 
 
 13. Croy v. Louisville, etc., By. Co., 5. Vater V. Lewis, 36 Ind. 288 
 97 Ind. 126 (1884). See Newell v. (1871). 
 
 Houlton, 23 Minn. 19 (1875). See The practice is established to sign 
 
 Phoenix Water Co. v. Fletcher, 23 Cal. each answer separately. Sage v. 
 
 481 (1863) ; McDermott v. Higby, 23 Brown, 34 Ind. 465 (1870). Questions 
 
 Cal. 489 (1863). orally answered are not considered in 
 
 1. Kansas Pac. By. Co. v. Pointer, this connection. Moss v. Priest, 19 
 14 Kan. 37 (1874). Abb. Prac. 314 (1863). 
 
 2. Ft. Wayne Cooperage Co. v. Page, 6. Brooker v. Weber, 41 Ind. 426 
 (Ind. App. 1907) 82 N. E. 83; Bice (1872) ; Dupont V. Starring, 42 Mich. 
 V. Wheeling Electrical Co., (W. Va. 492 (1880) ; Manny v. Griswold, 21 
 
 1907) 59 S. E. 626; Hemmingsen v. Minn. 506 (1875); Gerhardt r. 
 Chicago & N. W. By. Co., (Wis. Swaty, 57 Wis. 24 (1883). 
 
 1908) 114 N. W. 785. 7. Indianapolis, etc., B. Co. v. 
 
 3. Strand v. Grinnell Automobile Stout, 53 Ind. 143 (1876); Nichols 
 Garage Co., (Iowa 1907) 113 N. W. v. Weaver, 7 Kan. 373 (1871); Bur- 
 488. leson v. Burleson, 28 Tex. 383 (1866). 
 
§§ 116, 117 Law and Fact. 168 
 
 § 116. (More Rational Expedients; Special Interrogatories; 
 Statutory); Judge Sitting as a Jury — While the matter of in- 
 consistency between special findings and a general verdict is most 
 applicable to the verdicts of a jury, the provisions apply equally 
 to cases where the judge sits as a jury. 1 
 
 § 117. Matters of Argument, Opinion or Judgment Not all 
 
 matters of fact involved in the province of the jury are the sub- 
 ject of evidence. " Matters of law " are, as has been seen, 1 elimi- 
 nated from the list, being transferred from the field of evidence 
 to the functions of the court. Constituent facts are to be found 
 by the jury from the evidence; but antecedent to the relevancy of 
 evidence, and between the probative and the constituent facts, lie, 
 at every stage, the supplied data which alone make possible the 
 exercise of reasoning. These supplied data and propositions of 
 experience, common knowledge, 2 and the like are also removed 
 from the field of proof and placed, as to the truth of propositions 
 in issue within the province of the jury. The rules of reasoning 
 and their application to the evidence, though in themselves facts 3 
 inseperably involved in the determination of the issue, are not the 
 subject of judicial evidence. Within limitations imposed by the 
 rule of law which requires the exercise of reason, the judging of 
 the issue, the exercise of the reasoning faculty on the facts involved 
 in the case as to the truth of the proposition in issue or as to the 
 existence of any constituent fact is a function of the jury. A 
 witness, therefore, is not at liberty (1) to testify to the existence 
 and nature of the rules of reasoning applicable to the case;* (2) to 
 argue a proposition in issue or the inferences from any fact in 
 evidence, or (3) to state the effect which the evidence as to the 
 existence of any probative or constituent facts has produced in 
 
 1. Gebhart v. Merchant, 84 Ark. altered at all.'' Williams, J. in Pearce 
 
 359, 105 S. W. 1034 (1907). V. Lansdowne, 69 L. T. Rep. 316 
 
 1. Supra, § 41. (1893). 
 
 2. Infra, §'§ 691 et seq. 4. The nature and scope of the rules 
 
 3. " An inference from facts is it- of correct reasoning or the necessary 
 self a fact." " It is not because facts laws of thought are discerned intu- 
 are admitted that it is therefore for itively or constitute subjects of im- 
 the judge to say what the decision on mediate consciousness and form part 
 them should be." Davey V. London, of the general knowledge of the jury 
 etc., Ry. Co., L. R. 13 Q. B. D. 70, 76 (or judge, as the case may be) to 
 (1883), per Bowen, L. J. "I do not which, as part of the mental equip- 
 believe that because the facts are ad- ment of the tribunal of fact appeal is 
 mitted the functions of the jury as constantly, if unconsciously, made in 
 to drawing inferences from them are the course of judicial inquiries. 
 
169 Coukt Will Enfoece Use of Eeason. § 118 
 
 his mind. The logical bearing and effect of facts introduced in 
 evidence upon the existence of the constituent facts are therefore 
 facts constituting part of the province of judgment, the judicial 
 function of decision. Legally, these facts are treated as a separate 
 class designated as " Matters of Opinion," 5 and, except under 
 special circumstances, are reserved for employment by the jury 
 alone. 
 
 § 118. (Matters of Argument, Opinion or Judgment) /Sound 
 
 Reasoning. — What constitute the rules of sound reasoning, or as 
 to what inferences should properly and logically be drawn from 
 the evidence as to the futh of propositions in issue, is within 
 certain limits also a matter for the jury. 1 This processes essential 
 in reaching the constituent from the probative or evidentiary 
 facts. It is within the function of counsel, at the stage of 
 argument to call the jury's attention to such rules and their appli- 
 cation to the facts of the particular case, and so to arrange the 
 inferences from the evidence, as to sustain, so far as possible, his 
 particular contention as to the truth of the proposition under in- 
 vestigation. 2 It is the duty of the court to bring the same matters 
 to the jury's attention, at an appropriate stage. But while the ap- 
 plication of reason to the evidence with a view to reaching the con- 
 stituent facts is part of the jury's duty in finding these facts, 
 the insistence that they shall use reason, rather than caprice, 
 emotion or any less worthy means of arriving at their conclusion, 
 is imposed by the substantive law — formulated and enforced so 
 far as they are concerned, by the presiding judge. 3 
 
 5. Infra, §§ 1791 et seq. of procedure. In the earlier law, coun- 
 
 1. Com. v. Anthes, 5 Gray 185, 193 sel rather stated the formularies, as of 
 (1855) (adjudicate; "the power to sacramental efficacy, than considered 
 
 exercise that reason and judgment, act- the effect of what they were doing 
 
 ing upon all the appropriate prem- on the mind of anyone. " The science 
 
 ises"). "It is the office of jurors to of statement was far more important 
 
 adjudge upon their evidence." Little- than the substance of the right, and 
 
 ton's Case (1612), cited in 10 Co. that rights of litigants themselves 
 
 56b. were comparatively unimportant, un- 
 
 2. A changed position. — In thus less they illustrated some obscure, in- 
 stating to the jury the rules of sound teresting and subtile point of the 
 reasoning and those of law, substan- science of stating those points." Lord 
 tive or procedural, counsel are follow- Chief Justice Coleridge. 
 
 ing in a change of function, the 3. In such cases the evidence is 
 
 altered conditions of a modern trial in " insufficient in law to support a 
 
 appealing to reason from those of verdict." Denny v. Williams, 5 Allen 
 
 the earlier formal contest where proof 1, 4 (1862). Infra, §§ 385 et seq. 
 was by the issue of a mechanical test 
 
§ 119 Law and Fact. 170 
 
 Reason Imperative on the Judge. — This obligation to employ 
 correct reasoning is imposed by substantive law on the jury. But 
 it has been placed by that law equally on the judge. It matters 
 little, therefore, whether the judicial, judging, act is by the jury in 
 dealing with the truth of a proposition in issue or whether the 
 judging is done by the court in the interpretation of writings, in 
 subsidiary findings of fact, or indeed any discharge of adminis- 
 trative functions. 4 The effect of the thinking, the goal to which 
 the reasoning shall verge, is left to the judge or jury, in accord- 
 ance with their respective functions. But that reason — and noth- 
 ing else — shall be the guide and conditioner of each step is beyond 
 either branch of the tribunal to vary. The requirement is matter 
 of law, to be enforced by all branches of the tribunal upon them- 
 selves and enforced by all courts having power of regulation over 
 juries or inferior judges. The use of reason constitutes the neces- 
 sary atmosphere in which the modern trial lives, moves and has 
 its being. 
 
 § 119. Matter of Law — Consideration has thus been given to 
 " matter of fact " as rather loosely used in the phraseology of 
 judicial proceedings; and as to the manner and extent to which, 
 under the generally prevailing system of English jurisprudence, 
 issues involving matters of fact are decided by a jury. It remains 
 to turn attention to the many and important issues, or questions of 
 fact which are decided by the judge. While these matters of fact, 
 grouped under the heading of " matter of law," present the com- 
 mon feature that they embody the use of legal reasoning, i. e., 
 involve the application of the rule of law to a set of facts, they 
 yet present among themselves certain points of difference. Among 
 them, for example, are the meaning of words and the general re- 
 quirement of the use of reason in extrajudicial as well as in 
 judicial conduct, especially in relation to certain branches of the 
 substantive law. In addition to these more general matters, it is 
 the practice of the courts when certain sets of constituent facts 
 have been found by the jury, or where these are admitted or not 
 controverted, to apply to them the rule of law for themselves. A 
 familiar instance of this is in connection with the construction of 
 documents. As has been observed elsewhere, this course of judicial 
 administration seems to be in the interest of sane public policy. 
 
 4. Lane v. Moore, 151 Mass. 87, 91 (1890). 
 
171 Social Importance of Judge's Action. § 11& 
 
 However this may be, it is well to notice that all these instances 
 of the dealing by the court with issues or other matters of fact, 
 have been, as a rule, spoken of by judges as being " matters of law." 
 If it were true that all questions of fact were for the jury and all 
 questions of law for the judge, it would be equally true that all 
 questions decided by the judge are "matters of law; " and it is 
 generally with this in view that the phrase is used. 1 There is 
 weight, however, in the suggestion of Chief Justice Cockburn, 2 
 " The right mode of dealing with a question of fact which it is 
 thought desirable to withdraw from the jury is to say that it shall, 
 though a question of fact, be determined by the judge." 3 The 
 judge's function in this connection, though dealing with facts, 
 varies from his province in finding the existence of other facts, 
 e. g., those preliminary to the admissibility of evidence.* In de- 
 ciding a preliminary fact, the judge definitely passes, finally or 
 provisionally, upon the existence of all facts necessary to his 
 decision. 
 
 In the present connection the existence of the primary facts, if 
 disputed, is matter for the jury. The court draws the inference 
 from these constituent facts found by the jury and applies the rule 
 of law to reach a judgment. He is solving, as the phrase goes, " a 
 mixed question of law and fact." 6 The actual situation would be 
 more nearly described by saying that the judge is construing a 
 broad rule of law in terms of a particular set of facts. 6 The jury 
 find the constituent facts. The judge decides what the inference 
 from them shall mean in terms of the liability claimed. He is so 
 cautious about interfering or appearing to interfere with the jury's 
 exercise of a function which they have no natural capacity for 
 employing, but which the interests of society demand should be 
 discharged as he only is fitted to do it, that he speaks of his 
 action as a matter of law and makes his ruling in terms of evi- 
 dence — that there is or is not " evidence " for the jury as if, at 
 
 1. Duncan v. Duncan, 1 Watt3 322, answered a multitude of questions of 
 325 (1S33) (whether a document i3 ultimate fact, or facts which form 
 under seal). part of the issue." Thayer, Prel. 
 
 2. Letter of June 12, 1879, to House Treat. 202. 
 
 of Commons, printed by order of the 4. Supra, § 81. 
 
 House. 5. Johnstone v. Sutton, 1 T. R. 493, 
 
 3. "The allotment to the jury of 545 (1786); Bulkeley v. Smith, 3 
 matters of fact, even in the strict Duer (N. Y.) 261 (1853). 
 
 sense of fact which is in issue, is not 6. Thayer, Prelim. Treat., 225. 
 
 exact. The judges have always 
 
§ 120 Law and Fact. 172 
 
 most, it were a question of administration. Whatever may be 
 the circumlocution, he is applying the rule of law to the facts in 
 review or anticipation of the action of the jury in doing so ; and 
 he is acting wisely. 
 
 § 120. Meaning of Words.— The meaning of words is equally 
 a question of fact, whether the meaning is of words taken sep- 
 arately of themselves, as definitions or when the inquiry is as to 
 the meaning in which they have been used in a given context or 
 under a certain set of circumstances. In other words, definition as 
 well as interpretation presents a question of fact. The function of 
 defining words used in connection with rules of law necessarily, 
 however, fell to the court as part of its duty of administration as 
 presiding officer of a mixed tribunal charged by the sovereign with 
 the work of administering justice. 1 These definitions may well be 
 so drawn as to exclude from the consideration of the jury many 
 inferences of fact otherwise permissible, and in this way to take 
 over into the custody of the judge the decision of numerous matters 
 of fact. This function blends with and reinforces the discharge 
 of other judicial duties. For example, many of the rules of sub- 
 stantive law are framed in terms of what is " reasonable." 2 The 
 power of defining the term being with the judge, 3 the cognate duty 
 of enforcing on the jury the rules of correct reasoning becomes at 
 once more easily applied and more cogently enforced. In other 
 words, in dealing with the language of a domestic statute the judge 
 defines its meaning, not only in exercise of the power of definition 
 but also by virtue of his power of construing the written law of the 
 forum incidental to its administration. 4 
 
 1. Massachusetts. — Com. v. Crow- and proper ") (1819) ; Calder v. Bull, 
 
 ley, 145 Mass. 430 ("baker") (1888). 3 Dall. 386 {ex post facto) (1798). 
 
 Minnesota. — Taylor v. Horst, 52 England. — Russell v. Russell, L. R. 
 
 Minn. 300 ("book account") A. C. ("cruelty") 395 (1897) ; Ho- 
 
 (1893). mer V. Taunton, 5 H. & N. 661, 667 
 
 New Hampshire. — State v. Jones, (1860) ; Barnett v. Allen, 3 H. & N. 
 
 50 N. H. 369 (1871) ; State v. Pike, 376 (1858) ; Hoare v. Silverlock, 12 
 
 49 N. H. 399, 430, 442 (1869); A. & E. (N. S.) 624 (1848). 
 
 Boardman v. Woodman, 47 N. H. 120, 2. Infra, §§ 121 et seq. 
 
 146 (1866). 3. Twyne's case, 3 Coke 80b (1610). 
 
 New York. — Hartung v. People, 22 4. " Whether or not a definitely de- 
 
 N. V. 95 (ex post facto) (1860). scribed game falls within the prohi- 
 
 Vermont. — State v. Stevens, 69 Vt. bition of the statute against gambling 
 
 411 ("a set line") (1897). is a question of law." Com. v. Sulli- 
 
 United States. — MoCulloch V. van, 146 Mass. 142, 145 (1888). But 
 
 Maryland, 4 Wheat, 316 ("necessary see Pearce v. Lansdowne, 69 L. T. 
 
173 Juby Decide Seasonable Conduct. §§ 120a, 121 
 
 The judge may, however, ash the opinion of the jury, if so in- 
 clined, as to the significance of a word used in a statute. 5 But 
 the assistance rendered by them is merely an aid to the judge in 
 discharging a duty of his own, is rendered necessary by a practical 
 uncertainty in the mind of the court, and by no means signifies 
 that such a construction is within the province of the jury as a 
 matter of right. 6 
 
 § 120a. The Use of Reason; By the Jury. — The power of the jury 
 to deal with the facts as measured by the rule of law given to them 
 by the court for that purpose is not, however, unlimited. Among 
 matters of law, i. e., rules of legal requirement, which still remain 
 in the handling of the judge, is the requirement that the jury must 
 proceed according to reason, whether the reasoning is logical or 
 legal. No enthusiasm of partisanship for the power of the jury 
 has gone so far as to concede them an absolute and unlimited con- 
 trol of their reasoning processes, except in criminal cases, where 
 the resulting unreversibility rather follows from the provision of 
 substantive law against being twice placed in jeopardy than is 
 due to any principal contrary to the duty of the court to insist 
 upon the use of reason. 
 
 § 121. TTse of Reason; By Others — A practical way of working 
 out this requirement that the jury should use reason is in con- 
 nection with its use by others. The general standard of conduct 
 is that to be legally justified, it should be reasonable. That is, 
 in dealing with others so far as his conduct affects them, he must 
 act reasonably. This issue of reasonableness is frequently left to 
 the jury, as the rule of law which they are to apply to the constit- 
 uent facts. 1 This power of applying the rule of law (i. e., the test 
 
 Hep. 316 (1893), (whether a "pot- 1. Missouri. — Gerdes v. Iron & F. 
 
 man " is a " domestic or menial serv- Co., 124 Mo. 347, 25 8. W. 557 
 
 ant") where the court proceed upon (1894). 
 
 the assumption that the question is South Carolina. — Chesterfield v. 
 
 one for the jury. Ratliff, (S. C. 1898) 30 S. E. 593 
 
 5. Com. V. Wright, 137 Mass. 250 (unreasonable shooting), 
 (whether the game of policy is a Utah. — White v. Pease, 15 Utah 
 "lottery") (1884). 170, 49 Pac. 416 (1897) (reasonable 
 
 6. " It is not necessary to go on delivery of goods). 
 
 forever taking the opinion of the jury United States. — Chesapeake Ins. 
 
 in each new case that conies up." Com. Co. v. Starke, 6 Cranch 268, 278 
 
 v. Sullivan, 146 Mass. 142, per Holmes, (1810) (reasonable abandonment of 
 
 J. (18S8). vessel). 
 
§ 122 Law and Fact. 1H 
 
 of reasonableness) to the constituent facts is, as generally in such 
 cases, merely incidental to find the facts themselves. After these 
 facts are found, 2 or appear to he admitted or uncontroverted, 3 the 
 rule of reasonableness may well be applied by the court. The 
 greater definiteness of substantive law — toward which courts are 
 very properly aiming, 4 operates also to restrict the jury's function 
 of applying the law to the constituent facts. 5 To a greater or less 
 extent the judicial importance of the element of the ascertainment 
 of fact is eliminated or subordinated. As this element is withdrawn 
 by agreement or ascertainment as to what the facts are, only the 
 rule of law remains, and this, so far as the rule itself is con- 
 cerned, is for the court and, under the circumstances, carries with 
 it the right to do also the legal reasoning, i. e., to apply the law 
 to the facts. 
 
 § 122. (Use of Reason); Seasonable Time. — In any case 
 where the facts relating to what is a reasonable time are estab- 
 lished by admission or otherwise, the question is one of law. 1 This 
 question of due and reasonable diligence in giving notice of dis- 
 honor of commercial paper has been held to be one of law where 
 the facts are proved or admitted. 2 As in other cases where the 
 
 England. — Burton v. Griffiths, 11 5. Ryder v. Wombwell, L. R. 4 Exeb. 
 
 M. & W. 817 (1843) (reasonable 32 (1868) (what are necessaries for 
 
 time); Facey v. Hurdom, 3 B. & C. an infant?). 
 
 213 (1824) (reasonable time). 1. American Window Glass Co. v. 
 
 " Whether there has been, in any par- Indiana Natural Gas & Oil Co., (Ind. 
 
 ticular case, reasonable diligence used App. 1906) 76 N. E. 1006. 
 
 or whether unreasonable delay has oc- 2. Walker v. Stetson, 14 Oh. St. 
 
 curred, is a mixed question of law and 89 (1862); Bank of Upper Canada 
 
 fact, to be decided upon by the jury, v. Smith, 4 Q. B. U. C. 483 (1847). 
 
 acting under the direction of the " Notice, of course, means knowledge; 
 
 judge, upon the particular circum- and there has been no direct attempt 
 
 stances of each case." Mellish v. to deny that this is a question of 
 
 Rawdon, 9 Bing. 416 (1832). fact. But there has been a strong 
 
 2. Joyner v. Roberts, 114 N. C. and persistent attempt to lay down 
 389, 392, 19 S. E. 645 (1894) (rea- rules as to what constitutes evidence 
 souable inquiry before issuing a mar- of notice. This, if successful, is, of 
 riage license ) . course, in reality a roundabout way of 
 
 3. Comer v. Way, 107 Ala. 300, 19 altering the law as to notice. When 
 South. 966 (1896) (reasonable time) ; a man says to me that henceforth, 
 American Surety Co. v. Pauly, 18 C. under all circumstances, upon certain 
 C. A. 644, 72 Fed. 4'70 (3 896) (reas- facts being proved I shall be presumed 
 onable diligence in sending notice) ; to know a thing, he really says that 
 Earnshaw v. U. S., 146 U. S. 60, 67, 13 consequences, which formerly only re- 
 Sup. 14 (1872) (reasonable notice). suited from knowledge, shall now re- 
 
 4. Infra, §§ 145 et seq. suit from circumstances other than 
 
175' Anomalous Rulings as to Eeasonableness. § 122 
 
 issue of reasonable time is raised 3 and the facts are in controversy, 
 their existence is a question for the jury, who may find whether 
 due diligence has been used under proper instructions from the 
 judge, 4 
 
 Other Applications. — There is, however, no absolute uniform- 
 ity in the matter. 
 
 Other applications of the standard of reasonableness to states 
 of fact claimed to ground a legal liability are recognized as within 
 the trial function of the jury. It is conceded that the circumstance 
 that the requirement of reasonableness itself is a rule of the sub- 
 stantive law pertaining to the subject-matter does not extend the 
 province of the judge. Thus, what is "reasonable time" within 
 which to do certain things, 5 is properly deemed to present a ques- 
 tion of fact. The existence of the standard is not in question. 
 A given set of circumstances may, when applied to the prescribed 
 standard of conduct, present such clearness of result that but one 
 inference is logically possible. The judge may intervene in such a 
 case to enforce the rule of law requiring that the jury should 
 exercise sound reason. But this does not make a question of law 
 out of a question of fact. It merely announces the rule of logic 
 — sustained and enforced as a rule of law — that there is, in 
 reality, no question of fact at all. In certain special instances, of 
 actions or failures to act, the court may seem to be doing more than 
 this. It is seldom, however, in reality that this is a correct view 
 of the matter. The peculiarity in these cases is merely that, in 
 adopting the standard of reasonableness, the court has necessarily 
 imported a non-legal test as part of a rule of law. The natural 
 desire and tendency is to clarify and define this element of the 
 rule of limiting the debatable ground which is a matter of fact 
 for the jury. The gain which courts have made in this particular 
 is by no means uniform and is the cause of some appearance of 
 anomaly in function along certain lines. 
 
 knowledge.'' Sir William Markby, machinery) ; Chesapeake Ins. Co. v. 
 
 Law and Fact, Law Mag. & Rev., 4th Stark, 6 Cranch (U. S.) 268 (1810) 
 
 Ser., Vol. II, 319. (make an abandonment) ; Cocker v. 
 
 3. Jenkins v. Sykes, 19 Fla. 148 Franklin Hemp., etc., Co., 3 Sumn. (U. 
 (1882) (cut and carry away wood). S.) 530 (1839) (deliver goods); 
 
 4. Wyman v. Adams, 12 Cush. 210 Facey v. Hurdom, 3 B. & C, 213 
 (1853). (1824) (compare tithe with residue 
 
 5. Haskins v. Hamilton, etc., Ins. of crop). 
 Co., 5 Gray (Mass.) 432 (1855) (finish 
 
123 
 
 Law and Fact. 
 
 176 
 
 § 123. (Use of Reason) ; Negligence — The principle — that 
 where the facts are proved or undisputed, their effect is a 
 matter of law — is applied to cases involving alleged negli- 
 gence. 1 The legal standard involved — the action of a rea- 
 sonably prudent man in the exercise of due care — implies a 
 reference to the conduct and experience of mankind, at large, in 
 the community from which the jury are drawn and therefore falls 
 with peculiar appropriateness within the function of the jury. 
 Per contra, important considerations make the intervention of the 
 court at this stage both easy and, w.ithin certain limits, beneficial. 
 The control of the court is facilitated by the fact that it is an 
 appropriate and constant function of the judge as is more fully 
 stated elsewhere, 2 not only to exercise the rules to correct reason- 
 
 1. California. — Herbert v. B. Co., 
 121 Cal. 227, 53 Pac. 651 (1898). 
 
 Illinois. — Terre Haute & I. E. Co. v. 
 Voelker, 129 111. 540, 23 N. E. 20 
 (18S9). 
 
 Indiana. — Young v. B. Co., 148 Ind. 
 5-1, 47 N. E. 142 (1897) ; Stroble v. 
 New Albany, 144 Ind. 695, 42 N. E. 
 806 (1896). 
 
 Maine. — Blumenthal f. E. Co. 97 
 Me. 255, 54 Atl. 747 (1903). 
 
 Michigan. — Lake Sbore, etc., Ey. 
 Co. v. Bangs, 47 Mich. 470 (1882) ; 
 Joslin v. Le Baron, 44 Mich. 160 
 (1880). 
 
 Missouri. — Keown v. St. Louis Ey. 
 Co., (Mo. 1897) 41 S. W. 926; Mauer- 
 man v. Siemerts, 71 Mo. 101 (1879). 
 
 Nebraska. — Spears v. E. Co., 43 
 Nebr. 720, 62 N. W. 68 (1895). 
 
 New Jersey. — Goldsboro v. E. Co., 
 60 N. J. L. 49, 37 Atl. 433 (1897) ; 
 Pennsylvania Ey. Co. v. Eighter, 42 
 N. J. Law, 180 (1S80). 
 
 New York. — Stackus v. New York, 
 etc., Ey. Co., 79 N. Y. 464 (1880). 
 
 North Carolina. — Ward v. Odell 
 Mfg. Co., 123 N. C. 248, 31 S. E. 495 
 (1898); White v. E. Co., 121 N. C. 
 484, 27 S. E. 1002 (1897) ; Tillett v. 
 E. Co., 118 N. C. 1031, 24 S. E. Ill 
 (1896); Woodward r. Hancock, 7 
 Jones (Law) 384 (1860). 
 
 Pennsylvania. — Boyle r. Mahanoy 
 City, 187 Pa. 1, 40 Atl. 1093 (1898) ; 
 
 Gates v. E. Co., 154 Pa. 566, 572, 26 
 Atl. 598 (1893). 
 
 West Virginia. — Hanley v. Hunt- 
 ington, 37 W. Va. 578, 16 S. E. 807 
 (1893). 
 
 Wisconsin. — Morrison v. Madison, 
 96 Wis. 452, 71 X. W. 882 (1897); 
 Hart r. E. Co., 86 Wis. 483, 490, 57 
 N. W. 91 (1893) ; Salladay v. Dodge- 
 ville, 85 Wis. 318, 328, 55 N. W. 696 
 (1893). 
 
 United States. — Patton v. E. Co., 
 27 C. C. A. 287, 82 Fed. 979 (1897) ; 
 Pyle r. Clark, 25 C. C. A. 190, 79 
 Fed. 744 ( 1897 ) ; Northern P. E. Co. 
 v. Peterson, 5 C. C. A. 338, 55 Fed. 
 940 ( 1893 ) ; Gardner r. M. C. E. Co., 
 150 U. S. 349, 361, 14 Sup. 140 
 ( 1893 ) ; Eiclvmond & D. E. Co. v. 
 Powers, 149 U. S. 43, 45, 13 Sup. 748 
 ( 1893 ) ; Washington & G. E. Co. v. 
 Harmon's Adm'r, 147 U. S. 571, 580, 
 13 Sup. 557 (1893); Delaware L. & 
 W. E. Co. v. Converse, 139 U. S. 469, 
 11 Sup. 569 (1891) ; Kane i\ E. Co., 
 128 U. S. 91, 9 Sup. 16 (1888). 
 
 England. — Metropolitan R. Co. v. 
 Wright, L. E. 11 App. Cas. 152 
 (1886) ; Metropolitan E. Co. v. Jack- 
 son, L. E. 3 App. Cas. 193 ( 1877 ) ; 
 Dublin, etc., E. Co. v. Slattery, L. E. 
 ,3 App. Cas. 1155 (1878) ; Bridges r. 
 E. Co., L. E. 7 H. L. 213 (1874) per 
 Brett, J. 
 
 2. Infra, § 118. 
 
177 Negligence as Mattek of Law. § 124 
 
 ing in his own action but to enforce the observance of these rules 
 upon the jury in connection with the work of that body. 3 The 
 same correct use of the reasoning faculty is the test of negligence. 
 
 § 124. (Use of Reason; Negligence) ; Action of the Judge — 
 
 The substantive law of negligence requires that the party whose 
 conduct is in question should have exercised the same reasoning 
 faculty regarding the facts presented to him which the jury are 
 called upon to exercise upon the facts as they appear in evidence, 
 due allowance being made for lack of adequate time, imperfect 
 apprehension of modifying facts, which attended its exercise in the 
 first instance. But as it is not reasoning to any particular effect 
 but the use of reason itself upon which the court insists in dealing 
 with the inferences of the jury, any violation of which it would be 
 the duty of the court in the exercise of its other functions to prevent 
 or nullify, 1 the judge does not set aside a verdict based upon a 
 logically permissible inference merely because he himself would 
 have drawn a different one. 2 The ruling may be to the effect that, 
 under the processes of sound reasoning, certain acts or omissions 
 amount to negligence. 3 On the other hand, it may be to the effect 
 that, by the rules of reason, the defendant cannot be found liable. 
 In other words, it is in the extreme cases', where liability or its 
 absence is rationally clear, that the court, by way of enforcing the 
 requirement of sound reasoning, rules as to the existence of negli- 
 gence; and such a ruling is practically equivalent to holding that 
 
 3. Infra, §§ 120a, 122. from any given state of facts the judge 
 
 1. Stackus v. New York, etc., Ry. must say whether negligence can legiti- 
 
 Co., 79 N. Y. 464 (1880) ; Schofield v. mately be inferred and the jury 
 
 Chicago, etc., Ry. Co., 114 U. S. 615, whether it ought to be inferred." Met- 
 
 618(1884); Anderson County Cbmm'rs ropolitan R'y Co. v. Jackson, 3 App. 
 
 v. Beal, 113 U. S. 227, 241 (1884) ; Cas. 193, 200 (1877). 
 
 Randall v. Baltimore, etc., Ry. Co., 109 2. Stackus v. R. R. Co., 79 N. Y. 
 
 U. 8. 478, 482 (1883); Phoenix Ins. 464 (1880); Belt v. Lawes, London 
 
 Co. v. Doster, 106 U. S. 30 (1882) ; Times of March 18, 1884, (where 
 
 Griggs V. Houston, 104 U. S. 553 Brett. M. R. says:— " To ask ' Should 
 
 (1881) ; Dublin, etc., Ry. Co. V. Slat- we have found the same verdict? ' is 
 
 tery, 3 App. Cas. 1155 (1878). " It surely not the same thing as to ask 
 
 would be an idle proceeding to submit whether there is room for a reasonable 
 
 the evidence to the jury when they difference of opinion ") . 
 
 could justly find only in one way." 3. Minor v. Sharon, 112 Mass. 477, 
 
 North Pennsylvania, etc., Ry. v. Com- 487 (1873) (knowingly letting a house, 
 
 mercial Bank, 123 U. S. 727, 733 infected with small pox) ; Delaware 
 
 (1887). "It is, indeed, impossible to etc., Ry. Co. v. Converse, 139 U. S. 469 
 
 lay down any rule except * * * that (1890) (" running switch ") ; Stan- 
 
 VOL. I. 12 
 
§ 125 
 
 Law and Fact. 
 
 178 
 
 the jury would not be justified, as a matter of reasoning, i. e., as 
 a matter of law, 4 in reaching any other result. 5 
 
 Where essential facts are controverted, the court may properly 
 give hypothetical instructions as to the effect of the facts, as mat- 
 ter of law, in establishing negligence, according as the jury shall 
 find or fail to find the existence of the disputed facts. 
 
 § 125. (Use of Reason; Negligence); Duty of the Jury. — It 
 
 is not disputed that the finding of the constituent facts is matter 
 for the jury. 1 It is only in cases where but one inference is logi- 
 cally permissible, that the court says that all facts are established 
 and rules, as a matter of law, as to the existence of negligence, 
 ignoring the possibility that the jury might have reached a con- 
 clusion not permitted by the rules of reasoning. 2 States of fact, 
 from which more than one inference is reasonably possible, 3 or" 
 
 ner v. London, etc., Ry. Co., 5 Exch. 787 
 (1850). This power of the court has 
 been controverted and it has been held 
 that even in a case to which the doc- 
 trine res ipsa loquitur applies, it is 
 error to charge that a given state of 
 facts either constitutes or affords 
 prima facie proof of negligence when 
 there is no statute expressly de- 
 claring that this is true as matter of 
 law. Augusta R'y & Electric Co. v. 
 Weekly, 124 Ga. 384, 52 S. E. 444 
 (1905). 
 
 " In reviewing a nonsuit, the evi- 
 dence is to be construed most favor- 
 ably for the plaintiff." Stackus v. 
 New York, etc., Ry. Co., 79 N. Y. 
 464 (1880). 
 
 4. The party aggrieved by such a 
 ruling is entitled to have the same 
 considered by an appellate tribunal. 
 Terre Haute, etc., Ry. Co. v. Voelker, 
 129 111. 540 (1889). 
 
 5. Grafton v. Metropolitan R'y Co., 
 L. R. 1 C. P. 300 (1866) (brass 
 nosing worn smooth on railway steps 
 not evidence of negligence). 
 
 6. Williams v. Greely, 112 Mass. 79 
 (1873) ; Kearney v. London, etc., Ry. 
 Co., L. R. 5 Q. B. 411, 414, 417, S. C. 
 6 id. 759 (1870) ; Byrne v. Boadle, 2 
 H. & C. 733 (1863), 
 
 1. Pennsylvania Co. v. Conlon, 101 
 111. 93 (1881). 
 
 2. Stackus v. New York, etc., Ry. Co., 
 79 N. Y., 464 (1880). " It is only in 
 cases where the act or omission is 
 negligent per se that courts should 
 assume to decide it as a question of 
 law." Stackus v. New York, etc., Ry. 
 Co., 79 N. Y. 464 (1880). 
 
 3. Kansas. — Kansas Pacific R'y Co. 
 v. Richardson, 25 Kans. 391 (1881). 
 
 Maryland. — Cumberland Valley, etc. 
 R'y Co. v. Mangans, 61 Md. 53 
 (1883). 
 
 Massachusetts. — Doyle v. Boston, 
 etc., R'y Co., 145 Mass. 386 (1888) ; 
 Randall v. Connecticut R'y Co., 132 
 Mass. 269 (1882) ; Minor v. Sharon, 112 
 Mass. 477 (1873) (negligence in not 
 having children vaccinated) ; Whee- 
 lock v. Boston & Albany R'y Co., 105 
 Mass. 203 (1870). 
 
 Michigan. — Seipel v. Hilsendegen, 
 44 Mich. 461 (1880). 
 
 New York. — Payne v. Troy, etc., 
 R'y Co., 83 N. Y. 572 (1881) ; Stackus 
 v. New York, etc., R'y Co., 79 N. Y. 
 464 (1880). 
 
 Pennsylvania. — Stager v. Pass. R'y 
 Co., 119 Pa. St. 70 (1888). 
 
 United States. — Baltimore, etc., R'y 
 Co. v. Griffith, 159 U. S. 603 (1895) ; 
 
179 Probable Cause in Malicious Prosecution. § 126 
 
 where the evidence as to the existence of material facts is con- 
 flicting, 4 present questions for the jury; whose finding, if rational, 
 should not be reversed. 5 
 
 § 126. (Use of Reason); Probable Cause.— In like manner, on 
 an action for malicious prosecution where the facts are proved or 
 conceded, 1 the existence of reasonable and probable cause for in- 
 stituting proceedings is said to be a question of law, 2 even where 
 the facts are numerous and complicated. 3 In part this is by rea- 
 son of considerations of public policy. As was said in a celebrated 
 case in the English House of Lords : * " Probably it became so 
 from anxiety to protect parties from being oppressed or harassed 
 in consequence of having caused arrests or prosecutions in the 
 
 Jones v. East Tenn. R'y Co., 128 U. S. 
 443 (1888) ; Railroad Co. v. Stout, 17 
 Wall. 657 (1873). 
 
 England. — Metropolitan R'y Co. v. 
 Jackson, 3 App. Cas. 193, 197 (1877). 
 
 4. Randall v. Connecticut, etc., R'y 
 Co., 132 Mass. 269 (1882) ; R. R Co. 
 V. Fraloff, 100 U. S. 24, 31 (1879) ; 
 Parsons v. Bedford, 3 Pet. 433, 447 
 (1830). 
 
 5. " We have no authority to review 
 their finding in that respect." Dela- 
 ware, etc., R'y Co. v. Converse, 139 
 U. S. 489 (1890). 
 
 1. White v. McQueen, 96 Mich. 249, 
 254, 55 N. W. 843 (1893); Diers v. 
 Mallon, 46 Neb. 121, 64 N. W. 722 
 ( 1895 ) ; Wass v. Stephens, 128 N. Y. 
 123, 28 N. E. 21 (1891). 
 
 2. California. — Ball v. Rowles, 93 
 Cal. 227 (1892). 
 
 Illinois. — Jacks v. Stimpson, 13 
 111. 701 (1852). 
 
 Maine. — Humphries v. Parker, 52 
 Me. 502 (1864); Taylor V. Godfrey, 
 36 Me. 525 (1853). 
 
 Maryland. — Kirk v. Garrett, 84 
 Md. 383, 35 Atl. 1089 (1896). 
 
 Massachusetts. — Stone v. Crocker, 
 24 Pick. 81 (1832). 
 
 Michigan. — Filer v. Smith, 96 
 Mich. 347, 102 Mich. 98, 55 N. W. 999, 
 60 N. W. 297 (1894). 
 
 New York. — Besson v. Southard, 10 
 N. Y. 236 (1851) ; MeCormick v. Sis- 
 eon, 7 Cow. 715 (1827). 
 
 Ohio. — Ash v. Marlow, 20 Ohio 119 
 (1851). 
 
 Oregon. — Hess v. Bank, 31 Oreg. 
 503, 49 Pac. 803 (1897). 
 
 Vermont. — Barron v. Mason, 31 Vt. 
 189 (1858). 
 
 United States. — Sanders v. Palmer, 
 5 C. C. A. 77, 55 Fed. 217 (1893); 
 Stewart v. Sonneborn, 98 U. S. 187, 
 194 (1878); Munns V. Dupont, 3 
 Wash. C. Ct. 31 (1811). 
 
 England. — Abrath v. N. E. R'y Co., 
 11 App. Cas. 247 (1886); Lister v. 
 Ferryman, L. R. 4 H. L. 521 (1870) ; 
 Panton v. Williams, 2 Q. B. 169 
 ( 1841 ) ; Sutton v. Johnstone, 1 T. R. 
 493 (1786). 
 
 Canada. — Olsen v. Lantalum, 32 N. 
 Brunsw. 526 (1894). 
 
 " This is the doctrine generally 
 adopted." Stewart v. Sonneborn, 98 
 U. S. 187, per Strong, J. (1878). 
 " What is reasonable and probable 
 cause in an action for malicious prose- 
 cution or for false imprisonment, is 
 to be determined by the judge. In 
 what other sense it is properly called 
 a question of law I am at a loss to 
 understand." Lord Chelmsford in 
 Lister v. Perryman, L. R. 4 H. L. 
 521 (1870). 
 
 3. Panton v. Williams, 2 Q. B. 169 
 (1841). 
 
 4. Lister v. Perryman, L. R. 4 H. 
 L. 521, (1870), per Lord Colonsay. 
 
§ 127 Law and Fact. 180 
 
 fair pursuit of their legitimate interests, or as a matter of duty 
 in a country where parties injured have not the aid of a public 
 prosecutor to do these things for them." In part, also, the rule 
 is due to the technical nature of the questions which this issue 
 brings to the attention of the mixed tribunal. In itself considered, 
 there is little doubt that as said by Lord Westbury in Lister v. 
 Perryman, 5 " the existence of reasonable and probable cause is an 
 inference of fact." There are no rules or principles of law by 
 which the court ought to be guided in drawing that inference. 6 
 
 Though the function of the court in dealing with questions of 
 probable cause has been treated as similar to that exercised in 
 cases of negligence, viz., holding the jury to the use of the reason- 
 ing faculty, 7 the weight of authority places the responsibility of 
 drawing the final inference of fact, i. e., whether a state of cir- 
 cumstances existed upon which a reasonable and discreet person 
 would have acted, upon the judge. 
 
 § 127. (Use of Reason; Probable Cause); Province of the 
 Jury — If the existence of these circumstances is controverted, the 
 question is one for the jury. 1 
 
 When the constituent facts are in dispute, 2 the court may submit 
 the question of probable cause to the jury with alternate rulings 
 adapted to their action in determining the question of fact. 3 For, 
 ^ whether the facts controverted in evidence are true or false is a 
 question of the jury 4 and the justice of the inferences to be 
 drawn from such facts " B are questions for them. But it is neces- 
 sary for the court, in each instance, to determine whether the facts 
 which the jury may find from the evidence will or will not estab- 
 lish probable cause. 6 
 
 5. L. R. 4 H. L. 521 (1870). of fact." Stone v. Crocker, 24 Pick, 
 
 6. Lister v. Perryman, L. R. 4 H. (Mass.) 81, 85 (1832). 
 
 L. 521 (1870), per Lord Colonsay. 3. Schattgen v. Holnback, 149 111. 
 
 See also " Probable cause is in the 646, 652, 36 N. E. 969 (1894) ; Ash v. 
 
 nature of the judgment to be rendered Marlow, 20 Ohio 119 (1851) ; Hess V. 
 
 by the court upon a special verdict of Oregon German Baking Co. (Oreg. 
 
 the jury." Ball v. Rawles, 93 Cal. 1897 ) 49 Pac. 803 ; Stewart V. Sonne- 
 
 222, 227 (1892). born, 98 U. S. 187 (1878). 
 
 7. Wass v. Stephens, 128 N. Y. 123, 4. Sutton v. Johnstone, 1 T. R. 493 
 127 (1891). (1786). 
 
 1. Neilson v. Harford, 8 M. & W. 5. Panton v. Williams, 2 Q. B. 169 
 806 (1841). (1841). 
 
 2. " Whether they exist or not, in 6. Hess v. Oregon German Baking 
 any particular case, is a pure question Co., (Oreg. 1897) 49 Pac. 803. 
 
181 Construction of Documents a Matter of Law. § 128 
 
 § 128. Construction of Documents. — Among these subjects is the 
 construction of constituent or probative writings. The real ques- 
 tion in connection with such instruments, is largely one of fact — 
 what intention the language used discloses 1 in view of all the cir- 
 cumstances submitted to the tribunal for its consideration. Where 
 the facts are not in dispute and the intention of the writer is to be 
 gathered from the document itself, its discovery is said to present 
 merely a question of law. 2 This is to be ascertained by the judge, 
 whose ruling must be accepted by the jury. 3 In the same way, 
 where there is no dispute as to the character or device used in the 
 
 1. Edes v. Boardman, 58 N. H., 580 
 (1879). 
 
 The fair meaning of common words, 
 as employed in a document, in view of 
 the context, is part of the court's duty 
 in this connection. Atty.-Gen. v. Dub- 
 lin, 38 N. H. 459 (1859) (" congre- 
 gational persuasion " ) . The consider- 
 ation of the circumstances under 
 which or concerning which they were 
 used so far as they vary the meaning 
 of the words employed in a given docu- 
 ment is also within the province of 
 construction. Allgood v. Blake, L. R. 
 8 Exch. 160 (1873). 
 
 In connection with the law of libel, 
 it has been held that the court may 
 properly rule as to the meaning of 
 the words used under given circum- 
 stances, not as establishing the fact 
 of the declarant's intention; but their 
 effect upon the mind of persons to 
 whose attention they should come as 
 libelous or otherwise. Hazy v. 
 Woitke, 23 Colo. 556 (1897). Com. 
 V. Anthes, 5 Gray (Mass.) 185 
 (1855) ; Capitol, etc., Bank v. Henty, 
 7 App. Gas. 741, 31 W. R. 157 (1882); 
 King v. Dean of St. Asaph's, 3 T. R. 
 428 (1789). 
 
 2. Georgia. — Allen v. Frost, 62 Ga. 
 659 (1879). 
 
 Illinois. — Graham v. Sadlier, 165 
 111. 95 (1897). 
 
 Iou-a. — State v. Delong, 12 Iowa 
 453 (1861). 
 
 Massachusetts. — Smith v. Faulkner, 
 12 Gray 251, 254 (185S). 
 
 North Carolina. — Lindsay v. Ham- 
 burg, etc., Ins. Co., 115 N. C. 212 
 (1894); Young v. Jeff reys, 4Dev. & B. 
 216 (1839). per Gaston, J. (" the as- 
 certainment of the intentions of the 
 parties, as well as the effect of that 
 intention is a pure question of law " ) . 
 
 South Carolina. — Jones v. Swearin- 
 gen, 42 S. C. 58, 67 (1894). 
 
 Tennessee. — R. R. Co. V. McKenna, 
 13 Lea 280 (1884). 
 
 Vermont. — Morse v. Weymouth, 28 
 Vt. 824 (1856). 
 
 United States. — Hamilton v. Liver- 
 pool, etc., Ins. Co., 136 U. S. 242 
 (1889) ; Goddard v. Foster, 17 Wall, 
 123 (1872) ; United States v. Shaw, 1 
 Cliff. 317 (1859); Brown v. MeGraw, 
 114 Pet. 479, 493 (1840). 
 
 England. — Lyle v. Richards, L. R, 
 1 H. L. 222, 241 (1866). 
 
 3. Delaware. — Staunton v. Smith, 
 (Del. 1906) 65 Atl. 593. 
 
 Florida. — Upchurch v. Mizell, ( Fla. 
 1905) 40 So. 29. 
 
 Missouri. — Brewer v. White, (Mo. 
 App. 1905 ) 85 S. W. 641. 
 
 South Carolina. — Reid v. Courte- 
 nay Mfg. Co., 68 S. C. 466, 47 S. E. 
 718 (1904) (deed). 
 
 United States. — ■ Hamilton v. Ins. 
 Co., 136 U. S. 242, 255, 10 Sup. 945 
 (1889). 
 
 England. — Lyle v. Richards, L. R. 
 1 H. L. 222, 241 (1866); Stammers 
 v. Dixon, 7 East 200, 209 (1806). 
 
 Canada. — Betts v. Venning, 14 N. 
 Brunsw. 267, (1 Pugsley) 270 (1873). 
 
§ 129 Law and Fact. 182 
 
 execution of a written instrument, it is for the court to determine 
 whether the device as used constitutes a seal. 4 This ruling is made 
 upon the ground that all facts as to the intention being disclosed 
 by the writing itself, nothing remains for decision but the legal 
 effect of the instrument, which is merely a matter of legal reason- 
 ing, or the use of reason as applied in part, at least, to propositions 
 of law. 8 
 
 § 129. (Construction of Documents); Surrounding Circum- 
 stances. — The court, as incidental to its function of construction 
 of writings, will always permit and, indeed, require, production of 
 all relevant "surrounding circumstances" — as the time-honored 
 but somewhat tautological phrase is. The judge knows that he 
 never can know what a party has said until he ascertains what he 
 meant to say. Any evidence which fairly tends to place the judge 
 when construing A's writing in the mental attitude of A when he 
 wrote it, will usually be received. What effect will be accorded 
 this class of testimony is conditioned by the use which can be made 
 of it when received, and this, in turn is a matter of substantive 
 law, borrowing the phraseology of the law of evidence, and else- 
 where 1 considered under the title of the " Parol Evidence Rule." 
 But it is one of the peculiarities of the puzzling situation arising 
 under that rule, that the evidence of the facts themselves is actually 
 received, though the substantive law may not permit the judge to 
 give effect to them. So necessary is it to sound construction that 
 the judge is justified, as a matter of administration, in declining 
 to construe the writing until the extrinsic evidence is received. 2 
 This is, distinctly, the modern method of construction, widely dif- 
 fering from the limitation to the " four corners of the paper " 
 which characterized the earlier method of interpretation. 3 
 
 4. Langley v. Owens, (Fla. 1906) strict and literal interpretation of the 
 42 So. 457. instrument itself, and not a search 
 
 5. Supra, §§ 59, 63. through the words for the intention 
 This is said to be a question of of the parties. The grammatical 
 
 law. Smith v. Faulkner, 12 Gray method of interpretation has however 
 
 (Mass.) 251, 254 (1858). given way entirely to the logical; and 
 
 1. See Pabol Evidence Rule. the logical method has extended the 
 
 2. Shaw v. Pope, 80 Conn. 206, 67 basis of its inferences beyond the four 
 Atl. 495 (1907). corners of the instrument itself. 
 
 3. " The matter might present it- Whatever remnants of the old lan- 
 self in a somewhat different aspect guage may survive, there is no doubt 
 were the construction of a document that modern judges do really collect 
 that which it once was — a rigidly the intention of the parties from evi- 
 
183 Judicial Knowledge in Constkuction. §§ 130, 131 
 
 § 130. (Construction of Documents); Probative Writings 
 
 Documents other than constituent, i. e., probative writings, may 
 well be construed by the judge as matter of law. Thus, a judge 
 will be justified in not leaving the construction of a letter 1 to the 
 
 jury- 
 
 § 131. (Construction of Documents) ; Statutes. — For especial 
 reasons the construction of written laws is within the province of 
 the court. It is not only his general duty to construe constituent 
 documents, but judicially to know the law, written or unwritten. 1 
 For example, it is the duty of the judge under the law to construe 
 all written papers, 2 including acts of the general assembly and 
 minutes of the city council, and submit such construction to the 
 jury. 3 And such is the general rule in relation to national, state 4 
 or local 5 statutes. The duty of the court being to construe statutes, 
 the judge may construe them in terms of fact. That is, he may 
 state whether a case before him, resting on undisputed facts, is 
 within the statute. It is error for the judge under these circum- 
 stances, to decline and submit to the jury the application of the 
 statute to the case. 6 The interpretation of statutes passed by the 
 law-making power of the sovereignty under which the court is 
 organized " in order to ascertain the true intent and meaning of 
 the legislature," 7 though evidently involving a matter of fact, 8 is 
 like the facts of the date, suspension, repeal or expiration by limi- 
 tation of the statute, 9 a recognized and legitimate part of the 
 judge's function of knowing and administering the law of the 
 forum. 10 This requirement entails the result that when all the 
 constituent facts are found by the jury, and nothing remains but 
 
 dence of which the writing forms the Ala. 707 (1851) ; Fairbanks v. Wood- 
 chief, but not the only part. If it is house, 6 Cal. 433 (1856) ; Peoria v. 
 inaccurate to call this a question of Calhoun, 29 111. 317 (1862) ; Carle- 
 construction, it is an inaccuracy of ton v. People, 10 Mich. 250 (1862). 
 established language." Sir William 5. Barton v. City of Odessa, 109 
 Markby, Law and Pact, Law Mag. & Mo. App. 76, 82 S. W. 1119 (1904). 
 Eev., 4th Ser. Vol. II, 314. 6. Winchell v. Town of Camillus, 
 1. Ellis v. Littlefield, (Tex. Civ. 95 N. Y. Sup. 688, 109 App Div. 341 
 App. 1906) 93 S. W. 171. (1905). 
 
 1. Infra, §§ 583 et seq. 7. Com. v. Anthes, 5 Gray (Mass.) 
 
 2. Schilansky v. Merchants' & 185, 190 (1855). 
 Manufacturers' P. Ins. Co., (Del. 8. Edes v. Board'man, 58 N. H. 580, 
 1903) 55 Atl. 10i4. 592 (1879). 
 
 3. Bedenbaugh v. Southern R'y Co., 9. Com. v. Anthes, 5 Gray (Mass.) 
 69 S. C. 1, 48 S. E. 53 (1904). 185, 190 (1855). 
 
 4. Barnes v. Mayor of Mobile, 19 10. See infra, Judicial Knowledge. 
 
§§ 132, 133 Law and Fact. 184 
 
 the application of the rule of law, that function devolves, as of old, 
 upon the judge, as a matter of law. 
 
 § 132. (Construction oi Documents) ; Limits of Judicial Ac- 
 tion. — The function of the court does not extend to deciding 
 whether a writing was intended to have a certain effect as between 
 the parties to it, e. g., to be the final repository of their completed 
 agreement, 1 or as to what inferences are to be drawn from the ex- 
 istence of the writing, or of the statements contained in it, 2 consid- 
 ered as evidence. 3 Where letters written between insurer and in- 
 sured with reference to an arbitration did not constitute a compact 
 or obligation between the parties to carry out such arbitration, but 
 were mere evidence that either or both of the parties did not in 
 fact desire the arbitration to be effectual, the inference to be 
 drawn from such letters was for the jury, and not for the court.* 
 
 § 133. (Construction oi Documents); Function of the Jury. 
 
 — Where the terms of a document are vague, technical, in a for- 
 eign language, or the like, all the facts are not found, and evidence 
 may be introduced before the jury as to the meaning of such 
 language. If there be conflict between the testimony on these or 
 similar points, it will be settled by jury. 1 The meaning of the 
 writing is still for the judge, who will use, in declaring such mean- 
 ing, the facts as to local custom, technical usage or the like, as de- 
 termined by the jury. 2 " The jury are only to find facts, and 
 leave the court to judge of their meaning." s 
 
 1. Bloom v. Cox, etc., Mfg. Co., 83 v. Flint, Eddy & Co., 84 N. Y. Supp. 
 Hun 611 (1894); Holm V. Coleman, 269 (1903). 
 
 89 Wis. 233 (1895). 2. In an action to recover a bal- 
 
 2. Enterprise Soap Works v. Say- ance due on chattels sold, the ques- 
 ers, 55 Mo. App. 15 (1893). tion3 as to what writings should be 
 
 3. Teesdale v. Bennett, (Wis. 1904) cohered., and whether those con- 
 
 sidered constituted a written con- 
 tract, or whether the written contract 
 fully expressed the agreement between 
 the parties, were for the court. Tellu- 
 ride Power Transmission Co. V. Crane 
 Co., 208111.218, 70 N. E. 319 (1904) 
 
 101 N. W. 688. The rule that the 
 
 court must determine the meaning of 
 
 documentary evidence is inapplicable 
 
 where the dispute is not as to the 
 
 legal meaning of letters, but as to 
 
 their tendency to prove one side or 
 
 the other of an issue of fact, and \fT^ ° 3 ™' A ^ f (19 ° 2)] - 
 
 ,.„.., . . , It is for the court to decide as a 
 
 different inferences may be fairly ,, . , . . , , 
 
 J J matter of law what are the letters 
 
 drawn from them as to the truth. and figureg rf an instrument offered 
 
 Carp v. Queen Ins. Co., 104 Mo. App. in evidence) and the meani to ^ 
 
 502, 79 S. W. 757 (1904). attached to them _ -r^ y _ g,^ 
 
 4. Carp r. Queen Ins. Co., 116 Mo. 106 111. App. 283 (1902). 
 
 App. 528, 92 S. W. 1137 (1906). 3. Robertson v. Showier, 13 M. & 
 
 1. Rochester & P. Cool & Iron Co. W. 609, 612 (1845), per Alderson, B. 
 
185 Constkuction of Agkeements. §§ 134-137 
 
 § 134. (Construction of Documents; Function of the 
 Jury) ; Collateral Facts — "Where the effect of the instrument 
 depends not merely on its construction and meaning, but upon 
 collateral facts "and circumstances, the inferences of fact to be 
 drawn from the paper must be left to the jury. 1 The jury will 
 ascertain the existence of any custom or usage by which the lan- 
 guage employed in an instrument has any trade or local meaning 2 
 
 § 135. (Construction of Documents; Function of the Jury) ; 
 
 Ambiguity. — In this, or any other connection where the language 
 of the document is ambiguous, 1 its meaning, in that particular, 
 should be left to the jury; to be used by the judge in connection 
 with his duty of construing the instrument as a whole. 
 
 § 136. Construction of Oral Contracts. — By a parity of reason- 
 ing when the terms of an oral contract are undisputed its construc- 
 tion and effect are to be determined by the court as a matter of 
 law. 1 It is error for the court to leave to the jury to decide what 
 the parties meant by the use of entirely unambiguous language in 
 the formation of a contract. 2 " If the language, being thus free 
 from ambiguity, leaves the meaning of the parties in doubt, it is 
 the duty of the court and not of the jury to determine its legal 
 effect." a " If no definite meaning can be attached to such lan- 
 guage, it is the duty of the court to so hold." * 
 
 § 137. (Construction of Oral Contracts) ; A Question of Fact. 
 
 — It is, nevertheless, plain that the work of construction or inter- 
 
 1. West v. Smith, 101 U. S. 263, Co. 1S9 U. S. 242, 23 Sup. 553 
 270 (1879). (1903); M'Namee v. Hunt, 87 Fed. 
 
 2. " The law I take to be this, 298, 30 C. 0. A. 653 ( 1898 ) . " The 
 that it is the duty of the Court to con- interpretation of writings is always 
 strue all written instruments; if for the Court except when they are 
 there are peculiar expressions 1 used ambiguous." State v. Brown, 171 
 in it, which have in particular places Mo. 477, 71 S. W. 1031 ( 1903 ) . 
 
 or trades a known meaning attached 1. Globe Works v. Wright, 106 
 to them, it is for the jury to say what Mass. 207, 216 (1870) ; Spragins v. 
 the meaning of these expressions was, White, 108 N. 'C. 449 (1891) ; Fester- 
 but for the Court to decide what the man v. Parker, 10 Ired. (N. C.) 474 
 meaning of the contract was." Hutch- (1849). 
 
 ison v. Bowker, 5 M. & W. 535, 541 2. Spragins v. White, 108 N. C. 
 
 (1839), per Parke, B. ("good bar- 449 (1891). 
 
 ley "). 3. Spragins v. White, 108 N. C. 449 
 
 1. Ricketts V. Rogers, 53 Nebr. 477, (1891). 
 
 73 N. W. 946 ( 1898 ) ; Meeks v. Wil- 4. Spragins v. White, 108 N. C. 449 
 
 lard, 57 N. J. L. 22, 25, 29 Atl. 318 (1891). 
 (1894) ; Rankin V. Fidelity Ins., etc., 
 
138 
 
 Law and Fact. 
 
 186 
 
 pretation in the light of what are called " the surrounding circum- 
 stances," frequently involves drawing inferences of fact which are 
 themselves facts. For this reason the court will not only receive 
 evidence of such circumstances 1 as to the local or technical mean- 
 ing of the oral language employed, 2 but will, when the language 
 employed is disputed, or evidence as to its meaning is in conflict, 
 leave the question of what was the agreement of the parties to the 
 jury, under instructions as to their action in the matter, condi- 
 tioned upon their findings of fact on the disputed points. 3 
 
 ,§ 138. (Construction of Oral Contracts) ; Province of Jury — 
 
 If the terms of an oral contract are in dispute or must be ascer- 
 tained by the use of extrinsic facts, the question is one for the 
 jury. 1 In such cases the court should generally give the jury in- 
 structions as to the meaning and effect of the contract, according 
 as they may find it to be. 2 If any part of the evidence is wholly 
 unintelligible, no injury can arise, provided the jury is properly 
 instructed as to the burden of proof. 3 
 
 While it is declared to be error to submit to the jury the con- 
 struction of a writing* where the meaning can be collected from 
 the instrument itself, 5 the construction of a document, so far as 
 
 1. Smith v. Faulkner, 12 Gray, 
 (Mass.) 251, 254 (1858). 
 
 2. R. R. v. McKenna, 13 Lea. 
 (Term.) 280 (1884) (railroad or- 
 ders). See also Atty.-Gen. v. Dub- 
 lin, 38 N. H. 459 (1859) (congrega- 
 tional persuasion) ; Spragins v. 
 White, 108 N. C. 449 (1891); Mat- 
 thews V. Park, 159 Pa. St. 579 (1894). 
 For some consideration of the court's 
 judicial knowledge of language used 
 in its ordinary sense, see infra, § 762. 
 
 3. Nash v. Classen, 163 111. 409, 45 
 N. E. 277 (1896) ; Eureka F. Co. v. 
 B. C. S. & R. Co., 78 Md 179, 188, 
 27 Atl. 1035 ( 1893 ) ; Spragins i>. 
 White, 108 N. C. 449, 13 S. E. 171 
 (1891). See also Capital & Coun- 
 ties Bank V. Henty, L. R. 7 App. Cas. 
 741 (1882) (libel), " where a contract 
 is to be gathered from talk between 
 the parties, and especially from talk 
 on more than one occasion, the ques- 
 tion as to what the contract was, if 
 controverted, must usually be tried by 
 
 the jury as a question of fact." Gas- 
 sett v. Glazier, 165 Mass. 473, 43 N. 
 E. 193 (1896) (agency). 
 
 1. Shragins v. White, 108 N. C. 449 
 (1891). 
 
 2. Rice v. Dwight Mfg. Co., 2 Cush. 
 (Mass.) 80 (1848); Shragins v. 
 White, 108 N. C. 449 (1891) ; Mossey 
 v. Beliste, 2 Ired. (N. C.) 170 
 
 ( 1841 ) ; Silverthorne v. Fowle, 4 
 Jones L. (N. C.) 359 (1857). 
 
 3. Rice v. Dwight Mfg. Co., 2 Cush. 
 (Mass.) 80 (1848). 
 
 4. Illinois Central R'y Co. v. Mur- 
 phy, or 111. App. 65 (1893) (printed 
 railroad regulations). Morse «'. Wey- 
 mouth, 28 Vt. 824 (1856) (construc- 
 tion of a deed submitted "with- 
 out limitation or restriction or with- 
 out specific instructions " held to be 
 erroneously left to the jury; but) 
 where, the jury take the correct view, 
 a new trial will not be granted). 
 
 5. Giles v. Gilead, etc., Society, 38 
 Conn. 153 (1871). 
 
187 Demueeees to Evidence and Motions. §§ 139, 140 
 
 affected by usage 6 or other extrinsic facts, translation from a 
 foreign language 7 or the existence of an ambiguity resolvable only 
 by conflicting evidence, 8 may be left to the jury, under alternative 
 instructions from the court. 9 
 
 § 139. Demurrers to Evidence Only when some fact is in dis- 
 pute or a question arises as to what are the proper inferences to 
 be drawn from conceded facts does necessity arise for appealing 
 to the common standards of experience represented by the jury. 
 Were both the facts and what are the fair inferences of fact to be 
 drawn from them fully admitted, the only questions would 
 be those raised on a demurrer, viz. : Is there a rule of law appli- 
 cable to such a state of facts and, if so, what is it \ 1 These ques- 
 tions are evidently matter of law. 2 A demurrer to the evidence 
 by operation of law admits the facts proved. 3 
 
 § 140. Demurrers to Evidence versus Motions to Direct a 
 Verdict. — The demurrer to evidence as a method of raising the 
 question of the legal, i. e., rational sufficiency of the evidence to 
 sustain a verdict 1 has been practically rendered obsolete in many 
 English law jurisdictions by the more convenient modern substi- 
 tute — motion to direct a verdict for rational insufficiency. 2 In 
 fact, a motion at the close of all the evidence, that an instruction 
 
 6. Hutchinson v. Bowker, 5 M. & the cas3 under code or statutory plead- 
 W., 535, 542 (1839). ing in case of a demurrer, admitted 
 
 7. Gibbs v. Gilead, etc., Society, 38 the existence of probative and con- 
 Conn. 153 (1871) ; Badart ». Foulon, stituent facts. 
 
 (Mich. 1894) 61 N. W. 536. 2. Coy ». Missouri Pac. R'y Co., 
 
 8. Enterprise Soap Works v. Sayers, (Kan. 1904) 76 Pac. 844. 
 
 55 Mo. App. 15 (1893) ; Ginnuth v. 3. Bensiek v. St. Louis Transit Co., 
 
 Blankenship, (Tex. Civ. App. 1894), 125 Mo. App. 121, 102 S. W. 587 
 
 28 S. W. 828; Woodbury Granite Co. (1907); Des Moines Life Ass'n v. 
 
 v. Milliken, 66 Vt. 465 (1894) ; Crim, 134 Fed. 348, 67 C. C. A. 330 
 
 Becker v. Holm, 89 Misc. 86 (1894). (1904). 
 
 9. Smith v. Faulkner, 12 Gray, 1. Golden v. Knowles, 120 Mass. 336 
 (Mass.) 251, 256 (1858). "This is (1876); Colegrove v. New York, etc., 
 not leaving the whole construction of R'y Co., 20 N. Y. 492 (1859). 
 
 a written contract to the jury." Field, 2. Infra, §§ 391 et seq. 
 
 C. J. in Bascom v. Smith, 164 Mass. Grooms v. Neff Harness Co., 
 
 61, 76 (1895). (Ark. 1906) 96 S. W. 135. 
 
 1. It need not be observed that as The phrase " demurrer to evidence " 
 
 pleading was understood at common has even been used as synonymous 
 
 law, as modified by the Hilary with the motion to withdraw for in- 
 
 rules, a demurrer admitted the ex- sufficiency. Weber v. Kansas City, 
 
 istence of component facts while a etc., Co., 100 Mo. 194 (1889). 
 demurrer to evidence, as is frequently 
 
§ 141 Law and Fact. 188 
 
 be given that the other party is not entitled to recover is in the 
 nature of a demurrer to the evidence. 3 On such a demurrer, the 
 judge may discharge the jury of the issue of fact, and, if the de- 
 murrer be sustained, enter final judgment thereon, on the evidence 
 — as a final judgment on a demurrer to the pleading. 4 Or the 
 judge may, if he prefer, direct the jury to return a verdict for the 
 other side. 5 A defendant cannot demur to plaintiff's testimony, 
 unless he also rests his case, and a motion for nonsuit is the only 
 proceeding for insufficiency of evidence open to defendant at the 
 close of plaintiff's case. 
 
 An important distinction is to be taken. By joining issue on a 
 demurrer to evidence the case is withdrawn from the jury and is 
 submitted to the court. 7 When action has been taken on it by the 
 judge the defeated party is not at liberty to introduce evidence. 8 
 The party who makes a motion to direct a verdict at the close of 
 his opponent's case, is not precluded from introducing evidence if 
 his motion be overruled. 9 
 
 § 141. (Demurrers to Evidence) ; Demurrers and Nonsuits. — 
 
 A motion for nonsuit is in the nature of a demurrer to the evi- 
 dence, and when it is sought to take advantage of a defect in the 
 pleadings by such a motion, the pleadings should be construed lib- 
 erally as if on a motion by defendant for judgment notwithstand- 
 ing the verdict against him. 1 A party against whom a motion for 
 nonsuit has been made is, as a general rule, entitled to the most 
 favorable inferences deducible from the evidence, and contested 
 facts are to be presumed in his favor. 2 It is immaterial that the 
 
 3. Phelan v. Granite Bituminous 6. Brown v. Lewis, (Or. 1907) 92 
 Paving Co., 115 Mo. App. 423, 91 S. Pac. 1058. 
 
 W. 440 (1905). A distinction has, 7. Nashville, C. & St. L. R'y Co. v. 
 
 however been taken.. Sustaining a Sansom, (Tenn. 1904) 84 S. W. 615. 
 
 demurrer to the evidence in either a 8. Woldert Grocery Co. v. Veltman, 
 
 law or equity case means that, as a (Tex. Civ. App. 1904) 83 S. W. 224. 
 
 matter of law, there is some evidence 9. Woldert Grocery Co. v. Veltman, 
 
 to be weighed, but, as a matter of law, (Tex. Civ. App. 1904) 83 S. W. 224. 
 
 the evidence, when weighed by the 1. Jackson v. Sumpter Valley B.'y 
 
 trier of fact, is not satisfactory. See Co., (Or. 1908) 93 Pac. 356. 
 
 also Mobile, J. & K. C. R. Co. v. 2. Konigsberg v. Davis, 108 N. Y. S. 
 
 Bromberg, (Ala. 1904) 37 So. 395; 595, 57 Misc. Eep. 630 (1908); Ber- 
 
 Anthony v. Kennard Bldg. Co., 188 lin V. Weir, 108 N. Y. S. 1063 (1908); 
 
 Mo. 704, 87 S. W. 921 (1905). Janvey v. Loketz, 106 N. Y. S. 690, 
 
 4. Myers V. Hodges, (Fla. 1907) 44 122 App. Div. 411 (1907); McCas- 
 So. 357. kill v. Walker, 145 N. C. 252, 58 S. 
 
 5. Myers v. Hodges, (Fla, 1907) B. 1073 (1907); Degginger v. Mar- 
 44 So. 357. tin, (Wash. 1907) 92 Pac. 674. 
 
189 Demukeees to Evidence; English Ktjle. § 142 
 
 evidence in support of a plaintiff's claim may be very slight, pro- 
 vided that it amounts to more than a mere scintilla. If there be 
 any evidence which alone would justify an inference of the dis- 
 puted facts on which his right to recover depends, it must, accord- 
 ing to the well-settled rule, be submitted to the jury. It is their 
 exclusive province to pass upon the credibility of witnesses, weigh 
 the evidence, and ascertain the facts. 3 More than this, the plaintiff 
 should be permitted, where it can be done without unreasonable 
 delay, or unwarrantable interference with the course of the trial, 
 to supply proof as to the points wherein it was claimed that the 
 evidence was deficient. 4 Unless this is done, he does not derive 
 the advantage from the rule requiring specification of particulars 
 on which the motion for a nonsuit is based, which the rule was in- 
 tended to secure to him. 6 In fact the same question presented by 
 a motion for a nonsuit may be raised by a motion to direct a ver- 
 dict or by motion for judgment notwithstanding the verdict. 6 
 
 § 142. (Demurrers to Evidence); English Rule — The great 
 advantage which the litigant anticipated from the earlier 
 practice of demurring to the evidence was that this course enabled 
 him to have the judge, rather than the jury, find the constituent 
 facts from the evidence. This was an abuse ; as the finding of con- 
 stituent facts from the probative, and a fortiori from the evidence 
 is a distinct and undisputed part of the jury's function. 1 In Eng- 
 land, the death blow was dealt to this abuse, and, incidentally, it 
 may be remarked, to the attractiveness of the demurrer to evidence 
 itself as a means of circumventing the jury, by the requirement 
 that where the evidence of a fact is circumstantial, loose or inde- 
 terminate, i. e., where the inference of fact as to the existence of a 
 constituent fact was not a legal, rationally necessary one — the 
 party demurring should state in writing precisely what facts he 
 admitted. 2 In other words, a party, in the language of chief 
 
 3. American Mfg. Co. v. S. Morgan 6. Adams v. Peterman Mfg. Co., 
 Smith Co., 33 Pa. Super. Ct. 469 (Wash. 1907) 93 Pac. 339. 
 
 (907). 1. Patrick v. Hallett, 1 Johns. (N. 
 
 4. Gesas v. Oregon, etc., R. Co., Y.) 241 (1806); Lickbarrow v. Ma- 
 (Utah 1907) 93 Pac. 274, 13 L. R. A. son, 2 H. Bl. 211 (1793) ; Cockridge 
 (N. S.) 1074. v. Fanshaw, 1 Doug. 119 (1779). 
 
 5. Gesas v. Oregon, etc., R. Co., 2. Gibson v. Hunter, 2 H. Bl. 187 
 (Utah 1907) 93 Pac. 274, 13 L. R. A. (1793). See also Sewell v. Burdick, 
 (N. S.) 1074. 10 App. Cas. 74, 99 (1885). 
 
143 
 
 Law and Fact. 
 
 190 
 
 justice Eyre, 3 was not permitted to demur to the evidence, "with- 
 out distinctly admitting upon the record every fact and every con- 
 clusion which the evidence given (for the plaintiff) conduced to 
 prove," 4 and was not at liberty to introduce facts in opposition to 
 those to which he demurred. As the party offering the evidence 
 could thus receive, under the sanction of the judge, the benefit of 
 all facts offered by him and all legitimate inferences from them, 
 taken most strongly in his favor, it is plain that nothing would 
 then remain for the jury to try; 5 and the proponent, having all 
 to which he was entitled, might fairly be required to join in the 
 demurrer. Accordingly, he was, in a civil case, required to do so. 6 
 In criminal cases the government counsel are not compelled to 
 join in a demurrer upon evidence. 7 
 
 § 143. (Demurrers to Evidence); American Rule. — The 
 English practice in requiring a party to specify what he admits 
 seems not to have obtained generally in America ; * though certain 
 states have taken steps in that direction. 2 The court cannot, it is 
 
 the other party must join in de- 
 murrer " ) . 
 
 Should the evidence be that of a 
 record, or sentence, in an ecclesiastical 
 court, or other matter in writing, the 
 party offering such evidence must join 
 in a demurrer tendered on it, or the 
 benefit of it will be considered as hav- 
 ing been! waived. Baker's Case, 5 
 Coke 104 (1600). 
 
 7. Baker's Case, 5 Coke 104 (1600). 
 
 1. See Trout v. Virginia, etc., By. 
 Co., 23 Gratt. (Va.) 619 (1873) (where 
 the court do not " know of any au- 
 thority for making the mere uncer- 
 tainty as to the facts, a ground of ex- 
 ception to the general rule") ; Hans- 
 borough v. Thorn, 3 Leigh (Va.) 147 
 
 (1831) (where it is said that the fact 
 that the evidence is complicated or 
 circumstantially probative does not 
 affect the right of a party to demur to 
 it) ; Green v. Judith, 5 Band. (Va.) 1 
 
 (1827). 
 
 2. Skinner Mfg. Co. v. Wright, (Fla. 
 1906) 41 So. 28; Atlantic Coast Line 
 R. Co. v. Dexter, (Fla. 1905) 39 So. 
 634. Where the parol evidence in a 
 
 3. Gibson v. Hunter, 2 H. Bl. 187 
 (1793). 
 
 4. Colegrove v. New York, etc., By. 
 Co., 20 N. Y. 492 (1859). 
 
 5. Bulkeley v. Butler, 2 B. & C. 434 
 (1824). 
 
 6. Trout v. Virginia, etc., By. Co., 23 
 Gratt. (Va.) 619(1873) (holding that 
 negligence is no exception) ; Ware v. 
 Stephenson, 10 Leigh (Va.) 155 
 (1839) (holding that a fair test of 
 
 whether the demurree is entitled to 
 the benefit of an inference is to con- 
 sider whether the court would set 
 aside the verdict of » jury who had 
 drawn it. If not, the demurree is en- 
 titled to the inference) ; Green v. 
 Buckner, 6 Leigh (Va.) 82 (1835). 
 
 An exception to the right of the 
 party to demur is introduced in Vir- 
 ginia where the case is clearly against 
 the demurrant or when the court 
 doubts what facts should reasonably be 
 inferred. Trout v. Virginia, etc., By. 
 Co., 23 Gratt. (Va.) 619 (1873). 
 Gibson v. Hunter, 2 H. Bl. 187 (1793) 
 (in which the earlier cases are said 
 to " prove that if a party may demur, 
 
191 
 
 Demueeee to Evidence; American Kule. 
 
 143 
 
 said, weigh the evidence, if in conflict; 3 but must assume as true 
 all the evidence tending to prove the allegations of the party to 
 whose evidence the demurrer has been filed, 4 by whomever pro- 
 duced. 8 The party against whose evidence a demurrer has been 
 filed will be entitled to the benefit of every reasonable inference 
 fairly deducible from the facts proved. 8 Where these sustain a 
 prima facie case, judgment will be ordered in his favor. 7 If the 
 evidence, so regarded, fails to establish every material element of 
 the party's case, the demurrer will be sustained. 8 Where there are 
 several issues raised and a general demurrer to the evidence is 
 filed as to all of them, the judge may sustain the demurrer as to 
 
 cause is indeterminate or circum- 
 stantial, the defendant cannot" demur 
 to the evidence, and oblige the plain- 
 tiff to join in a demurrer, without 
 distinctly admitting on the record, 
 every fact which plaintiff's evidence 
 conduces to prove. Bass v. Rublee, 
 (Vt. 1904) 57 Atl. 965. 
 
 3. Mugge v. Jackson, (Fla. 1905) 
 39 So. 157; Coon v. Atchison, T. & 
 S. F. By. Co., 75 Kan. 282, 89 Pac. 
 682 (1907); Buoy V. Clyde Milling 
 & Elevator Co., (Kan. 1904) 75 Pac. 
 466; Edmisson v. Drumm-Flato Com- 
 mission Co., 13 Okl. 440, 73 Pac. 958 
 ( 1903 ) . The purpose of a demurrer 
 to the evidence is not to bring before 
 the court an investigation of facts in 
 dispute, nor the weight of evidence, 
 but to refer to the court questions 
 of law arising on the facts as ascer- 
 tained. Bass v. Rublee, (Vt. 1904) 
 57 Atl. 965. But see Barrett V. 
 Raleigh Coal & Coke Co., (W. Va. 
 1904) 47 S. E. 154. 
 
 4. Jones v. Adair, (Kan. 1907) 91 
 Pac. 78 ; Ferguson v. St. Louis & S. F. 
 R. Co., 123 Mo. App. 590, 100 S. W. 
 537 (1907); Pendleton's Adm'r v. 
 Richmond, F. & P. R. Co., (Va. 1906) 
 62 S. E. 574. 
 
 5. Jordan v. St. Louis Transit Co., 
 202 Mo. 418, 101 S. W. 11 (1907). 
 
 A party may defeat his own re- 
 covery by establishing a defense to 
 his own contention. Kibby v. Gibson, 
 (Kan. 1905) 83 Pac. 968. 
 
 8. Missouri. — Fassbinder v. Missouri 
 Pac. Ry. Co., 126 Mo. App. 563, 104 
 S. W. 1154 (1907); Koerner v. St. 
 Louis Car Co., 209 Mo. 141, 107 S. 
 W. 481 (1907); Hach v. St. Louis, 
 etc., Ry. Co., 208 Mo. 581, 106 S. W. 
 525 ( 1907 ) ; Forbes v. Dunnavant, 
 198 Mo. 193, 95 S. W. 934 (1906); 
 Charlton v. St. Louis & S. F. R. Co., 
 200 Mo. 413, 98 S. W. 529 (1906); 
 Moore v. St. Louis Transit Co., 194 
 Mo. 1, 92 S. W. 390 (1906). 
 
 North Carolina. — Gerock v. Western 
 Union Telegraph Co., (N. C. 1906) 
 54 S. E. 782. 
 
 Oklahoma. — Conklin v. Yates, 16 
 Okl. 266, 83 Pac. 910 (1905) ; Ed- 
 misson v. Drumm-Flato Commission 
 Co., 13 Okl. 440, 73 Pac. 958 (1903). 
 
 Texas. — Chicago, etc., R. Co. v. 
 Cleaver, (Tex. Civ. App. 1908) 106 
 S. W. 721. 
 
 West Virginia. — Kirchner v. Smith, 
 61 W. Va. 434, 58 S. E. 614 (1907) 
 (inference from withholding material 
 evidence). A demurrer to the evi- 
 dence is to be taken most strongly 
 against the demurrant. Mugge v. 
 Jackson, (Fla. 1905) 39 So. 157. 
 
 7. Collier v. Monger, 75 Kan. 550, 
 89 Pac. 1011 (1907); Hollweg v. 
 Bell Telephone Co., 195 Mo. 149, 93 
 S. W. 262 (1906). 
 
 8. Kennedy v. Metropolitan St. Ry. 
 Co., (Mo. App. 1907) 107 S. W. 16; 
 Pringey v. Guss, 16 Okl. 82, 86 Pac. 
 292 (1906). 
 
§ 144 Law and Fact. 192 
 
 certain of these issues and overrule it as to others, evidence on the 
 latter being left to the jury. 9 In other words, if there be any testi- 
 mony tending to establish the constituent facts of the case of the 
 proponent, the demurrer to his evidence should be overruled. 10 If 
 there be no such evidence, the demurrer to it will be sustained. 11 
 In order to sustain a demurrer to the evidence, the court must be 
 able to say as a matter of law that the party introducing the evi- 
 dence has not proved his case. 12 The court on a demurrer may 
 render any verdict which a jury might rationally have rendered, 
 on the same basis; 13 he cannot consider the evidence against the 
 party to whose evidence a demurrer has been filed. 14 Only the 
 evidence in his favor is to be regarded, 15 unless the preponderance 
 on the other side be so great that a verdict against it must be set 
 aside. 16 
 
 § 144. (Demurrers to Evidence); Court Sitting as a Jury. — 
 
 Where the judge sits as a jury, i. e., for the determination of issues 
 of fact, a demurrer to evidence may be taken before him. In 
 such a case, the judge must consider as true all portions of the 
 evidence tending to prove the allegations of the petition. 1 As on 
 a jury trial, where a judge is sitting, a motion to find for the 
 moving party at the close of the evidence is, in reality a demurrer 
 to the evidence. 2 
 
 9. Where an answer contains sev- 12. Conklin v. Yates, 16 Okl. 266, 
 eral defenses, and at the conclusion 83 Pac. 910 (1905). 
 
 of defendants' evidence plaintiff inter- 13. Lane Bros. & Co. v. Bott, (Va. 
 
 poses a demurrer to the evidence, and 1905) 52 S. E. 258; Bajrett v. Raleigh 
 
 the court sustains it as to one de- Coal & Coke Co., (W. Va. 1904) 47 
 
 fense and overrules it as to the other, S. E. 154. 
 
 it does not withdraw from the jury 14. Missouri Can Co. V. Ross, (Kan. 
 
 the evidence applicable to the re- 1905) 83 Pac. 616. 
 
 maining defenses. Troutman v. Be- 15. Chesapeake & O. Ry. Co. v. 
 
 hoteguy, (Kan. 1904) 76 Pac. 446. Pierce, 103 Va. 99, 48 S. E. 534 
 
 10. Duncan v. Huse, (Kan. 1906) (1904) ; Kelley v. Ohio River R. Co., 
 85 Pac. 589; Acker v. Norman, 72 (W. Va. 1906) 52 S. E. 520. 
 
 Kan. 586, 84 Pac. 531 (3906) ; Marion 16. Watkins f. Havighorst, 13 Okl. 
 
 Mfg. Co. v. Bowers, (Kan. 1905) 80 128, 74 Pac. 318 (1903); Kelley v. 
 
 Pac. 565; McCaffery v. St. Louis & Ohio River R. Co., (W. Va. 1906) 
 
 M. R. R. Co., 192 Mo. 144, 90 S. W. 52 S. E. 520. See also Barrett r. 
 
 816 (1905) ; Harrison v. Lakenan, 189 Raleigh Coal & Coke Co., (W. Va. 
 
 Mo. 581, 88 S. W. 53 (1905). 1904) 47 S. E. 154. 
 
 11. Milliken v. Thyson Commission 1. Wehe v. Mood, (Kan. 1904) 75 
 Co., 202 Mo. 637, 100 S. W. 604 Pac. 476. 
 
 (1907); Willoughby v. Ball, 18 Okl. 2. Crerar v. Daniels, 209 111. 296, 
 
 535, 90 Pac. 1017 (1907). 70 N. E. 569 (1904). 
 
193 Advantages of Certainty of Law. §§ 145,146 
 
 In chancery causes the demurrer to evidence has been held to be 
 improper. 3 There is, under such circumstances, no nonsuit; but 
 the whole evidence is submitted to the court for final judgment. 4 
 
 § 145. Certainty of Law. — In assuming the right of applying 
 the rule of law to the facts when nothing remains as to them but 
 to find their legal effect, judges have realized that only in this way 
 can certainty in the rules of law be acquired and maintained. 
 Where a given state of constituent facts is measured by a rule of 
 law and the result is announced in the reports, it amounts pro 
 tanto to a construction of the law, in terms of fact. If this 
 process were left to the variant action of successive juries nothing 
 but a very undesirable uncertainty, vagueness and confusion could 
 result. Where this is necessary by reason of the circumstance that 
 some disputed proposition of fact is to be determined, the mischief 
 must, possibly, be endured. But where all the facts are before the 
 court, it realizes the great social advantages of deciding for itself 
 as to what is correct legal reasoning. For example, as Parke, B., 
 said in Nelson v. Hartford, 1 in ruling that where the facts relat- 
 ing to an oral contract were undisputed, its interpretation and 
 construction were for the court as a matter of law, " Unless this 
 were so, there could be no certainty in the law, for a misconstruc- 
 tion by the jury cannot be set right at all effectually." The law, 
 like an individual, should learn from experience; and it is evi- 
 dently good legal growth that repeated occurrences of a similar 
 nature should result in a broader generalization which should 
 render their further occurrence unnecessary. As Lord Mansfield 
 says, there is a constant and, on the whole a valuable tendency 
 to transfer a question of fact to the province of the judge when- 
 ever a rule about it can be laid down. 2 
 
 § 146. (Certainty of Law); Broad Legal Precepts. — In no 
 
 connection is this aim of judges to introduce and maintain 
 certainty in the substantive law of greater consequence or 
 more frequent application than where the positive law 
 announces its commands in broad and general terms. As 
 
 3. Hiss v. Hiss, 228 111. 414, 81 1. 8 M. & W. 806 (1841). 
 
 N. E. 1056 (1907). 2. Tindal v. Brown, 1 T. R. 167 
 
 4. Stevens v. Trafton, 36 Mont. 520, (1786). 
 93 Pac. 810 ( 1908 ) ; Streicher v. Mur- 
 ray, 36 Mont. 45, 92 Pac. 36 (1907). 
 
 Vol. I. 13 
 
§ 147 Law and Fact. 194 
 
 Sir William Markby points out, 1 certain precepts of sub- 
 stantive law are announced rather as, moral principles than 
 as specific rules. The State commands its citizens so to use each 
 his own property as not to injure another, to be honest, to use due 
 and reasonable diligence, to exercise care and prudence, or the like. 
 These, the arbitrium boni viri as it has been shortly called, the 
 acute English critic properly regards as law within the definition 
 of Austin, elsewhere quoted, 2 and judges that Austin himself could 
 scarcely have decided differently, had his attention been directly 
 called to the matter. 3 To this it seems necessary to agree ; as, for 
 example, the use of reason is the test of proper legal conduct, 
 whether in judicial administration or the other affairs of life where 
 no more specific rule has been prescribed. The peculiarity in the 
 matter is that the courts having left the jury to apply the rule 
 of law to the constituent facts find, in such cases, a necessity for 
 retaining in themselves some control of the jury's action. 4 The 
 advantage of having a more definite rule is marked ; and to this 
 end the court seeks to manipulate the verdicts of sucessive juries. 
 This is done principally in two ways. 
 
 § 147. (Certainty of Law); (1) Presumptions of Law. — 
 
 Where the juries for a series of verdicts have decided that cer- 
 tain acts do or do not constitute negligence, e. g., that it is negli- 
 gence in one approaching a grade crossing of a railroad not to stop 
 and listen, the judge may employ what may be called the machinery 
 of a presumption of law, to which reference is elsewhere made. 1 
 Succeeding jurors are informed that there is a presumption of fact 
 
 1. Sir William Markby, Law and what a vir bonus would consider 
 Fact, Law Mag. & Rev., 4th Ser., Vol. honest, prudent, skilful, or the like, 
 II, 322. this command being enforced by a 
 
 2. Supra, § 66 n. 1. sanction, was not a law." Sir Wil- 
 
 3. " Austin would almost seem to Ham Markby, Law and Fact, Law 
 deny that the arbitrium boni viri, Mag. & Rev., 4th Ser., Vol. II, 332. 
 or, as French lawyers call it, le bon 4. " This assignment of functions, if 
 sens et I' Squite, can determine a legal boldly and consistently followed, 
 duty. If Austin really means, as he would lead to no confusion. But hav- 
 eeems to imply, that there is in such ing laid down this fundamental rule, 
 a case no law at all — (see 3d Edition, the Judges almost invariably proceed 
 p. 687) — the world is in a strange in a round-about way to undermine 
 position. But I do not think that if it." Sir William Markby, Law and 
 it had occurred to Austin to consider Fact, Law Mag. & Rev., 4th Ser., 
 this condition of things, he would have Vol. II, 322. 
 
 said that a command by the Sovereign 1. Infra, §§ 1085 et seq. 
 
 authority to act in accordance with 
 
195 Certainty of Law. a Judicial Objective. § 148 
 
 which will warrant them in following the inference. If this con- 
 tinue to be adopted by juries and seems wise, the ruling is made 
 that there is a presumption of law that the inference must or 
 should be followed — thus do judges, as Sir William Markby puts 
 it, " hover between direction and advice " — in the absence of evi- 
 dence to the contrary. This presumption being sustained, binds 
 subsequent juries. The result is a new proposition in the sub- 
 stantive law ; though it might be still wiser, in many cases, to leave 
 the presumption one of fact than to attempt its projection into 
 the domain of substantive law. 2 
 
 § 148. (Certainty of Law); (2) Tentative Killings — The 
 
 judge may, according to circumstances, wisely exert his adminis- 
 trative powers in a different way. The jury may hear the evi- 
 dence, or perhaps, listen merely to the statement of counsel as to 
 what he expects to prove. The judge may then rule " that there 
 is no evidence " for the jury of the negligence or other right or 
 liability asserted. This is heard in an appellate court and, 
 according, to the ruling of that- tribunal, the substantive law 
 becomes pro tanto determined; the broad, general precept of the 
 law acquires a greatly to be desired fixedness and certainty. This 
 is extremely valuable work — perhaps as beneficial as any on 
 which courts can well be engaged. The English judge is 
 debarred from the privilege which the jurisconsult conferred on 
 the civil law — that of formulating principles that shall govern 
 future eases. The English judge can only deal with cases as they 
 actually arise. He is like a surveyor driving down fixed stakes 
 in the field of the substantive law, announced by a broad and 
 general principle. He is most useful, in proportion to the number 
 and fixity of these stakes ; for each one that is permanent tends 
 to settle more definitely the form of the final state which the law 
 shall assume. As Mr. Justice Hammond of Massachusetts says, 
 
 2. " I think it would be advantage- Judges an advantageous degree of 
 
 ous if, in the matter of authority, freedom in the exercise of their judg- 
 
 a distinction were made between prior ment. Surely if experience is to be 
 
 decisions upon law and prior decisions appealed to, it is the experience of 
 
 upon questions dependent on experi- our own times which is chiefly to 
 
 ence, and if the binding authority of guide our judgment, and not that of 
 
 the former were distinguished from a hundred or two hundred years ago." 
 
 the guiding authority of the latter, Sir William Markby, Law and Fact, 
 
 I do not think this separation would Law Mag. & Rev., 4th Ser., Vol. II, 
 
 impede the growth of useful rules of 331. 
 law, whilst it would confer upon 
 
§ 149 Law and Fact. 196 
 
 " It frequently is not possible by a general formula to mark out 
 the dividing line with reference to every conceivable case, and it 
 is not wise to attempt it. The best and only practicable course is 
 to consider the cases as they arise, and bearing in mind the 
 grounds upon which the soundness of each principle is supposed 
 to rest, by a process of elimination and comparison to establish 
 points through which the line must run." 1 
 
 § 149. (Certainty of Law); "No Evidence for the Jury." — 
 
 While the result sought is clearly beneficial the means by which 
 it is reached seems objectionable, because confusing and mislead- 
 ing. After considerable time has been consumed in hearing evi- 
 dence, and a mass of testimony has accumulated before the jury; 
 nay, even when the jury have weighed this evidence and, as triers 
 of the fact decided that the evidence is sufficient, e. g., that certain 
 conduct is negligent and their decision comes up for review in an 
 appellate court, the ruling is made by the trial judge or by the 
 appellate court, as the case may be, that there is no evidence for 
 the jury. This is putting the matter in a false light. There is 
 evidence and plenty of it. What the court is really regulating is 
 the rule of law. It has lengthened the rule which it is stretching 
 over the constituent facts and, having made the application finds 
 that the facts fall short. The ruling is not one as to evidence 
 at all, but as to substantive law. Much of this ambiguity and 
 confusion might be avoided, if the original administrative error 
 had not been committed of permitting the jury to apply the rule 
 of law to the constituent facts. 
 
 The expedient is, however, a common one. The habit of speak- 
 ing of rulings on substantive law in terms of evidence has been 
 adopted by the courts even in speaking of their own work of con- 
 struing documents. Here, in the so-called " Parol Evidence 
 Rule," * judges chronically say that " parol evidence is not ad- 
 missible " for a given purpose when the truth is that that which 
 hlocks the way to admissibility is the rule of substantive law ; that 
 the proponent cannot use his factum probandum. His proof would 
 he good if his fact were a constituent one. Indeed, in most cases, 
 as in the ruling on negligence, the evidence not only is, but is ad- 
 mitted and submitted to the rule of substantive law governing the 
 right or liability asserted, and, being found to fall short, the an- 
 
 1. Martell v. White, 185 Mass. 255, 1. See Pakol Evidence Rum. 
 
 258 (1904). 
 
197 Trial by Inspection ; -Eul Tiel Kecoed. §§ 150, 151 
 
 nouncement is made that there is no evidence, in the one case, or 
 that the (already admitted) evidence is not admissible in the other. 
 It is a facon de parler, merely; but it is an important, because 
 misleading and confusing one, 
 
 § 150. (Certainty of Law; "No Evidence tor the Jury"); 
 
 Rules of Negligence. — Thus, in cases of injury caused by collision 
 with railroad trains, a failure to look in either direction before 
 crossing the tracks and listen for the purpose of ascertaining 
 whether a train is approaching, has been ruled to be negligent. 1 
 The plaintiff has been required to stop for the purpose of exer- 
 cising the senses of sight and hearing, 2 and in case of special modes 
 of travel even stopping has been deemed an insufficient exercise of 
 due care, 3 thus gradually limiting the scope of this debatable 
 ground as the question becomes one of frequent adjudication. The 
 growth in definiteness is made by the fixing by judges of an out- 
 side limit of what is reasonably tenable in the way of a finding, 4 
 Due Diligence in Giving Notice of Dishonor. — So in case of 
 what length of time is reasonable within which notice of the dis- 
 honor of negotiable paper to persons collaterally liable, has been, 
 in reality, determined by successive judges in much the same way. 
 
 § 151. Trial by Inspection — The determination of a plea of 
 nul tiel record is one of a class of issues of fact, determined by the 
 presiding judge Jby his own perception in much the same way that 
 he needs no evidence to decide on an issue of direct contempt. 1 
 At common law, these were grouped under the general title of 
 
 1. Lavareng v. Chicago, etc., Ry. Plummer v. Eastern Ry. Co., 73 Me. 
 
 Co., 56 Iowa 689 (1881); Fletcher v. 591 (1882) ; Texas, etc., Ry. Co. v. 
 
 Fitchburg Ry. Co., 149 Mass. 137 Chapman, 57 Tex. 75 (1882). The 
 
 (1889) ; Rodrian v. New York, etc., traveller has been excused from the 
 
 Ry. Co., 125 N. Y. 526 (1891). absolute necessity of stopping for the 
 
 In New York the traveller " is not purpose of looking and listening, 
 
 obliged, however, as matter of law, Manley v. Canal Co., 69 Vt. 101 
 
 to stop his team, to rise up in his (1896). 
 
 wagon, or to get out and go to the 2. Pennsylvania Ry. Co. v. Beale, 
 
 track to make observations." Stackus 73 Pa. St. 504 (1873). 
 
 v. New York, etc., Ry. Co., 79 N. Y. 3. Robertson v. Pennsylvania Ry. 
 
 464 (1880). To the contrary, i. e., Co., 180 Pa. St. 43 (bicyclist re- 
 
 that failure to look in both directions quired to dismount) (1897). 
 
 when approaching a railroad crossing 4. Paine v. Railroad Co., 118 U. S. 
 
 is merely a fact for the consideration 152, 160 (1885); Tindal v. Brown, 
 
 of the jury, see Terre Haute, etc., Ry. 1 T. R. 167, 169 (1786). 
 
 Co. V. Voelker, 129 111. 540 (1889) ; 1. Infra, §'§ 205 et seq. 
 
§ 152 Law and Fact. 198 
 
 trial by inspection. 2 Under this form of trial the nonage of an 
 infant, 3 whether a party alleged to be dead was in fact alive, issues 
 of idiocy, mayhem, or the like were decided by the judge. Early 
 law points to the conclusion that trial by inspection antedates the 
 more modern form of trial by jury. 4 So far as it applies to de- 
 termination of a constituent fact, e. g., whether certain pieces of 
 wood submitted to inspection were " chips " or " shingles " 5 it 
 is probably no longer permissible. A close approximation to the 
 finding of a fact by the court upon inspection is furnished where 
 the judge decides from the examination of a document as to 
 whether it is sealed or not sealed. 6 
 
 § 152. (Trial by Inspection); Nul Tiel Record When it is 
 
 claimed by one party and denied by the other that there is a 
 judicial record to a given effect; in other words, on nul tiel record 
 pleaded, the issue if the record was in the court of the trial, is 
 determined by the judge simply by looking at or inspecting it. 1 
 Under these circumstances, the record is one which the court judi- 
 cially knows. 2 The record, therefore, needs no identification ; and, 
 the issue is determined by the court upon simple inspection. Prop- 
 erly speaking, the issue is one of fact — the actual existence of 
 a record — and the judge settles it by perception, the use of his 
 own faculties. Here he is the percipient witness. 
 
 2. "Trial by inspection ... [is and when that is the ease, the judges 
 when the issue] being evidently the of the Court shall decide." Cromwell 
 object of sense, the judges of the v. Tate's Ex'r, 7 Leigh 301, 305 
 Court, upon the testimony of their (1836). 
 
 own senses, shall decide the point in 1. Adams r. Betz, 1 Watts 425, 427 
 
 dispute ; . . when the fact from ( 1833 ) ; State v. Grayton, 3 Hawks 
 
 its nature must be evident to the 187 (1824). "If such a record be 
 
 Court, either from ocular demonstra- alleged, and it be pleaded that there 
 
 tion or other irrefragable proof, there is no such record, it shall be tried only 
 
 the law departs from its usual re- by itself." Co. Litt. 260a (1628). 
 
 sort, the verdict of twelve men, and " Where a matter of record is pleaded 
 
 relies on the judgment of the Court in any action — as, a fine, a judgment, 
 
 alone." 3 Black. Comni. 331 (1768). or the like — and the opposite party 
 
 3. Co. Litt, 380b. pleads nul tiel record, . . . the trial 
 
 4. Thayer, Preliminary Treatise, therefore of this issue is merely by 
 19-24. the record; ... it shall not receive 
 
 5. Morton v. Fairbanks, 11 Pick. any trial by witness, jury, or other- 
 368, 370 (1831). wise, but only by itself." 3 Black. 
 
 6. " The existence or non-existence Comm. 330. 
 
 of the seal [on a deed] is to be as- 2. Infra, §§ 583 et seq. 
 
 certained by an appeal to the senses; 
 
199 Foreign Law a Fact foe the Court. §§ 153, 154 
 
 § 153. (Trial by Inspection; Nul Tiel Record); Judgment of 
 
 Sister State — This, however, must not be so understood as to 
 extend to judgments of a sister state of the American Union 
 where the Constitution of the United States requires that " full 
 faith and credit " shall be accorded by other courts of the Union. 
 In such a case, nul tiel record is the appropriate plea, 1 as in case 
 of a domestic judgment. 
 
 § 154. (Trial by Inspection;) Foreign Law; Unwritten — 
 
 The existence of a foreign written or unwritten law is said to be 
 a question of fact. 1 This is true, in the sense that such a fact 
 must be established by evidence and is not the subject of the judge's 
 judicial knowledge as in the case of domestic law; and that, so far 
 as the foreign law is unwritten, the proof is usually by witnesses. 2 
 But the question whether evidence as to the existence of an un- 
 written rule of foreign law should be presented to the judge or 
 to the jury is still open. 
 
 Function of the Judge. — Great practical advantage is to be found 
 in treating the question as one of fact to be determined by the 
 judge. The presiding justice is naturally fitted to deal with such 
 matters. The power has accordingly been added to the province 
 of the court in certain jurisdictions, by judicial decision 3 or statu- 
 
 1. Hall v. Williams, 6 Pick. 232, v. Swanzy, 23 Miss. 502 (1852); 
 
 237 (1828). Such a judgment "may Dougherty v. Snyder, 15 Serg. & R. 
 
 be proved in the manner prescribed by (Pa.) 84, 22 Am. Dec. 520 (1826). 
 
 the Act, and such proof is of as See also Drake v. Hudson, 7 Harr. & 
 
 high a nature as an inspection by the J. (Md.) 399 (1826). 
 
 Court of its own record." Mills v. 3. Maryland. — Cecil Bank v. Barry, 
 
 Duryee, 7 Cranch 481, 485 (1813). 20 Md. 287, 295 (1863). 
 
 But see also, contra, Carter v. Wilson, Massachusetts. — Cook v. Bartlett, 
 
 1 Dev. & B. 362 (1835). For a 179 Mass. 76, 61 N. E. 266 (1901) ; 
 
 valuable contribution to the law as Bowditch v. Soltyk, 99 Mass. 136 
 
 to the proof and effect of judgments (1868) ; Kline v. Baker, 99 Mass. 253 
 
 of a sister state, see 5 L. B,. A. (1868). 
 
 (N. S.) 938. Missouri. — Charlotte v. Chouteau, 
 
 1. Cook v. Bartlett, 179 Mass. 76, 33 Mo. 194 (1862) ; Charlotte v. Chou- 
 61 ST. E. 266 (1901) ; Gibson V. Ins. teau, 25 Mo. 465, 473 (1857). 
 
 Co., 144 Mass. 81, 10 N. E. 729 Vew Hampshire. — Pickard v. Bailey, 
 
 (1887); Kline v. Baker, 99 Mass. 26 N. H. 152 (1852). 
 
 253 (1868); Charlotte ». Chouteau, Vermont. — State V. Rood, 12 Vt. 
 
 33 Mo. 194, 200, 201 (1862) ; Lycom- 396 (1840). 
 
 ing Ins. Co. v. Wright, 60 Vt. 522, United States. — Ottowa v. Perkins, 
 
 12 Atl. 103 (1888); Mexican Cent. 94 U. S. 260 (1876); Oonsequa v. 
 
 By. Co. v. Chantry, 69 C. C. A. 454, Willings, Pet. C. C. 225 (1816) ; Liv- 
 
 136 Fed. 316 (1905). ingston v. Maryland Ins. Co., 6 Cranch 
 
 2. Wakeman v. Marquand, 5 Mart. 874 (1810). 
 (N. S.) (La.) 265 (1826); Stewart 
 
§§ 155, 156 Law asd Fact. 200 
 
 tory enactment. 4 The convenience of the court would be greatly 
 facilitated by permitting the judge to ascertain for himself the 
 existence of a rule of foreign law as part of his function of admin- 
 istration. This has been permitted, with or without statutory 
 authority; especially where the evidence is in conflict between the 
 witnesses. 8 Where the fact of the foreign law is not one within 
 the province of the jury to find the constituent facts, e. g., where 
 the finding is one preliminary to the admissibility of evidence 6 
 the meaning of a foreign law, though unwritten, is for the judge. 
 
 § 155. (Trial by Inspection; Foreign Law; Unwritten); 
 
 Province of the Jury. — Leaving the question to the jury seems to 
 be an instance of their deciding a question of law ; while the dis- 
 tinctive treatment of the fact of an unwritten foreign law as com- 
 pared to the fact of a domestic one seems unwarranted in reason 
 and confusing in practice. The decision has, however, been in- 
 trusted to the jury, 1 especially where evidence has been furnished 
 on the point, and the proof is conflicting 2 or inconclusive. 3 
 
 § 156. (Trial by Inspection; Foreign Law); Written. — 
 
 The function of the judge of the forum in dealing with a written 
 foreign law is frequently increased over what it would be were the 
 foreign law unwritten. The existence and meaning of the rule 
 of written law is still a matter of fact. But it is a fact of the 
 special and peculiar nature that it cannot well be satisfactorily 
 considered by a jury but its determination is closely analogous to 
 the normal duties of the judge in case of domestic law. Where 
 the foreign law is written, the cumulative suggestion is presented 
 that the construction of documents is a function of the presiding 
 judge. 1 The same function has been conferred on him regarding 
 the written law of a sister state or foreign country. 2 
 
 4. Lockwood v. Crawford, 18 Conn. 3. St. Louis & S. F. Ry. Co. v. Con- 
 361 (1847). rad, (Tex. Civ. App. 1907) 99 S. W. 
 
 5. Ricev. Gunn, 4 Ont. 579 (1884); 209. 
 
 Breme v. Freeman, 10 Moore P. C. 306 1. Infra, §i§ 128 et seq. 
 
 (1857). 2. Hancock Nat'l Bank v. Ellis, 
 
 6. Pickard V. Bailey, 26 N. H. 152, 172 Mass. 39, 51 N. E. 207 (1898) ; 
 169 (1852). Frasier v. Charleston & W. C. Ry. Co., 
 
 1. Hancock V. Western Union Tel. 73 S. C. 140, 52 S. E. 964 (1905). 
 Co., (N. C. 1905) 49 S. E. 952. 
 
 2. Hancock Nat'l Bank v. Ellis. 
 Mass. 39, 51 N. E. 207 (1898). 
 
201 Foreign Law; Administrative Power. §§ 157, 158 
 
 § 157. (Trial by Inspection; Foreign Law); Use of Skilled 
 
 Witnesses. — This by no means dispenses with the evidence of 
 skilled witnesses familiar with the foreign written law. 1 The 
 written law itself may be essentially modified by other laws of that 
 jurisdiction, written or unwritten; the apparent effect of the lan- 
 guage of a statute, code or the like, may have been seriously modi- 
 fied by constructions in the courts of the foreign forum. If so, 
 the fact is of great consequence. The right of a jurisdiction to 
 settle authoritatively, the meaning and effect of its own statutes, 
 e. g., as to contracts made within their limits, is generally con- 
 ceded. 2 These modifying elements the domestic judge should 
 know, for the question before him is not " what is the statute ? " 
 but, " what is the law, as a whole, statutory or unwritten, on the 
 point? " As Lord Langdale says, 3 " The judge is not supposed to 
 know all the authorities applicable to the case or whether any 
 older laws or authorities which may be cited, have been repealed 
 or altered by subsequent laws or authorities, or what are the rules 
 of construction properly applicable to the authorities when ascer- 
 tained," and it is precisely for those reasons that the oral testimony 
 of skilled witnesses is required in preference to production of a 
 written law itself and why such witness is required to state " on 
 his responsibility, what that law is and not to read any fragments 
 of a code which would only mislead." * Where the foreign law is 
 in written form the testimony of the skilled witness in construing 
 it is said to be " addressed to the judge to aid him in his rulings." 5 
 
 § 158. (Trial by Inspection; Foreign Law); Function of 
 
 Administration — In all cases, even where evidence is submitted 
 to the jury, the matter does not cease to be to a marked degree 
 one of administration. The court may examine standard treatises 
 on foreign law, e. g., Code Napolean, 1 or Spanish law, 2 especially 
 when referred to in the evidence of witnesses. 3 
 
 Administrative Details. — ■ Where a foreign law is in the docu- 
 mentary form, whether of a statute or written decisions, the judge 
 
 1. Infra, § 894. 5. Mexican N. R. Co. v. Slater, 115 
 
 2. Walker v. Forbes, 31 Ala. 9 Fed. 593, 606, 53 C. C. A. 239 (1902). 
 (1857) ; Davidson V. Sharp, 28 N. C. 1. Bromer v. Freman, Deane & G. 
 14 (1845). 192, 226 (1856). 
 
 3. Nelson v. Bridport, 8 Beav. 547, 2. Picton's Case, 30 Howell's St. 
 560 (1846). Trials, 806, 863 (1808). 
 
 4. Cocka v. Purday, 2 C. & K. 3. Nelson v. Bridport, 8 Beav. 547, 
 269 (1846). 560 (1846). 
 
§ 159 Law and Fact. 202 
 
 of the forum will justly deem it good administration to require 
 that the document itself be produced, so far as is practically 
 feasible. Proof is usually made by officially printed copies ; and, 
 as there is often no difficulty presented to obtaining these or 
 other copies the general rule of administration or practice is well 
 settled, that oral evidence will not be received of the contents of a 
 foreign written law unless a statute shall definitely provide other- 
 wise. 4 Where the administrative situation is different; where the 
 proponent is seeking to prove the contents of a written law of 
 which it is not easy to procure official copies, the requirements of 
 judicial administration are relaxed to meet the changed situation, 
 and the proponent will be permitted to prove the law by the best 
 evidence practically available to him. 5 
 
 § 159. (Trial by Inspection; Foreign Law; Function of 
 Administration); English Practice. — The English rule of admin- 
 istration is a shade more liberal, in its first aspect, than the 
 American. It receives any probative evidence, not necessarily 
 formal copies of the written law, 1 in proof of its contents. Indeed, 
 it is rather deemed the work of the skilled witness to diagnose the 
 fact and nature of the foreign law on a given point, using the 
 existence of the written law, so far as he gives it weight in reach- 
 ing his " opinion," i. e., his conclusion or judgment. 2 In the 
 end, the English and American rules reach the same result, receiv- 
 ing all relevant evidence, the best available preferred, which throws 
 
 4. Arkansas. — McNeill v. Arnold, 2 Cranch 187, 2 L. ed. 249 (1804) ; 
 
 17 Ark. 154 (1856). Seton v. Delaware Ins. Co., 21 Fed. 
 
 Georgia.— Leonard v. Peeples, 30 Cas. No. 12,675, 2 Wash. C. C. 175 
 
 Ga. 61 (1860). (1808). 
 
 Illinois. — McDeed v. McDeed, 67 111. 5. Drake v. Hudson, 7 Harr. & J. 
 
 545 (1873). (Md.) 399 (1826); Livingston r. 
 
 Indiana. — Line V. Mack, 14 Ind. Maryland Ins. Co., 6 Cranch (U. S.) 
 
 330 (1860). 274, 3 L. ed. 222 (1810). 
 
 Louisiana. — Phillips v. Murphy, 2 1. People v. Lambert, 5 Mich. 349, 
 
 La. Ann. 654 (1847). 72 Am. Dec. 49 (1858); Vander 
 
 Michigan. — Kermott V. Ayer, 11 Donckt r. Thellusson, 8 C. B. 812, 19 
 
 Mich. 181 (1863). L. J. C. P. 12, 65 E. C. L. 812 (1849) ; 
 
 Missouri. — Charlotte V. Chouteau, De Bode's Case, 8 Q. B. 208, 55 E. C. 
 
 25 Mo. 465 (1857). L. 208 (1845) ; In re Sussex Peerage, 
 
 Terns. — Holliday v. Harvey, 39 Tex. 11 CI. & F. 85, 8 Jur. 793, 8 Eng. 
 
 670 (1873) ; Martin v. Payne, 11 Tex. Reprint 1034 (1844). 
 
 292 (1854). 2. R. v. Povey, 6 Cox C. C. 83, 
 
 Vermont. — Smith r. Potter, 27 Vt. Dears. C. C. 32, 17 Jur. 120, 22 L. J. 
 
 304, 65 Am. Dec. 198 (1855); Dan- M. C. 19, 1 Wkly. Rep. 40, 14 Eng. 
 
 forth V. Reynolds, 1 Vt. 259 (1828). L. & Eq. 549 (1852). 
 
 United States. — Church r. Hubbart, 
 
203 When Foreign Law is Assumed to be Statutory. § 160 
 
 light upon the meaning of the foreign law, 8 with the lack of 
 technical embarrassment characteristic of the handling of judicial 
 matters in which the jury are not concerned. 4 Great importance 
 is naturally attached to the construction which the court of last 
 resort in the sister state or foreign country have placed upon their 
 own written laws. 5 
 
 § 160. (Trial by Inspection; Foreign Law; Function of 
 Administration) ; Judicial Assumptions. — When nothing appears 
 as to certain essential facts regarding the interstate or foreign law, 
 the administrative problem presented is as to what assumptions 
 the court will make. The case must be disposed of, in connection 
 with the administrative duty of expediting trials. 1 Evidence being 
 absent, it is usually said that certain things are " presumed." It 
 would be more nearly descriptive of the process to say that these 
 things were assumed. 2 The function is rather one of administra- 
 tion than of logic; though, as must necessarily happen in any 
 instance of the employment of administration the essential and 
 conditioning requirement as to which is that it should be reason- 
 able, the element of logic is not absent. Much will depend as to 
 the exact situation presented, the object being that of all judicial 
 administration — justice as conventionalized by law. It will, for 
 example, not be assumed that the foreign law is statutory, espe- 
 cially where the country in question has a common law jurispru- 
 dence. He who would show, contrary to the assumption that the 
 foreign provision is unwritten, has, as in all cases of an adverse 
 assumption, 3 the burden of evidence to establish the written form 
 of the foreign law.* In matters, on the other hand, which were not 
 matters of common law regulation, the court must, almost of 
 necessity, assume that if the matter is regulated, the regulation is 
 statutory. 
 
 3. Dyer v. Smith, 12 Conn. 384 5. Horton v. Reed, 13 R. I. 366 
 (1837); People v. Lambert, 5 Mich. (1881); St. Louis, etc., R. Co. v. 
 349, 72 Am. Dec. 49 (1858) ; In re Stewart, 68 Ark. 606, 61 S. W. 169, 
 Sussex Peerage Case, 11 CI. & F. 85, 82 Am. St. Rep. 311 (1901). 
 
 8 Jur. 793, 8 Eng. Reprint 1034 1. Infra, §§ 544 et seq. 
 
 (1844). 2. Infra, §§ 1211 et seq. 
 
 4. St. Louis, etc., R. Co. v. Stewart, 3. Infra, § 1017. 
 
 68 Ark. 606, 61 S. W. 169, 82 Am. 4. Dougherty v. Snyder, 15 Serg. & 
 
 St. Rep. 311 (1901) ; Dyer V. Smith, R. (Pa.) 84, 16 Am. Dec. 520 (1826) ; 
 
 12 Conn. 384 ( 1837 ) ; People v. Lam- Livingston v. Maryland Ins. Co., 6 
 
 bert, 5 Mich. 349, 72 Am. Dec. 49 Cranch (U. S.) 274, 3 L. ed. 222 
 
 (1858). (1810). 
 
§§ 161, 162 Law and Fact. 204 
 
 § 161. (Trial by Inspection; Foreign Law; Function of 
 'Administration; Judicial Assumptions) ; Rate of Interest. — 
 
 Among subjects of this nature, where the foreign law is assumed to 
 be statutory, is the rate of interest. 'No allowance of interest 
 being provided at common law in case of the detention of money, 
 it will in certain jurisdictions, be assumed that where the allow- 
 ance under the law of another state is under a provision of law, 
 rather than by custom, the statute must be produced before sec- 
 ondary evidence of its contents can be used. 1 The better adminis- 
 tration makes no assumption that the foreign law or the allowance 
 of interest is statutory. That fact may be left to proof ; 2 and 
 while, where the law is shown to be statutory, the statute must be 
 produced, or its absence explained, 3 this ruling is not made appli- 
 cable by virtue of an assumption as to the statutory nature of the 
 law. In other words, if the rule is not shown to be statutory parol 
 evidence as to the fact is receivable. 4 In point of principle, the 
 requirement that a statute should be produced' in specie where it 
 exists, actually or by assumption, is not an application of the 
 best evidence rule relating to documents which is based upon the 
 convention of the parties in relation to constituent instruments. 
 So far as properly operative at all, this requirement of the pro- 
 duction of a foreign statute is under the general administrative 
 principle requiring the most probative evidence. 5 This is a flex- 
 ible tool in the hands of the court for so moulding the evidence 
 as to make it effective in the furtherance of justice. It is not a 
 rule of procedure. 
 
 § 162. (Trial by Inspection); Foreign Records Foreign 
 
 judgments, and other foreign judicial records, are provable by 
 copy and, being without the range of judicial knowledge are not 
 determined by inspection. 1 
 
 1. Talbot v. Peeples, 6 J. J. Marsh. 4. Boggs v. Reed, 5 Mart. (La.) 
 (Ky.) 200 (1831) ; Tryon v. Rankin, 673, 12 Am. Dec. 482 (1818). 
 
 9 Tex. 595 (1853). 5. Infra, §§ 464 et seq. 
 
 2. Wakeman v. Marquand, 5 Mart. 1. Baldwin v. Hale, 17 John. 272 
 N. 8. (La.) 265 (1826). (1820); Collins v. Mathew, 5 East 
 
 3. Mason v. Mason, 12 La- 589 473 (1804). "It is to be tried by 
 (1838); Minor v. Harding, 4 La. 378 the country . . . and not by the 
 (1832); Glasgow v. Stevenson, 6 Court." Walker v. Witler, 1 Doug. 1, 
 Mart. N. S. (La.) 567 (1838). 7 (1778), per Buller, J. 
 
CHAPTER IV. 
 
 COUBT AND JUEYJ COURT. 
 
 Court and jury; court, 163. 
 Functions of the judicial office, 164. 
 judicial, 165. 
 
 procedure defined, 166. 
 
 rights and remedies, 167. 
 
 (1) rights relating to matters of procedure, 168. 
 ,(2) substantive law may prescribe the remedy, 169. 
 verbal metabolism, 170. 
 distinctions not important, 171. 
 promote justice, 172. 
 apply practice, 173. 
 administrative, 174. 
 
 field of administration, 175. 
 
 reason characteristic of administration, 176. 
 
 discretion, 177. 
 
 range of application, 178. 
 
 absence of judge from courtroom, 179. 
 adjournments, 180. 
 course of trial, 181. 
 
 exclusion of persons from the courtroom, 182. 
 grounds for admitting public, 183. 
 persistence of conditions, 184. 
 furnish proof or contradiction, 185. 
 grounds for exclusion, 186. 
 adjournments to avoid unwise publicity, 187. 
 separation of witnesses, 188. 
 
 grounds for making order, 189. 
 
 order not matter of right, 190'. 
 
 what constitutes violation of the order, 191. 
 
 time of motion for order, 192. 
 
 by whom motion is made, 193. 
 
 to whom the order applies, 194. 
 
 enforcement of the order, 195. 
 
 consequences of disobedience, 196. 
 
 party's relation to violation, 197. 
 
 proceedings against offending witnesses, 198. 
 [205] 
 
Couet and Jury; Court. 206 
 
 Functions of the judicial office, 
 administrative. 
 
 swearing of witnesses, 199. 
 
 subjective qualifications, 200. 
 method of inquiry, 201. 
 children as witnesses, 202. 
 form of oath, 203. 
 executive, 204. 
 
 require order and decorum, 205. 
 
 abusive language to judge, 206. 
 cursing the judge, 207. 
 disorderly conduct, 208. 
 insults in papers, 209. 
 insults on appeal, 210. 
 
 using force to prevent orderly administration, 211. 
 writing letters, 212. 
 compel obedience to directions, 213. 
 administrative orders, 213. 
 attorneys, 214. 
 corporations, 215. 
 court officers, 216. 
 clerks, attendants, etc., 217. 
 sheriffs, constables, etc., 218. 
 jurors, 219. 
 
 magistrates and inferior tribunals, 220. 
 public, 221. 
 witnesses, 222. 
 
 compulsory exhibition of person, 223. 
 
 order £o produce, 224. 
 
 separation of witnesses, 225. 
 
 testimony required, 226. 
 protect the course of justice, 227. 
 
 prevent insult to the judge, 228. 
 attorneys, 229. 
 court officers, 230. 
 grand jurors, 231. 
 jurors, 232. 
 
 discussions, 232. 
 
 obstructing justice, 233. J 
 
 tampering with jury, 234. 
 
 threatening jury, 235. 
 
207 PRELIMINARY VlEW OF JUDGE AND JURY. § 163 
 
 Functions of the judicial office, 
 executive. 
 
 protect the course of justice. 
 
 magistrates and inferior tribunals, 236. 
 newspapers, 237. 
 
 embarrassing the administration of justice, 238. 
 past proceedings, 239. 
 improper influence, 240. 
 intimidation, 241. 
 
 special orders as to publication, 242. 
 place of publications, 243. 
 parties and public, 244. 
 service of process, 245. 
 witnesses, 246. 
 arrest, 247. 
 bribery, 248. 
 false swearing, 249. 
 illustrations, 250. 
 intimidation, 251. 
 suppressing testimony, 252. 
 enforcement by contempt proceedings, 253. 
 civil and criminal cases, 254. 
 direct and constructive, 255. 
 constructive presence of judge, 256. 
 Judge sitting as a jury, 257. 
 administrative orders, 258. 
 rulings of law, 259. 
 use o/ argument, 260. 
 dw &y judge, 261. 
 weight of evidence, 262. 
 Action of appellate courts, 263. 
 
 distinctions between law and fact, 264. 
 Federal courts, 265. 
 Evidence as a matter of administration, 266. 
 #fare decisis as applied to the law of evidence, 267. 
 Recapitulation, 268. 
 
 § 163. (Court and Jury); Court. — Before proceeding to con- 
 sider in some detail the respective functions of the court and jury, 
 it may be of advantage to take a brief survey of the general consti- 
 tution and relations of the two branches of the mixed tribunal so 
 
§ 163 Coubt and Jury; Coukt. 208 
 
 familiar to the English law. The central figure of the courtroom 
 is unquestionably the judge. The office, and, much more frequently 
 than not, the individual, are hedged about with a dignity based upon 
 varied and highly important considerations. This is due not alone 
 to the great antiquity of the office of judge and to the universal 
 social respect in which, wherever worthily exercised, the office has 
 uniformly been held. The title of judge is, indeed, venerable with 
 age and revered for the wisdom with which the age-enduring 
 traditions of the past have enriched it. Compared with the in- 
 stitution of judge, that of the jury is extremely recent. For un- 
 counted centuries the judges have exercised the critical duties of 
 their great office among highly civilized peoples before the institu- 
 tion of the jury began its embryonic stage in the gloom of the 
 Thuringian forests. The veneration for long tried worth and 
 the reverence for demonstrated wisdom do not stand alone by the 
 judicial chair of the judge. The demonstrated ability for the 
 highest social service is there also. With the earliest advent of 
 the crudest form of government, the awarding of justice among 
 the governed has been instinctively recognized as a high, possibly 
 the highest, attribute of sovereignty. It was the responsibility which 
 all exercise of power by implication assumed — the basis on which 
 personal liberty was surrendered and individual loyalty accorded. 
 The office of judge was in him who was the head of the society as 
 then organized, or of him to whom the latter should depute his 
 power. The tribesman looked to his chief for justice, the member 
 of the patriarchal family demanded it from the head of the family. 
 The king was the fountain of justice to his subjects. When the 
 growth of national life required that the king or other head of the 
 state should place this element of his sovereignty in the hands of 
 others, the recognition was general, and clear in proportion to 
 social evolution and advance, that no service to the state was more 
 vital in importance or more permanently beneficial and far-reach- 
 ing in its effects than the orderly, speedy and exact administration 
 of justice. Thus the administration of justice is essentially an 
 attribute of sovereignty — the necessary part of the return which 
 organized society makes for the general concessions from which its 
 powers are derived. But the chief crown of the judical office lies 
 not in the veneration due to meritorious antiquity or to the respect 
 won by high and long continued social service. It would seem to 
 lie rather in the fact that through the features of the ideal judge 
 
209 Evidence Affected by Other Procedural Rules. § 164 
 
 shine those of Justice herself. Herein consists the chief claim of 
 the law to the loyalty of the legal profession — the professed min- 
 isters of justice, and the general respect of the right-thinking por- 
 tion of the community. It is a settled conviction in the mind of 
 civilized man that the hase line from which human rights and ob- 
 ligations are reckoned whether in relation toward each other or to 
 the state is, simply, justice. This universally implanted instinct 
 leads to the feeling that in awarding justice society is not only dis- 
 charging its most important social function, but reaching its 
 highest moral elevation. The courtroom is inspiring because it is 
 there that moral power, rather than physical force, is supreme. 
 The judge is reverenced not because the sovereign has given him 
 great powers — not the less impressive because indeterminate — 
 for the discharge of his duties, but because of the God-like nature 
 of the function which he has been given a mandate to discharge. 
 A judge divorced from justice is a mockery. Without justice, a 
 courthouse can be, at most, but a splendid temple, whose shrine is 
 empty. 
 
 § 164. Functions of the Judicial Office In the machinery of 
 
 judicial procedure, to which reference will be more fully made, 1 
 the law of evidence has an especial place — intervening in operation 
 between the establishment of issues of fact by means of the rules 
 of procedure as to pleading, and the exercise of the reasoning 
 faculty in the act of judging or rendering a verdict upon the facts 
 which it is the province of evidence to supply. But beside having 
 an appropriate field in the procedure of a trial, the admissions and 
 rejections of evidence, the form which it is compelled to assume, 
 the limitations upon its use or effect, are being constantly modified 
 and, in the course of a trial, controlled by rules imported from 
 other branches of procedure. This happens so frequently and is 
 attended by such radical consequences that the practical adminis- 
 tration of the rules of evidence and many of the rules themselves 
 are unintelligible without constant reference to certain essential 
 functions of the judicial office. Thus, for example, part of .the 
 essential basis of the " rule against hearsay " is the fact that pro- 
 cedural law demands that evidence be given under oath and sub- 
 ject to cross-examination ; 2 the judgment or " opinion " of wit- 
 nesses is excluded, in part at least, because the rules of procedure 
 
 1. Infra, §■§ 165 et seq. 2. See infra, §§ 2712, 2713. 
 
 Vol. I. 14 
 
§ 164 Couet and Juey; Court. 210 
 
 require that, wherever possible, the function of judging of the 
 effect of evidentiary matter should be exercised by the jury. 3 
 "What a party to a litigation has said is available to his opponent 
 as an " admission " 4 or to the state, in a criminal proceeding, as 
 a confession, 5 largely because a rule of procedure prescribes that 
 such shall be its effect, to a degree and under circumstances bear- 
 ing slight relation to logical relevancy. 
 
 This blending of the rules of evidence with those of substantive 
 law or other branches of procedure is rendered easy of occurrence 
 and difficult of disassociation by reason of the fact that knowledge 
 and enforcement of all rules of substantive law, as well as those 
 of procedure, are, together with the task of administration, cen- 
 tered in the same person — the presiding judge. 
 
 A Necessary Arrangement. — This multiplicity of function on 
 the part of the presiding judge could at no time well be avoided. 
 Even in a modern jury trial where the appeal is to the reasoning 
 faculty, the same function of the judge, exercised by him in 
 cruder forms of trial, to see that all the rules are observed, 
 though somewhat distinguished by the presence and operation of 
 other considerations, still persists. This obligation, which is, in 
 reality, the task of administration, 6 has at all times grown out of 
 an inherent necessity. Procedure, as well as regard for the more 
 far-reaching consequences of judicial administration, requires a 
 continuous tradition, which could not, in the nature of things, re- 
 side elsewhere than with the judge. 
 
 A Palpable Confusion. — It has proved easy for a presiding 
 judge, under the confusing conditions of a nisi prius trial to fail 
 to distinguish or, indeed, greatly to concern himself as to what was 
 the particular branch of procedure under which he was exercising 
 a power which he clearly was entitled to use ; or whether, indeed, 
 he was dealing with procedure at all, rather than, in reality, an- 
 nouncing or applying a rule of substantive law, or exercising his 
 power of administration. Such a judge has found it especially 
 tempting to put his action in the form of a ruling on the law of 
 evidence by saying that " evidence is not admissible " for a given 
 purpose. This is sufficient for immediate ends. It may, even in 
 itself, be more accurate than any more specific reason likely to be 
 assigned. But it does not specify whether the exclusion is made 
 
 3. See infra, §§ 1791 et seq. 5. See infra, §§ 1472 et seq. 
 
 4. See infra, §§ 1232 et seq. 6. Infra, §§ 174 et seq. 
 
211 Judicial Functions; Procedure Defined. §§ 165, 166 
 
 because the fact which the evidence tends to prove (a) is not ma- 
 terial to the claim or defense relied on, (b) is not relevant under 
 the pleadings, (c) is not a probative or constituent fact, (d) is 
 calculated to mislead or confuse the jury, or unduly protract the 
 trial. In other words, no intimation is given as to whether the 
 ruling is made because the evidence offered is contrary to substan- 
 tive law, pleading or evidence, or is, on the other hand, made 
 under the administrative powers of the judge. Nor is relief against 
 this ambiguity furnished elsewhere. This phraseology is custom- 
 arily reversed or sustained on appeal without material alteration 
 of terms. All such rulings appear as part of the law of evidence, 
 and are collated in a most conscientious and painstaking manner 
 by students of the subject. It is, however, essential to an under- 
 standing of the province of " evidence " itself, that an attempt be 
 made to consider, in the next few paragraphs, the blended func- 
 tions exercised by the presiding judge, from the confusion of which 
 this situation results. 
 
 For convenience, the functions of the court may be divided into 
 those which are (1) judicial, i. e., involve the use of judgment; 
 (2) administrative, i. e., imply the use of discretion; (3) those 
 which are executive, i. e., require the exercise of what may be 
 called the " police powers " of the court. 
 
 § 165. (Functions of the Judicial Office); Judicial. — 
 
 The presiding judge has not only the duty of announcing the 
 substantive law of which he is said to have judicial knowledge, 1 
 and which will be more fully considered later, in connection 
 with that subject; he also is charged with the duty of apply- 
 ing the rules of procedure. It will, therefore, be necessary to 
 inquire somewhat as to the distinction between the two branches 
 into which the general subject of municipal law, as above defined, 2 
 may be regarded as divided. Mr. Bishop says, 3 " The law is di- 
 vided into the rules which prescribe the conduct of the people, and 
 those which regulate its own steps in enforcing obedience. The 
 two branches are called sometimes substantive and adjective law; 
 oftener, law and procedure." 
 
 § 166. (Functions of the Judicial Office; Judicial); Proce- 
 dure Defined. — Properly considered, procedure relates, not to the 
 
 1. Infra, §§ 570 et seq. v. Missouri, 107 U. S. 221, 231 
 
 2. Supra, § 66. (1882). 
 
 3. 1 Cr. Proc. § 1. See also Kring 
 
166 
 
 Couet and Jury; Couet. 
 
 212 
 
 remedy, but to the process by which the remedy is made available. 
 The law of procedure governs the process of litigation. " It is the 
 law of actions — jus quod ad actiones pertinet, using the term 
 action in a wide sense to include all legal proceedings, civil or 
 criminal." * The forms of procedure have been conveniently sum- 
 marized by MJr. Salmond 2 — " The normal elements of judicial 
 procedure are five in number, namely, summons, pleading, proof, 
 judgment and execution." 3 The object of the first is to secure 
 for all parties interested an opportunity of presenting themselves 
 before the court and making their case heard. Pleading formulates 
 for the use of the court and of the parties those questions of fact 
 or law which are in issue. Proof is the process by which the 
 
 1. Salmond, Jurisp. (2d ed.) § 172. 
 " All the residue is substantive law, 
 and relates not to the process of liti- 
 gation, but to its purposes and sub- 
 ject matter. Substantive law is con- 
 cerned with the ends which the ad- 
 ministration of justice seeks; proced- 
 ural law deals with the means and in- 
 struments by which these ends are to 
 be attained. The latter regulates the 
 conduct and relations of courts and 
 litigants in respect of the litigation 
 itself; the former, determines their 
 conduct and relations in respect of the 
 matters litigated. Procedural law is 
 concerned with affairs inside the 
 courts of justice; substantive law 
 deals with matters in the world out- 
 side.' 7 Salmond, Jurisp. (2d ed.), 
 § 172. " The relation between the 
 whole body of the law which gives and 
 defines rights, and that part devoted 
 to the enforcing of such rights, has 
 been well expressed by the statement 
 that the Substantive Law is primary, 
 even, in a sense, creative. It is the 
 law to be administered, as distin- 
 guished from the method of adminis- 
 tration. Adjective Law, on the other 
 hand, is secondary in its purpose, as 
 its name imports. It exists for the 
 sake of something else — for the sake 
 of the Substantive Law. It operates 
 only when invoked to maintain or 
 redress a particular right given by 
 the Substantive Law." Fiero, " The 
 
 Relation of Procedure to the Substan- 
 tive Law." Law Pamph. Vol. 202. 
 "Of Procedure it has been said: — 
 It comprises the rules for (I) select- 
 ing the jurisdiction which has cog- 
 nizance of the matter in question; 
 (ii) ascertaining the Court which is 
 appropriate for the decision of the 
 matter; (ill) setting in motion the 
 machinery of the Court so as to pro- 
 cure the decision; and (rv) setting 
 in motion the physical force by which 
 the judgment of the Court is, in the 
 last resort, to be rendered effectual." 
 Holland, Elements of Jurisp. 316. 
 " Procedure deals with the machinery 
 by which legal controversies are set- 
 tled." Thayer, Prelim. Treat. 198. 
 
 Other definitions: "It [substantive 
 law] defines the rights which it 
 will aid, and specifies the way in 
 which it will aid them. So far as it 
 defines, thereby creating, it is ' Sub- 
 stantive Law.' So far as it provides 
 a method of aiding and protecting, it is 
 ' Adjective Law,' or procedure." Hol- 
 land, Elements of Jurisp., p. 78. 
 
 2. Salmond, Jurisp. ( 2d Ed.) 
 § 172. 
 
 3. The Supreme Court of the United 
 States defines procedure to include 
 " Whatever is embraced by the three 
 technical terms, pleading, evidence and 
 practice." Kring v. Missouri, 107 U. 
 S. 221, 231. 
 
213 Substantive Eight to Procedural Eules. §§ 167, 168 
 
 parties supply the court with the data necessary for the decision 
 of these questions. Judgment is this decision itself, while execu- 
 tion, the last step in the proceeding, is the use of physical force in 
 the maintenance of the judgment, when voluntary submission is 
 withheld. 4 
 
 § 167. (Functions of the Judicial Office; Judicial; Proce- 
 dure Defined) ; Rights and Remedies. — The suggestion has been 
 made, that the distinction between substantive law and procedure 
 is that between rights and remedies — between jura and re-media 
 — substantive law prescribing rights and liabilities and procedure 
 determining the methods by which these rights are enforced or a 
 remedy is provided for their violation. Undoubtedly, this defini- 
 tion is a common one; and, for many purposes, it is sufficiently 
 accurate. It is inexact, however, in at least two essential particu- 
 lars: (1) Many rights are procedural, i. e., relate to procedure; 
 (2) the nature of the remedy is often defined by substantive law. 1 
 
 § 168. (Functions of the Judicial Office; Judicial; Proce- 
 dure Defined); (1) Rights Relating to Matters of Procedure — 
 
 The substantive rights of the parties may well extend to the ob- 
 servance of certain methods of procedure. Indeed, the rights to 
 the observance of an established procedure are the most ancient 
 of which we know anything in Teutonic law. Historically, pro- 
 cedure antedated substantive law. In the more formal juris- 
 prudence of early days, procedure was, in itself, the test of truth. 
 Facts were " proved," not by any appeal to reason, but by carry- 
 ing through without variation certain established formulae, known 
 to the judges — noticing the result and acting accordingly. The 
 right of the party litigant was to the formula?, the observance of 
 the rules of the trial — by taking certain steps to have the test or 
 " proof " applied to his matter. Such was the earliest right — to 
 a definite procedure. Other substantive rights grew up; that a 
 thing once done should be done again and so the rule of law — the 
 substantive law — was, as it were, evolved from out of the inter- 
 stices of procedure. As Sir Henry Maine happily puts it : * 
 
 4. Bishop more shortly divides pro- 1. " Substantive law is concerned 
 
 cedure into pleading, evidence and with the ends which the administra- 
 
 practice and suggests that the term tion of justice seeks." Salmond, 
 
 procedure " denotes whatever the nar- Jurisp. (2d ed. ), p. 444. 
 
 rower three in combination do, and 1. Sir Henry Maine, Works, p. 
 
 perhaps nothing more." Bish. Crim. 429. 
 Proe. § 2. 
 
§§ 169, 170 Ooukt and Jury ; Court. 214 
 
 " So great is tie ascendency of the law of action in the infancy 
 of courts of justice, that substantive law has at least the look of 
 being gradually secreted in the interstices of procedure, and the 
 early lawyer can only see the law through the envelope of technical 
 forms." 2 From this so intimate connection, between procedure 
 and substantive law a large number of a litigant's rights — actu- 
 ally enforced as substantive law — relate solely to procedure. 
 That this is treated as part of the law of evidence, suffices greatly 
 to broaden the scope of that subject. Thus, the right of a party to 
 give evidence on his own behalf, a right to interrogate the other 
 party, to have reason used in the trial of his cause, to have a jury 
 adjudge on the probative facts, though relating to procedure, are, 
 with a large number of- others, in reality, matters of substantive 
 law. 
 
 § 169. (Functions of the Judicial Office; Judicial; Proce- 
 dure Defined); (2) Substantive Law May Prescribe the Bemedy. 
 
 — As the right to the observance of a rule of procedure may be a 
 matter of substantive right, so the remedy itself may be, and fre- 
 quently is, prescribed by the substantive law. Thus, the punish- 
 ment for crimes, the damages awarded upon the violation of a 
 right or the infraction of a duty are all clearly part of the remedy. 
 It is equally plain that such remedies are prescribed by the sub- 
 stantive law. Examples of this fact are numerous. Thus, in 
 equity the substantive law determines what contracts will be 
 specifically enforced; and where, on the other hand, the remedy 
 will be confined to damages. 
 
 § 170. (Functions of the Judicial Office; Judicial; Proce- 
 dure Defined); Verbal Metabolism — . This verbal metabolism be- 
 tween the phraseology of the substantive law and that of procedure 
 by which the rules of positive law are made to appear as if they 
 were part of the separate and distinct branch of law denominated 
 
 2. " A century this side of the Con- responsible only for the application of 
 
 quest the business of the popular iron rules." Hepburn, The Develop- 
 
 courts was still not so much to try a ment of Code Pleading, p. 32. " When- 
 
 case through the patient sifting of ever we trace a leading doctrine of 
 
 testimony as to determine what for- substantive law back far enough, we 
 
 mula a party should follow in order to are likely to find some forgotten cir- 
 
 prove his case. Formalism was the cumstance of procedure at its source." 
 
 characteristic, the vital spirit of pro- The Common Law, p. 253, by Judge 
 
 cedure. Little or nothing was left to Holmes, 
 judicial discretion; the judges were 
 
215 An Intellectual Monstrosity. § 170 
 
 procedure, takes place, most frequently, in practical judicial ad- 
 ministration in three ways: 
 
 1. Exclusive Mode of Proof. — The first instance of this verbal 
 interchangeability of a rule of substantive law with one of pro- 
 cedural law is furnished where an exclusive mode of proof is, in 
 reality, a component element of the right or liability prescribe^ 
 by substantive law. Thus, if contracts of a certain nature can, 
 under the rule of substantive law, be proved only by a writing, the 
 evidentiary requirement practically adds an additional condition, 
 under which alone a right to enforce such a contract will arise. 
 In other words, in terms of procedure, the existence of a writing 
 is exclusive evidence of the right. In terms of substantive law, 
 the existence of the same writing is a part of the right itself. In 
 such a case, were oral evidence offered to prove the contract, the 
 ruling asked for and given by the court would probably be to the 
 effect that " parol evidence is not admissible " to prove a written 
 contract ; thus using the phraseology of evidence. Yet it seems 
 clear that so far as evidence is a matter of logic, no question in 
 the law of evidence is involved at all. Whether the underlying 
 rule of law is spoken of as procedural or substantive is not im- 
 portant, the controlling factor in the ruling which excludes the 
 oral testimony is a rule of law, that contracts of this nature must 
 be in writing. This fact of a writing being absent, the con- 
 stituent facts fall short of establishing the right when the rule 
 of law is placed in measurement over them. It should be noticed 
 that the real difficulty is, not that the facts are too short, as a 
 matter of logic, but that the rule is too long, as a matter of law. 
 
 2. Conclusive Presumptions. — A second paraphrasing or inter- 
 changeability of substantive for procedural rules is furnished 
 where a conclusive effect is given to a particular fact in a given 
 connection, irrespective of probative force; e. g., where a certain 
 evidentiary fact is the equivalent of and may be substituted for 
 another. A conclusive presumption, as it is called, states in sub- 
 stance, the equivalence in legal effect between two facts. The form 
 of expression is that of procedural law; the reality is a proposi- 
 tion in substantive law. That of which the existence cannot be 
 questioned may well be said to exist. That which cannot be 
 legally proved may well be said, legally, not to exist. From a 
 logical point of view, i. e., from the standpoint of evidence, a 
 " conclusive presumption " is a contradiction in terms — an intel- 
 lectual monstrosity. The law of evidence, in itself, acknowledges 
 
§ 171 Couet axd Jury; Coubt. 216 
 
 no predetermined probative weight for any inference of fact; only 
 a rule of law, substantive or procedural, can do that. Still less 
 does logic tolerate the imposition of an inevitable conclusion. All 
 such statements are mere masqueradings of substantive or pro- 
 cedural law dressed in the garments of evidence. A child under 
 seven is said to be conclusively presumed to be incapable of form- 
 ing a criminal intent. Of this the only rational meaning can 
 be that the law of persons provides that infants under this age 
 shall not be criminally punished for offenses of which intent is 
 an essential element. So the rule of agency, holding a master 
 responsible for the acts of his servant while carrying on the 
 master's business, is clearly one of substantive law. Yet it is 
 readily turned into the language of procedure by the simple trans- 
 position of saying that it is conclusively presumed that acts done by 
 a servant while engaged on his master's business were done by the 
 master's authority, in which garb it seems to be a proposition in 
 procedure. Thus formulated it really appears to have something 
 to do with the law of evidence, which is very far from being the 
 fact. To these results, viewed as legitimate legal growth, no 
 criticism could well be offered. 1 But the concealment of the actual 
 process is an obvious impediment to that clear denning of the 
 field of evidence as distinct from substantive law which is abso- 
 lutely essential to any clear comprehension of the subject. 
 
 3. Statute of Limitations. — The limitation on the right to bring 
 an action — a specimen of procedural law — is practically equiva- 
 lent to the loss or prescription of the right itself by lapse of time. 
 Severing the ligature between right and remedy as in the pro- 
 cedural limitation of actions deals a death-blow to the right itself. 
 It may be said that the removal of the remedy leaves an imperfect 
 right, into which waiver or other act of the other party may instill 
 legal vitality, while in the latter case the right is entirely gone. 
 But the distinction seems metaphysical rather than practically 
 valuable. It in no way affects the truth of the statement that the 
 difference between substantive and procedural law is largely one 
 in form of statement. 
 
 § 171. (Functions of the Judicial Office; Judicial; Proce* 
 
 dure Defined); Distinction Not Important It would thus appear 
 
 that the distinction between substantive and procedural law is one 
 not only of but little consequence; it is one which is principally 
 
 1. Infra, § — . 
 
217 Rules oe Their Absence, the True Distinction. § 171 
 
 based, as, perhaps, the historical evolution of substantive law from 
 forms of rigid procedure 1 might in itself suffice' to show, on a 
 mere difference in form of statement. So long as a rule 
 exists as to what the judge shall do, it is largely a matter of 
 indifference, so iar as the law of evidence is concerned, whether 
 the rule be spoken of as one of substantive law or one of procedure. 
 A mere change of phraseology will usually suffice to transfer a 
 rule of substantive into a proposition of procedural law; and, a 
 similar ease develops in turning a rule of procedural law into one 
 of substantive ; — all without materially affecting the meaning of 
 what is said, i'f correctly understood. The difficulty is tbat words 
 so contorted do not readily retain normal meanings, and confusion 
 necessarily results. Few causes have more seriously contributed 
 to introduce into certain branches of the law of evidence, as "pre- 
 sumptions," " burden of proof," the " parol evidence rule," and 
 the like, profound, and apparently inextricable confusion, tiian the 
 facility with which substantive law can thus be made to mas- 
 querade as procedural, and vice versa. 2 The distinction between 
 substantive and procedural law is artificial and illusory. In es- 
 sence, there is none. The remedy and the predetermined ma- 
 chinery, so far as the litigant has a recognized claim to use it, 
 are, legally speaking, part of the right itself. A right without a 
 remedy for its violation is a command without a sanction, a 
 brutum fulmen, i. e., no law at all. "While it may be convenient 
 to distinguish between the right or liabilty, the remedy or pen- 
 alty by which it is enforced, on the one hand, and the machinery 
 by which the remedy is applied to the right, on the other, i. e., 
 between substantive law and procedural law, it should not be for- 
 gotten that so far as either is law at all, it is the litigant's right to 
 insist upon it, i. e., it is part of his right. In other words, it is 
 substantive law. 
 
 In reality, the true distinction for the purpose of the law of 
 evidence, the correct line of radical cleavage, is not between rules 
 as announced in substantive law and similar and often interchange- 
 able rules formulated as part of the law of procedure; but, is, on 
 the contrary, between rules of law, substantive or procedural, on 
 
 1. Infra, § 168. the steps of the process are concealed 
 
 2. This is bad enough, in all reason, by clear headed judges anxious to 
 when done unconsciously and by a change the substantive law and avoid, 
 blundering misuse of terms. It is at the same time, the appearance of 
 still more difficult of detection when judicial legislation. 
 
§ 172 Coukt and Jury; Couet. 218 
 
 the one hand, and the principles of rational judicial administra- 
 tion on the other. 
 § 172. (Functions of the Judicial Office); Promote Justice. — 
 
 Equally within the judicial function of the court with the enforce- 
 ment of law, and far transcending it in social importance is the 
 promotion and furtherance of justice. This is the field of judicial 
 administration. The primary mandate to the judge is to promote 
 justice. This is the fundamental duty of organized society, which 
 he is called upon, as its representative, to discharge. But justice 
 is necessarily an individual thing, a question of natural equity 
 under a constantly varying set of circumstances. To be even ap- 
 proximately perfect, the subjective, the mental, the moral elements 
 of a particular set of facts must be regarded. In a primitive state 
 of society, the judge might well seek to exercise so broad and 
 untrammelled a power as the administration of justice unalloyed 
 and in its simplest form. 
 
 But at once into this unfettered exercise of administrative power 
 a new and constraining element is found to enter. Society is not 
 only interested in the doing of abstract individual justice. It is 
 also essential to the objects which it has in view that rights and 
 duties should be certain that things once done in a given way 
 should continue to be done in that way. 1 The taking of judicial 
 action in a particular way creates, to a certain extent, a right on 
 the part of the litigant and a corresponding obligation on the judge 
 to do the same thing in a similar case. Thus arises a rule, a law. 
 Substantive or procedural is of no consequence. So far as it is 
 a rule, it hampers the freedom of the future administration of 
 justice. The law is a fetter on judicial liberty of action. In 
 
 1. " IJaw is a gradual growth from principles which the Courts ap- 
 
 small beginnings. The development of ply to the exclusion of their 
 
 a legal system consists in the progres- private judgment. The question 
 
 sive substitution of rigid pre-estab- at issue in the administration of jus- 
 
 lished principles for individual judg- tice more and more ceases to be, 
 
 ment, and to a very large extent these ' What is the right and justice of this 
 
 principles grow up spontaneously case? ' and more and more assumes 
 
 within the tribunals themselves. That the alternative form, ' What is the 
 
 great aggregate of rules which consti- general principle already established 
 
 tutes a developed legal system is not and accepted as applicab\e to such a 
 
 a condition precedent of the adminis- case as this ? ' Justice becomes 
 
 tration of justice, but a product of it. increasingly justice according to law, 
 
 Gradually from various sources — and courts of justice become increas- 
 
 precedent, custom, statute — there ingly courts of law." Salmond, 
 
 is collected a body of fixed Jurisp. (2d ed.) § 7. 
 
219 Peice Paid by Society foe Fixity in Law. § 172 
 
 many cases, it is more important, as in the case of the law of 
 the road, that there should be some rule on the subject, than that 
 there should be any particular regulation. Nor is this all. The 
 social advantages of the constraint of justice imposed by law 
 extend beyond the benefits gained by having the rules for the con- 
 duct of the citizen certain and settled. The influence of inferior 
 motives on the part of judges is greatly minimized. It is impor- 
 tant, especially where political considerations enter into the elec- 
 tion or appointment of the judiciary, that gratitude for favors 
 rendered to the incumbent of the office should not be exhibited 
 in the convenient form of judicial favors accorded to the bene- 
 factor or his clients. So long as the system of complicating the 
 administration of justice by the -payment of political debts still 
 obtains, the existence of a general legal uniformity, the interrup- 
 tion of which would at once attract attention to any gross abuse 
 of judicial power, is not without its social value. Finally, the 
 law itself is educative upon its administrators. It is important 
 to remember that, in a sense, " everyone knows more than anyone." 
 The limited mental vision and obstinately held technical view- 
 point of a particular judge may, with advantage, be supplemented, 
 at times, by a collective wisdom of the enactment of society in 
 the form of law. " The principles of justice are not always 
 clearly legible by the light of nature. The problems offered for 
 judicial solution are often dark and difficult, and there is great 
 need of guidance from that experience and wisdom of the world 
 at large, of which the law is the record. The law is not always 
 wise, but on the whole and in the long run it is wiser than those 
 who administer it. It expresses 'the will and reason of the body 
 politic, and claims by that title to overrule the will and reason 
 of judges and magistrates, no less than those of private men." 2 
 For this uniformity, created by its legal rules, society, however, 
 is forced to pay a heavy price in terms of justice. 3 This is inevit- 
 able ; but it should be recognized. As the objective and subjective 
 conditions of no two cases are, it may be anticipated, precisely 
 similar, applying a rule from a case to which it was perhaps 
 
 2. Salmond, Jurisp. (2d ed.) § 9. truth. So infinitely various are the 
 
 3. " However carefully and cun- affairs of men, that it is impossible to 
 ningly a legal rule may be framed, lay down general principles which will 
 there will in all probability be some be true and just in every case. If we 
 special instances in which it will work are to have general rules at all, we 
 hardship and injustice, and prove a must be content to pay this price." 
 source of error instead of a guide to Salmond, Jurisp. ( 2d ed. ) § 10. 
 
§ 172 Court and Jury; Court. 220 
 
 ideally accurate to another case can only be done by the disregard 
 of certain of the attendant features of the actual situation in the 
 latter case. The more general the rule, the more rigidly it is 
 enforced, the greater must be the number, variety and importance 
 of the elements present in the situation before him which the 
 judge is forced to disregard. C 'A general principle of law is the 
 product of a process of abstraction. It results from the elimina- 
 tion and disregard of the less material circumstances in the particu- 
 lar cases falling within its scope, and the concentration of atten- 
 tion upon the more essential elements which these cases have in 
 common. We cannot be sure that in applying a rule so obtained, 
 the elements so disregarded may not be material in the particular 
 instance; and if they are so, and we make no allowance for them, 
 the result is error and injustice." 4 
 
 A further price is paid in terms of popular respect. Truth is 
 usually in advance of public opinion ; public opinion is, as a rale, 
 in advance of the law. The standards of what is just and even 
 of what is socially expedient are not only in a state of constant flux 
 but in one of incessant sublimation. Those held by any particular 
 epoch are, as a rule, mentally and morally in advance of those used 
 by that which has preceded it. The law, in proportion as it pre- 
 sents the advantage of fixity and uniformity, tends pari passu to 
 exhibit the evils of undue conservatism. Law almost necessarily 
 lingers behind the ethical standards of the age in which it is being 
 applied. It proclaims the views of a previous age. " In the 
 absence of law, the administration of justice would automatically 
 adapt itself to the circumstances and opinions of the time; but 
 fettered by rules of law, courts of justice do the bidding, not of 
 the present, but of the times past in which those rules were 
 fashioned." B The natural relief is through legislation. It would, 
 however, be of great practical assistance were the rigidity of law 
 so far relaxed that substantive or procedural law could be made 
 by the judges themselves, as it were, automatically to open so as 
 to include the new legal principles required by changes in social 
 conditions. In other words, it would be of great social advantage 
 if the nervous dread of appearing to legislate which has forced 
 judges to cloak their real action under the misleading and con- 
 fusing phraseology of evidence 6 should be replaced by a more care- 
 
 4. Salmond Juriap. (2d ed.) § 10. G. Infra, 5 267. 
 
 5. Salmond, Jurisp. (2d ed.) § 10. 
 
221 Evils of Minute Legal Regulation. § 172 
 
 ful consideration as to how such legislation might best be done. 
 No set of persons could so well harmonize the new with the old. 
 " If the law is to be a living organism, and not a mere petrifica- 
 tion, it is necessary to adopt and to use with vigilance some effect- 
 ive instrument of legal development, and the quality of any legal 
 system will depend on the efficiency of the means so taken to 
 secure it against a fatal conservatism." 7 
 
 A more disguised but still very substantial price is paid by society 
 in the prevalence, in the body of law, of the trivial, the false and 
 the formal, the untrue estimate of real values which is not only in 
 practice detrimental to the cause of justice, but powerfully operates 
 to impair the instinct for justice itself which is the very crown 
 of the judicial office. Formalism dies hard; it is kept alive by 
 technicality of which the essential element is the rigidity of legal 
 requirement. " By this is meant the tendency to attribute undue 
 importance to form as opposed to substance, and to exalt the 
 immaterial to the level of the material." 8 " Whenever the im- 
 portance of a thing in law is greater than its importance in fact, 
 we have a legal formalism. The formalism of ancient law is too 
 notorious to require illustration, but we are scarcely yet in a posi- 
 tion to boast ourselves as above reproach in this matter. Much 
 legal reform is requisite if the maxim de minimis non curat 
 lex is to be accounted anything but irony." 9 The feeling that there 
 must be a rule for every judicial act from the greatest to the 
 least, insistence that a certain thing should be done for no better 
 reason than that it has been done before, claiming, as of right, 
 immaterial advantages, for example, the reception of evidence 
 which can have no substantial effect, or should have none, tends 
 in a marked degree to the atrophy of mental and moral powers in 
 the judge and practitioners alike and leads to the discredit of law, 
 the success of fraud, the impunity of crime and all the evils of 
 a successful defiance of the will of society. It creates a machine 
 of rigid precision of action and substitutes it for the true system 
 of legal administration, which, in order to be just, must be 
 flexible. It is blind to the leading of reason; and fosters in this 
 mass of trivial details, a breeding-place for technicality and 
 consequent chicane and delay. 
 
 This minute regulation by rule of law costs society not only in 
 terms of justice, respect for law and speedy dispatch of public 
 
 7. Salmond, Jurisp. (23 ed.) § 10. 9. Salmond, Jurisp. (2d ed.) § 10. 
 
 8. Salmond, Jurisp. (2d ed.) § 10. 
 
§ 173 Court and Jury; Court. 222 
 
 business. It exacts a heavy equivalent in terms of simplicity or 
 intelligibility. This is particularly true and especially disastrous 
 in connection with procedural law. A system of jurisprudence so 
 characterized is necessarily complex. A complex civilization can 
 scarcely avoid an intricate system of substantive law. But it need 
 have no complicated system of procedure. Unless the strain is to 
 grow too great for the machinery of administering justice accord- 
 ing to law, the growing complexity of the substantive law must 
 be met pari passu by a simplification of the administration. So 
 far at least as the law of evidence is concerned, this situation is 
 easily remediable and entirely unnecessary. As Salmond em- 
 phatically, but none too strongly puts it : 10 " The gigantic bulk 
 and bewildering difficulties of our own labyrinthine system are far 
 beyond anything that is called for by the necessities of the case." 
 In connection with the law of evidence, the nerve of the octopus 
 can readily be cut. It is the theory that judicial administration 
 must be regulated by rigid rules. This, in turn, carries with it 
 the corollary that each ruling as to the admissibility of evidence, 
 whether it relates to substantive law, procedural law, logical or 
 legal relevancy or pure administration, is appealable. Our 
 reports, digests and encyclopedias are bursting with rulings on 
 what should never have been removed from beyond the arbitrium 
 of the judge presiding at the trial. At a point varying with the 
 subject-matter the advantages of having a fixed and definite legal 
 rule as to it are offset and neutralized by the counterclaims of 
 judicial discretion. In such a balancing between fetter and free- 
 dom, further relief for the law of evidence lies in the direction 
 of administration. 
 
 § 173. (Functions oi the Judicial Office); Apply Practice. — 
 
 The presiding justice is charged not only with the function of 
 enforcing the rules of law and promoting justice; he has also the 
 duty and function of announcing and applying to matters before 
 him the judicial practice, local or general, which prevails in the 
 jurisdiction of his forum. In connection with the field of " Evi- 
 dence," " Practice " may be defined as that portion of the field of 
 administration which is covered by a custom or usage. It is not a 
 rule of law to bind the action of the court, or cause the reversal of 
 that action in an appellate court. The judge may go contrary to 
 
 10. Jurisp. (2ded.) § 10. 
 
223 Judicial Office One of Administration. § 174 
 
 it, and still act with reason; and so, conclusively on the parties. 
 The existence of a practice, it may be observed, is not, however, 
 without a certain effect. In determining in any given case whether 
 the administrative action of the court is reasonable, the fact that 
 a custom or practice founded upon sound considerations, and 
 requiring different action on his part, was known to the 
 judge may well be considered. The rule of practice, indeed, 
 is not controlling; it is not a rule of law. The usage or 
 rather the reasoning on which it is based is simply one of 
 the considerations to be weighed in determining the reason- 
 ableness of the judge's action. Instances of the influence of 
 practice upon matters of administration are frequent and 
 easy of recognition. The right of a party, for example, to 
 cross-examine his opponent's witnesses, is a matter of procedural 
 law. The scope of such an examination at any particular stage 
 of the trial is largely a matter of administration, controlled and 
 conditioned by the fact that reason must be exercised. The order 
 in which the examination of the adversary's witnesses shall be con- 
 ducted is controlled, unless the judge actively intervenes, by a 
 custom. In certain jurisdictions the cross-examination extends 
 only to those topics which may fairly be said to have been touched 
 upon by the direct examination of the witness. If the cross-ex- 
 amining counsel desires to prove other facts, he must himself call 
 the adverse witness as his own. 1 This is properly a rule of practice. 
 Its existence, however, would not, under normal circumstances, 
 prevent the court, either sua sponte or on request of counsel, from 
 allowing a cross-examining counsel, for good cause shown, to cross- 
 examine a particular witness, or set of witnesses, as to the entire 
 case, or any relevant fact. 2 Should it be claimed that the judge's 
 action was unreasonable, the existence of the practice and any in- 
 ferences which may arise from the fact as to surprise to the party 
 complaining may receive the attention of an appellate court. 
 
 A rule of court is improperly spoken of as a rule of practice. 
 When passed under authority of law a rule of court is one of pro- 
 cedural law. 
 
 § 174. (Functions of the Judicial Office); Administrative. 
 
 — "The judical office is really one of administration." * So far as 
 
 1. See, in general, 15 L. R. A. 669 1. Thayer, Prelim. Treat., p. 374. 
 et seq. 
 
 2. See, in general, 57 L. R. A. 875 
 et seq. 
 
§ 174 Court and Jury; Court. 224 
 
 it ceases to be administrative, it ceases to be judicial. It has been 
 noted that, for practical "purposes, but slight importance, so far 
 as the law of evidence is concerned, attaches to the difference be- 
 tween the duty or function of the court to enforce substaDtive and 
 that to apply adjective or procedural law. 2 So far as the action 
 of the presiding judge is concerned in handling questions of evi- 
 dence, it is of little concern, if he is to be controlled and absolutely 
 guided in his action, whether the rule which brings this about is 
 one of substantive law or procedural. The real distinction is 
 between judicial action controlled by rule and action not so con- 
 trolled. 3 Sharply to be distinguished from the judge's function to 
 enforce rules, is his duty to administer them. Undoubtedly the 
 supreme function of the judicial office is precisely that of ad- 
 ministration. The function of enforcing law is governed by rules ; 
 the function of administration is guided and governed by the 
 fundamental nature of the judicial office itself. In other words, 
 administration is that portion of procedure which is not governed 
 by a rule of law. Administration is, as it were, the function of 
 functions, determining in each particular case as it arises how the 
 other powers and duties of the judicial office shall be so performed 
 as best to fulfil the social mandate with which the judiciary is 
 charged. Wherever the question is one of degree, of more or less, 
 as to which of conflicting considerations should receive force and 
 extension, where the situation requires determination as to which 
 of two rules or principles of substantive or procedural law should 
 be, under the special facts of the case, given power and influence, 
 a question of administration is presented. Administration is the 
 atmosphere of a trial. It is the implied term which alone makes 
 much of our law intelligible. Only as its broad and general rules 
 are moulded and specialized by administration is it practically 
 possible that justice should be accomplished under it. 4 
 
 2. Supra, § 171. particular cases." Pollock and Mait- 
 
 3. " It must not escape us that a land, History of English Law, vol. II, 
 law about ' Actions in general ' in- p. 560. 
 
 volves the exercise by our judges of 4. " It is just because we know 
 
 wide discretionary powers. If the that such rules as these, particular 
 
 rules of procedure take now-a-days a though they may be, are not particu- 
 
 far more general shape than that lar enough, that we have recourse to 
 
 which they took in the past centuries, an exceedingly general rule, tempered 
 
 this is because we have been persuaded by judicial discretion." Pollock and 
 
 that no rules of procedure can be spe- Maitland, History of English Law, 
 
 cial enough to do good justice in all vol. II. p. 561. 
 
225 An Ieeeducible Minimum. § 175 
 
 § 175. (Functions of the Judicial Office; Administrative); 
 
 Keld of Administration. — The general field of administration and 
 the force and effect which shall be wisely accorded it, as con- 
 trasted with law, procedural or substantive, is determined in any 
 particular connection by the inherent nature of administration 
 itself. In proportion as the circumstances are fixed and few over 
 which a series of judicial decisions is to pass, is it desirable that 
 a definite rule of law should be prescribed. Indeed, it is only 
 under these circumstances that a satisfactory rule can be formulated 
 and continually applied. Conversely, the larger the number and 
 the greater the variety and importance of the distinguishing cir- 
 cumstances which are likely to arise in making different applica- 
 tions of any definite rule, the less is the social value of having on©. 
 An infinite series of minute details, a nice adjustment of a 
 principle to a number of conflicting phenomena requiring the 
 constant exercise of judgment, the choice and selection of means 
 to an end, cannot well be made the subject of a rule of law. This 
 is the distinctive field of administration. In other words, in pro- 
 portion to the number and variety of the facts which arise for 
 determination, is it desirable that the element of administration 
 should predominate in judicial procedure over that of fixed regula- 
 tion. In all branches of procedure, therefore, is a large element 
 of procedural law, established rule for doing things; and also 
 an element of administration, power of doing things unbound by 
 rules, as part of the doing of justice, the primary social and legal 
 mandate laid on the court. The procedural codes adopted by many 
 of the American states with their minuteness of specific regula- 
 tion almost, at times, microscopic, have had the effect of reducing 
 this element of administration in all branches of procedure, to 
 a practically irreducible minimum. In no connection is this phe- 
 nomenon more striking than in relation to the law of evidence. 1 
 It would be quite possible and equally true to have paraphrased 
 
 1. " No unprejudiced observer can lition of all rules for the measurement 
 be blind to the excessive credit and of evidential value, but by their re- 
 importance attached in judicial pro- duction from the position of rigid and 
 cedure to the minutice of the law of peremptory to that of flexible and con- 
 evidence. This is one of the last ref- ditional rules. Most of them have their 
 uges of legal formalism. Nowhere is source in good sense and practical ex- 
 the contrast more striking between the perience, and they are profitable for 
 law's confidence in itself and its dis- the guidance of individual discretion, 
 trust of the judicial intelligence. The though mischievous as substitutes for 
 fault is to be remedied not by the abo- it." Salmond, Jurisp. ( 2d ed. ) , p. 458. 
 
 Vol. I. 15 
 
§ 176 Court and Jury; Court. 22-6 
 
 the statement of Maine that substantive law was concealed, as it 
 were, in the interstices of ancient procedure by saying that in- 
 modern American jurisprudence, judical administration, is con- 
 cealed, as it were, in the interstices of positive law, substantive or 
 procedural. But in the nature of things judges cannot well be mad© 
 automata. 1ST or is it desirable that they should be ; for the formal- 
 ism which trusts to the machinery of the legal procedure, rather 
 than to the intellectual appetency for truth is merely the survival 
 of ancient forms for which all justification has long passed. 2 Even 
 under these untoward circumstances, a necessary element of ad- 
 ministration remains in any branch of law which is fairly entitled 
 to rank as procedural. 3 
 
 § 176. (Functions of the Judicial Office; Administrative); 
 
 Eeason Characteristic of Administration. — The characteristic fea- 
 ture of that portion of procedure which we shall term administra- 
 tion, is its constant employment of reason and judgment rather 
 than the imposition of a command to do things in a particular 
 way. 1 The test and guide of sound administration is the exercise 
 of the reasoning faculty. 2 In proportion as this element of reason- 
 ing enters into the determination of a situation arising in any 
 branch of procedure, the function of the court involved is admin- 
 istrative. 
 
 2. " We must learn to think less ment of the law. Salmond, Jurisp. 
 highly of the wisdom of the law, and (2d ed.) § 7. 
 
 less meanly of the understanding and 1. It follows that as a rule, the 
 
 honour of its administrators, and we proper test of reversal in an 
 
 may anticipate with confidence that in appellate court is as to whether 
 
 this department at least of judicial reason has been exercised, 
 
 practice the change will be in the in- " Whatever the law may have 
 
 terests of truth and justice." Sal- been before the Judicature Acts," 
 
 mond, Jurisp. (2d ed.), p. 458. said Jessel, M. R., " the exercise of 
 
 3. " The degree in which the free discretion is now the subject of ap- 
 discretion of a judge in doing right is peal. It has been very truly said that 
 excluded by predetermined rules of a very strong case must be made out 
 law, is capable of indefinite increase before the exercise of discretion can be 
 or diminution. The total exclusion of overruled. The Court of Appeal must 
 judicial discretion by legal principle is be satisfied that it has been wrongly 
 impossible in any system. However exercised." Reg. r. Mayor of Maiden- 
 great is the encroachment of the law, head, 9 Q. B. D. J94, 503: 51 L. J. Q. 
 there must remain some residuum of B. 44S (1882). See also. Com. v. 
 justice which is not according to law Tucker, 189 Mass. 457, 76 N. E. 127, 
 — some activities in respect of which 7 L. R. A. (N. S.) 1056 (1905). 
 
 the administration of justice cannot 2. Supra, § 63. 
 
 be denned or regarded as the enforce- 
 
227 Judicial Disceetion Conditioned by Objectives. § 177 
 
 § 177. (Functions of the Judicial Office; Administrative); 
 
 " Discretion." — It is commonly said that matters of procedure in 
 which there is no definite rule are those of " judicial discretion." 
 No especial objection exists to the use of the phrase other than that 
 it appears misleading by a suggestion of arbitrary and irresponsi- 
 ble action on the part of the presiding judge. This by no means, in 
 fact, exists. As Lord Mansfield says: 1 "Discretion, when applied 
 to a court of justice, means sound discretion guided by law. It 
 must be governed by rule, not by humor ; it must not be arbitrary, 
 vague and fanciful, but legal and regular." In reality the judge, 
 as may more fully appear hereafter, 2 is controlled at every turn 
 in the exercise of his administrative powers by the influence of the 
 higher social considerations which have conferred upon him his 
 general mandate for the doing of justice and the enforcement of 
 fair dealing either between party and party or between indi- 
 viduals and the State. That from which he is relieved in connec- 
 tion with his administrative power is not all restraint. He is 
 simply freed from a rule with the force of law — the limiting con- 
 trol of the views which the legislature or the judiciary of the forum 
 for the time being takes of certain broad and general grounds of 
 public policy, which it has sought to reach by the enactment of a 
 rule of law, substantive or procedural. Administration relates to 
 the attainment of individual justice. Law, a rule of any kind 
 binding on the judge, is an attempted enforcement of some thought 
 of general public policy. A trial at law is for the attainment of 
 a conventionalized form of justice. Law, whether substantive or 
 procedural, is part of the convention. The exercise of adminis- 
 trative powers is not. 3 It is a general limitation upon the exercise 
 of administrative powers that, to be sustained on appeal, it must 
 be reasonable. 
 
 This influence of a constant restraint exacting compliance with 
 certain established standards, even while exercising the freer ac- 
 tivities of administration, is characteristic of what is called 
 
 1. E. v. Wilkes, 4 Burr. 2527, 2539 mental right of the party. It is not so 
 ( 1770 ) . used as to cover the mere exercise of 
 
 2. Infra, §§ 332 et seq. good judgment or sound intelligence, 
 
 3. Discretion denned. — As applied the act of a discreet person. Under 
 to the administrative functions of the this definition, ordering that the wit- 
 Court discretion is used in this treat- nesses in a trial he separated would 
 ise as indicating an exercise of ju- be an act of discretion. A prelimi- 
 dicial administrative power which is nary finding that a witness is qualified 
 final in that it violates no funda- would not be* 
 
§- 177 
 
 Court aht> Jury; Court. 
 
 228 
 
 " judicial discretion." Of discretion in the sense of purely arbi- 
 trary power to deal with the rights of litigants it may be truly 
 said that no such right exists in the English law of evidence.* 
 
 4. California. — People V. Farrell, 
 31 Cal. 584 (1867). 
 
 Georgia. — Miller V. Wallace, 76 
 Ga. 479, 484, 2 Am. St. Rep. 48 
 (1886). 
 
 Missouri. — Cabanne v. Macadaras, 
 SI Mo. App. 70 (1901) ; State ex rel. 
 Adamson 1>. Lafayette County Court, 
 41 Mo. 221, 222 (1867). 
 
 Montana. — Haupt v. Independent 
 Tel. Messenger Co., 25 Mont. 122, 63 
 Pac. 1033 (1900). 
 
 New Jersey. — Sea Isle City Imp. 
 Co. v. Assessors of Taxes of Borough 
 of Sea Isle City, 61 N". J. Law 476, 
 39 Atl. 1063, 1064 (1898). 
 
 New York. — Piatt v. Munroe, 34 
 Barb. 291, 292 (1861) ; People v. Su- 
 perior Court of City of New York, 5 
 Wend. 114, 126 (1830"). 
 
 North Carolina. — Lovinier v. 
 Pearce, 70 N. C. 167, 171 (1874); 
 State v. Caudler, 3 Hawks 398 
 (1824). 
 
 South Carolina. — Ex parte Mackey, 
 15 S. C. 322, 328 (1880). 
 
 Virginia. — Harris v. Harris, 31 
 Grat. 13, 16 (1878). 
 
 Washington. — Sharp v. Greene, 22 
 Wash. 677, 62 Pac. 147, 150 (1900). 
 
 Wisconsin. — State v. Cunningham, 
 83 Wis. 90, 53 N. W. 35, 53, 17 L. 
 R. A. 145, 35 Am. St. Pep. 27 (1892). 
 
 United States. — Osborn v. U. S. 
 Bank, 22 U. S. 738, 866, 6 L. ed. 
 204 (1824). 
 
 England. — Rex v. Wilkes, 4 Bur- 
 rows 2527, 2539 (1770). 
 
 Discretion in equity is, normally, 
 quite a different matter from the 
 exercise of administrative powers at 
 common law. The jurisdiction of 
 equity was a prerogative one; many 
 of its remedies were not obtainable 
 as of right. Much, in most cases, 
 depended on the extent to which cer- 
 tain facts affected the mind and con- 
 science of a particular judge. The 
 
 substantive law relating to equity 
 procedure made the discretionary ac- 
 tion of a trial judge reviewable in 
 an appellate chancery tribunal. Ab- 
 sence of the jury, enabling the 
 appellate court in equity to enter 
 the final order ■which the trial judge 
 should have made, removes the hard- 
 ship and delay of justice which at- 
 tend the attempt, undertaken in sev- 
 eral jurisdictions, to establish the 
 same rule at law. It follows that 
 judicial discretion, in equity oases, 
 is not arbitrary or capricious de- 
 pendent upon the mere pleasure of 
 the judge but is a " sound and rea- 
 sonable discretion which governs it- 
 self, as far as it may, by general 
 rules and principles." Patten v. 
 Stewart, 24 Ind. 332 (1865) (re- 
 scission) ; Rochester & K. F. Land Co. 
 v. Roe, 40 N. Y. S. 799, 8 App. Div. 
 360, 75 N. Y. St. Rep. 179 (1896) 
 (specific performance) ; Wheeling & 
 E. G. R. Co. v. Town of Triadelphia, 
 58 W. Va. 487, 52 S. E. 495, 4 L. 
 R. A. (N. S.) 321 (1905) (relief 
 from forfeiture) ; Jarrett v. Jarrett, 
 11 W. Va. 584 (1877) (direct an is- 
 sue at law) ; Abbott r. L'Hommedieu, 
 10 W. Va. 677 (1877). See also 
 In re Huntingdon County Line, 8 Pa. 
 Super. Ct. 380 (1898) (certiorari); 
 Rose v. Brown, 11 W. Va. 122, 123 
 (1877). Of the soundness of the 
 principles upon which the chancellor 
 has guided his action the appellate 
 court may properly judge. Stannard 
 r. Graves, 2 Call. (Va.) 369 (1800). 
 Where, for example, it clearly ap- 
 pears that one applying for an in- 
 junction is not entitled to it, the 
 granting of one is deemed error. No 
 discretion authorizes its issuance un- 
 der these circumstances. Shilling v. 
 Reagan, 19 Mont. 508, 48 Pac. 1109, 
 1110 (1897). In equity, as at law, 
 the burden of showing abuse of dis- 
 
229 
 
 Judge's Discretion Not Aebitkaky. 
 
 § 177 
 
 Few things could be more objectionable to sound judicial ad- 
 ministration than for the presiding judge to attempt to carry out 
 his personal desires rather than the will of the law. 
 
 cretion is on the objecting party. 
 Holt v. Hillman-Sutherland Co., 56 
 Fla. 801, 47 So. 934 (1909); Holt 
 17. De Loach-Edwards Co., 56 Fla. 
 902, 48 So. 1039 (1908); Siegel v. 
 Donovan, 155 Mich. 459, 15 Detroit 
 Leg. N. 1035, 119 1ST. W. 645 (1909)"; 
 Heinze v. Boston & M. Oonsol. Cop- 
 per & Silver Min. Co., 20 Mont. 528, 
 52 Pac. 273 (1898) ; Montana Ore- 
 Purchasing Co. v. Boston & M. Con- 
 sol. Copper & Silver Min. Co., 20 
 Mont. 528, 52 Pac. 273 ( 1898 ) ; State 
 v. City of Huron, (S. D. 1909) 120 
 N. W. 1008. The manifest tendency, 
 moreover, of appellate courts in 
 equity is not to disturb the action 
 of the trial judge m the absence of 
 this affirmative proof of an unrea- 
 sonable exercise of discretion. 
 
 Alabama. — Sullivan Timber Co. v. 
 Black, 48 So. 870 (1909). 
 
 California. — Miller & Lux v. Ma- 
 dera Canal, etc., Co., 155 Cal. 59, 99 
 Pac. 502 (1909). 
 
 Georgia. — City of St. Marys v. 
 Sweat, 132 Ga. 344, 63 S. E. 1121 
 (1909). 
 
 Massachusetts. — Weiss v. Haight 
 & Frees© Co., 165 Fed. 432, 91 C. C. 
 A. 382 (1908). 
 
 Michigan. — Grand Rapids Electric 
 Ry. Co. v. Calhoun Circuit Judge, 16 
 Detroit Leg. N. 123, 120 N. W. 1004 
 (1909). 
 
 South Carolina. — Lawrence v. Law- 
 rence, 82 S. C. 150, 63 S. E. 690 
 (1909). 
 
 " Discretion, as applied to public 
 functionaries, means the power or 
 right of acting officially according 
 to what appears just and proper un- 
 der the circumstances." Rio Grande 
 County Com'rs v. Lewis, 28 Colo. 
 378, 65 Pac. 51 (1900) [citing Mur- 
 ray v. Buell, 74 Wis. 14, 18, 41 N. W. 
 1010 (1889)]. The rule is the same 
 in connection with the acts of in- 
 
 ferior magistrates and of all others 
 exercising quasi- judicial powers. Tay- 
 lor v. Robertson, 16 Utah 330, 52 
 Pac. 1, 3" (1898). 
 
 In itself considered, discretion has 
 been defined, in case of public func- 
 tionaries, as " a power or right con- 
 ferred upon them by law of acting 
 officially' in certain circumstances ac- 
 cording to the dictates of their own 
 judgment and conscience, uncontrolled 
 by the judgment or conscience of 
 others." Farrelly v. Cole, 60 Kan. 
 356, 56 Pac. 492, 497, 44 L. R. A. 
 464 (1899) [citing Judges of Oneida 
 Common Pleas v. People, 18 Wend. 
 79 (1831)]. See also State v. Hultz, 
 106 Mo. 41, 16 S. W. 940, 942 
 (1891). As applied, more generally, 
 to specific acts of conduct, " the term 
 discretion implies the absence of a 
 hard-and-fast rule. The establish- 
 ment of a clearly defined rule of ac- 
 tion would be the end of discretion, 
 and yet discretion should not be a 
 word for arbitrary will or inconsid- 
 erate action. ' Discretion' means 1 a 
 decision of what is just and proper 
 in the circumstances.' Bouvier's Law 
 Diet. ' Discretion means the liberty 
 or power of acting without other con- 
 trol than one's own judgment.' " 
 Webster's Diet. The Styria v. Mun- 
 roe, 186 U. S. 1, 9, 22 Sup. Ct. 731, 
 734, 46 L. ed. 1027 (1901). See also 
 Sehlaudeeker v. Marshall, 72 Pa. 200, 
 206 (1872) [citing Tomlin's Law 
 Diet.] In case of a document, un- 
 less modified by the context, " discre- 
 tion " means a legal one, that is, a 
 discretion to be exercised within the 
 limits which the law fixes in such 
 cases. Norton v. Kearney, 10 Wis. 
 443, 450 (1860) (contract); Hol- 
 comb v. Holcomb's Ex'rs, 11 N. J. 
 Eq. 281, 290 (1857) (will creating 
 trust). The same general rule of 
 construction obtains in case of a 
 
§ 177 
 
 Court and Jury; Court. 
 
 230 
 
 Sic volo, sic jvbeo; stet pro ratione voluntas has no proper place 
 in the administration of justice of any English-speaking juris- 
 diction. Legal reasoning is everything in sound administration; 
 judicial caprice or obstinacy, nothing. 5 
 
 Action of appellate courts as to matters of discretion. While 
 it has seemed most convenient to consider the action of appellate 
 courts in relation to matters of administration by the trial judge 
 in connection with the separate topics as they present themselves 
 in the course of the treatise a general statement on the subject at 
 this point may not be inappropriate. It may fairly be observed 
 that the action of many appellate courts in this respect is such as 
 not only to add enormously to their own labors, but also to create a 
 serious congestion of judicial business through repeated new trials 
 and a consequent practical denial of justice. In matters properly 
 of administration or discretion reversal should properly occur only 
 where error in law has been committed. Such an error may be, 
 and most frequently is, caused by a failure of the trial judge to 
 
 statute conferring a " discretion " 
 upon municipal officers. Perry v. 
 Salt Lake City Council, 7 Utah 143, 
 25 Pae. 998, 1000, 11 L. E. A. 446 
 (1891). 
 
 5. "And whilst this court is always 
 loath to interfere with discretionary 
 rulings of trial courts, nevertheless 
 such rulings are not conclusive upon 
 this court, and where they are in- 
 terfered with it is because the ulti- 
 mate responsibility for every judg- 
 ment rests upon the court of final 
 resort to which the case is taken, 
 and therefore that court is in duty 
 bound to approve or reject all rul- 
 ings of lower courts even when made 
 in the exercise of a judicial discre- 
 tion." Feurt v. Caster, 174 Mo. 289, 
 299, 73 S. W. 576 (1903), per Mar- 
 shall, J. See also Merrill v. Sullivan, 
 3 Mo. App. 589 (1887), memoran- 
 dum. " The most odious and dan- 
 gerous of all laws would be those 
 depending on the discretion of judges. 
 Lord Camden, one of the greatest 
 and purest of English judges, said, 
 ' that the discretion of a judge is the 
 law of tyrants; it is always un- 
 known; it is different in different 
 
 men; it is casual, and depends upon 
 constitution, temper and passion. In 
 the best it is oftentimes caprice; in 
 the worst, it is every vice, folly and 
 passion to which human nature can 
 be liable.' " State v. Cummings, 36 
 Mo. 263, 278. Judicial discretion 
 should not be ( as Lord Coke pro- 
 nounced it, " a crooked cord," but 
 rather, as Lord Mansfield defined it, 
 " exercising the best of their judg- 
 ment upon the occasion that calls for 
 it." Norris v. Clinkscales, 47 S. C. 
 488, 25 S. E. 797, "801 (1896). 
 " Courts are the mere instruments of 
 the law, and can will nothing. When 
 they are said to exercise a discretion, 
 it is a mere legal discretion, discre- 
 tion to be exercised in discerning the 
 course prescribed by law; and, when 
 that is discerned, it is the duty of 
 the court to follow it. Judicial 
 power is never exercised for the pur- 
 pose of giving effect to the will of 
 the judge; always for the purpose of 
 giving effect to the will of the legis- 
 lature; or, in other words, to tho 
 will of the law." Osborn v. The 
 Bank of the United States, 9 Wheat. 
 738, 866 (1834). 
 
231 
 
 Abuse of Discretion Defined. 
 
 .§ 177 
 
 exercise reason 6 as the law requires. 7 Any other error in law may 
 legally warrant a reversal. A still sounder view would justify 
 such a course only when not only error in law has been established, 
 but it also appears that the complaining party has, without his 
 own fault, been substantially prejudiced. 8 
 
 Abuse of discretion, it would thus appear, is its unreasonable 9 
 or otherwise illegal, 10 use. This is commonly spoken of as 
 
 6. Rules of practice. — In determin- 
 ing what is a reasonable exercise of 
 discretion in any particular case, the 
 •existence of a rule of practice or cus- 
 tom may well receive consideration, 
 by an appellate court. Such a fact 
 does not control judicial administra- 
 tion. A rule of practice is not one 
 of procedure. A well established 
 custom or rule of practice is, how- 
 ever, a fact, among others, to be 
 weighed in determining whether the 
 judge's action has been rational. 
 " Whenever a clear and well-defined 
 xule has been adopted, not depend- 
 ing upon circumstances, the court 
 has parted with its discretion as a 
 rule of judgment. Discretion may be, 
 and is, to a very great extent, regu- 
 lated by usage or by principles, 
 which courts have learned by expe- 
 rience will, when applied to the great 
 majority of cases, best promote the 
 ends of justice, but it is still left 
 to the courts to determine whether a 
 case is exactly like in every color, 
 circumstance and feature to those 
 upon which the usage or principle is 
 founded, or in whioh it has been 
 applied." State v. Hultz, 106 Mo. 41, 
 51, 16 S. W. 940, 942 (1891). 
 
 7. Infra, §§ 385 et seq. 
 
 8. California. — Casey v. Richards, 
 <App. 1909) 101 Pac. 36. 
 
 Illinois. — Peebles v. O'Gara Coal 
 Co., 239 111. 370, 88 N. E. 166 
 (1909). 
 
 Iowa. — Carr v. Way, 119 N. W. 
 700 (1909) ; Bartlett & Kling v. Illi- 
 nois Surety Co., 119 N. W. 729 
 (1909). 
 
 Kentucky. — McClymond's Assignee 
 
 V. Gay, 1 Ky. L. Rep. (abstract) 425 
 ( 1880 ) ( matters of practise ) . 
 
 Michigan. — Davis' v. Bush, 28 
 Mich. 432 (1874). 
 
 New YorJe. — Richard v. National 
 Distilling Co., 95 1ST. Y. S. 547 
 (1905); In re Cutting, 63 N. Y. 
 Suppl. 246, 49 App. Div. 388 (1900). 
 
 Utah. — United States Smelting Co. 
 v. Parry, 166 Fed. 407, 92 C. C. A. 
 159 (1909). 
 
 Washington. — .Spencer i>. Alki 
 Point Transp. Co., 101 Pac. 509 
 (1909). 
 
 9. McBride v. McBride, (Iowa 
 1909f 120 N. W. 709; Freasier v. 
 Harrison, (Mo. App. 1909) 118 S. W. 
 108. 
 
 10. Connecticut. — MeKone v. Schott, 
 82 Conn. 70, 72 Atl. 570 (1909). 
 
 Florida. — Atlantic Coast Line R. 
 Co. v. Dees, 56 Fla. 127, 48 So. 28 
 (1908). 
 
 Missouri. — Crawford v. Kansas 
 City Stockyards Co., (Mo. 1908) 114 
 S. W. 1057 (demurrer to evidence). 
 
 South Carolina. — Norris v. Clink- 
 scales, 47 S. C. 488, 25 Si E. 797 
 (1896). 
 
 Texas. — Southern Telegraph, etc., 
 Ob. v. Evans, (Civ. App. 1909) 116 
 S. W. 418. 
 
 Wisconsin. — Oconto Brewing Co. v. 
 Cayouette, 138 Wis. 664, 120 N. W. 
 497 (1909). 
 
 The existence of discretion. Whether 
 a ruling is with regard to a matter 
 of substantive or procedural law, or 
 is, on the other hand, one within the 
 administrative power, the discretion 
 of the court, presents a question of 
 law. Gottschalk v. Mercantile Trust 
 
§ 177 
 
 ■Court and Juby; Court. 
 
 232 
 
 " abuse " of discretion, it being said that the action of the trial 
 judge on a matter within his discretion will not be reversed ex- 
 cept in the event of its abuse; 11 — a phrase which does not seem 
 
 & Deposit Co., 102 Md. 521, 62 Atl. 
 810 (1906). In the same way, 
 where a court declines to act on a 
 motion on the ground that it has 
 no discretion to do as requested, the 
 action may be reversed if, as a mat- 
 ter of law, such <a discretion exists. 
 Martin v. Bank of Fayetteville, 131 
 N. C. 121, 42 S. E. 558 (1902) ; Her- 
 nan v. American Bridge 'Co., (Ohio 
 1909) 167 Fed. 930; Felton v. Spiro, 
 78 Fed. 576, 24 C. C. A. 321 (1897) 
 [reversing judgment, Spiro v. Felton, 
 (C. C. A. 1896) 73 Fed. 91]. Where, 
 however, the trial court in overrul- 
 ing a motion for a new trial, stated 
 that he would not have found the 
 verdict, and that he had power to 
 set it aside,' but would not do so, 
 because the jury took a different view 
 of the evidence, the refusal to grant 
 a new trial was not error on the 
 ground that the court erroneously 
 believed he had no power to set aside 
 the verdict. Wright v. 'Charleston & 
 W. C. Ry. Co., 59 S. C. 268, 37 S. E. 
 832 (1901). 
 
 11. Alabama. — Kelly & Middleton 
 v. Horsley, 147 Ala. 508, 41 So. 902 
 (1906) (discharge of an attorney). 
 
 California. — Lent v. Tilson^ 72 Oal. 
 404, 14 Pac. 71, 77 (1887). 
 
 Colorado. — Kirkwood t\ School 
 Dist. No. 7, etc., 101 Pac. 343 
 (1909); Woods v. Chellew, 15 Colo. 
 App. 368, 62 Pac. 230 (1900T. 
 
 Florida. — Wilson v. Jernigan, 57 
 Fla. 277, 49 So. 44 (1909); Atlantic 
 Coast Line B. Co. v. Dees, 56 Fla. 
 127, 48 So. 28 (1908). 
 
 Georgia. — Leverett v. Tift, 6 Ga. 
 App. 90, 64 S. E. 317 (1909). 
 
 Idaho. — Bankin v. Caldwell, 15 
 Idaho 625, 99 Pac. 108 (1908); 
 Pease v. Kootenai County, 7 Idaho 
 731, 65 Pac. 432 (1901). 
 
 Indiana. — Scott v. City of La 
 Porte, 68 N. E. 278, 281 (1903); 
 
 Mead v. Burk, 156 Ind. 577, 60 N. E. 
 338 (1901) ; Toledo, St. L. & K. C. 
 E. Co. v. Reeves, 8 Ind. App. 667, 35. 
 N. E. 199 (1894). 
 
 Iowa. — State iSecurity Bank «. 
 Burns, 120 N. W. 626 (1909). 
 
 Kansas. — Hackett v. Turner, 19- 
 Kan. 527 (1878) (amendments; con- 
 tinuances; costs). 
 
 Kentucky. — Qrane v. T. J. Congle- 
 ton & Bro., 116 S. W. 341 (1909); 
 McKinney v. Com., 24 Ky. (1 J. J. 
 Marsh.) 319 (1829). 
 
 Louisiana. — Fell v. Melllhenny,, 
 123 La. 364, 48 So. 991 (1909). 
 
 Maine. — Goodwin v. Prime, 92 Me. 
 355, 42 Atl. 785, 787 (1898) [citing 
 State v. Wood, 23 N. J. Law 56» 
 (1850)]. 
 
 Massachusetts. — Darrow v. Bra- 
 man, 201 Mass. 469, 88 N. E. 5 
 (1909). 
 
 Missouri. — Tarr t\ Crump, 136 Mo. 
 App. 464, 118 S. W. 488 (1909) ; 
 Cohn v. Metropolitan St. Ry. Co., 
 182 Mo. 577, 81 S. W. 846 (1904) ; 
 Orscheln v. Scott, 79 Mo. App. 534 
 (1899). 
 
 "Nebraska. — Butler v. Seerist, 84 
 Neb. 85, 120 N. W. 1109 (1909); 
 Hinton v. Atchison & N. R. Co., 83 
 Neb. 835, 120 N. W. 431 (1909). 
 
 New York. — Loewenthal r. Globe 
 & Rutgers Ins. Co., 116 N. T. Suppl. 
 454 (1909); In re Cutting, 63 N. Y. 
 Suppl. 246, 49 App. Div. 388 (1900) • 
 Bailey t\ Stewart, 2 Redf. Sur. 212 
 (1876). 
 
 North Carolina. — Clark v. Saco- 
 Pettee Mach. Co., 150 N. C. 372, 64 
 S. E. 178 (1909). 
 
 Oklahoma. — Kuohler v. Weaver, 
 100 Pac. 915 (1909). 
 
 Oregon. — Thompson v. Connell, 31 
 Or. 231, 65 Am. St. Rep. 818, 48 Pac. 
 467 (1897). 
 
 Pennsylvania. — Philadelphia Lying- 
 in Charity v. Maternity Hospital, 29> 
 
233 " Gkoss," " Wanton," Etc., Abuse oe Discretion § 177 
 
 essentially modified in meaning by the addition of adjectives such 
 as " gross," 12 " wanton " or the like. 13 
 
 Pa. Super. Ct. 420 (1905) ; Zug- 
 smith v. H. M. Rosenblatt & Co., 15 
 Pa. Super. Ct. 296 (1900). 
 . South Carolina. — Tindal v. Sub- 
 lett, 82 S. C. 199, 63 S. E. 960 
 (1909); Morris v. Clinksoales, 47 
 S. C. 488, 25 S. E. 797 (1896). 
 
 Texas. — McCormick v. Jester, (Civ. 
 App. 1909) 115 S. W. 278. 
 
 Utah. — Aaron v. Holmes, 99 Pac. 
 450 (1909) ; Benson v. Oregon, etc., 
 R. Co., 99 Pac. 1072 (1909) ; Funk 
 v. Anderson, 22 Utah 238, 61 Pae. 
 1006 (1900). 
 
 Washington. — Gerber v. Gerber, 52 
 Wash. 253, 100 Pac. 735 (1909) ; Si- 
 mons v. Cissna, 52 Wash. 115, 100 
 Pac. 200 (1909). 
 
 Wisconsin. — Ryan v. Oshkosh Gas- 
 light Co., 138 Wis. 466, 120 N. W. 
 264 (1909); Sibley v. Weinberg, 116 
 Wis. 1, 92 N. W. 427 (1902). 
 
 United States. — Lent v. Tillson, 
 140 U. S. 316, 11 Sup. Ct. 825, 35 L. 
 ed. 419 (1890). 
 
 Executive boards. — The same rule 
 is applied to the action of executive 
 boards. Town of Schaghticoke v. 
 Fitchburg R. Co., 169 N. Y. 609, 62 
 N. E. 1101 (1902) [order affirmed, 
 65 N. Y. Suppl. 498, 53 App. Div. 
 16 (1900)] (railroad commission- 
 ers) ; In re Borough of Moosic, 12 
 Pa. Super. Ct. 353 (1900) (quarter 
 sessions) ; In re Borough of Old 
 Forge, 12 Pa. Super. Ct. 359 (1900) 
 (quarter sessions) ; Com. v. Fogel- 
 man, 3 Pa. Super. Ct. 566, 40 W. 
 N. C. 17 (1897) (quarter sessions). 
 " Courts will not interfere with 
 the exercise of such discretionary 
 authority unless it has been abused." 
 Rio Grande County Com'rs v. Lewis, 
 28 Colo. 378, 65 Pac. 51 (1900) [cit- 
 ing Smith v. Board, 10 Colo. 17 
 (1887)]. 
 
 12. Murphy v. Southern Pac. Co., 
 (Nev. 1909) 101 Pac. 322. 
 
 13. Arizona. — Zeckendorf v. Stein- 
 feld, 100 Pac. 784 (1909) (manifest). 
 
 California. — Kenny v. Kennedy, 9 
 Cal. App. 350, 99 Pac. 384 (1908) 
 (clear). 
 
 Connecticut. — McKone v. Sehott, 
 82 Conn. 70, 72 Atl. 570 (1909) 
 (manifest). 
 
 Georgia. — Leathers v. Leathers, 132 
 Ga. 211, 63 S. E. 1118 (1909) (man- 
 ifest abuse). 
 
 Idaho. — Ranken v. Caldwell, 15 
 Idaho 625, 99 Pac. 108 (1908) (man- 
 ifest abuse). 
 
 Louisiana. — Fell v. Mclllhenny, 
 123 La. 364, 48 So. 991 (1909) (man- 
 ifest abuse). 
 
 Maryland. — Consol. Gas, etc., Co. 
 K. State, 109 Md. 186, 72 Atl. 651 
 (1909) (arbitrary). 
 
 Massachusetts. — Jenkins v. Weston, 
 200 Mass. 488, 86 N. E. 955 (1909) 
 ( manifestly unfounded ) . 
 
 Missouri. — Kinlen v. Metropolitan 
 St. Ry. Co., 216 Mo. 145, 115 S. W. 
 523 (1909) (clear); Morris v. Mis- 
 souri Pac. Ry. Co., 136 Mo. App. 393, 
 117 S. W. 687 (1909) (clear); Weh- 
 ner v. Kansas City Stockyards Co., 
 215 Mo. 394, 114 S'. W. 1057 (1908) 
 ( clear ) . 
 
 "North Dakota. — : Soule® v. Brother- 
 hood of American Yeomen, 120 N. W. 
 760 (1909) (manifest). 
 
 Washington. — Anderson v. Shields, 
 
 51 Wash. 463, 99 Pac. 24 (1909) 
 (plainly abused) ; Williams V. Bartz, 
 
 52 Wash. 153, 100 Pac. 186 (1909) 
 (clear). 
 
 Wisconsin. — Ellis v. State, 138 Wis. 
 513, 119 K W. 1110, 20 L. R. A. (N. 
 S.) 444 (1909) (clearly wrong) ; 
 American States Security Co. v. Mil- 
 waukee Northern Ry. Co., (Wis. 
 1909) 120 N. W. 844 (manifestly 
 wrong) . 
 
 United States. — Turner v. Ameri- 
 can Sec. & Trust Co., 213 U. S. 257, 
 29 S. Ct. 420, 53 L. ed. 788 (1909) 
 [decree affirmed, 29 App. D. C. 460 
 (1907)] (clearly erroneous). 
 
 It may, of course, be said that the 
 
§ 177 
 
 Court and Jury; Court. 
 
 234 
 
 "All reasonable intendments must be made in favor of the acts 
 of officials who are under obligations to perform their duties cor- 
 rectly, so long as they appear to be acting in good faith.'-' u It 
 has even been suggested that where the police powers' 5 have alone 
 been exercised, by the court, the propriety of the trial judge's 
 action will not be revised. 16 
 
 more unreservedly and absolutely a 
 particular subject of the court's ac- 
 tion is one of administration the 
 more flagrant must be the unreason- 
 ableness of the judge's action in order 
 that the objecting party may secure 
 a reversal. The proper rule in an 
 appellate court, however, continues to 
 be that unreasonable action attended 
 by prejudice is the sole ground for 
 a reversal. But prejudice does not 
 arise in case of a ruling unquestion- 
 ably discretionary except in cases, of 
 obviously perverse and irrational mis- 
 conduct. In "this way alone is the 
 action of the appellate court in deal- 
 ing with the matter itself made rea- 
 sonable. What action is reasonable 
 under a given set of circumstances is 
 determined by all the facts of the 
 case. The discretion, in case of a re- 
 versal, must have been exercised on 
 grounds or for reasons clearly unten- 
 able, or to an extent obviously un- 
 reasonable. Murray r. Buell, 74 Wis. 
 14, 41 N. W. 1010, 1012 (1889). 
 
 14. Rio Grande County Com'rs v. 
 Lewis, 28 Colo. 378, 65 Pac. 51 
 (1900) [citing Smith v. Board, 10 
 Colo. 17 (1887)]. 
 
 The fact of abuse must be affirma- 
 tively established by the objecting 
 party. Waldron v. First Nat. Bank, 
 60 Neb. 245, 82 N. W. 856 (1900) ; 
 Brenzinger v. American Exch. Bank, 
 19 Ohio Cir. Ct. R. 536, 10 O. C. D. 
 775 (1900). 
 
 15. Supra, § 164. 
 
 16. Norris v. Clinkscales, 47 S. C. 
 488, 25 S. E. 797 (1896). 
 
 Imposition of terms. — The action 
 of a trial court in imposing terms 
 upon the allowance of a motion will, 
 unless affirmatively shown to have 
 
 been unreasonable, not be disturbed. 
 Nicoll v, Weldon, 130 Cal. 666, 63 
 Pac. 63 (1900); Odin Coal Co. v. 
 Denman, 84 111. App. 190 (1899) 
 [judgment affirmed, 185 111. 413, 57 
 N. E. 192, 76 Am. St. Rep. 45 (1899) ] ; 
 Garber v. Blatehley, 51 W. Va. 147, 
 41 S. E. 222 (1902) (granting new 
 trial ) . It follows that failure to 
 impose costs or other terms in such 
 a connection is not reversible error 
 Everett v. Everett, 62 N. Y. Suppl. 
 1042, 48 App. Div. 475 (1900) (al- 
 lowance of amendment). Lashaway 
 v. Young, 78 N. Y. Suppl. 366, 76 
 App. Div. 177 (1902) (setting aside 
 verdict) . 
 
 Rules of court. — The construction 
 given by the court to its rules will 
 not be disturbed, unless the ruling 
 is obviously wrong and it affirma- 
 tively appear that injustice has been 
 done. Roberts r. Kuhrt, 119 Ga. 204, 
 46 S. E. 856 (1904) ; Kuh v. Garvin, 
 125 Mo. 547, 28 S. W. 847 (1894); 
 In re Logan & Mould's Assigned Es- 
 tate, 213 Pa. 218, 62 Atl. 843 
 (1906); Hartley v. Weideman, 28 
 Pa. Super. Ct, 50 (1905); Shannon 
 v. Castner, 21 Pa. Super. Ct. 294 
 ( 1902 ) . For similar reasons, the ac- 
 tion of a trial judge in neglecting to 
 enforce the rules of Ms 1 own court 
 will not be revised, as a rule, in an 
 appellate court. Dolan v. Stone, 63 
 Kan. 450, 65 Pac. 641 (1901). In 
 the same way, on a matter prop- 
 erly regarded as purely discretionary 
 with the trial court, its action, rea- 
 sonably in accord with a supreme 
 judicial rule, will not be disturbed 
 to satisfy the necessities of a par- 
 ticular case, though the rule itself 
 be so discountenanced as in effect 
 
235 Executive Nature of the Judicial Office. § 178 
 
 § 178. (Functions of the Judicial Office; Administrative) ; 
 
 Range of Application — Instances of the application of the ad- 
 ministrative function of the court to the practical discharge of 
 judicial business are extremely numerous. In fact, this adminis- 
 trative power may fairly be regarded as the executive branch of 
 the judicial department. Any attempt to divide the powers of gov- 
 ernment into legislative, executive and judicial can be attended at 
 most with but approximate success. Each of the great departments 
 will undoubtedly have as its principal duty the discharge of the 
 functions appropriately classed under its title. But for the adequate 
 discharge of its directly delegated functions, every department has 
 uniformly exercised some portions of power which have in main 
 been conferred upon an associated department. Thus, the legis- 
 lative branch must, for the proper discharge of its own duties, 
 exercise judicial and executive powers; the executive may find it- 
 self obliged to perform judicial or legislative acts. In like manner, 
 the judicial office may properly discharge both legislative and 
 executive duties. In fact, it might almost be said that in the 
 present division of function between the court and jury the 
 jury exercised the judicial functions, while a presiding judge is 
 largely discharging those of a legislative or executive character. 
 Naturally, where a judge, as in equity causes, sits for the decision 
 of issues of fact, he exercises a distinctively judicial power. But 
 when presiding at a jury trial his judicial powers are exercised 
 principally as preliminary to the doing of an executive act, e. g., 
 where a judge decides that a fact is probative as preliminary to 
 admitting it in evidence. In reality, the chief function of a judge 
 is executive in its nature and this constitutes what has been called 
 
 to change it. Wliereatt v. Worth, 108 tial prejudice to the complaining 
 
 Wis. 291, 84 N. W. 441, 81 Am. St. party should be shown to warrant a 
 
 Rep. 899 (1900). Where, however, reversal. Trescott v. Co-operative 
 
 the construction of a rule of court Bldg. Bank of New York, 212 Pa. 47, 
 
 may fairly be regarded as a matter 61 Atl. 478 (1905). 
 of law, the supreme court may revise Where delay and expense would at- 
 
 the ruling of an inferior tribunal. tend the reversal of a non-prejudi- 
 
 Baker v. Blood, 128 Mass. 545 cial error, the court will be especially 
 
 (1880); Wigglesworth' v. Atkins, 59 reluctant to disturb the rulings. 
 
 Mass. (5 Cush.) 212 (1849); Rath- Hoes v. N. Y., N. H. & H. R. Co., 
 
 bone v. Rathbone, 21 Mass. (4 Pick.) 77 N. Y. S. 117, 73 App. Div. 363 
 
 89 (1826). It has, very properly, (1902) [reversed, 173 N. Y. 435, 66 
 
 been held that, in any case, substan- N. E. 119 (1903)]. 
 
§ 179, 180 Court and Jury; Court. 236 
 
 the function of administration. In other words, it is the duty of 
 the judge to administer the conventionalized form of justice estab- 
 lished by the government of which he is a part. As has heen said, 
 the range of acts which he may properly do in this connection is 
 a very wide one; and, subject to the requirement that his action 
 be reasonable, it will not be disturbed in an appellate court. 
 
 § 179. (Functions of the Judicial Office; Administrative; 
 
 Range of Application); Absence of Judge from Courtroom 
 
 The presiding judge may, in his administrative discretion, leave 
 the bench when so disposed. He will, however, properly regard 
 the effect of his conduct upon the rights of the parties with con- 
 siderable care. The act may be entirely unattended with serious 
 consequences. A purely temporary absence of the judge from the 
 courtroom will not be deemed error. Thus where, during the 
 argument to the jury the presiding judge retired to his chambers, 
 to look over requested instructions, leaving an open door between 
 him and the courtroom, through which he could hear and see what 
 was going on, only a technical error not prejudicial to the losing 
 party was committed. 1 On the other hand, as much prejudice may 
 be caused to a party by the uncontrolled action of his adversary 
 during a prolonged absence of the judge, reversible error may be 
 committed in leaving the courtroom. 2 
 
 § 180. (Functions of the Judicial Office; Administrative; 
 Range of Application); Adjournments — The court may grant 
 adjournments if justice apparently requires it. This administra- 
 tive power of the court enables the judge to suspend the examina- 
 tion of a witness for any reasonable purpose by him deemed suf- 
 ficient ; — as to permit a witness, defective in such knowledge, to be 
 instructed as to the nature and obligation of an oath. 1 Under the 
 canon requiring the court to expedite trials 2 a satisfactory ad- 
 ministrative reason for an adjournment must be shown. A judge 
 is not required to defer justice to other suitors because, in a case 
 on trial, a party has failed to present such a case as with due 
 diligence he might and should have done. For example, a court 
 
 1. Chicago City Ry. Co. v. Creech, 1. Com. v. Lynes, 142 Mass. 577 
 207 111. 400, 69 N. E. 919 (1904). (1886). 
 
 2. Wells V. O'Hare, 209 111. 627, 70 2. Infra, §§ 544 et seq. 
 N. E. 1056 (1904). [Judgment re- 
 versed, 110 111. App. 7 (1903).] 
 
237 Administrative Powek to Eegulate Trials. § 181 
 
 is not bound to suspend the trial of a cause to enable a party to 
 procure additional evidence, 3 or to render certain that which he 
 has already submitted. 4 If a party chooses to run the risk that a 
 witness who has promised to attend will do so, instead of making 
 sure that he will attend by serving him with a subpoena, he cannot 
 ask that the judge continue the case until he can procure the evi- 
 dence. 5 Where surprise 6 on a material point 7 has been caused 
 to a party as by the taking of a sound technical objection which 
 was not fairly to have been anticipated, 8 or an unexpected de- 
 mand for available proof arises, 9 an adjournment, upon suitable 
 terms, 10 may reasonably be conceded. 
 
 An unreasonable refusal to adjourn may be treated as prejudicial 
 error. 11 On the other hand, the court may proceed to trial ex parte 
 where a case is reached in its order, 12 and no request for adjourn- 
 ment is made or such a motion has been overruled. He may even 
 proceed ex parte where the attorneys of the moving party upon the 
 refusal of their motion to adjourn, immediately withdraw from 
 the case. 13 The judge, however, is under no necessity to adjourn 
 because part of the regular panel has been dismissed ; but he may 
 order that talesmen be summoned, and proceed with the trial even 
 against objection. 14 
 
 § 181. (Functions of the Judicial Office; Administrative; 
 Range of Application) ; Course of Trial — The general regulation 
 of the course of a trial is under the supervision and direct control 
 of the presiding judge. 1 This is his general administrative power, 
 
 3. Zipperer v. City of Savannah, 128 9. Heyman v. Singer, 99 N. Y. Supp. 
 Ga. 135, 57 S. B. 311 (1907) ; Black 942, 51 Misc. Rep. 18 (1906). 
 
 v. Sherry, 87 N. Y. Supp. 160, 43 10. Poland v. Minshall, 96 N. Y. 
 
 Misc. Rep. 342 (1904). Supp. 200 (1905) (judgment of costa) . 
 
 4. Sheedy v. City of Chicago, 221 H- Heyman v. Singer, 99 N. Y. S. 
 111. Ill, 77 N. E. 539 (1906) (Meas- 942, 51 Misc. Rep. 18 (1906). 
 
 ure sewer). 12. Linderman v. Nolan, 16 Okl. 
 
 5. Kozlowski v. City of Chicago, 113 352, 83 Pac. 796 (1905). 
 
 111. App. 513 (1904) ; Knapp v. Order 13. Mclnnes v. Sutton, 35 Wash. 
 
 of Pendo, 36 Wash. 601, 79 Pac. 209 384, 77 Pac. 736 (1904). 
 
 (1905). 14. Rice v. Dewberry, (Tex. Civ. 
 
 6. Infra, § 527. App. 1906) 93 S. W. 715. 
 
 7. Nieberg v. Greenberg, 91 N. Y. 1. Freeh v. Lewis, 32 Pa. Super. 
 Supp. 83 (1904). Ct. 279 (1906). Courts of justice 
 
 8. Reiss v. Pfeiffer, 117 N. Y. App. exist for the administration of justice, 
 Div. 880, 103 N. Y Suppl. 478 and in the conduct of trials in general 
 ( 1907 ) . much must be left to the discretion of 
 
§§ 182, 183 Couet and Juey; Court. 238 
 
 by virtue of the general mandate which the judicial branch of the 
 government has received from the sovereign of the forum. These 
 great powers he will exercise for the attainment of certain imme- 
 diate ends connected with the litigation ; and under certain canons 
 for social and impersonal purposes, under which all litigation prop- 
 erly takes place and which are to be referred to later in some de- 
 tail. 2 The only just limitation upon the judge's administrative 
 power in shaping the course of the trial is that his conduct should 
 be reasonable, in view, not only of the facts of the case, the exist- 
 ence of any rule of practice, the nature of similar rulings by other 
 judges, but also of the general ends for which, and the canons 
 under which he is acting. No exception, except for unreasonable 
 conduct, should properly be sustained by an appellate court. These 
 administrative acts may be, as has been said, of very varied kinds. 
 
 § 182. (Functions of Judicial Office; Administrative; Range 
 of Application) ; Exclusion of Persons from the Courtroom 
 
 The presiding justice may exclude from the courtroom any per- 
 sons not directly concerned in the particular trial which is in 
 progress. Public curiosity or love of sensationalism is neither 
 legally entitled to gratification, nor is it the right of a litigant to 
 secure its indulgence on his own account. The right of the litigant 
 is limited to that of confrontation, 1 together with the use of coun- 
 sel and witnesses. What portion, if any, of the general public shall 
 be admitted to the presence of the court as audience is a question 
 of administration. It is not one for the party to decide. 2 
 
 § 183. (Functions of Judicial Office; Administrative; Range 
 of Application; Exclusion of Persons from Courtroom); 
 
 Grounds for Admitting Public — As a rule, a portion of the pub- 
 lic, suited to the capacity of the courtroom, will be admitted by 
 special or standing order of the judge. For the adopting of such 
 a course the considerations of public policy appealing to the dis- 
 cretion of the judge are neither few nor unimportant. Public 
 attendance at trials is of high social value for the same reasons 
 which, in part, justify the use of the community — as represented 
 by the jury — as portion of the tribunal. A valuable educational 
 
 the trial court. Wilson v. Johnson, 2. But a public trial was early 
 
 (Fla. 1906) 41 So. 395. claimed as of right. Lilburne's Trial, 
 
 2. Infra, §§ 332 et seq. 4 How. St. Tr. 1269, 1873 (1649). 
 1. Infra, § 458. 
 
239 Stimulating Effect of Publicity in Teials. § 183 
 
 influence tending toward interest in and respect for public justice 
 is thereby created. The correction of judicial abuses, loyalty to 
 good administration and general respect for law and its enforce- 
 ment, are made personal to the citizen, 1 and greatly promoted by 
 examination and discussion. 
 
 The power for good in this connection, is perhaps most 
 dramatically revealed in the abuses which have, as an almost 
 invariable rule, attended the exercise of judicial administration 
 through tribunals whose proceedings have been held in secret. 
 Not only is publicity in judicial proceedings helpful in mak- 
 ing the influence of legal administration powerful and personal 
 through the community; it is an important guarantee for truth, 
 as it is elicited from witnesses, in civil or criminal 2 cases. Nor 
 can it be doubted that the dignity of the proceedings themselves, 
 reacting upon all participants — judge, jury, counsel and wit- 
 nesses, in a very perceptible elevation of moral tone, is greatly en- 
 hanced by the presence of the audience. The consciousness of be- 
 ing observed has, in all connections undoubtedly a strong stimu- 
 lating effect for reaching the highest attainable level of per- 
 formance. 3 
 
 Probably this is not only mental but, to a certain extent, physical 
 
 1. " Few individuals are gainers by resort to this tainted fountain of 
 real justice; to make its usefulness knowledge, it must be owned that, if 
 general, it ought to appear, as well anything can divest it of its evil 
 as to exist. The root might be in qualities, the remedy is publicity. 
 the earth; but no fruit would be That indeed is the grand redeeming 
 produced. Integrity might be in the virtue, which must in time correct 
 heart of the judge, while iniquity the vices of every system, and with- 
 was written on his brow. How could out which the soundest principles, the 
 the public grant the title of just wisest rules, the most perfect arrange- 
 to men, by whose mode of proceeding ments, will be found, in practise, to 
 injustice alone can gain, and probity permit the existence of all that is 
 cannot but be a loser ? " 40 Edin- wrong, and to afford no security for 
 burgh Review 195 (1824), by Mr. any thing that is right." 40 Edin- 
 ( afterwards Lord Chief Justice) Den- burgh Review 195 (1824), by Mr. 
 man. (afterwards Lord Chief Justice) Den- 
 
 Z. Informers. — Speaking, for ex- man. 
 ample, of the evidence of informers, 3. " The most tyrannical magistrate 
 " state's evidence " or the like, a care- becomes moderate, the most daring cir- 
 i ul writer says : " Dangerous as cumspect, when, exposed to the view 
 they undoubtedly are, despicable as of all, he feels that he cannot pro- 
 the informer who secretes his name nounce a, judgment without being 
 must always be, and much as we judged himself." 40 Edinburgh Re- 
 doubt -whether the balance of incon- view 195 (1824), by Mr. (afterwards 
 veniences will not decide against the Lord Chief Justice) Denman. 
 
§ 184 Court and Jury; Court. 240 
 
 or psychological as well. The concentrated attention of a large 
 number of interested people generates the psychic atmosphere in 
 which court proceedings are held. From an administrative point 
 of view, the fact has both its advantages and its dangers. On the 
 one hand, it conduces largely to the histrionic, the dramatic ele- 
 ment of judicial administration in which lies much of its most 
 powerful and lasting influence on the popular mind — deepening 
 the tranquillity of truth, and heightening the agitation of con- 
 scious guilt or falsehood, nerving the advocate to the highest 
 oratorical ability with which he is endowed, and imposing great 
 responsibility on the presiding judge in directing the course of a 
 trial where the play of all mental faculty shows a marked tend- 
 ency to intensify. On the other hand, this influence perceptibly 
 tends to aggravate the misleading effects of wit, sarcasm or oratory 
 and to loosen the jury's control of its impulse to that emotionalism 
 which is so marked an injury to sound judicial administration. 
 
 § 184. (Functions of Judicial Office; Administrative; Range 
 of Application; Exclusion of Persons from Courtroom) ; Per- 
 sistence of Conditions — The existence and nature of the subtle, 
 intangible and yet powerful emotional disturbances which may be 
 called the psychic atmosphere of a trial, are carefully to be con- 
 sidered and dealt with by the wise practitioner. He will bear in 
 mind that such states of feeling are likely to persist ; and that, by 
 consequence, the considerations arising in the case or cases imme- 
 diately preceding his own may have had effects with a very 
 important bearing on the one in which he is concerned. Condi- 
 tions may have been created which, if favorable, he may utilize; 
 those inimical to his interests, he must seek to dispel or modify. 
 It is no small advantage of the public trial of causes that a prac- 
 titioner may thus guage the mental attitude of the tribunal in 
 approaching the consideration of his case and be able to judge as 
 to the precise nature of the task before him. It has even been 
 said that persons interested in subsequent cases " have a right to 
 be present for the purpose of hearing what is going on." 1 This, 
 
 1. State v. Brooks, 92 Mo. 542, 573 of the essential qualities of a court 
 
 (1887) ; Garnett v. Ferrand, 6 B. & of justice that its proceedings should 
 
 C. 611, 626 (1827). " The public had be public, and that all parties who 
 
 a right to be present, as in other may be desirous of hearing what is 
 
 courts." Collier r. Hicks, 2 B. & Ad. going on, if there be room in the 
 
 663, 668 (1831), per Tenterder, C. J. place for that purpose, provided they 
 
 " We are all of opinion that it is one do not interrupt the proceedings and 
 
241 Publicity Furnishes Proof oh Disproof. § 185 
 
 however, may be doubted. The highest at which the claim of the 
 party can well be placed is that there is a practice to that effect. 
 As has been said, the admission of the public is a matter of ad- 
 ministration, 2 and only as a circumstance in deciding as to the 
 reasonableness of administrative action is the existence of a rule 
 of practice material to the rights of the parties. 3 
 
 § 185. (Functions of Judicial Office; Administrative; Range 
 of Application; Exclusion of Persons from Courtroom); 
 
 Furnish Proof or Contradiction — The presence of the public in the 
 courtroom and, to a still wider and more impressive extent, the 
 publication in the newspaper press of judicial proceedings, is a 
 powerful agency in bringing to the attention of persons having 
 facts in their possession relating to a matter on trial the knowl- 
 edge that they may be helpful to the cause of justice. This assist- 
 ance, as valuable as it often is unexpected, may correct error by 
 supplying additional facts, or by contradicting a statement which 
 might otherwise be credited. 1 As was said by Sir John Hawkes, 
 solicitor-general : 2 " The reason that all matters of law are, or 
 ought to be transacted publicly is that any person, unconcerned as 
 well as concerned, may as amicus curios inform the court better, 
 if he thinks they are in error, that justice may be done; and the 
 reason that all trials are public is that any person may inform in 
 point of fact, though not subpoenaed, that truth may be discovered, 
 in civil as well as in criminal cases. There is an invitation, to all 
 persons who can inform the court concerning the matter to be 
 tried, to come into the court, and they shall be heard." 3 This 
 
 provided there is no specific reason 3. " This open examination of the 
 why they should be removed, have a witnesses, viva voce, in the presence 
 right to be present for the purpose of of all mankind, is much more con- 
 hearing what is going on." Daubney ducive to the clearing up of truth 
 v. Cooper, 10 B. & C. 237, 240 (1829). than the private and secret examina- 
 
 2. Supra, § 182. tion taken down before an officer or 
 
 3. Supra, §§ 173, 177 n. 6. his clerk, in the ecclesiastical courts 
 
 1. A jeweler, reading in the papers and all others that have borrowed 
 of a perjured testimony as to when their practise from the civil law; 
 he did certain engraving on jewelry, where a witness may frequently de- 
 attended and rendered valuable as- pose that in private which he will 
 sistance in exposing the deceit. Smyth be ashamed to testify in a public and 
 v. Smyth, Woodley's Celebrated Trials, solemn tribunal." 3 Black. Comm. 
 1, 115, 140, 144 (1853). 373. 
 
 2. Cornish's Trial, 11 How. St. Tr. 
 460 (1690). 
 
 Vol. I. 16 
 
§ 186 Couex and Jury; Couet. 242 
 
 augmentation of truth occurs usually in one of two ways; object- 
 ively by the procurement of additional evidence or the detection 
 of falsity; subjectively, by placing additional responsibility for 
 truthfulness 4 on the mind of the witness. 8 
 
 § 186. (Functions of Judicial Office; Administrative; Range 
 of Application; Exclusion of Persons from Courtroom); 
 
 Grounds for Exclusion. — In discharging his administrative power 
 in relation to the admission of the public to the courtroom, very 
 different considerations may well be felt to apply to those who 
 are attending on business in the courtroom as compared with those 
 whose position is that of mere spectators. Judicial proceedings 
 for the discovery of truth with the object of using it as a basis 
 for doing justice or awarding punishment for social offenses is 
 surely as solemn and serious a business as can well engage the 
 attention of human beings. There is little reason to believe that 
 it will gain in dignity, impressiveness or social power by its re- 
 duction to the level of an idle spectacle for the benefit of hangers- 
 on and loungers. There is, moreover, always a danger that in 
 times of political or social excitement, the presence of the psychic- 
 ally surcharged atmosphere of the courtroom to which reference 
 has been made, 1 may precipitate a collision between excited par- 
 tisans, or overpower the judgment of an emotional and, therefore, 
 suggestible jury. More than this, unmoral or immoral cases, 
 
 4. " Another advantage of this pub- of not being contradicted by the dep- 
 licity [by printing the proceedings] osition of any percipient witnesses, 
 . . . is the chance it affords to yet if the circumstances of the case 
 justice of receiving, from hands in- have but afforded a single such wit- 
 dividually unknown, ulterior evidence, ness, the prudence or imprudence, the 
 for the supply of anj' deficiency or probity or improbity, of that one 
 confutation of any falsehood, which original witness may have given birth 
 inadvertency or mendacity may have to derivative and extrajudicial testi- 
 left or introduced." Bentham, Jud. monies in any number. Environed as 
 Ev., vol. I, bk. II, e. X, § 6. he sees himself by a thousand eyes, 
 
 5. " In many cases, say rather in contradiction should he hazard a 
 most, in all except those in which a false tale, will seem ready to rise 
 witness bent upon mendacity can up in opposition to it from a thou- 
 make sure of being apprized with sand mouths. Many a known face, 
 perfect certainty of every person to and every unknown countenance, pre- 
 whom it can by any possibility have sents to him u. possible source of de- 
 happened to be able to give contra- tection, from whence the truth he is 
 diction to any of his proposed state- struggling to suppress may through 
 ments, the publicity of the examina- some unsuspected channel burst forth 
 tinn or deposition operates as a check to his confusion." Bentham, Jud. 
 upon mendacity and incorrectness. Ev., vol. I, bk. II, c. X, § 2. 
 However sure he may think himseli 1. Supra, § 183. 
 
243 Protecting Public Morality by Exclusion. § 186 
 
 especially those relating to sexual offenses or perversions, are con- 
 stantly arising for trial and obviously tend to excite and gratify 
 the morbid sensationalism of the lovers of moral filth at the ex- 
 pense, in all cases, of public morals and social sanity ; and, in many 
 cases, of great mental anguish to sensitive witnesses or parties. 
 The judge, as custos morum, may reasonably consider that the 
 assemblage over which he directly presides should be rather held 
 for the dispatch of public business than composed of persons met 
 for diversion — innocent or prurient. To those who have 
 business before the court, judges, jurors, parties, counsel, wit- 
 nesses and others directly interested in a pending case or other 
 cases before the court, public access to the courtroom will be 
 ungrudgingly afforded. 2 In the case of persons having no direct 
 connection with the business before the court, it may frequently 
 seem to a presiding judge that his administrative control of the 
 courtroom will be more rationally exercised by excluding their 
 personal presence from it — all legitimate social interests being 
 amply conserved by fair reports of the newspapers of daily 
 judicial proceedings and temperate editorial comments upon 
 finished cases, the interests of justice being secured in this con- 
 nection by a correction by the judge of any abuses. 
 
 Fear of Violence. — Where the judge apprehends' danger of dis- 
 orderly proceedings by the spectators, or, the exercise of undue 
 and improper influence on the jury, he may properly exclude from 
 the courtroom all persons who have no direct connection with the 
 proceedings. 3 Thus, it may be good administration to pass an 
 order permitting in the courtroom only the court officers, reporters 
 and " friends of the defendant and persons necessary for her to 
 have." * 
 
 Protect Public Morals. — The correct principle of adminis- 
 tration regarding the public attendance at trials calculated to im- 
 pair the public morals is, in part stated by a comparatively recent 
 Michigan statute : B " Whenever it shall appear that, upon the 
 trial of any cause, evidence of licentious, lascivious, degrading 
 or peculiarly immoral acts or conduct, will probably be given, the 
 judge presiding at such a trial may, in his discretion, require 
 
 2. People v. Swafford, 65 Cal. 223, 4. People v. Kerrigan, 73 Cal. 222, 
 3 Pac. 809 (1884). 14 Pac. 849 (1887). 
 
 3. Stone v. People, 3 111. 326, 338 5. Act 408, § 18 of 1893. 
 (1840). 
 
§ 186 Court and Jury; Court. 244 
 
 and cause every person, except those necessary in attendance 
 thereon, to retire and absent himself or herself from the court- 
 room during such trial, or any portion thereof." The supreme 
 court of Michigan, following an earlier case, 6 has felt constrained 
 to declare 7 the act itself invalid as contrary to the provisions of 
 the Michigan constitution. 8 But the statute states, so far as it 
 extends, the true administrative course. 
 
 Declaratory statutes have been passed in several American 
 states. Colorado, for example, provides 9 that it shall be the 
 duty of the judge to exclude from the courtroom all per- 
 sons not necessary to the trial of the cause upon a sug- 
 gestion by counsel that the testimony " will be of such char- 
 acter that unnecessary publicity would operate injuriously on 
 public morals." A code of the state of Georgia enacts 10 that on 
 trials for " seduction or divorce or other case where the evidence 
 is vulgar and obscene, or relates to the improper acts of the sexes, 
 and tends to debauch the morals of the young," the presiding judge 
 may exclude " all or any portion of the audience." The state of 
 Michigan provides that n " on the preliminary examination of 
 every person charged with the offense of rape, assault with the 
 intent to commit rape, seduction, adultery, bastardy; or other 
 offense against chastity, morality or decency, it shall be in the 
 discretion of the examining magistrate to exclude from the place 
 where such examination is held, any or all persons, not officers of 
 the court, or persons by law required to be in attendance," and 
 also that " The magistrate, while conducting such examination, 
 may exclude from the place of examination all the witnesses who 
 have not been examined; and he may also, if requested, or if he 
 see cause, direct the witnesses, whether for or against the prisoner, 
 to be kept separate, so that they cannot converse with each other 
 until they shall have been examined. And su'eh magistrate may, 
 in his discretion, also exclude from the place of examination, any 
 or all minors during the examination of such witnesses." 12 The 
 statutes of Utah 13 declare that " In an action for divorce, crimi- 
 nal conversation, seduction, abortion, rape, or assault with intent 
 to commit rape, the court may in its discretion exclude all per- 
 
 6. People r. Murray, 89 Mich. 276, 9. Colo. C. C. P. 1891, § 427. 
 50 N. W. 95 (1891). 10. Ga. Code, 1895, § 5296. 
 
 7. People v. Yeager, 113 Mich. 228, 11. Mich. Comp. L. 1897, § 11873. 
 71 N. W. 491 (1897). 12. Mich. Comp. L. 1897, § 11852. 
 
 8. Const., Art. VI, § 28. 13. Utah Rev. St. 1898, § 696. 
 
245 Adjournments to Avoid Unwise Publicity. § 187 
 
 sons who are not directly interested therein, except jurors, wit- 
 nesses, and officers of the court." In the same line the state of 
 Wisconsin 1 * prescribes that on preliminary examinations, held 
 under charges of the offenses enumerated in the Utah statute, " or 
 other offense against chastity, morality, or decency, it shall be 
 in the discretion of the magistrate to exclude from the place of 
 trial all bystanders and other persons not officers of the court or 
 otherwise required to be in attendance." 
 
 The English rule is the broader and more salutary. In the 
 original statute of 1848 15 judges were empowered " in their dis- 
 cretion to order that no person shall have access to or remain in 
 the room or building, if it appear to them that the ends of justice 
 will be best answered by so doing." An interesting incident as 
 to the opinion of Mr. Justice Hawkins as to the practical effect 
 of such a statute is thus stated in an English law publication: 
 " Mr. Mathews, the counsel for the prosecution, informed the 
 magistrate that he had consulted Mr. Justice Hawkins, and that 
 the learned judge had expressed an opinion that, under the 19th 
 section of Jarvis' Act (11 & 12 Vict. c. 42), 'it was plain that 
 the magistrate had the power, if he pleased, and considered such 
 a course advisable, to hear the case with closed doors.' " 16 
 
 § 187. (Functions of Judicial Office; Administrative; Range 
 of Application; Exclusion of Persons from Courtroom); 
 
 Adjournments to Avoid Unwise Publicity, etc An alternative 
 
 administrative expedient for the purpose of avoiding unwise pub- 
 licity is to keep the courtroom open for the general dispatch of 
 
 14. Wis. Stats. 1898, § 4789. Almost every country mansion pos- 
 
 15. 1848, St. 11 & 12 Vict., s. 42, sessed its 'justice's room.' The two 
 $ 19. before-mentioned subsections of sec- 
 
 16. 100 Law Times 1896, p. 234. tion 20 of the Summary Jurisdiction 
 On a suggestion that Mr. Justice Act of that year merely provided that 
 
 Hawkins was wrong in this connec- all judicial proceedings before magis- 
 
 tion on the ground that the section trates shall take place within public 
 
 in Jarvis' Act relied on by the buildings to which the public shall, 
 
 eminent judge was impliedly repealed under ordinary circumstances, have 
 
 by section 20 of the Summary Juris- access without committing a trespass, 
 
 dictions Act of 1879, a correspondent e. jr., by crossing a private park or 
 
 of the Times offers the following entering the magistrate's house. To 
 
 rather interesting comment: " Previ- contend that they 'by implication' 
 
 ous to the year 1879 magistrates were repeal the very precise enabling words 
 
 sometimes accustomed to hear and of Jarvis's Act appears absurd." 100 
 
 determine cases in their own houses. Law Times 1896, p. 234. 
 
§ 188 Court and Jury; Court. 246 
 
 public business, while withdrawing a particular case, presenting 
 exceptional circumstances, from idle or morbid curiosity or the 
 other evils to which reference has been made. 1 Accordingly, the 
 judge may adjourn the trial of a particular case, or class of cases, 
 to a place other than the usual courtroom. 2 Such a sitting he may 
 hold in a lawyer's office, 3 or at his own house. 4 
 
 Other causes for Adjournments. — Adjournments may be made 
 to places other than the courtroom, for causes entirely apart from 
 protection of the public morals. The adjournment may, for ex- 
 ample, be to the house of a sick witness to secure the benefit of 
 his testimony. 5 The same course has been adopted where the 
 illness was that of a party. 6 
 
 § 188. (Functions of Judicial Office; Administrative); 
 
 Separation of Witnesses — It is within the administrative function 
 of the presiding justice to order that certain witnesses be excluded 
 from the courtroom until they or other witnesses, whether called 
 by the party proposing the order or by his opponent, 1 shall give 
 their testimony. 2 From excess of caution or other reasons the com- 
 mon-law power is expressly conferred in certain jurisdictions by 
 confirmatory statutes or has been promulgated by rules of court. 
 Little cause, in most, instances, exists why the request for such an 
 order should not be granted. 
 
 1. Supra, § 182. Georgia. — Johnson r. State, 14 Ga. 
 
 2. Reed v. State, 147 Ind. 41, 46 55, 62 (1853). See also City Elec- 
 N. E. 135 (1897); Le Grange v. Ward, trie Ey. Co. v. Smith, 121 Ga. 663, 
 11 Ohio 257 (1842). 49 S. E. 724 (1905). 
 
 3. Mohon v. Harkreader, 18 Kan. Illinois. — Errissman t;. Errissman, 
 383 (1877). 25 111. 136 (1860). 
 
 4. Bates v. Sabin, 64 Vt. 511, 514, Indian Territory. — Parker v. V. S., 
 24 Atl. 1013 (1892). 1 Ind. Terr. 592, 43 S. W. 858 (1898). 
 
 5. Sutton v. Snohormish, 11 Wash. Indiana. — Johnson v. State, 2 Ind. 
 24, 39 Pac. 293 (1895). 652 (1851); Porter v. State, 2 Ind. 
 
 6. Selleek v. Janesville, 100 Wis. 435 (1850). 
 
 157, 75 N. W. 975 (1898). Iowa.— State v. Davis, 110 Iowa 
 
 1. State v. Zellers, 7 N. J. L. 220, 746, 89 N. W. 398 (1900). See also 
 224 (1824) (defendant's witnesses). State v. Pell, (Iowa 1909) 119 N. W. 
 
 2. Alabama. — McClellan v. State, 154. 
 
 117 Ala. 140, 23 So. 653 (1897); Louisiana.— State r. Daniels, 122 
 
 McLean v. State, 16 Ala. (N. S.) 672 La. 261, 47 So. 599 (1908). 
 
 (1849). Massachusetts, — Com. v. Knapp, 9 
 
 Arkansas. — St. Louis, I. M. & S. Pick. 496, 20 Am. Dec. 491 (1830). 
 
 Ey. Co. v. Pate, 90 Ark. 135, 118 S. New York.— People r. Green, 1 Park 
 
 W. 260 (1909). Cr. R. (N. Y.) 11 (1845). 
 
 California. — People r. McCarty, 117 North Dakota. — King r. Hanson, 99 
 
 Cal. 65, 48 Pac. 984 (1897). N. W. 1085 (1904). 
 
247 
 
 Advantages of Separating Witnesses. 
 
 189 
 
 § 189. (Functions of Judicial Office; Administrative; 
 Separation of Witnesses); Grounds for Making Order 
 
 Such an order may go further and direct that one witness be kept 
 apart from the others ; x or that each witness shall have been kept 
 by himself until after he has testified. When falsehood or bad 
 faith is to be prevented or detected the expedient is of obvious 
 value in that it permits effective inquiry as to subsidiary matters 
 difficult to cover by a previous agreement between the witnesses. 
 It is not, however, essential, in order that a separation should be 
 ordered, that fraudulent collusion should be charged. Separation 
 is further useful at times in preventing a certain unintentional 
 and even unconscious collusion between interested persons who 
 
 Texas. — Watts v. Holland, 56 Tex. 
 54 (1881). See also MeCullough v. 
 State, (Tex. Cr. App. 1906) 94 S. 
 W. 1056. 
 
 Washington. — State ». Dalton, 86 
 Pae. 590 (1906). 
 
 England. — Goodere's Trial, 17 How. 
 St. Tr. 1003, 1015 (1741) ; Vaughan's 
 Trial, 13 How. St. Tr. 485, 494 
 (1696). 
 
 Separation of witnesses may be 
 ordered in criminal cases. Territory 
 v. Dooley, 3 Ariz. 60, 78 Pac. 138 
 (1889); State v. Worthen, (Iowa 
 1904) 100 N. W. 330. Neither side 
 has, however, in the absence of stat- 
 ute, a right to such an order. Cool- 
 man v. State, (Ind. 1904) 73 N. E. 
 568. Such an order applied to the 
 witnesses of accused does not violate 
 a constitutional right to a public 
 trial. State v. Worthen, (Iowa 1904) 
 100 N. W. 330 [citing People v. Ker- 
 rigan, 73 Cal. 222, 14 Pae. 849 
 (1887); People v. Swafford, 65 Cal. 
 223, 3 Pac. 809 (1884). 
 
 The action of a trial judge will not 
 be revised unless prejudice to the 
 objecting party is affirmatively shown. 
 Hughes v. State, 128 Ga. 19, 57 S. 
 E. 236 (1907); State v. Quirk, 101 
 Minn. 334, 112 N. W. 409 (1907) ; 
 Lowrie v. State, (Tex. Cr. App. 
 1906) 98 S. W. 838; Green v. State 
 (Tex. Cr. App. 1906), 98 S. W. 1059; 
 
 State v. Mann, 39 Wash. 144, 81 Pac. 
 561 (1905). Still, it is error to ex- 
 clude from the stand a person the 
 necessity for whose testimony did 
 not appear until another witness 
 had been heard. Sessions v. State, 
 (Tex. Cr. App. 1906) 98 S. W. 243. 
 In like manner, refusing to permit a 
 witness to testify on rebuttal be- 
 cause he has disobeyed the rule for 
 the exclusion and separation of wit- 
 nesses, while permitting his testimony 
 in chief to be contradicted, is error. 
 Illinois R. Co. v. Ely, (Miss. 1904) 
 35 So. 873. 
 
 Calling a witness from the custody 
 of an officer in connection with the 
 examination of another witness is 
 fully within the administrative power 
 of the court. The rule applies even 
 to a party. Seaboard Air Line Ry. 
 v. Scarborough, (Fla. 1906) 42 So. 
 706. Whether the witnesses should 
 be instructed not to converse with 
 each other, and should be allowed 
 after examination to return to the 
 room where the others are waiting, 
 is a matter within the discretion of 
 the court. Kelly v. State, 118 Ga. 
 329, 45 S. E. 413 (1903); Loose v. 
 State, (Wis. 1903) 97 N. W.. 526. 
 
 I. It is a sufficient separation where 
 the first witness examined was, after 
 giving his evidence, separated from 
 the others. State v. M'Elmurray, 3 
 Strobh. (S. C. ) 33 (1848). 
 
§ 190 Court axd Jury; Coukt. 248 
 
 hear each other's story when testifying. 2 It is at times exceed- 
 ingly dangerous to the cause of justice that one witness should be 
 permitted to refresh his memory by the testimony of another. 
 Persons testifying to the same transaction almost invariably, and 
 without active bad faith, seek to harmonize their story. It ap- 
 parently seems to them to strengthen it and give to each the moral 
 support of all. An element of pride is apt to enter and induce 
 the witness who believes that a certain thing could not have oc- 
 curred and he fail to notice it, to imagine that he did notice a fact 
 to which one of his associates testifies. 3 In evidence as to matters 
 which are in the nature of estimates, such as time, distance and 
 the like, where the average witness feels weakness and uncertainty, 
 this grasping at the mental and moral support of the evidence of 
 others is particularly marked. 
 
 It is also of importance that a material and friendly witness 
 should not have been prepared and his testimony colored by knowl- 
 edge of what he is to meet in the evidence of the other side. 4 The 
 expedient of separation is one which readily suggests itself and 
 has been a common feature of trials by witnesses from earliest 
 times. 5 Separation is a test of truth. If it prevents successful 
 perjury, conscious or unconscious collusion between witnesses on 
 the , same side or undue advantage in antagonizing witnesses on the 
 other side, the small loss of time or trifling incidental incon- 
 venience are well repaid. It may be the only hope of a per- 
 son falsely and plausibly accused of crime. 
 
 § 190. (Functions of Judicial Office; Administrative; 
 
 Separation of Witnesses); Order Not Matter of Right 
 
 It follows, for obvious reasons, that the request is usually granted, 
 as a matter of course. 1 This, however, is quite different from 
 saying that the judge, whatever his view of the actual situation, 
 
 2. Louisville, etc., Ry. Co. v. York, 4. Louisville, etc., Ry. Co. r. York. 
 128 Ala. 305, 30 So. 676 (1900); 128 Ala. 305, 30 So. 676 (1900); 
 State r. Zellers, 7 K. J. L. 220, 226 Rainwater r. Elmore, 1 Iteisk. (Term.) 
 (1824); Rainwater r. Elmore, 1 363 (1870); Wisener r. Maupin, 2 
 Heisk. (Tenn.) 363, 365 (1870); Baxt. (Tenn.) 342, 357 ( 1S72) . 
 Fortesque, De Landibus Legum An- 5 " Histor y of Susanna > Apocryphal 
 gliae, c. 26 (1470). "The rule is Scriptures; Pollock & Maitland, Hist. 
 
 •\ , . . ., , ,. Eng. Law, II, 635, 637 (1895); Brit- 
 
 provided merely to prevent the testi- ,, TTT „_ „ „ ,_„„„, 
 
 * J * ton, bk. Ill, c. 10, § 9 (1290); 
 
 mony of one witness from influencing iti,„„„_ t>. r„ t t- ™ -j 
 
 J ° lliayer, Prelim. Treatise on Evidence, 
 
 the testimony of another." Cook v. 2 o 22 (secta) 98 99 
 
 State. 30 Tex. App. 607 (1892). 1. A?o6a»m,- McClellan r. State, 
 
 3. Rainwater r. Elmore, 1 Heisk. 117 Ala. 140, 23 So. 653 (1897); 
 (Tenn.) 363 (1870). Barnes r. State, 88 Ala. 204, 16 Am. 
 
249 
 
 When Order is Matter of Eight. 
 
 § 190 
 
 is required to make the order, as lias been at times decided, 2 or 
 intimated. 3 
 
 The Bight to Demand a Separation May he Conferred by 
 Statute} — In trials before Houses of Parliament the practice of 
 granting an order seems to have been invariable. 5 
 
 St. 48 (1889); Wilson v. State, 52 
 Ala. 299 (1875). 
 
 California. — People v. MoCarty, 117 
 Cal. 65, 48 Pac. 984 (1897). 
 
 Georgia. — May v. State, 94 Ga. 76 
 (1894) ; Hanvey v. State, 68 Ga. 612 
 (1882). 
 
 Illinois. — Errissman v. Errissman, 
 25 111. 136 (1860). 
 
 Indian Territory. — ■ Parke v. United 
 States, 1 Ind. Ter. 592, 43 S. W. 
 858 (1898). 
 
 Indiana. — Johnson v. State, 2 Ind. 
 652 (1851). 
 
 Iowa. — Hubbell v. Ream, 31 Iowa 
 289, 290 (1871). 
 
 Kansas. — State v. Davis, 48 Kan. 
 1 (1892). 
 
 Kentucky. — Baker v. Com., 50 S. 
 W. 54 ( 1899 ) ; Kentucky Lumber Co. 
 v. Abney, 31 S. W. 279 (1895); 
 Johnson v. Clem, 82 Ky. 84 (1884). 
 
 Louisiana. — • State v. Forbes, 111 
 La. 473, 35 So. 710 (1903). 
 
 Massachusetts. — Com. v. Thompson, 
 159 Mass. 56, 58, 38 N. E. 1111 
 (1893) ; Com. v. Follansbee, 155 Mass. 
 274, 29 N. E. 471 (1892). 
 
 Michigan. — Johnston v. Ins. Co., 106 
 Mich. 96, 64 N. W. 5 (1895); Peo- 
 ple v. Considine, 105 Mich. 149, 63 
 N. W. 196 (1895). 
 
 Mississippi. — Sartorious v. State, 
 24 Miss. 602 (1852). 
 
 Missouri. — State v. Duffey, 128 Mo. 
 549, 31 S. XV. 98 (1895). 
 
 Nebraska. — Chicago, B. & Q. R. Co. 
 v. Kellogg, 54 Nebr. 138, 74 N. W. 
 403 (1898); Murphey v. State, 43 
 Nebr. 34 (1894). 
 
 North Carolina. — Purnell v. Pur- 
 nell, 89 N. C. 42 (1883); State v. 
 Sparrow, 3 Murph. 487 (1819). 
 
 Ohio. — McLaughlin p. Stevens, 18 
 Ohio 94, 99, 51 Am. Dec. 444 (1849). 
 
 Texas. — De Lucenay v. State, 68 
 S. W. 796 (1902); Powell v. State, 
 13 Tex. App. 244 (1882). 
 
 Utah. — People v. O'Loughlin, 3 
 Utah 133, 144, 1 Pac. 655 (1881). 
 
 Wisconsin. — Zoldoske v. State, 82 
 Wis. 580, 52 N. W. 778 (1892); 
 Benaway v. Coyne, 3 Chandl. 214, 219 
 (1851). 
 
 Wyoming. — Haynes V. Terr., 3 Wyo. 
 166 (1887). 
 
 England. — Rex v. Goodere, 17 How. 
 St. Tr. 1003, 1015 (1741); Reg. v. 
 Murphy, 8 Car. & P. 297 ( 1837 ) . 
 
 2. Georgia. — Shaw v. State, 102 Ga. 
 660, 29 S. E. 477 (1897). 
 
 Kentucky.— Salisbury v. Com., 79 
 Ky. 425, 432 (1881). 
 
 New Jersey. — State v. Zellers, 7 
 N. J. L. 220, 224 (1824). 
 
 Tennessee. — Rainwater V. Elmore, 
 1 Heisk. 363 (1870). 
 
 Texas. — Watts v. Holland, 56 Tex. 
 54 (1881). 
 
 West Virginia. — Gregg v. State, 3 
 W. Va, 705 (1869). 
 
 England. — R. v. Newman, 3 C. & K. 
 252, 260 (1852) (rule applied to the 
 prosecutor himself) ; Southey v. Nash, 
 7 Car. & P. 632 (1837). "I can per- 
 ceive no safe medium between receiv- 
 ing it as a right, or abolishing it alto- 
 gether." State v. Sparrow, 3 Murph. 
 (N. C.) 487 (1819). 
 
 3. Wilson n. State, 52 Ala. 299, 303 
 (1875) ("rarely if ever" withheld) ; 
 Cook V. State, 11 Ga. 55, 62 (1852) 
 (the prosecution may claim as of 
 right) ; Walker v. Com., 8 Bush (Ky.) 
 86, 89, 96 (1871) ; R. v. Murphy, 8 
 C. & P. 307 (1837) (almost a right). 
 
 4. Nelson v. State, 2 Swan (Tenn.) 
 237, 257 (1852). 
 
 5. Taylor v. Lawson, 3 C. & P. 543 
 (1828) ; Berkeley Peerage Trial, Sher- 
 wood's Abstract, 151 (1811). 
 
§§ 191, 192 Court and J ley; Court. 250 
 
 Action not Reversed. — In the absence of evidence that reason 
 has not been employed or that there has been a violation of some 
 fundamental right of the party, or, as it is commonly said, unless 
 the judge's discretion has been abused, the propriety of the exer- 
 cise of this power to order a separation of witnesses will not be 
 reversed in an appellate court. 6 
 
 § 191. (Functions of Judicial Office; Administrative; 
 Separation of Witnesses); What Constitutes Violation of the 
 Order. — A reasonable construction should be applied to such an 
 order. As the object is to prevent giving of information to the 
 witnesses, a hypothetical question which gives no information is 
 not objectionable. 1 A counsel is at liberty, unless otherwise 
 ordered, to consult with one of his own witnesses, and tell him 
 while the latter is under the rule, what one of those called by his 
 opponent has stated in the course of his testimony, 2 though it has 
 been required that the consultation take place in the presence of 
 the court 3 or of one of its officers,* or be expressly permitted, in 
 the court's discretion. 5 The rule is the same as to a party; 6 
 whether this privilege applies to other agents assisting in the trial 
 of the cause is more doubtful. 7 Information as to the trial con- 
 veyed by the daily journals does not violate such an order. 8 
 
 § 192. (Functions of Judicial Office; Administrative; 
 Separation of Witnesses); Time of Motion for Order 
 
 The order may properly be requested at any time 1 after the read- 
 ing of the pleadings 2 and the opening address of counsel, 3 and 
 
 6. Uajv. State, 94 Ga. 76 (1894); 6. Shaw v. State, 79 Miss. 21, 30 
 
 Nelson v. State, 2 Swan (Tenn.) 237 So. 42 (1901) ; Holt v. State, 9 Tex. 
 
 (1852) ; Powell v. State, 13 Tex. App. Cr. App. 571, 580 (1880) (discretion- 
 
 244 (1882) ; Haines r. Terr., 3 Wyo. ary with court). 
 
 168 (1887) ("gross abuse."). 7. Travelers' Ins. Co. r. Sheppard, 
 
 1. State r. Taylor, 56 S. C. 360, 85 Ga. 751, 814, 12 S. E. 18 (1890). 
 
 34 S. E. 939 (1899) ("if your hus- 8. Com. r. Hersey, 2 Allen (Mass.) 
 band says so" is it true?). 173 (1861). 
 
 2. Home r. Williams, 12 Ind. 334 1. Southey v. Nash, 7 C. & P. 632 
 (1859) ; Allen r. State, 61 Miss. 627, (1837). 
 
 629 (1884); White r. State, 52 Miss. The separation may be ordered at 
 
 216, 224 (1876) ; Williams v. State, the request of a party whose own wit- 
 
 35 Tex. 355 (1872) ("in a proper nesses have been already examined, 
 manner ") . Southey r. Nash, 7 C. & P. 632 (18371. 
 
 3. Jones v. State, 3 Tex. Cr. App. 2. Wilson r. State, 52 Ala. 299 
 150, 153 (1877). (1875) ; Roberts v. Com., 94 Ky. 499 
 
 4. Brown v. State, 3 Tex. Cr. App. (1893). 
 
 294, 310 (1877). 3. Benaway v. Conyne. 3 Chand. 
 
 5. Kennedy r. State, 19 Tex. Cr. (Wis.) 214, 219 (1851). 
 App. 618, 631 (1885). 
 
251 To Whom Oedek foe Separation Applies. §§ 193, 194 
 
 before the close of all the evidence ; though it has been held inap- 
 propriate to make a motion for a separation while affidavits are 
 being read. 4 
 
 § 193. (Functions of Judicial Office; Administrative; 
 Separation of Witnesses); By Whom Motion is Made — The 
 
 motion may be made by either 1 or both 2 parties; the jury may 
 request it; 3 or the judge may make the order, sua sponte.* 
 
 § 194. (Functions of Judicial Office; Administrative; 
 Separation of Witnesses); To Whom the Order Applies — 
 
 The administrative power of the court extends not only to the mak- 
 ing of the order, and the details of its enforcement, but as to whom 
 it shall cover. 1 Not only do attorneys (in the American sense) 2 
 
 Little doubt exists that in most ju- 
 risdictions, if reasonably requested, 
 separation would be ordered before the 
 opening. Rex v. Murphy, 8 Car. & P. 
 297 (1837). It may, under certain 
 circumstances, be highly important 
 that the witnesses be not influenced 
 by suggestions conveyed to them by 
 counsel at this stage. It has been 
 held, however, that it is beyond the 
 court's power to separate the witnesses 
 during the opening address. Benaway 
 v. Conyne, 3 Chand. (Wis.) 214 
 (1851). 
 
 4. Penniman v. Hill, 24 Wkly. Rep. 
 245 (1876) (Hall, V. C). 
 
 1. Holder v. U. S., 150 U. S. 91 
 (1893). 
 
 2. State v. Sparrow, 3 Murph. (N. 
 C.) 487 (1819). 
 
 3. Earl of Shaftesbury's Trial, 8 
 How. St. Tr. 759, 778 (1681). 
 
 4. Ryan v. Couch, 66 Ala. 244, 248 
 (1880) ; Wilson V. State, 52 Ala. 299 
 (1875). 
 
 1. Alabama. — Webb v. State, 100 
 Ala. 47, 52 (1893). See also Strick- 
 land v. State, (Ala. 1907) 44 So. 90. 
 
 California. — People v. Oliver, (App. 
 1908) 95 Pac. 172. 
 
 Georgia. — City Electric Ry. Co. v. 
 Smith, 121 Ga. 663, 49 S. E. 724 
 (1905); Cent. R. Co. v. Phillips, 91 
 Ga. 526 ( 1893 ) ; City Bank v. Kent, 
 57 Ga. 285 (1876). 
 
 Indiana. — Xenia, etc., Co. v. Macy, 
 147 Ind. 568, 47 N. E. 147 (1896). 
 
 Missouri. — State v. Whitworth, 126 
 Mo. 573, post 800 (1894). 
 
 Texas. — Johnican v. State, 48 S. W. 
 181 (1898). 
 
 Virginia. — Jackson v. Com., 96 Va. 
 107, 30 S. E. 452 (1898). 
 
 2. State P. Brookshire, 2 Ala. 303 
 (1841) ; Wisener v. Maupin, 2 Baxt. 
 (Tenn.) 342, 357 (1872); Powell v. 
 State, 13 Tex. App. 244 (1882) ; State 
 v. Ward, 61 Vt. 153, 179, 17 Atl. 483 
 (1888) (not employed on case). 
 This has been said to be a matter ol 
 discretion and not as of right. Powell 
 V. State, 13 Tex. App. 244, 252 (1882). 
 An attorney appearing simply as a 
 witness may bo granted a similar 
 privilege of remaining, although the 
 other witnesses have been placed un- 
 der the rule. Mitchell v. State, (Tex. 
 Cr. App. 1908) 114 S. W. 830. 
 
 No express exception need be made 
 in the case of an attorney or counsel. 
 It will be implied. Powell v. State, 
 13 Tex. App. 244 (1882) ; Gregg v. 
 State, 3 W. Va. 705 (1869). See also 
 to the same effect, Bischoff v. Com., 
 29 Ky. Law Rep. 770, 96 S. W. 538 
 (1906). 
 
 The English attorney, having no 
 relation to the trial as an officer of 
 the court, stands in the same position 
 as other persons, in respect to an 
 
§ 194 
 
 COUET AND JUKY; COUKT. 
 
 9.V3 
 
 and counsel, 3 form, as a rule, an exception to the operation 
 of the order, but the party 4 and other .persons necessary to protect 
 his interest in the management of the trial, 5 also are permitted 
 to remain in the courtroom. 6 
 
 Corporations as parties come under the same administrative 
 indulgence. Its officers, e. g., a president, 7 so far as, in the opinion 
 of the judge, 8 their presence shall be reasonably necessary to pro- 
 tect the interest of the company, will be allowed to remain. 
 
 order of separation. Though intend- 
 ing to testify, he may however be, in 
 many cases excepted from an order 
 for separation, as a person necessary 
 to the conduct of the trial. Pomeroy 
 v. Baddeley, R. & M. 430 (1826); 
 Everett v. Lowdham, 5 C. & P. 91 
 (1831). 
 
 3. Boatmeyer v. State, 31 Tex. Cr. 
 473, 20 S. W. 1102 (1893); Powell 
 r. State, 13 Tex. App. 244 (1882); 
 Pomeroy v. Baddeley, R. & M. 430 
 (1826) ; Everett v. Lowdham, 5 Carr. 
 & P. 91 (1831). The rule is not mod- 
 ified by the fact that the accused is 
 ably represented by other counsel. 
 Jackson v. State, (Tex. Cr. App. 
 1908), 115 S. W. 262. 
 
 4. Seaboard Air-Line Ry. V. Scar- 
 borough, (Fla. 1906) 42 So. 706. The 
 rule allowing parties to remain ex- 
 tends to a case where there are sev- 
 eral parties who may hear the testi- 
 mony of each other. Georgia R. & 
 Banking Co. v. Tice, 124 Ga. 459, 52 
 S. E. 916 (1905). 
 
 5. Ryan v. Couch, 66 Ala. 244, 248 
 (1880) (father of absent plaintiff); 
 Central R. Co. v. Phillips, 91 Ga. 526, 
 527, 17 S. E. 952 (1893); Betts v. 
 State, 66 Ga. 508 (1881); Indian- 
 apolis Cabinet Co. v. Herrmann, 7 Ind. 
 App. 462 (1893). See also: 
 
 Indiana. — Xenia, etc., Co. V. Macy, 
 147 Ind. 568, 577, 47 N. E. 147 
 (1896). 
 
 Kentucky. — Matthews' Adm'r v. 
 Louisville & N. R. Co., 113 S. W. 
 459 (1908). 
 
 Michigan. — People v. Machen, 101 
 Mich. 400, 59 N. W. 664 (1894) 
 (officer during evidence of another 
 officer ) . 
 
 Texas. — Jacobs v. State, 59 S. W. 
 1111 (1900) (interpreter). 
 
 United States. — The Bark Havre, 
 1 Ben. 295, 308 (1867) (master of 
 vessel, owner's agent ) . 
 
 England. — R. r. O'Brien, 7 State 
 Tr. (U. S.) 1, 45 (1848) (witness 
 reporting the evidence for the prosecu- 
 tion) ; Pomeroy v. Baddeley, R. & M. 
 430 (1826) (English attorney). 
 
 6. Thus the judge may properly 
 permit a brother of a person accused 
 of crime to remain in the court room 
 and assist in the defense. May v. 
 State, 94 Ga. 76 (1894). So also of 
 the wife and daughter of one accused 
 of crime. State r. Pell, (Iowa 1909) 
 119 N. W. 154. On the other hand, 
 if an accused person says that he 
 may need to use his wife as a wit- 
 ness, she may properly he placed un- 
 der the rule of exclusion from the 
 court-room. Bowmer v. State, (Tex. 
 Cr. App. 1909) 116 S. W. 798. 
 
 7. Warden v. Madisonville, H. & E. 
 R. Co., 101 S. W. 914, 31 Ky. L. 
 Rep. 234 (1907). 
 
 8. Trotter r. Town of Stayton, (Ore. 
 1904) 77 Pac. 395. As between its 
 president and vice-president the cor- 
 poration may properly be called upon 
 to elect whom it would prefer. At- 
 lanta Terra Cotta Co. r. Georgia, Ry. 
 & Electric Co., 132 Ga. 537, 64 S. E. 
 563 (1909). A municipal corporation 
 occupies a similar position. Thus, a 
 city recorder may be excluded al- 
 though it is asked that he be per- 
 mitted to remain to assist counsel. 
 Trotter p. Town of Stayton, (Or. 
 1904) 77 Pac. 395. 
 
253 
 
 Peksoxs Excepted from Oedee. 
 
 § 194 
 
 Court officers? jurors, 10 and parties, 11 are equally privileged to 
 remain. 
 
 9. Johnican v. State, (Tex. Cr.) 
 48 S. W. 181 (1898) (clerk of court); 
 State v. Loekwood, 58 Vt. 378, 3 Atl. 
 539 (1886) (deputy sheriff); State 
 V. Hopkins, 50 Vt. 316, 322 (1877) 
 (sheriff ) . See also People r. Oliver, 
 (Cal. App. 1908) 95 Pac. 172 (offi- 
 cer assisting prosecution). 
 
 10. State v. Vari, 35 S. C. 175, 14 
 S. E. 892 (1891). 
 
 11. Alabama. — Ryan v. Oouch, 66 
 Ala. 244, 248 (1880). 
 
 California. — Chester v. Bower, 55 
 Cal. 46, 48 (1880). 
 
 Indiana. — Cottrell v. Cottrell, 81 
 Ind. 87 (1881) (guardian suing in 
 representative capacity). 
 
 Kentucky. — Kentucky Lumber Co. 
 r. Abney, 31 S. W. 279 (1895). 
 
 Michigan. — Mcintosh r. Mcintosh, 
 79 Mich. 198, 203, 44 N. W. 592 
 (1890). 
 
 Mississippi. — Garman v. State, 66 
 Miss. 196 (1888) ; French v. Sale, 63 
 Miss. 386 (1885). 
 
 North Carolina. — State v. Kelly, 
 97 N. C. 404 (1887). 
 
 Oregon. — Schneider v. Haas, 14 
 Oreg. 174, 58 Am. Rep. 296 (1886). 
 
 Tennessee. — Richards v. State, 91 
 Tenn. 723, 20 S. W. 533 (1892). 
 
 England. — Selfe v. Isaacson, 1 F. & 
 F. 194 (1858); Constance v. Brain, 
 2 Jur. N. S. 1145 (1856). 
 
 Canada. — Bird v. Veith, 7 Brit. 
 Col. 31 (1899); Sivewright V. Sive- 
 wright, 8 Ont. Pr. 81 (1879). The 
 officer of a corporation which is a 
 party does not thereby himself acquire 
 the rights of a party. Kentucky Lum- 
 ber Co. v. Abney, 31 S. W. 279 (1895). 
 But the rule is otherwise where the 
 presence of the officer is necessary to 
 the proper conduct of the trial and 
 he has been delegated by the corpora- 
 tion to look after its interest. Lenoir 
 Car Co. v. Smith, 100 Tenn. 127, 42 
 S. W. 879 (1897). A principal bene- 
 ficiary under a will is a party, within 
 the meaning of this rule. Heaton v. 
 
 Dennis, 103 Tenn. 155, 52 S. W. 175 
 (1899). 
 
 Parties in interest are within the 
 equity of the exception. They will be 
 allowed to remain, first, strictly speak- 
 ing as parties, at least as persons in 
 charge, as domini litis, whose presence 
 is necessary to an adequate presenta- 
 tion of the case. Ryan v. Couch, 66 
 Ala. 244 (1880); Chester v. Bower, 
 55 Cal. 46 (1880); Shew V. Hews, 
 126 Ind. 474, 26 N. E. 483 (1890); 
 Larue v. Russell, 26 Ind. 386 (1866). 
 
 The marked degree to which parties 
 are exposed to the temptations to 
 perjury and general falsity in testi- 
 mony which separation seeks to min- 
 imize, has not, however, escaped at- 
 tention. Salisbury v. Com., 79 Ky. 
 425, 432 ( 1881 ) ; Wisener v. Maupin, 
 2 Baxt. (Tenn.) 342, 357 (1872). 
 In pursuance of this line of thought 
 it has been held that parties stand 
 on the same position as other wit- 
 nesses and should be equally subject 
 to exclusion. 
 
 Arkansas. — Randolph v. McCain, 
 34 Ark. 696 (1879). 
 
 Georgia. — Tift v . Jones, 52 Ga. 538, 
 540, 542 (1874). 
 
 Kentucky. — Salisbury v. Com., 79 
 Ky. 425, 432 (1881). 
 
 Tennessee. — Wisener v. Maupin, 2 
 Baxt. 342, 356 (1872). 
 
 England. — Penniman v. Hill, 24 
 W. R. 245 (1876), In other juris- 
 dictions, special facts are held to 
 justify an order excluding a party. 
 Cullverwell v. Birney, 10 Ont. Pr. 575 
 (1885). On the other hand, the pres- 
 ence of a party is frequently essential 
 to enable his counsel to conduct the 
 trial intelligently and it is the client's 
 right to protect his own interests 
 when involved in litigation. Char- 
 nock v. Dewings, 3 C. & K. 378 (1853). 
 This, as stated in the text, has shown 
 itself to be the approved line of 
 reasoning. As a method of reconciling 
 the party's right to direct the manage- 
 
194 
 
 Court and Jury; Court. 
 
 254: 
 
 In criminal cases, the exemption from the order of separation 
 applies also to prosecutors 12 and defendants. 13 Public officers, 14 
 medical 15 or other experts, and, indeed, any witness 16 or class of 
 witnesses may he excepted from the order by express action of the 
 
 ment of his case with the desire to 
 minimize the influence of improper 
 motive, the valuable suggestion has 
 been offered that the party remain 
 but testify first of all the witnesses 
 on his side. Tift r. Jones, 53 Ga. 
 538, 542 (1874). 
 
 It has even been held that the ex- 
 clusion of a party violates a funda- 
 mental right and is therefore ground 
 for a new trial. Mcintosh v. Mcin- 
 tosh, 79 Mich. 198, 44 N. W. 592 
 (1890); Garman v. State, 66 Misc. 
 196 (1888) ; Schneider v. Haas, 14 
 Oreg. 174 (1886). 
 
 12. Coolman v. State, (Ind. 1904) 
 72 N. E. 568 ; State v. Whitworth, 196 
 Mo. 573, 29 S. W. 595 (1894) (father 
 of prosecutrix in rape) ; Hainea v. 
 Terr., 3 Wyo. 167 (1887). But see 
 to the contrary, Salisbury v. Com., 
 79 Ky. 425, 432 (1881). The court, 
 while giving the prosecuting <aittorney 
 the benefit of the assistance to be 
 rendered by the prosecutor, may prop- 
 erly require the latter to testify as 
 the first witness. Smartt r. State, 
 (Temn. 1904) 80 S. W. 586. 
 
 13. Of two persons jointly charged 
 with crime, each proposing to testify 
 for himself, neither can be excluded 
 during the examination of the other. 
 Richards v. State, 91 Tenn. 723, 30 
 Am. St. 907 (1892). 
 
 14. Webb i'. State, 100 Ala. 47, 52, 
 14 So. 865 (1893) (sheriff); People 
 v. Garnett, 29 Cal. 622 (1866) (chief 
 of police. See also People v. Kunley, 
 142 Cal. 441, 76 Pae. 45 (1904) 
 (sheriff) ; Asken v. State, 3 Ga. App. 
 79, 59 S. E. 311 (1907); (sheriff); 
 Powell i\ State, (Tex. Cr. App. 
 1907) 99 S. W. 1005 (court officers) ; 
 Sax v. State, (Tex. Cr. App. 1903) 
 79 S. W. 578 (deputy sheriff). 
 Though the form of the order of sep- 
 aration is, as a. rule, discretionary, 
 the action of a trial judge may be 
 
 reversed in ease of abuse. Smith v. 
 State, (Tex. Cr. App. 1907), 105 S. 
 W. 501 (city marshal) . 
 
 15. Vance v. State, 56 Ark. 402, 19 
 S. W. 1066 (1892) (insanity); State 
 V. Baptiste, 26 La. Ann. 134, 136 
 (1874); Johnson v. State, 10 Tex. 
 App. 571, 577 (1881). But see also 
 Vance r. State, 56 Ark. 402, 19 S. W. 
 1066 (1892) ; Central R, B. & B. Co. 
 r. Phillips, 91 Ga. 526, 17 S. E. 952 
 ( 1893 ) ; Leache v. State, 22 Tex. App. 
 279 (1886). 
 
 On the other hand, the court may, 
 in its discretion, place a medical wit- 
 ness, under the rule, even where he 
 desires to hear the evidence of a par- 
 ticular witness, and to testify in re- 
 gard to it. Atlantic & B. By. Co. v. 
 Johnson, 127 Ga. 392, 56 S. E. 482 
 (1907). 
 
 16. May v. State, 94 Ga. 76 (1894) ; 
 Hinkle V. State, 94 Ga. 595 (1894) ; 
 State v. Whitworth, (Mo. 1895) 29 
 S. W. 595; Cook v. State, 30 Tex. 
 App. 607 (1892). See also: 
 
 Alabama. — Brooks v. State, 41 
 So. 156 (1906). 
 
 Florida. — Sylvester v. State, 35 So. 
 142 (1903) (detective). 
 
 Kentucky. — Joseph v. Com., 30 Ky. 
 L. Rep. 638, 99 S. W. 311 (1907). 
 
 Louisiana. — State v. Hogan, 117 
 La. 863, 42 So. 352 (1906) ; State v. 
 Forbes, 111 La. 473, 35 So. 710 
 (1903) (expert). 
 
 Nebraska. — Maynard v. State, 116 
 N. W. 53 (1908). 
 
 The judge may allow a witness to 
 remain for the purpose of assisting 
 the prosecuting attorney. Greer p. 
 Com., 85 S. W. 166, 27 Ky. L. Rep. 
 333 (1905). Deputy sheriffs may be 
 excused from an order to enable them 
 to wait on the court. Kennon v. 
 State, (Tex. Cr. App. 1904) 82 S. 
 W. 518. 
 
255 Enforcement of Order by Court Officers. § 195 
 
 court or agreement of parties. 17 If persons reasonably necessary to 
 the orderly conduct of the case are 18 not expressly excluded from 
 the scope of the order, but nevertheless remain in court contrary to 
 its terms, the presiding judge may ratify and sanction their ac- 
 tion, in this respect, thus placing them in a position equivalent 
 for administrative purposes to a previous exemption. 
 
 Such exemption is matter of administration. Al party has no 
 right to insist that his expert 19 or other special witnesses, or even 
 the members of his immediate family, 20 be allowed to remain. 
 
 § 195. (Functions of Judicial Office; Administrative; 
 Separation of Witnesses); Enforcement of the Order. — A wit- 
 ness " under the rule " is not, unless specially permitted, at liberty 
 to remain in the courtroom after giving his testimony. 1 It may 
 be necessary to require his evidence again as a witness at a later 
 stage of the trial; to permit him to hear the testimony of others 
 whom he may be asked to refute is, therefore, within the mischief 
 which separation seeks to prevent. The judge's order is at times, 
 especially in cases of magnitude, enforced by the sheriff. 2 The 
 parties may furnish the latter with a list of the witnesses to enable 
 him to see that they withdraw from the courtroom. 3 But a party 
 is not under obligation to do so. 4 Where the list is not furnished, 
 or in case of witnesses who for any reason have not been placed on 
 it, it is the duty of each party to see that the witnesses whom he 
 proposes to have sworn do not enter the courtroom before they are 
 
 17. Alabama. — Hall v. State, 137 Virginia. — Jackson v. Com., 96 Va. 
 
 Ala. 44, 34 So. 681 (1902). 107, 30 S. E. 452 (1898). 
 
 California. — People v. Sam Lung, 18. Shaw v. State, 102, Ga. 660, 29 
 
 70 Cal. 515, 11 Pac. 673 (1886). S. E. 477 (1897) (two witnesses as- 
 
 Oeorgia. — Kelly v. State, 45 S. E. sisting in the prosecution). 
 
 413 (1903) ; Keller v. State, 102 Ga. 19. Roberts v. State, 122 Ala. 47, 25 
 
 506, 31 S. E. 92 (1897) ; Carson v. So. 238 (1898) ; Atlantic & B. Ry. Co. 
 
 State, 80 Ga. 170 (1887). v. Johnson, 127 Ga. 392, 56 S. E. 482 
 
 Hawaii. — Republic t*. Tsunikichi, (1907). State v. Forbes, 111 La. 473, 
 
 11 Haw. 341, 344 (1898). 35 So. 710 (1903). 
 
 Indiana. — Johnson v. State, 2 20. McGuff v. State, 88 Ala. 147, 
 
 Ind. 652 (1851). 150, 7 So. 35 (1889); May v. State, 
 
 Louisiana. — State V. Ford, 37 La 94 Ga. 76 (1894) (brother); Hinkle 
 
 An. 443, 463 (1885). v. State, 94 Ga. 595, 21 S. E. 595 
 
 Missouri. — State v. Hughes, 71 Mo. (1894) ; Bond v. State, 20 Tex. App. 
 
 633,636 (1880). 437 (1886). 
 
 Texas. — Buchanan v. State, 52 S. 1. Roach v. State, 41 Tex. 261, 263 
 
 W. 769 (1899). (1874). 
 
 Utah.— People v. O'Loughlin, 3 2. Hey v. Com., 32 Gratt. (Va.) 
 
 Utah 133, 1 Pac. 653 (1881). 946, 34 Am. R. 799 (1879). 
 
 Vermont. — State v. Hopkins, 50 3. Anon., 1 Hill (S. C.) 251 (1833) 
 
 Vt. 316, 322, 332 (1877). 4. Anon., 1 Hill (S. C.) 251 (1833). 
 
§ 195 Couet and Juky; Couet. 256 
 
 called to testify. 5 A more usual course is to require counsel to 
 state to the judge the names of the witnesses to be affected in the 
 order and for the judge to direct the sheriff as to the time at which 
 their appearance will be required in court for the purpose of testi- 
 fying, and as to the other particulars of the order. 6 
 
 Administrative Details. — In details much must be decided as 
 a question of administration. 7 The particulars of the order are 
 within the administrative function of the presiding judge even in 
 jurisdictions where the separation itself is demandable as of right. 8 
 Variations in the practice are naturally to be expected. 9 Thus, in 
 West Virginia, the application must be accompanied by an affi- 
 davit in support. 
 
 A common practice is for the judge merely to announce from 
 the bench that certain witnesses are directed to withdraw. The 
 effect of their failure to do so, or of their returning to the 
 courtroom before being called for the purpose of testifying, 10 
 or of their conversing or consulting with other witnesses or 
 third persons, either while the trial is actually going on or during 
 adjournment, 11 may be, and usually are also stated to them. It 
 is within the administrative powers of the court to decline to allow 
 
 5. Anon., 1 Hill (S. C.) 251, 254 & Iron Co. V. Smith, 40 So. 91 
 (1833). (1905) ; Jarvis r. State, 138 Ala. 17, 
 
 6. Golden v. State, 19 Ark. 590 598 34 So. 1025 (1902). 
 
 (1858). Arkansas. — Pleasant v. State, 15 
 
 7. Com. v. Hersey, 2 Allen (Mass.) Ark. 624 (1855). 
 
 173, 176 (1861) (whether witnesses California. — People i: Sam Lung, 
 
 should be permitted to read the daily 70 Cal. 515 (1886). 
 
 papers) ; Nelson v. State, 2 Swan Georgia. — Pergason r. Etcherson, 
 
 (Tenn.) 237, 256 (1852) (whether 91 Ga. 785, 787, 18 S. E. 29 (1893); 
 
 witnesses should be looked up or Grant v. State, 89 Ga. 393, 12 S. E. 
 
 merely kept out of the courthouse; 1065 (1892). 
 
 whether they could separate for Illinois. — ■ Goon Bow r. People, 
 
 meals). The judge may properly 160 111. 438, 43 N. E. 593 (1896) ; 
 
 permit a witness placed under the Bullinger i\ People, 95 111. 394 
 
 rule to return to the court-room. (1880). 
 
 State v. High, 122 La. 521, 47 So. Indiana.— Jackson v. State, 14 Ind. 
 
 878 (1908). 327 (1860); Porter v. State, 2 Ind. 
 
 8. Nelson v. State, 2 Swan (Tenn.) 435 (1851). 
 
 237,257 (1852). Kentucky.— Crenshaw v. Gardner, 
 
 9. Gregg v. State, 3 W. Va. 707, 25 Ky. Law Bep. 506, 76 S. W. 26 
 709 (1869); Cook's Trial, 13 How. (1903) ; Gilbert r. Com., Ill Ky. 793, 
 St. Tr. 311, 348 (1696). 64 S. W. 846 (1901). 
 
 10. Golden v. State, 10 Ark. 590, Louisiana. — State v. Jones, 47 La. 
 598 (1858). Ann. 1524, 18 So. 515 (1895); State 
 
 11. Broyles v. Prisock, 97 Ga. 643, r. Hagan, 45 La. Ann. 839 (1893) ; 
 25 S. E. 389 (1895). State l\ Hagan, 45 La. Ann. 839 
 
 12. Alabama.— Sloss-Sheffield Steel (1893). 
 
257 
 
 Consequences of Disobedience to Oedee. § 196 
 
 the offending witness to testify, 12 though it is also within his power 
 to receive the evidence. 13 
 
 § 196. (Functions of Judicial Office; Administrative; 
 Separation of Witnesses); Consequences of Disobedience — 
 
 Where an express order of separation has been made 1 and a wit- 
 ness, though aware of its terms and that it applies to himself, 2 will- 
 Mississippi. — Taylor v. State, 30 So. Kentucky. — Carlton v. Com. 18 S. 
 657 (1901). W. 535 (1892). 
 
 Missouri. — State v. David, 131 Mo. 
 380, 33 S. W. 23 (1895); State V. 
 Fitzsimmons, 30 Mo. 23G (1860). 
 
 New Mexico. — Trujillo v. Terr., 30 
 Pac. 870 (1892). 
 
 Ohio. — Laughlin v. State, 18 Oh. 
 99 (1849). 
 
 Texas.— King v. State, 29 S. W. 
 1086 (1895); Hill V. State, 22 Tex. 
 App. 579, 3 S. W. 764 (1886). 
 
 Virginia. — Hey v. Com. 32 Gratt. 
 946 (1879). 
 
 United States. — Holder v. TJ. S., 
 150 U. S. 91, 14 Sup. 10 (1893). 
 
 England. — Young v. Young, 1 P. E. 
 Isl. 69 (1854) (party); Thomas v. 
 David, 7 C. & P. 350 (1836) ; Parker 
 v. Williams, 4 M. & P. 480, 6 Bing. 
 683, C. P. (1830); R. v. Oolley, 
 M. & M. 329 (1829). 
 
 Canada. — Winter v. Mixer, 10 U. C. 
 Q. B. 110 (1852). " Whether his evi- 
 dence should be excluded or not, must 
 depend upon circumstances." Bell r. 
 State, 44 Ala. 393 (1870). 
 
 Unless fundamental rights are dis- 
 regarded the exercise of the court's 
 power will not be reversed; i. e., the 
 discretion, as is said, has not been 
 abused. 
 
 Alabama. — Webb v. State, 100 Ala. 
 47 (1893) ; Wilson v. State, 52 Ala. 
 299 (1875). 
 
 California. — People V. Boscovitch, 
 20 Cal. 436 (1862). 
 
 Georgia. — Lassiter V. State, 67 Ga. 
 739 (1881). 
 
 Illinois. — Errissman v. Errissman, 
 25 111. 136 (1860). 
 
 Indiana. — Jackson v. State, 14 Ind. 
 327 (1860). 
 
 Kansas. — Davenport v. Ogg, 15 
 Kan. 363 (1875). 
 
 Vol. I. 17 
 
 Nebraska. — Murphey v. State, 43 
 Neb. 34 (1894). 
 
 Texas. — Cook v. State, 30 Tex. App 
 607 (1892). 
 
 Wyoming. — Haines v. Terr., 3 Wyo. 
 168 (1887) (reviewable in case of 
 gross abuse). It follows that, in or- 
 der to obtain reversal, the evidence 
 excluded must be shown to have been 
 material. Trujillo v. Terr., (N. M.) 
 30 Pac. 870 (1892). Whether the ex- 
 ercise of this administrative power is 
 judicious will not be considered. 
 Errissman v. Errissman, 25 111. 136 
 (1860). It has even been held that 
 the appellate court has no power to 
 revise the action. Wilson v. State, 52 
 Ala. 299 (1875) ; Jackson v. State, 
 14 Ind. 327 (1860). 
 
 13. Sharpton v. Augusta & A. Ry. 
 Co., 72 S. C. 162, 51 S. E. 553 (1905) . 
 
 1. R. v. Fursey, 3 State Tr. (N. S.) 
 543, 564 (1833). 
 
 2. A bystander unexpectedly called 
 upon to testify after the making of 
 an order is not excluded from the wit- 
 ness stand by reason of his previous 
 presence in the court room. Laughlin 
 v. State, 18 Oh. 99 (1849); Smith 
 v. State, 4 Lea (Tenn.) 428 (1880). 
 See also Parker v. Com., (Ky.) 51 S. 
 W. 573 (1899) (codefendant) ; Rum- 
 mel o.State, 22 Tex. App. 558 (1886). 
 The same practice has been applied 
 to a newspaper reporter. State v. 
 Benjamin, (R. I. 1908) 71 Atl. 65. 
 
 The primary obligation being on 
 the party 'asking for a separation to 
 see that notice is given the witnesses, 
 a, failure to provide that such notice 
 should be given may excuse a viola- 
 tion on the part of a witness sum- 
 moned by his opponent. 
 
197 
 
 COUET AND JUKY; COUET. 
 
 258 
 
 fully 3 violates it, by listening to the evidence of the other wit- 
 nesses as given in court, either before he has testified or after* 
 he has himself testified; or mingling with persons who have heard 
 the other witnesses, 6 he is in contempt of court and ready to be 
 dealt with by the presiding judge as seems just and proper under 
 the particular circumstances of the case. 
 
 § 197. (Functions of Judicial Office; Administrative; Sepa- 
 ration of Witnesses); Party's Relation to Violation How the 
 
 court will exercise its power of excluding an offending witness 
 depends largely on the relation which the party himself sustains 
 to the act of his witness. If the disobedience is not only wilful 
 on the part of the witness, but is aided and abetted by a party 1 or 
 
 In ease, however, of one of his own 
 witnesses, the burden has been laid on 
 the party, if he desires the testimony 
 of the witness, to show either (1) 
 some reason or excuse for not having 
 complied with the order of the court 
 placing the witness under the rule ; or, 
 (2) that the testimony of the wit- 
 ness is highly material to his side of 
 the case. Trujillo v. Terr., (N. M. 
 1892) 30 Pac. 870. 
 
 This result of disobedience should, 
 however, have been stated to the wit- 
 nesses when the order was made, if the 
 violation is to be deemed wilful. Bird 
 v. State, 50 Ga. 585 (1874). 
 
 3. An inadvertent violation without 
 connivance by the party is not ground 
 for exclusion. State v. Sumpter, 153 
 Mo. 436, 55 S. W. 76 (1899) ; Clem- 
 mons v. Clemmons, (Nebr.) 96 N. W. 
 404 (1901) ; Pile v. State, 107 Tenn. 
 532, 64 S. W. 476 (1901). The rule 
 is the same when, at the time the or- 
 der is made, the party did not know of 
 the existence of the particular wit- 
 ness (Smith v. State, 4 Lea 428, 430 
 [1880] ) or where, for some other rea- 
 son, the witness was not placed on the 
 list. State v. Sparrow, 3 Murph. ( N. C. ) 
 487 (1819). See also Taylor v. State, 
 132 Ga. 236, 63 S. E. 1116 (1909). 
 
 4. Sartorius v. State, 24 Miss. 602 
 (1852). 
 
 5. Porter v- State, 2 Ind. 435 
 (1851). 
 
 1. California. — People v. Boscovitch 
 20 Cal. 436 (1862). 
 
 Georgia. — Cunningham v. State, 97 
 Ga. 214, 22 S. E. 954 (1895). 
 
 Iowa. — Grimes v. Martin, 10 Iowa 
 347, 349 (I860). 
 
 Kansas. — Davenport v. Ogg, 15 
 Kan. 363 (1875). 
 
 Kentucky. — Crenshaw v. Gardner, 
 76 S. W. 26 (1903). 
 
 Maryland. — Parker v. State, 67 Md. 
 329, 331, 10 Atl. 219 (1887). 
 
 Mississippi. — Ferguson v. Brown, 
 75 Miss. 214, 21 So. 603 (1897). 
 
 Missouri. — State v. Gesell, 124 Mo. 
 531, 536, 27 S. W. 1101 (1894). 
 
 Nebraska. — Mangold •». Oft, 63 
 Nebr. 397, 88 N. W. 507 (1901). 
 
 Nevada. — State V. Salge, 2 Nev. 
 321, 326 (1866). 
 
 North Carolina. — State v. Sparrow, 
 3 Murph. 487 (1819). 
 
 Tennessee. — Woods v. McPheran, 
 Peck 371 (1824). 
 
 Virginia. — Com. v. Brown, 90 Va. 
 671, 675, 19 S. E. 447 (1894). 
 
 West Virginia. — Gregg v. State, 3 
 W. Va. 705 (1869). "In some cases, 
 to do so (exclude the evidence) would 
 be the just deserts of the party call- 
 ing him." Bell V. State, 44 Ala. 393 
 (1870). 
 
 The burden of showing the collusion 
 lies on the party seeking to exclude 
 the evidence. Davenport v. Ogg, 15 
 Kan. 363 (1875). 
 
259 
 
 Non-conniving Party not to be Punished. § 197 
 
 his counsel, 2 the right and propriety 3 of refusing to hear the evi- 
 dence of the witness is undoubted, and would in many instances 
 he exercised. 4 Where the party is himself without fault in the 
 matter, to exclude a guilty witness is in reality to punish an inno- 
 cent person, 5 or enable one of his witnesses to do so; and, at the 
 same time, avoid the possibly unwelcome or irksome task of 
 testifying at all. 6 Under the practical conditions of a trial, a party 
 can usually exercise but little control over the movements of his 
 
 2. Bird v. State, 50 Ga. 585, 589 
 (1874); Com. v. Crowley, 168 Mass. 
 121, 46 N. E. 415 (1897). 
 
 A fine is not a sufficient penalty 
 in all cases to compensate a party who 
 has been wilfully deprived of the ad- 
 vantage of the separation of his an- 
 tagonist's witnesses. Bird v. State, 
 50 Ga. 585 (1874). 
 
 3. Dyer v. Morris, 4 Mo. 214 
 (1835); Trujillo v, Terr., (N. M. 
 1892), 30 Pac. 870. 
 
 As a matter of legal principle, 
 however, it would seem that the court 
 should not exclude an essential wit- 
 ness, unless the circumstances attend- 
 ing the offense are such that the court 
 is justified in saying that the neces- 
 sary inferences arising from them pre- 
 vent the jury in point of reason from 
 finding in the party's favor. Any 
 other rule makes a contempt of court 
 deprive a. party of his fundamental 
 right to a trial of his cause in due 
 form of law. Infra, §§' 333 et seq. 
 " It might well be questioned ( in 
 case of an inflexible rule to exclude 
 in cases of violation of the order) 
 whether it would not be sounder 
 policy to sacrifice the practice alto- 
 gether, rather than endanger more 
 vital principles." Keith v. Wilson, 6 
 Mo. 435, 441 (1840) ; State *. Gesell, 
 124 Mo. 531 (1894). 
 
 4. An important consideration in 
 determining the action of the trial 
 court should be that of mentally de- 
 termining how far the violation of the 
 order may be assumed to have affected 
 the outcome of the trial. 
 
 If the witnesses in question testify 
 
 as to a point on which the cause does 
 not turn but little harm may be ap- 
 prehended from their misconduct. 
 State v. Fitzsimmons, 30 Mo. 236 
 (1860). The result is the same where 
 the point covered by their testimony 
 is upon a matter capable of being 
 placed beyond doubt by the testimony 
 of other witnesses. State v. Fitz- 
 simmons, 30 Mo. 236 (1860). A still 
 stronger situation is presented against 
 exclusion where the witnesses do not 
 testify as to the same matters as do 
 those whose evidence they have im- 
 properly heard. Cook v. State, 30 Tex. 
 App. 607, 612 (1892). The rule of ex- 
 clusion has, however, been applied to 
 a witness testifying as to character. 
 Trujillo v. Terr., (N. M. 1892) 30 
 Pac. 870. 
 
 5. Alabama. — Bell v. State, 44 Ala. 
 393 (1870). 
 
 Missouri. — Keith v. Wilson, 6 Mo. 
 435 (1340). 
 
 North Carolina. — State v. Sparrow, 
 3 Murph. 487 (1819). 
 
 Oregon. — Hubbard v. Hubbard, 7 
 Oreg. 42 (1879). 
 
 Washington. — ■ State V. Lee Doon, 7 
 Wash. 308 (1893). 
 
 6. Keith v. Wilson, 6 Mo. 435, 441 
 (1840). "A hostile witness should 
 not have the power, by violating an 
 order of the court, to deprive an in- 
 nocent party of his testimony. Nor 
 should the ignorance, mistake, misap- 
 prehension, or inadvertence on the 
 part of the witness, have the effect to 
 deprive an innocent party of his testi- 
 mony." Davenport v. Ogg, 15 Kan. 
 363 (1875). 
 
§ 197 
 
 COTJKT AND JUEY; COURT. 
 
 260 
 
 witnesses. 7 Unless, therefore, the witnesses are placed under the 
 charge of a court officer, which is, as a rule, done only in causes of 
 magnitude, instances of violation of the court's order may well 
 occur without connivance of the party. 8 Under the fundamental 
 administrative principle that a party should have preserved to 
 him a fair opportunity of proving his case in the best way practi- 
 cally open to him, 9 a litigant should not, under the circumstances, 
 be deprived of evidence necessary to his side. 10 It is, therefore, 
 the practice, i. e., a customary exercise of judicial administration, 
 to receive the testimony of the offending witness, in the absence 
 of facts from which the inference of connivance by the party or 
 his counsel in the misconduct of the witness 11 can reasonably be 
 Scott, 18 Oh. 99 
 
 7. Laughlin v 
 (1849). 
 
 8. " When we consider the little 
 control that a party can have over his 
 witnesses; the little attention he is 
 likely to be able to give to their 
 movements; the crowds and the 
 confusion that generally exist during 
 exciting trials, rendering it impos- 
 sible, to note who are present; the 
 questions that may arise on the trial, 
 that could not be anticipated, and 
 which may require bystanders to be 
 called in as witnesses, who have been 
 present and heard the other witnesses 
 testify, — these and other considera- 
 tions which might be presented, render 
 it difficult, and we think impossible to 
 establish any general rule of exclusion 
 that would not in many cases deprive 
 parties of important and necessary 
 testimony, for the fair presentation of 
 their cause. Nor do we find that any 
 such rule has been established in the 
 United States.'' Laughlin v. State, 18 
 Oh. 99 (1849). 
 
 The reasoning may be still more co- 
 gent, where as in a criminal case, the 
 defendant, whose witnesses violate the 
 order, is in custody. People v. Bos- 
 covitch, 20 Cal. 436 (1862) ; State V. 
 Salge, 2 Nev. 321 (1866). 
 
 9. Infra, §§' 334 et seq. 
 
 10. Rooks v. State, 65 Ga. 330 
 (1880) ; Laughlin r. State, 18 Ohio 
 
 99 (1849) ; International & G. N. R. 
 Co. v. Hugen, (Tex. Civ. App. 1907) 
 
 100 S. W. 1000 (deaf witness) ; Black 
 V. Besse, 12 Ont. 522 (1886). 
 
 A new trial may, however, be 
 granted in the court's discretion. It 
 is not demandable as of right. State v. 
 Brookshire, 2 Ala. 303 (1841); Bul- 
 linger v. People, 95 111. 394 (1880); 
 Sartorious v. State, 24 Miss. 602 
 (1852) ; State v. Fitsimmons, 30 Mo. 
 236 (1860); Laughlin V. State, 18 
 Ohio, 99, 51 Am. Dec. 444 (1849). 
 
 11. Alabama. — Bell r. State, 44 
 Ala. 393 (1870). See also Degg v. 
 State, (Ala. 1907), 43 So. 484; Bra- 
 ham v. State, (Ala. 1905) 38 So. 919. 
 
 Arkansas. — Pleasant v. State, 15 
 Ark. 624 (1855). 
 
 California.— People v. Boscovitch, 
 20 Cal. 436 (1862). 
 
 Colorado. — Vickers r. People, 31 
 Colo. 421, 73 Pac. 845 (1903). 
 
 Georgia. — McWhorter r. State, 44 
 S. E. 873 ( 1903 ) ; Metropolitan St. R. 
 Co. v. Johnson, 90 Ga. 500, 16 S. E. 
 49 ( 1892 ) ; Lyman v. State, 69 Ga. 
 404 (1882). See also Green v. State, 
 125 Ga. 742, 54 S. E. 724 (1906); 
 Davis v. State, 120 Ga. 843, 48 S. E. 
 305 (1904); Phillips p. State, 121 
 Ga. 358, 49 S. E. 290 (1904). 
 
 Illinois. — Bullinger v. People, 95 
 111. 394 (1880). 
 
 Indiana. — Taylor V. State, 130 Ind. 
 66, 29 N. E. 415 (1891); State r. 
 Thomas, 111 Ind. 515, 13 N. E. 35 
 (1887). 
 
 Iowa. — State r. Kissock, 111 Iowa 
 690, 83 N. W. 724 (1900). See also 
 State r. Pell, (Iowa 1909) 119 N. XV. 
 154; State t\ Pray, (Iowa 1904) 99 
 N. VV. 1065. 
 
261 Testimony of Offending Witness Keceived. § 197 
 
 drawn. The weight of authority is said by the United States 
 Supreme Court 12 to be to that effect. 13 
 
 Kansas. — State v. Flack, 48 Kan. 
 146, 29 Pac. 1023 (1892). 
 
 Louisiana. — State v. Goodson, 116 
 La. 388, 40 So. 771 (1906). 
 
 Michigan. — People v. Piper, 112 
 Mich. 644, 71 N. W. 175 (1897). 
 
 Mississippi. — Illinois C. R. Co. v. 
 Ely, 35 So. 873 (1904). 
 
 Missouri. — State v. Fannon, 158 
 Mo. 149, 59 S. W. 75 (1900) ; O'Bryan 
 v. Allen, 95 Mo. 68 (1888). See also 
 State v. Welch, 191 Mo. 179, 89 S. 
 W. 945 (1905). 
 
 Nebraska. — Fouse v. State, 83 
 Neb. 258, 119 N. W. 478 (1909). 
 
 Nevada. — State v. Salge, 2 Nev. 
 321 (1866). 
 
 North Carolina. — State v. Sparrow, 
 3 Murph. (N. C.) 487 (1819). 
 
 Oklahoma. — Price v. TJ. S., (Or. 
 App. 1908) 97 Pac. 1056. 
 
 Oregon. — Hubbard v. Hubbard, 7 
 Oreg. 42, 47 (1879). 
 
 South Carolina. — Anon., 1 Hill (S. 
 C.) 254, 256 (1833). See also 
 Sharpton v. Augusta & A. Ry. Co., 
 72 S. C. 162, 51 S. E. 553 (1905). 
 
 Texas. — Caviness v. State, 42 Tex. 
 Cr. 420, 60 S. W. 555 (1901). See 
 also Con-ley v. State, (Cr. App. 1909) 
 116 S. W. 806; International & G. 
 N. R. Co. v. Hugen, (Tex. Civ. App. 
 1907), 100 S. W. 1000. 
 
 Utah. — People v. O'Laughlin, 3 
 Utah 133 (1881). 
 
 Virginia. — Hopper v. Com., 6 
 Gratt. (Va.) 684 (1849). 
 
 West Virginia. — Gregg v. State, 3 
 W. Va. 705 (1869). See also State 
 v. Stewart, (W. Va. 1908) 60 S. E. 
 591. 
 
 Washington. — State v. Lee Doon, 7 
 Wash. 308, 34 Pac. 1103 (1893). 
 See also Hendelman v. Kahan, 50 
 Wash. 247, 97 Pac. 109 (1908) ; 
 State v. Ilomaki, 40 Wash. 629, 82 
 Pac. 873 (1905). 
 
 Wisconsin. — Loose v. State, 97 N. 
 W. 526 (1903). 
 
 England. — Chandler v. Home, 2 M. 
 & Rob. 423 (1842); Cook v. Nether- 
 cote, 6 C. & P. 741 (1835) ; Doe v. 
 Cox, Cliff. El. C. 114 (1790). 
 
 Canada. — Mahoney v. Macdonnel, 9 
 Ont. 137 (1885) (coparty) ; Strach- 
 an v. Jones, 3 U. C. C. P. 253 (1853) ; 
 MoFarlane v. Martin, 3 U. C. C. P. 
 64 (1852). 
 
 The matter, however, is one within 
 the administrative power of the pre- 
 siding judge. Boyd v. State, (Ala. 
 1908) 45 So. 591; Talley v. State, 2 
 Ga. App. 395, 58 S. E. 667 (1907); 
 Crenshaw v. Gardner, 76 S. W. 26, 
 25 Ky. L. Rep. 506 (1903) ; Watters 
 v. State, (Tex. Cr. App. 1906) 94 
 S. W. 1038. Unless this discretion is 
 " manifestly " abused, the action will 
 not be reversed in an appellate court. 
 Talley v. State, 2 Ga. App. 395, 58 
 S. E. 667 (1907). It has even been 
 held that it is not a reasonable exer- 
 cise of discretion on the part of the 
 trial judge to deprive a party of a, 
 witness who has heard testimony in 
 violation of the excluding order, un- 
 less such party or his attorney is 
 in some way responsible for such 
 violation, or has connived at it, or 
 has knowingly permitted it without 
 objection. Palmer v. People, 112 111. 
 App. 527 (1904). See also, to the 
 same effect, Vickers u. People, 31 
 Colo. 491, 73 Pac. 845 (1903). The 
 objecting party will take nothing by 
 his objection if he has been aware 
 of the violation of the court's order 
 while it might have been prevented 
 or stopped and has failed to call the 
 judge's attention to it. Palmer v. 
 People, 112 111. App. 527 (1904). 
 
 In Louisiana it is said that the 
 right of exclusion, though well estab- 
 lished, " is seldom exercised in Amer- 
 ica.'' Hagan v. State, 45 La. Ann. 839 
 (1893). 
 
 12. Holder v. U. S. 150 U. S. 91 
 (1893). 
 
 13. There is authority to the effect 
 
197 
 
 Court and Juky; Coukt. 
 
 262 
 
 Per contra, even where connivance is not affirmatively shown, it 
 may well be claimed that it is clearly not the fault of the other 
 side that the witness should have offended and exclusion has been 
 deemed, in certain cases, fairer than that a party who had no possi- 
 ble right to interfere should be deprived, -pro tanto, of an impor- 
 tant preventive of collusion, an expedient in which may lie his sole 
 hope. It may well be considered, further, that connivance is ex- 
 tremely difficult to establish in most cases ; and that it is precisely 
 in the case where collusion is most to be apprehended and most 
 carefully concealed that the separation itself is of greatest value. 
 For these and similar reasons the disobedient witness has been, in 
 the court's discretion, excluded even if no connivance of the party 
 be shown. 14 
 
 that the witness must be admitted in 
 the absence of connivance. 
 
 California. — People r. Boscovitch, 
 SO Cal. 436 ( 1862 ) . 
 
 Colorado. — Behrman r. Terry, 31 
 Colo. 155, 71 Pac. 1118 (1903). 
 
 Indiana. — Taylor v. State, 130 Ind. 
 66 (1891). 
 
 Maryland. — Parker v. State, 67 Md. 
 329 (1887). 
 
 Nevada. — State v. Salge, 2 Nev. 321 
 (1866). 
 
 New Mexico. — Trujillo v. Terr., 30 
 Pac. 870 (1892). 
 
 Oregon. — Hubbard v. Hubbard, 7 
 Oreg. 42 (1879). 
 
 Virginia. — Com. v. Brown, 90 Va. 
 671 (1894). 
 
 Washington. — State v. Lee Doon, 7 
 Wash. 308 (1893). 
 
 England. — Chandler v. Home, 2 
 Moo. & Rob. 423 (1842) ; R. v. Boyle, 
 1 Lew. Cr. C. 325 (1829) ; Cobbett v. 
 Hudson, 1 E. & B. 11 (1852). And 
 also to the effect that, though the 
 right of exclusion is established, it 
 should be rarely exercised. Golden r. 
 State, 19 Ark. 590, 597 (1858). The 
 position seems a strong one where the 
 excluded evidence is of a crucial na- 
 ture. The " inferences against the 
 credibility of the evidence could sel- 
 dom destroy it so completely as to 
 authorize the court to refuse to al- 
 low the jury to act upon it. To ex- 
 
 clude the evidence is a violation of, the 
 party's fundamental right. Infra, 
 §§ 334 et seq. "It would be very 
 strange if he should forfeit this most 
 precious privilege by the misbehaviour 
 of a witness." Parker v. State, 67 
 Md. 329 (1887). This is especially 
 true in criminal cases. 
 
 California. — People v. Boscovitch, 
 20 Cal. 436 (1862). 
 
 Nevada. — State v. Salge, 2 Nev. 
 321 (1S66). 
 
 New Mexico. — Trujillo i>. Terr., 30 
 Pac. 870 (1892). 
 
 Virginia. — Com. v. Brown, 90 Va. 
 671 (1S94). 
 
 Washington. — State v. Lee Doon, 7 
 Wash. 303 (1893). " If the evidence of 
 such a witness would show the inno- 
 cence of a prisoner on trial for his 
 life, then the discretion of the judge 
 to admit or reject the testimony 
 amounts to a discretion to take the 
 prisoner's life or to spare it." Parker 
 V. State, 67 Md. 329 (1887). 
 
 14. Cardigan Case, 3 Doug. El. C, 
 2d ed., 174, 229 (1775). See also 
 Martin r. Com., 30 Ky. L. Rep. 1196, 
 100 S. W. 872 (1907). The question, 
 however, is in reality one entirely of 
 administration. Benjamin v. Stale, 
 (Ala, 1906) 41 So. 739; Sloss-Shef- 
 fleld Steel & Iron Co. r. Smith, (Ala, 
 1905) 40 So. 91; MoCullough v. State, 
 (Tex. Cr. App. 1906) 94 S. W. 1056. 
 
263 
 
 Violation a Peopeb Subject foe Comment. § 198 
 
 § 198. (Functions of Judicial Office; Administrative; Sepa- 
 ration of Witnesses); Proceedings against offending Witness. — 
 
 The witness, in any event, may himself be dealt with by the court, 
 as for a contempt. 1 
 
 Direct Punishment of Conniving Party. — If a party has aided 
 and abetted the offense, he may be treated in like manner, 2 
 whether deprived of the evidence of his witness or not, and, how- 
 ever innocent, must lose in the almost necessary diminution in 
 probative weight of the testimony of the witness.* 
 
 Comment by counsel upon the circumstance is entirely proper. 4 
 
 The rule of exclusion has been said 
 to be inflexible. Attorney-General v. 
 Bulpit, 9 Price 4 (1821) (sacred and 
 inflexible rule). It is conceded that 
 such is the rule in the English ex- 
 chequer. Parker v. McWilliams, 4 
 M. & P. 480, 6 Bing. C. P. 683 (1830). 
 
 1. Alabama. — Bell v, State, 44 Ala, 
 393, 395 (1870), 
 
 Arkansas. — Pleasant v. State, 15 
 Ark. 624 (1855). 
 
 California. — People v. Boscovitch, 
 20 Cal. 436 (1862). 
 
 Georgia. — Metropolitan St. R. Co. 
 V. Johnson, 90 Ga. 500 (1892). 
 
 Illinois. — Bullinger v. People, 95 
 111. 394 (1880). 
 
 Indiana. — State v. Thomas, 111 
 Ind. 515 (1887). 
 
 Iowa. — Grimes v. Martin, 10 Iowa, 
 347 (1860). 
 
 Kansas. — State v. Falk, 46 Kan. 
 498 (1891). 
 
 Louisiana. — Hagan v. State, 45 La. 
 Ann. 839 ( 1893 ) . 
 
 Mississippi. — Sartorious v. State, 
 24 Miss. 602 (1852). 
 
 Nevada. — State v. Salge, 2 Nev. 
 321 (1866). 
 
 North Carolina. — State v. Sparrow, 
 3 Murph. (N. C.) 487 (1819). 
 
 Ohio. — Laughlin v. State, 18 Ohio 
 99 (1849). 
 
 Oregon. — Hubbard v. Hubbard, 7 
 Oreg. 42 (1879). 
 
 Tennessee. — Woods v. McPheran, 
 Peck (Tenn.) 371 (1824). 
 
 Virginia. — Com. v. Brown, 90 Va. 
 671 (1894) ; Hopper v. Com., 6 Gratt. 
 (Va.) 684 (1849). 
 
 United States. — Holder v. TJ. S. 150 
 U. S. 91 (1893). " The better course 
 (where a party is innocent) would be 
 to punish him for contempt and ad- 
 mit his evidence." Bell v. State, 44 
 Ala. 393 (1870). 
 
 Fine and imprisonment may be im- 
 posed. Davenport v. Ogg, 15 Kan. 
 363 (1875). A reprimand from the 
 judge may also properly be given. 
 Trujillo v. Terr., (N. M. 1892) 30 
 Pac. 870. 
 
 2. Davenport v. Ogg, 15 Kan. 363 
 (1875). 
 
 Any person who procures or abets 
 such violation is guilty of contempt 
 of court. Davenport v. Ogg, 15 Kan. 
 363 (1875). 
 
 "The guilt of the party punished 
 must either come under the personal 
 and judicial cognizance of the court, 
 or it must be proved to the satisfac- 
 tion of the Court by evidence." Dav- 
 enport v. Ogg, 15 Kan. 363 (1875). 
 
 3. Taylor v. State, 130 Ind. 66 
 (1891). 
 
 4. Alabama. — State v. Brookshire, 
 2 Ala. 303 ( 1841 ) . 
 
 Arkansas. — Pleasant v. State, 15 
 Ark. 624 (1855). 
 
 Georgia. — Betts v. State, 66 Ga. 
 508 (1881). 
 
 Indiana. — Taylor v. State, 130 Ind. 
 66, 70, 29 N. E. 415 (1891), citing 
 State ex rel. v. Thomas, 111 Ind. 515 
 (1887); Burk V. Andis, 98 Ind. 59 
 (1884) ; Davis v. Byrd, 94 Ind. 525 
 (1883). 
 
 Iowa. — Grimes v. Martin 10 Iowa 
 347 (1860). 
 
199 
 
 Couet and Jury; Coukt. 
 
 264 
 
 The inference of bad faith is still more cogent in case of a party, 5 
 and the jury may be asked to consider his conduct in weighing 
 the evidence. 6 
 
 § 199. (Functions of Judicial Office; Administrative); Swear- 
 ing of Witnesses. — General Rule. — Where not regulated by stat- 
 ute the administration of the oaths imposed upon interpreters and 
 other witnesses takes place under the direction of the court. As 
 the sanction of truthfulness which the imposition of an oath seeks 
 to attain, consists in " laying hold of the conscience of the witness 
 and appealing to his sense of accountability," 1 it must be, so far 
 as possible, imposed in a form binding upon his conscience, or 
 such as to arouse his fear of punishment. 2 The duty of ascertain- 
 
 Kansas. — State v. Falk, 46 Kan. 
 498, 26 Pac. 1023 (1891) ; Davenport 
 v. Ogg, 15 Kan. 363 (1875). 
 
 Missouri. — Keith r. Wilson, 6 Mo. 
 435 (1840). 
 
 Nevada.— State v. Salge, 2 Nev. 321 
 (1866). 
 
 North Carolina. — State v. Sparrow, 
 3 Murph. 487 (1819). 
 
 Ohio.— McHugh v. State, 42 Ohio 
 St. 154, 158 (1884) ; Laughlin v. 
 State, 18 Ohio 99 (1849). 
 
 Oregon. — Hubbard v. Hubbard, 7 
 Oreg. 42 (1879). 
 
 Vermont. — State v. Lockwood, 58 
 Vt. 378 (1886). 
 
 Virginia. — Com. v. Brown, 90 Va. 
 671 (1894). 
 
 Washington. — State v. Lee Doon, 7 
 Wash. 308 (1893). 
 
 West Virginia.— Gregg v. State, 3 
 W. Va. 705, 713 (1869). 
 
 United States. — Holder V. U. S. 
 150 U. S 91 (1893). 
 
 England. — Chandler v. Home, 2 M. 
 & Rob. 423 (1842). 
 
 5. Laughlin v. State, 18 Oh. 99 
 (1849). 
 
 6. Davenport v. Ogg, 15 Kan. 363 
 (1875). 
 
 1. Clinton v. State, 33 Oh. St. 27 
 (per Ashburn J.) (1877). 
 
 2. Connecticut. — Curtiss v. Strong, 
 4 Day 55 (1809). 
 
 Illinois.— Gill v. Caldwell, 1 111. 53 
 (1822). 
 
 Massachusetts. — Com. v. Buzzell, 
 16 Pick. 153 (1834). 
 
 Tennessee. — Odle v. State, 6 Bax. 
 159 (1873); Doss v. Birks, 11 
 Humph. 431 (1850). 
 
 Vermont. — Arnold v. Arnold, 13 
 Vt. 362 (1841). 
 
 England. — R. v. Moore, 17 Cox C. 
 C. 458, 61 L. J. Mag. Cas 80 (1892) ; 
 Omychund v. Barker, 1 Atk. 21 
 (1744). " It has been the wisdom 
 of all nations to administer such 
 oaths as are agreeable to the notion 
 of the person taking." Omychund v. 
 Barker, 1 Atk. 50 (per Hardwicke L. 
 C.) (1744). 
 
 The modern purpose of the oath is 
 to call the attention of the witness to 
 God. Blackburn v. State, 71 Ala. 319 
 (1882) ; Curtiss v. Strong, 4 Day 
 (Conn.) 81, 56 (1809); Clinton V. 
 State, 33 Ohio, 27, 33 (1877). Its 
 ancient object was rather to direct 
 the attention of God to the witness. 
 
 Perjury may be committed by a 
 witness who has been sworn with a 
 form of oath not binding on his con- 
 science. State v. Whisenhurst, 2 
 Hawkes (N. C.) 458 (1823) ; Sells V. 
 Hoare, 1 Bing. 401 (1824). Physi- 
 cal inability, by reason of deafness, 
 to hear the words of an oath is not a 
 disqualification. Texas, etc., R. Co. V. 
 Reid (Tex. Civ. App. 1903) 74 S. W. 
 99. 
 A notary public, at common law, 
 
265 
 
 Belief in God Required at Common Law. 
 
 § 200 
 
 ing the nature of such an oath devolves upon the judge, as a pre- 
 liminary finding of fact, on voir dire; though he may delegate to 
 a party the duty of eliciting any facts necessary to his contention ; 3 
 and, in any event, counsel have the right to bring out by examina- 
 tion conducted by themselves, facts of advantage to their position ; 
 the burden of proof being on the party objecting to the competency 
 of the witness. 4 
 
 § 200. (Functions of Judicial Office; Administrative; Swear- 
 ing of Witnesses) ; Subjective Qualifications. — It has been deemed 
 necessary, however, at the common law, to require that the pro- 
 posed witness should "believe in God and future rewards and 
 punishments in the other world," 1 though it has been regarded as 
 
 had no authority, it is said, to ad- 
 minister an oath. Midland Steel Co. 
 v. Citizens' Nat. Bank, (Ind. App. 
 1904) 72 N. E. 290. A foreign no- 
 tary has no authority to administer 
 the pauper's oath to a person desir- 
 ous of suing in forma pauperis, 
 Fawcett v. Chicago, St. L. & N. O. 
 Ry. Co., (Tenn. 1904) 81 S. W. 839. 
 
 3. Com. v. Smith, 2 Gray (Mass.) 
 516 (1854); Gray v. Macallum, 2 
 Brit. Col. 104 (1892). 
 
 4. Smith v. Coffin, 18 Me. 157 
 ( 1841 ) ; Donnelly r. State, 26 N. J. L. 
 463, 601 (1857) ; Den v. Vancleve, 5 
 N. J. L. 589 (1819); Attorney-Gen. 
 v. Bradlaugh, 14 Q. B. Div. 667 (1885). 
 
 The burden is discharged and a 
 prima facie case established by proof 
 of a suitable mental state on the part 
 of the witness even at an interval of 
 considerable length. The religious at- 
 titude being one of permanence, it 
 will be inferred that it continues, in 
 the absence of circumstances suggest- 
 ing change. State v. Stinson, 17 Me. 
 154 (1840). But see Brock v. Milli- 
 gan, 10 Oh. 121 (1840) where this 
 view is apparently questioned. The 
 fact of change in opinion may be 
 shown. Atwood v. Welton, 7 Conn. 66 
 (1828) ; Scott v. Hooper, 14 Vt. 535 
 (1842). 
 
 1. Omychund v. Barker, 1 Atk. 21 
 (1744) (per Willes L. C. J.) See 
 also, to same effect: 
 
 Louisiana, — State v. Washington, 
 49 La. Ann. 1602, 22 So. 841 (1897). 
 
 New York. — People v. Matteson, 2 
 Cowen 433 ( 1823 ) ; Jaekson v. Grid- 
 ley, 18 Johns. 98 (1820). 
 
 Ohio. — Brock v. Milligan, 10 Oh. 
 121 (1840). 
 
 Vermont. — Arnold v. Arnold, 13 Vt. 
 362 (1841). 
 
 England. — Miller v. Solomon, 7 
 Exch. 475 (1852). 
 
 Atheists were therefore incompe- 
 tent as witnesses at the common law. 
 
 Maine. — Smith v. Coffin, 18 Me. 
 157 (1841). 
 
 Connecticut. — Atwood v. Welton, 
 7 Conn. 66 (1828). 
 
 Massachusetts. — Thurston v. Whit- 
 ney, 2 Cush. (Mass.) 104 (1848). 
 
 New Hampshire. — Norton v. Ladd, 
 
 4 N. H. 444 (1828). 
 
 New York. — Jackson v. Gridley, 18 
 Johns. (N. Y.) 98 (1820). 
 
 Vermont. — Arnold v. Arnold, 13 
 Vt. 363 (1841). 
 
 United States. — Wakefield v. Ross, 
 
 5 Mason (U. S.) 16 (1827). See also 
 Com. v. Hills, 10 Cush. (Mass.) 530 
 (1852); Hale v. Everett, 53 N. H. 9 
 ( 1868 ) ; Gibson v. Mut. L. Ins. Co., 
 37 N. Y. 580 (1868). 
 
 It is not essential, on legal prin- 
 ciples that the punishment should be 
 in a future world or state of existence. 
 If the witness believes that he will be 
 punished in this world it should be 
 
200 
 
 Couet and Jury; Court. 
 
 266 
 
 sufficient that such a witness should have a religion 2 — that is, 
 should believe in a Supreme Being, 3 who would, as a necessary 
 result of His perfect nature, punish false swearing. 4 The par- 
 ticular conception which the witness has formed of deity is not a 
 matter of concern to the court. It has even been decided to be a 
 sufficient qualification if the witness apprehends- consequences 
 
 sufficient. The decisions or dicta of 
 many courts of last resort are to this 
 effect. 
 
 Alabama. — Beeson r. Moore, 132 
 Ala. 391, 31 So. 456 (1901); Blocker 
 i'. Burness, 2 Ala. 354 (1841). 
 
 Connecticut. — Atwood c Welton, 7 
 Conn. 66 (1828). 
 
 Illinois. — Central, etc., Ry. Co. v. 
 Rockefeller, 17 111. 553 (1856) ; Noble 
 i'. People, 1 111. 54 (1822). 
 
 Iowa. — Searcy v. Miller, 57 Iowa 
 613, 10 N. W. 912 (1881). 
 
 KenUvcky. — Bush v. Com., 80 Ky. 
 248, 250 (1882). 
 
 Massachusetts. — Hanscom v. Hana- 
 com, 15 Mass. 184 (1818). 
 
 Neio Hampshire. — Free v. Bucking- 
 ham, 59 N. H. 219 (1879). 
 
 Sew York. — People i: Mathewson, 
 2 Cow. 433 (1823). But see Jack- 
 son <:. Gridley, 18 Johns. 103 (1820). 
 
 North Carolina. — Shaw v. Moore, 
 4 Jones L. 26 (1856) ("Both are 
 based upon the sense of religion "). 
 
 Ohio.— Clinton r. State, 33 Oh. St. 
 27 (1877). 
 
 Pennsylvania. — Blair r. Seaver, 26 
 Pa. St. 274 (1856). 
 
 South Carolina. — Jones v, Harris, 
 1 Strob. L. 160 (1846). 
 
 Tennessee. — > Bennett v. State, 1 
 Swan 411 (1852) ; State r. Cooper, 2 
 Overt. 96, 5 Am. Dec. 656 (1807). 
 
 Vermont. — Arnold r. Arnold, 13 
 Vt. 362 (1841). 
 
 England. — Atty.-Gen. r. Brad- 
 laugh, 14 Q. B. D. (1885). The 
 Judges of Louisiana have failed to 
 adopt any definite position. State !'. 
 Washington, 49 La. Ann. 1602, 22 So. 
 841 (1897). 
 
 The contrary view — that a belief 
 
 in a future state of existence affected 
 by reward or punishment according to 
 conduct in this world is essential to 
 the sanction of the oath — is an- 
 nounced, with varying degrees of defi- 
 niteness, by tribunals of authority. 
 Atwood v. Melton, 7 Conn. 66 ( 1828 ) ; 
 Anderson t\ Maberry, 2 Heisk. 
 (Tenn.) 653 (1871); McClure v. 
 Tennessee, 1 Yerg. (Tenn.) 206 
 (1829). But see Bennett v. State, 1 
 Swan (Tenn.) 411 (1852); Wake- 
 field r. Ross, 5 Mason (U. S.) 16 
 ( 1827 ) ; Bell r. Bell, 34 New Bruns. 
 615, 624 (1899). In Omychund v. Bar- 
 ker, ( 1 Atk. 45, Willes, 538 ) the dis- 
 tinction is taken that, as a matter of 
 weight, belief on the part of the wit- 
 ness in a future state, gives an ele- 
 ment of superiority so great as com- 
 pared with the infidel who believes in 
 God but not in a future state as to 
 bring the relation within the scope of 
 the broad (and now abandoned) 
 " best evidence rule." 
 
 2. Atty.-Gen. v. Bradlaugh, L. R. 
 14 Q. B. D. 667 (1885) ; Omychund v. 
 Barker, 1 Atk. 21 (per Lee, L. C. J.) 
 (1714). 
 
 3. Odell v. Koppee, 5 Heisk. 
 (Tenn.) 88 (1871); Omychund r. 
 Barker, 1 Atk. 45 (1744) (per Hard- 
 wicke, L. J.). 
 
 Atheism is a ground for refusing to 
 administer an oath which could not 
 exert the desired restraint upon the 
 conscience of the witness. Scott v. 
 Hooper, 14 Vt. 538 (1842). 
 
 4. That the witness is a " Chris- 
 tian" has been considered to connote 
 the essential requisites of belief. R. v. 
 Servo. 2 C. & K. 53 (1815). 
 
267 Interrogation as to Religious Belief Rejected. § 201 
 
 from the making of a perj ured statement " beyond such penalties 
 as human laws may inflict." D 
 
 § 201. (Functions of Judicial Office; Administrative; Swear- 
 ing of Witnesses) ; Method of Inquiry. — The subject of inquiry, 
 being as to the existence of a particular mental state, belief or 
 fear, may logically be proved by any of the methods employed in 
 proof of mental states. The natural and frequently the only 
 source of information on these particulars is the person himself. 
 His mental attitude may be gathered, (1) directly from his an- 
 swers as a witness upon voir dire, or (2) indirectly from evidence 
 of his declarations as narrated by others. 
 
 (1) Direct Examination. — Direct examination of the witness 
 as to his theological views regarding the existence of a Supreme 
 Being who is certain to punish false swearing is customary in 
 English practice, 1 though the answers of a witness are not con- 
 clusive. 2 Moreover, the proceeding has been severely criticised ; s 
 for the logical difficulty in which it places the court — of either 
 (a) rejecting as incredible, because of theological views, the evi- 
 dence of an honest man who is willing even to disqualify himself 
 as a witness rather than tell a lie ; or (b) accepting the witness on 
 the faith of a statement as to religious belief which, if false, is it- 
 self legally incredible as the act of a dishonest man — has not 
 escaped judicial attention. 4 
 
 The presiding justice may instruct a witness otherwise com- 
 petent in the necessary theological knowledge, 5 or permit it to 
 be done by others; — 6 an adjournment, if required for the pur- 
 pose, being permitted. 7 
 
 In America direct interrogation of the proffered witness has 
 
 5. Odell v. Koppee, 5 Heisk. New Hampshire. — Day v. Day, 56 
 
 (Tenn.) 88 (1871). N. H. 316 (1876). 
 
 1. Maden v. Catanach, 7 H. & N. New York. — People v. McNair, 21 
 360 (1861); Atcheson x. Everitt, Wend. 608 (1839). 
 
 Cowp. 389 (1776). North Carolina. — State v. Edwards, 
 
 2. Queen's Case, 2 B. & B. 284 79 N. C. 648, 650 (1878). 
 
 (1820). England. — Anon., 1 Leaeh Cr. L., 
 
 3. R. V. Williams, 7 C. & P. 320 4th ed., 430 (1786); R. r. Baylis, 4 
 (1835) (per Patterson J.). Cox Cr. 23 (1849). 
 
 4. Perry v. "Com. 3 Gratt. (Va.) 6. State i\ Todd, 110 la. 631, 82 N. 
 632, 642 (1846) ; Maden v. Catanach, W. 322 (1900) (county attorney). 
 
 7 H. & N. 360 (1861). 7. Day v. Day, 56 N. H. 316 
 
 5. Alabama. — Carter v. State, 63 (1876); R. r. Nicholas, 2 Cox Cr. 136, 
 Ala. 53 (1879). 2 C. & K. 246 (1846); Anon., 1 
 
 Massachusetts. — Com. v. Lynes, 142 Leach Cr. L., 4th ed., 430 (1786). 
 Mass. 578, 8 N. E. 408 (1886). 
 
§ 202 Cotjet and Jury; Cotjet. 268 
 
 been rejected by the earlier cases- — on the ground that the sub- 
 ject was one on which the witness was entitled to keep silent; 8 or 
 that it was improper to allow a witness to testify at all until the 
 question of his credibility was first settled, 9 or for these or other 
 reasons in combination. 10 Later American decisions, though with 
 some hesitancy, receive the direct evidence of the witness. 11 
 
 (2) Circumstantial Proof. — The mental state of the witness 
 may also be proved, circumstantially, by evidence of his state- 
 ments. 12 While such statements may properly be received cau- 
 tiously in view of the common experience, that public utterances 
 on matters of personal belief in religious matters are not always 
 a faithful indication of the exact fact, 13 it is perhaps equally im- 
 portant that some test of the truth of the statements made on voir 
 dire should be available. The witness to whose belief in the bind- 
 ing nature of an oath objection has been made has the right to 
 elect to prove his belief by evidence aliunde. 1 * 
 
 § 202. (Functions of Judicial Office; Administrative; Swear- 
 ing of Witnesses) ; Children as Witnesses. — The examination of 
 children as to a belief in future punishment sufficient to make the 
 oath, when administered, of binding effect, is usually conducted 
 by the judge himself, 1 whose finding will not, as a rule, be re- 
 
 8. Com. Batchelder, Thacher'a Cr. Odell v. Koppee, 5 Heisk. (Tenn.) 88 
 G. (Mass.) 197 (1829); Com. V. (1871). 
 
 Smith, 2 Gray 516 (1854); Free V. 12. Beardsly r. Foot, 2 Root 
 
 Buckingham, 59 N. H. 219, 225 (Conn.) 399 (1796) ; Smith V. Coffin, 
 
 (1859) ; 1 Law Reporter, Boston, 347. 18 Me. 157 (1841); Thurston v. 
 
 9. Curtiss v. Strong, 4 Day 51, 55 Whitney, 2 Cush. 104 (1848); An- 
 (1809); Smith v. Coffin, 18 Me. 159 derson v. Maberry, 2 Heisk. (Tenn.) 
 (1841); Com. v. Wyman, Thacher'a 653 (1871). 
 
 Cr. C. 432, 436 (1836); Jackson V. 13. Thurston v. Whitney, 2 Cush. 
 
 Gridley, 18 Johns. (N. Y.) 98 (1820) ; (Mass.) 104 (1848). 
 
 Cubbison v. McCreary, 2 W. & S. 14. Commonwealth v. Burke, 16 
 
 (Pa.) 263 (1841). Gray (Mass.) 33 (1860); Odell V. 
 
 10. Stewart «>. Melton, 7 Com. 66, Koppee, 5 Heisk. (Tenn.) 88 (1871); 
 70 (1828) ; Searcy v. Miller, 57 Iowa But see Harrel r. State, 1 Head 
 613, 10 N. W. 912 (1881); Den v. (Tenn.) 125 (1858). 
 
 Van C'leve, 2 South. (N. J.) 589, 653 There is authority to the contrary. 
 
 (1819). " The better practice " for- Arnd v. Amling, 53 Md. 192 (1879). 
 
 bids interrogating the witness. 1. Alabama. — Williams v. State, 
 
 Hronek v. People, 134 111. 139, 150, 109 Ala. 64, 19 So. 530 (1895); 
 
 24 N. E. 861 (1890). Grimes t\ State, 105 Ala. 86, 17 So. 
 
 11. Central, etc., Ry. Co. v. Rocka- 184 (1894). 
 
 fellow, 17 111. 541, 553 (1856) ; Arnd District of Columbia.— Williams v. 
 
 v. Amling, 53 Md. 192, 197 (1879) ; U. S., 3 App. D. C. 335, 340 (1894). 
 
269 
 
 Interrogation of Children of Tender Age. 
 
 202 
 
 vised. 2 It has even been held that he must make the examination 
 personally and cannot leave it to counsel ; 3 though a ruling which 
 forbids the judge to make his examination in private* seems 
 hardly in accordance with the requirements of the situation. 6 The 
 question of effective belief is entirely one of fact. No arbitrary 
 age limit having been established under which the witness is au- 
 tomatically rejected. 6 While four has seemed too young for a 
 child to possess sufficient intelligence either to testify 7 or make a 
 relevant statement not under oath, 8 children of seven, 9 or even 
 five 10 years of age, have been accepted. 11 It has been sagaciously 
 
 Georgia. — MoMath v. State, 55 Ga. 
 303, 307 (1875). 
 
 Illinois. — Draper v. Draper, 68 III. 
 17 (1873). 
 
 Indiana. — Weldon v. State, 32 Ind. 
 82 (1869). 
 
 New Jersey. — State v. Crocker, 65 
 N. J. L. 410, 47 Atl. 643 (1900). 
 
 New York. — People v. MeNair, 21 
 Wend. 608 (1839). 
 
 South Carolina. — State v. Belton, 
 24 S. C. 185 (1885).. 
 
 Tennessee. — ■ Vincent v . State, 3 
 Heisk. 121 (1871). 
 
 Texas. — Davidson v. State, 39 Tex. 
 129 (1873). 
 
 West Virginia. — State v. Michael, 
 37 W. Va., 565, 568, 16 S. K. 803 
 (1893). 
 
 England. — R. v. Holmea, 2 F. &, F. 
 788 ( 1861 ) ; R. v. Brazier, 1 East 
 P. C. 443 .(1779) ; Braddon's Case, 9 
 How. St. Tr. 1127, 1148 (1684). 
 
 2. Alabama. — Wade v. State, 50 
 Ala. 164 (1874). 
 
 Massachusetts. — Com. v. Lynes, 142 
 Mass. 577, 580 (1886). 
 
 New Hampshire. — Day v. Day, 56 
 N. H. 316 (1876). 
 
 North Carolina. — State v. Edwards, 
 79 N. C. 648, 650 (1878). 
 
 South Dakota. — State r. Redding- 
 ton, 7 S. D. 368, 64 N. W. 170 
 (1895). 
 
 3. Hughes v. Ry Co., 65 Mich. 10, 
 31 N. W. 603 (1887). 
 
 4. State v. Morea, 2 Ala. 275, 278 
 (1841). 
 
 5. McGuire v. People, 44 Mich. 286, 
 6 N. W. 669 (1880). 
 
 6. Alabama. — McGuff v. State, 88 
 Ala. 147, 150, 7 So. 35 (1889). 
 
 Arkansas. — Flanagin v. State, 25 
 Ark. 447 (1869). 
 
 California. — People v. Bernal, 10 
 Cal. 66 (1858). 
 
 Illinois. — Featherstone v. People, 
 194 HI. 325, 62 N. E. 684 (1902). 
 
 Iowa. — State v. Severson, 78 Iowa 
 653, 43 N. W. 533 (1889). 
 
 Louisiana. — State v. Richie, 28 La. 
 Ann. 327 (1876). 
 
 Nebraska. — Davis v. State, 31 Neb. 
 247, 47 N. W. 855 (1891). 
 
 England. — R. v. Perkins, 9 C. & P., 
 395, 399, 2 Moo. Cr. C. 139 (1840) ; 
 R. v. Brasier, 1 East P. C. 443 (1779). 
 
 7. People v. MeNair, 21 Wend. (N. 
 Y.) 608 (1839) ; R. v. Pike, 3 C. & P. 
 598 (1829). 
 
 8. Smith v. State, 41 Tex. 352 
 (1874); R. v. Brasier, 1 East P. C. 
 443 (1779). 
 
 8. State v. Whittier, 8 Shepl. (Me.) 
 341 (1842); Com. v. Hutchinson, 10 
 Mass. 225 (1813). 
 
 10. R. v. Brasier, 1 Leach 199, Bull. 
 N. P. 293, 1 East P. C. 443 (1779). 
 
 11. To demand of a child, possibly 
 of tender years, accurate theological 
 knowledge as to precise conditions of 
 punishment after death about which 
 the adult community are in great un- 
 certainty and disagreement, as fur- 
 nishing a test of credibility, seems a 
 travesty on common sense. The al- 
 
§ 203 Couet asd Jury; Court. 270 
 
 suggested that it would be a desirable improvement upon present 
 methods if the statement of a child were simply taken, without the 
 formality of an oath, and given such weight as it should appear 
 entitled to receive. As the learned judge who offers the sugges- 
 tion says, " This seems to be a sensible proceeding and is probably 
 quite as efficacious as our present system and less likely to 
 abuse." 12 Such a step, however, would more appropriately be 
 part of a larger movement — the substitution of relevancy for 
 more formal tests of admissibility in case of any statement what- 
 ever. As is said in the second report (1853) of the very distin- 
 guished English Common Law Practice Commissioners (at p. 
 10): "Plain sense and reason would obviously suggest that any 
 living witness should be heard to state what he knows, subject 
 always to such observations as may arise as to his means of knowl- 
 edge or his disposition to tell the truth." 13 
 
 Feeble-Minded and Insane Persons. — Feeble-minded and in- 
 sane persons should be examined as to their understanding of the 
 nature and obligation of an oath in the same manner as is done 
 in case of children. 14 It has been doubted whether a difficulty of 
 so permanent a nature might reasonably be overcome by instruc- 
 tion during an adjournment. 15 
 
 § 203. (Functions of Judicial Office; Administrative; Swear- 
 ing of Witnesses) ; Form of Oath — Xo particular form of oath 
 is essential 1 unless one is prescribed by the religion of the wit- 
 most universal statutory changes in South Dakota. — State v. Redding- 
 this connection have prescribed intel- ton, 7 S. B. 368, 64 N. W. 170 (1895). 
 ligence rather than theological belief Virginia. — Perry v. Com., 3 Cratt. 
 aB test of a child's competency as a 632, 641 (1846). 
 witness. 12. Hughes v. Ry. Co., 65 Mich. 10, 
 
 Georgia. — Johnson v. State, 61 Ga. 31 N. W. 605 (1887), per Campbell, 
 
 35, 36 (1878). C. J. 
 
 Illinois.— Hronek v. People, 134 111. 13. See also Bentham, Rationale of 
 
 139, 152, 24 N. E. 861 (1890);Ewing Jud. Evid., bk. IX, pt. Ill, c. VI 
 
 t\ Bailey, 36 111. App. 191, 193 (Works, VII, 427). 
 
 (1889). 14. Holcomib v. Holcomb, 28 Conn. 
 
 Indiana. — Snyder v. Nations, 5 179 (1859); R. v. Whitehead, L. R. 
 
 Blackf. 295 (1840). 1 C. C. 33, 38 (1866); R. v. Hill, 
 
 Iowa. — State v. King, 117 Iowa 2 Den. C. C. 254 (1851). 
 
 484, 91 N. W. 768 (1902). 15. R. r. Whitehead, L. R. 1 C. C. 
 
 Kansas. — Lee v. Missouri Pac. Ry. R. 33 (1866) (idiot). 
 
 Co., 73 Pac. 110 (1903). 1. Miller v. Salomons, 7 Exch. 475 
 
 Kentucky. — White v. Com., 96 Ky. (1852); Atcheson v. Everitt, Cowp. 
 
 180, 28 S. W. 340 (1894). 382 (1776) ; Omychund v. Barker, 1 
 
 Louisiana. — State v. Williams, 111 Atk. 21 (1744). "A Jew is to be sworn 
 
 La. 179, 35 So. 505 (1903). on the Book of the Law and with his 
 
271 
 
 jS!o Administration of Oath hy Telephone. 
 
 203 
 
 ness. 2 In accordance with this broad rule of administration, 
 Chinaman, 3 Jew, 4 Mahometan, 5 Roman Catholic, 6 Scotch Presby- 
 terian, 7 may be sworn according to the tenets of his religion. 
 
 The oath may be administered by uplifting the hand, 8 by 
 the use of the Old Testament, bound into a separate volume, 9 by 
 employing the Holy Evangelists alone, 10 or, as in common practice, 
 by making use of the Bible as a whole, comprising both the Old 
 and New Testaments. In any of these formularies the oath may 
 be accompanied by kissing the volume, 11 placing the hand thereon 
 or otherwise referring the testimony to it. National 12 and even 
 individual 13 variations in the matter may be followed. 
 
 Telephone administration. — Although the officer administer- 
 ing an oath may be familiar with the voice of the person swearing, 
 
 head covered, a Brahmin by the mode 
 prescribed by his peculiar faith, a 
 Chinese by his special ceremonies, and 
 the like." Miller v. Salomons, 7 Exch. 
 535, 558 (per Alderson, B.). 
 
 2. R. v. Pah-Mah-Gay, 20 Q. B. 
 U. C. 195 (1860). 
 
 3. State v. Gen Pon, 16 Wash. 425, 
 47 Pac. 961 (1897) (extinguishing a 
 candle, accompanied with an invoca- 
 tion that, in case of false swearing, 
 the like may happen to the witness) ; 
 R. V. Bntrehman, C. & M. 248 (1842) . 
 
 4. Newman v. Newman, 7 N. J. Eq. 
 26 (1847). 
 
 5. R. v. Morgan, 1 Leach 54 (1764) ; 
 Fachiner v. Sabine, 2 Stra. 1104 
 (1738). 
 
 6. Can. v. Buzzell, 16 Pick. (Mass.) 
 156 (1334). 
 
 7. Walker's Case, 1 Leach 498 
 (1788). 
 
 8. McKinney v. People, 7 111. 540 
 (1845); Gill v. Caldwell, 1 111. 53 
 (1822); Doss v. Birks, 11 Humph. 
 (Tenn.) 431 (1850) ; Mildrone's Case, 
 1 Leach 412 (1786) ; Queen Caroline's 
 Case, 2 Hans. Pari. Deb., 2d Ser., 611, 
 911 (1820). 
 
 9. Edmonds v. Rowe, R. & M. 77 
 (1824); Mee v. Reid, Peake N. P. 
 Cas. 23 (1790); Walker's Case, 1 
 Leach Cr. L. 498 (1788). 
 
 10. Com. v. Buzzell, 16 Pick. 156 
 (1834). 
 
 11. 31 Central Law Jour. 93. 
 
 12. Vail v. Nickerson, 6 Mass. 262 
 (1810) (French).. 
 
 13. Alabama. — Birmingham, etc., 
 Co. v. Mason, 34 So. 207 (1903). 
 
 California. — People v. Green, 34 
 Pac. Rep. 231 (1893). 
 
 Maine. — State v. Welch, 79 Me. 99 
 (1887). 
 
 Missouri. — State v. Chyo Chiazk, 
 92 Mo. 395 (1887)'. 
 
 England.— Edmonds v. Rowe, R. & 
 M. 77 (1824) ; Queen Caroline's Case, 
 2 Hans. Pari. Deb., 2d Ser., 611, 911 
 (1820). 
 
 In Massachusetts a witness is not 
 allowed to affirm merely because he 
 prefers to do so. The privilege is 
 strictly limited to Quakers. United 
 States v. Coolidge, 2 Gall. (U. S.) 
 364 (1815). 
 
 In New Jersey a much more lenient 
 rule prevails; a witness not being 
 permitted to affirm except in case of 
 conscientious scruples against the 
 taking of an oath. Williamson v. 
 Carroll, 16 N. J. L. 217 (1837). 
 
 Whether the witness deems another 
 form of oath more binding has, how- 
 ever, been rejected as an irrelevant 
 inquiry. Queen's Case, 2 B. & B. 302 
 (1820). 
 
§ 204 Court and Joey; Couet. 272 
 
 the administration of an oath over the telephone is not valid for 
 the purpose. 14 
 
 § 204. (Functions of Judicial Office) ; Executive. — Inherent in 
 the judicial office are certain powers conferred upon the presiding 
 judge and designed to enable him to preserve order, maintain the 
 dignity of his office, to compel and preserve popular respect for 
 the public administration of justice. Such powers may, with 
 apparent propriety, be designated the executive or "police" 
 powers of a presiding judge; although it may fairly be objected 
 that the difference between these and the administrative function 
 of the court is but slight. In any broad allotment of govern- 
 mental duties, each great department has not only the powers 
 directly given but all such incidental or ancillary functions as are 
 reasonably necessary or convenient for carrying into full effect 
 the powers directly conferred. Thus, the judicial branch of the 
 government established by the sovereign, being commissioned and 
 empowered to administer justice according to law, has ex officio 
 all incidental powers required to carry this important mandate 
 into complete effect. Inherently, therefore, without statutory 
 enactment, simply qua judge, the justice presiding at a trial is 
 clothed with a large number of executive as well as judicial 
 powers implicit in his office, which, though unenumerated, and 
 most frequently considered when an act is alleged to have been 
 done in contravention of them, i. e., in terms of " contempt," * 
 are none the less an impressive adjunct of his office. As the repre- 
 sentative of law, the judge naturally speaks and acts with author- 
 ity. His action may be reversed by judges of a higher juris- 
 diction; but for trial purposes, all that can properly be done in 
 opposition to his will is to perfect the steps which may secure 
 such a revision. 
 
 Over all persons in the courtroom the presiding judge is en- 
 titled to impose silence, respectful conduct, and the observance of 
 quiet and dignified order. He may exclude, subject to certain 
 restrictions, all persons from the trial. 2 As against everyone con- 
 nected with proceedings pending before him, such as jurors, 
 counsel or witnesses, whether within or without the courtroom, the 
 presiding judge is entitled to make and enforce such orders as are, 
 in his opinion, necessary for the dignity of his office, the further- 
 ance of justice, or the purity of justice itself. 
 
 14. Sullivan v. First Nat. Bank, (Tex. Civ. App. 1904) 83 S. W. 421. 
 
273 Punishment for Contempt in Federal Courts. § 205 
 
 § 205. (Functions of Judicial Office; Executive); Require 
 
 Order and Decorum — Conspicuous among what may be called the 
 administrative powers of the presiding justice are those necessary 
 to enable him to enforce that orderly and quiet conduct of judicial 
 business just mentioned. No disturbance of the peace should be 
 permitted in the courtroom. All loud or disturbing noises should 
 cease. Unnecessary conversation should be suspended in the pres- 
 ence of the judge. In such an atmosphere of calm and respectful 
 quiet can the high functions of the judicial office alone be properly 
 discharged. The observance of all this is essential to the dignity 
 of the court, and typical of the deep reverence in which the doing 
 of justice is held by the community at large. The power of the 
 judge to enforce, by summary proceedings, 1 compliance with any 
 order for securing calm deliberation and orderly quiet in the court- 
 room 2 is undoubted, 3 subject to the limitation imposed by con- 
 stitutional or statutory provisions. 4 
 
 Federal Courts. — The power to punish for contempt is an 
 inherent attribute of the federal courts, vested in them by Const. 
 U. S. art. 3, § 1, granting to them the judicial power of the 
 nation. 5 
 
 1. Criminal contempts embrace all 
 acta committed against the majesty 
 of the law, and the primary purpose 
 of their punishment is the vindication 
 of public authority. Ex parte Clark, 
 208 Mo. 121, 106 S. W. 990 (1907). 
 
 2. Supra, §§ 182 et seq. 
 
 . 1. Only a breach of order and 
 decorum in the presence of the court 
 in actual session and within its view 
 and hearing can be properly dealt 
 with without notice to show cause. 
 Reymert v. Smith, (Cal. App. 1907) 
 90 Pac. 470; State ex rel. Stewart 
 V. Reid, 118 La. 827, 43 So. 455 
 (1907). 
 
 2. A summary proceeding, in this 
 connection may mean one where the 
 party offending is not given a trial 
 by jury. Yoder r. Com., (Va. 1907) 
 57 S. E. 581. 
 
 3. Ormond v. Ball, 120 Ga. 916, 48 
 S. E. 383 (1904) ; State v. Rose, 
 (Kan. 1906) 85 Pac. 803; Back v. 
 State, (Nebr. 1906) 106 N. W. 787. 
 The primary purpose of such pun- 
 
 Vol. I. 18 
 
 ishment is the vindication of public 
 authority. Powers v. People, 114 111. 
 App. 323 (1904). 
 
 4. Arkansas. — Ford v. State, 69 
 Ark. 550, 64 S. W. 879 (1901). 
 
 Illinois.— O'Neil v. People, 113 111. 
 App. 195 (1904). 
 
 Indiana. — Mahoney v. State, 73 
 N. E. 151 (1904). 
 
 Iowa. — Drady v. Dist. Court of 
 Polk County, 102 N. W. 115 (1905). 
 
 North Carolina. — In re Gorham, 
 129 N. C. 481, 40 S. E. 311 (1901). 
 While courts do not derive their power 
 to punish for contempt from any stat- 
 ute, it is their duty to conform to a 
 statute which does not abridge this 
 power, but simply points out the 
 manner in which it shall be exercised. 
 Ex parte Morris, 28 Ohio Cir. Ct. R. 
 611 (1906). 
 
 5. In re Nevitt, 117 Fed. 448, 54 
 C. C. A. 622 (1902). Courts 
 of the District of Columbia are 
 " courts of the United States " within 
 the provisions of the federal statutes 
 
§§ 206, 207 Court and Jury; Court. 274 
 
 Protected by Constitution. — The right to prevent the commis- 
 sion of breaches of order in the presence of the judge while sitting 
 at a trial is protected by a judicial power, in the proper exercise 
 of which, the entire community is deeply interested and concerned. 
 Any attempt on the part of the legislature to abridge this right 
 is invalid, as tending to alter the constitutional distribution of 
 power between different branches of government. 6 
 
 § 206. (Functions of Judicial Office; Executive; Require 
 Order and Decorum); Abusive Language to Judge — Addressing 
 insulting language to the judge is entirely reprehensible; and it 
 constitutes no justification or excuse that the speaker is telling the 
 facts with accuracy. 1 ISTor will an insulting reference to the court 
 as a whole be excused by reason of a disclaimer of intention 2 or 
 the making of an apology. 3 Still, volenti non fit injuria. The 
 judge cannot make a direct insult out of an extrajudicial state- 
 ment by bringing the declarant into court and causing him to 
 repeat the alleged abusive statement in his presence. 4 
 
 No special immunity, in this connection, attaches to the office 
 of district attorney. 5 
 
 § 207. (Functions of Judicial Office; Executive; Preserve 
 
 Order and Decorum); Cursing the Judge Cursing the judge in 
 
 open court, as " You may fine and be damned," * constitutes an 
 offense which staggers belief, except in rude and uncivilized com- 
 
 regulating contempt. Moss v. U. S. 23 power of the state to limit the hours 
 
 App. Cas. (D. C.) 475 (1904). A of labor on the ground of the police 
 
 United States commissioner, by the p0W er of the state were all wrong, 
 
 weight of federal authority, has no were wl -itten by men who have never 
 
 power to punish for contempt but the performed manual labor, and by poli- 
 
 power is in the court itself. United ticians and for m and that th 
 
 States v. Beavers, (N. Y. 1903) 125 ,., , , , , ., . : 
 
 _, , _„ did not know what thev wrote about, 
 
 red. 778, 
 
 Such a statement was regarded as 
 constituting a contempt of the Su- 
 
 6. State v. Shepherd, 177 Mo. 205, 
 
 76 S. \V. 79 (1903). 
 
 , _, . , „, , „ . , preme Court, which was not purged 
 
 1. State ex rel. Stewart v. Reid, ,,.,,. 
 
 118 La. 827, 43 So. 455 ( 1907 ) . ^ defe,ldant s disavowal of any intent 
 
 2. In re Chartz, (Nev. 1905) 85 to commit a contempt and by his apol- 
 Pac 3J2 ogy. In re Chartz (Nev. 1905) 85 
 
 Pae 352 
 
 3. In a case where defendant, an 
 
 attorney of the Supreme Court of Ne- 4 - Davies ''• State ' < Ark - 1905 > 84 
 
 vada, in a petition for rehearing of a fe- **• • 
 
 cause in which the Supreme Court 5- State ex rel. Stewart v. Reid, 
 
 had held a statute limiting the hours 118 La. 827, 43 So. 455 (1907). 
 
 of labor constitutional, stated that in 1. Hill v. Crandall, 52 111. 70 
 
 his opinion the decisions favoring the (1869). 
 
275 Insults in Papers Constitute Contempt. §'§ 208, 209 
 
 munities. So of obscene, contemptuous and insulting language 
 addressed to the judge. 2 
 
 § 208. (Functions of Judicial Office; Executive; Preserve 
 
 Order and Decorum); Disorderly Conduct Disorderly conduct in 
 
 the courtroom, 1 such as carrying concealed weapons, 2 presenting 
 oneself in a condition of intoxication, 3 indulging in loud, boister- 
 ous, threatening and otherwise objectionable language, will be 
 severely noticed by a judge as contrary to established decorum, 4 
 and may be summarily punished, even in case of an attorney. 5 But 
 an attorney, legitimately commenting on the evidence, or other- 
 wise acting in discharge of his official duty, is not liable for any 
 violent outbreak on the part of witnesses 6 or others who feel ag- 
 grieved at bis remarks — though the decorum of the courtroom is 
 thereby disturbed. 
 
 § 209. (Functions oi Judicial Office; Executive; Preserve 
 Order and Decorum) ; Insults in Papers. — - Insults in papers sub- 
 mitted to the inspection of the court, 1 or placed on its files, 2 may 
 
 2. The words must be directly, it is 
 said, addressed to the presiding jus- 
 tice. Yoder v. Com. (Va. 1907) 57 
 S. E. 581. 
 
 1. Holman v. State, 105 Ind. 513, 5 
 N. E. 556 (1885); U. S. V. Patter- 
 Eon, 26 Fed. 509 (1886). 
 
 2. Sharon v. Hill, 24 Fed. 726 
 (1885) (attorney). 
 
 3. Marcum v. Hargis, 31 Ky. Law. 
 Rep. 1117, 104 S. W. 693 (1907); 
 Com. v. Clark, 13 Pa. Co. Ct. 439 
 (1893) 
 
 4. Indiana. — Dodge v. State, 140 
 Ind. 284, 39 N. E. 745 (1894). 
 
 Iowa. — Russell v. French, 67 Iowa 
 102, 24 N. W. 741 (1885). 
 
 Louisiana. — State v. Garland, 25 
 La. Ann. 532 (1873). 
 
 North Dakota. — State v. Crum, 7 
 N". D. 299, 74 N. W. 992 (1898). 
 
 Pennsylvania. — In re Heverin, 32 
 Leg. Int. 188 (1875). 
 
 Vermont. — In re Cooper, 32 Vt. 
 258 (1859). 
 
 Virginia. — Com. v. Dandridge, 2 
 Va. Cas. 408 (1824). 
 
 England. — Reg. v. Jordan, 36 
 Wkly. Rep. 589 (1888). 
 
 5. Mahoney v. State, (Ind. App. 
 1904) 72 N. E. 151; Ex parte Davis 
 112 Fed. 139 (1901). 
 
 6. Ex parte Snodgrass, (Tex. Cr. 
 App. (1901) 65 S. W. 1061. 
 
 1. Lamberson v. Superior Court of 
 Tulare County, (Cal. 1907) 91 Pac. 
 100; McCormick v. Sheridan, (Cal. 
 1888) 20 Pac. 24; Ex p. Smith, 28 
 Ind. 47 (1857) (docket) ; In re Wool- 
 ley, 11 Bush 95 (1875); State v. 
 Grailhe, 1 La. Ann. 183 ( 1846 ) ; 
 State v. Soule, 8 Rob. (La. 1844) 
 500; State v. Keene, 11 La. 596 
 (1837). 
 
 2. Lamberson v. Superior Court 
 of Tulare County, (Cal. 1907) 91 
 Pac. 100; Sommers v. Torrey, 5 Paige 
 54, 28 Am. Dec. 411 (1835); Hern- 
 don v. Campbell, 86 Tex. 168, 23 S. 
 W. 980 (1893) [reversing (Tex. Civ. 
 App. 1893) 23 S. W. 558]; TJ. S. V. 
 Church, 6 Utah 9, 21 Pac. 503, 524 
 (1889). Where the papers are filed 
 in the ordinary course of the pro- 
 ceedings, it will not be assumed that 
 the attorney filing them acted in bad 
 faith. Tracy v. State, 28 Ohio Cir. 
 Ct. R. 453 (1906) (motions). 
 
§§ 210, 211 Couet and Juey; Court. 276 
 
 constitute an act in presence of the court derogatory to its dignity. 
 Thus, a litigant cannot properly allege in a motion, as ground for 
 a new trial, that he has not had a fair and impartial one ; where 
 such a fact would not, if true, constitute ground for a new trial. 3 
 Similarly, a statement that a judge is prejudiced against one who 
 moves for a change of venue may be a voluntary and gratuitous 
 insult to the court where the fact, though exactly stated, would 
 not be a ground for allowing the motion; 4 while, on the contrary, 
 it would be a perfectly justified allegation where such prejudice 
 would constitute a basis for the order asked. 5 
 
 § 210. (Functions of Judicial Office; Executive; Preserve 
 
 Order and Decorum); Insults on Appeal -Abuse of a trial judge 
 
 in an appellate court may justly be deemed contrary to the due 
 administration of justice ; — 1 whereas mere discussion of such abuse 
 is not. 2 Bitter written assaults on subordinate court officers, such 
 as a register, 3 are objectionable upon similar grounds. 
 
 § 211. (Functions of Judicial Office; Executive; Preserve 
 Order and Decorum) ; Using Force to Prevent Orderly Administra- 
 tion — Using force to prevent the orderly administration of justice 
 though not done in the immediate presence of the judge, seems to 
 fall within the same category. A person cannot, for example, 
 with impunity, lock the door of the courtroom and so prevent the 
 judge and court officers from entering. 1 Nor can he break into 
 the desk of a court official to get at its contents. 2 
 
 Property cannot be forcibly seized in open court without serious 
 consequences to the actor. 3 So the power of a court to punish any 
 
 3. Harrison v. State, 35 Ark. 458 1. Sears v. Starbird, 75 Cal. 91, 16 
 (1880). Pac. 531, 7 Am. St. Rep. 123 (1888). 
 
 4. In re Jones, 103 Cal. 397, 37 2. In re Thompson, 46 Kan. 254, 26 
 Pac. 385 (1894). So where on an ap- Pac. 674 (1891); In re Dalton, 46 
 plication for change of judges the Kan. 253, 26 Pac. 673 (1891). 
 petitioners allege wilful corruption 8. In re Breck, 4 Fed. Cas. No. 
 on the part of the trial judge. Lam- 1,823 (1876). 
 
 berson v. Superior Court of Tulare 1. Dahnkek v. People, 168 111. 102, 
 
 County, (Cal. 1907) 91 Pac. 100. 48 N. E. 137, 39 L. R. A. 197 (1897) 
 
 5. Ex p. Curtis, 3 Minn. 274 [affirming 57 111. App. 619 (1895)]. 
 (1859) ; Hunt V. State, 27 Ohio Cir. 2. Ex p. Burrows, 8 Ves. Jr. 535 
 Ct. R. 16 (1904). See also Works v. (1803) (register). 
 
 San Diego Co. Super. Ct., 130 Cal. 3. Com. t\ Wilson, 1 Phila. 80, 7 
 
 304, 62 Pac. 507 (1900); Mullin v. Leg. Int. 146 (1850). A defendant in an 
 
 People, 15 Colo. 437, 24 Pac. 880, 22 action on a written contract which 
 
 Am. St. Rep. 414, 9 L. R. A. 5615 has been laid by plaintiff's counsel on 
 
 (1890) ; Le Hane r. State, 48 Nebr. his table cannot seize, secrete and re- 
 
 105, 66 X. W. 1017 (1896). fuse to produce it. without suffering 
 
277 Contempt in Violation of Judicial Orders. §'§212,213 
 
 person who shall remove attached property 4 or the subject of pend- 
 ing proceedings 5 from its jurisdiction is inherent. 
 
 § 212. (Functions of Judicial Office; Executive; Preserve 
 Order and Decorum) ; Writing Letters. — Writing letters to the 
 judges has been a course frequently adopted by over-zealous or 
 disappointed suitors. So far as designing to influence the judge's 
 action in pending litigation, 1 or to upbraid or vituperate him for 
 past conduct, the writer may properly be punished. 2 That an 
 offense should be committed, it is essential that the conduct, if un- 
 rebuked, would unfavorably affect the administration of justice. 
 Merely personal feelings are not the essential consideration. 
 Thus, for a party to write to an opposing attorney to whom he is 
 paying a judgment which he regards as iniquitous to express his 
 opinion with considerable freedom is not an offense against the 
 court. 3 
 
 § 213. (Functions of Judicial Office; Executive); Compel 
 Obedience to Directions; Administrative Orders. — The directions of 
 a presiding judge, regarding any matter pertaining to the adminis- 
 tration of justice or the use of the judicial machinery by which it 
 is sought to attain it, are to be promptly and unreservedly obeyed. 
 In the event of a refusal, it is within the power and it may be- 
 come the duty of the judge to enforce his order. 1 
 
 Enforcement of Bights. — Closely analogous to this requirement 
 of obedience to an order of the court relating to the administra- 
 tion of justice, is that which arises where an order is made in 
 favor of one of the parties against the other in vindication of a 
 
 at the hands of the court. In re Charities, 2 Myl. & C. 316, 14 Eng. 
 
 Teitelbaum, 82 N. Y. S. 887, 84 App. Ch. 316 (1836). But see In re 
 
 Div. 351 (1903). Griffin, 1 N. Y. Suppl. 7 (1888). 
 
 4. Lowenthal v. Hodge, 120 N. Y. 3 FelIman v _ Mercanti i e Fire & 
 App. Div. 304, 105 N. Y. Suppl. 120 Marine Ing Co> n6 La _ ^ 41 So. 
 
 < 1907 )- 49 (1906). 
 
 5. In re Grant, 26 Wash. 413, 67 
 
 1. Powers v. People, 114 111. App. 
 323 (1904) ; Ashby v. Ashby, (N. J. 
 Ch. 1901) 50Atl. 473. A litigant who 
 might have appealed and has failed to 
 
 Pae. 73 (1901). 
 
 1. State v. Johnson, (Ohio 1908) 
 83 N. E. 702. 
 
 2. State v. Waugh, 53 Kan. 688, 37 
 Pac. 165 (1894) ; In re Pryor, 18 do so cannot set U P> on Proceedings to 
 Kan. 72, 26 Am. Eep. 747 (1877) ; com P el obedience to the order, matter 
 Matter of Wallace, 4 Moore P. C. N. ^ hich he might have relied upon in 
 S. 140, L.E.1P C. 283, 36 L. J. P. support of his appeal. Lawson V. 
 0. 9, 15 Wkly. Rep. 533, 16 Eng. Re- Tyler, 98 X. Y. App. Div. 10, 90 N. 
 print 269 (1866) ; Matter of Ludlow Y. Suppl. 188 (1904). 
 
§ 213 Court and Jury; Court. 278 
 
 right previously ascertained to exist; — or provisionally assumed 
 for administrative purposes, as where a preliminary order is made, 
 by way of injunction or otherwise. The important difference, 
 however, is to be observed that the social interest in the enforce- 
 ment of such an order as is essential to popular respect for the 
 judicial office is greatly lessened in the latter case where the con- 
 cern is more largely personal to the litigants; and proceedings 
 for contempt are not designed for the protection of the dignity of 
 the court so much as to make effective the individual rights of one 
 of the parties. The distinction between enforcing administrative 
 orders for the carrying on of the proper work of the courts and 
 those designed to vindicate private rights is clearly observed in 
 legislation and judicial decision. 
 
 Civil and Criminal Contempts. — This distinction, in regard to 
 the matter of compelling compliance with judicial orders between 
 those which are administrative in their nature and those made for 
 the enforcement of litigated or adjudicated rights, frequently is 
 practically carried into effect by the legislature as a distinction 
 between civil and criminal contempts ; violation of an adminis- 
 trative order being treated as a criminal contempt; refusal to obey 
 an order made in connection with a private right being punished 
 civilly. The difference between the two classes is correlated to that 
 between the private and the public interest in litigation to which 
 reference is elsewhere made. 2 While it cannot be said that, in 
 all cases, the statutory enactments relating to the subject have 
 been careful to observe the distinction, a general tendency to do 
 so is, as has just been said, plainly observable. 3 
 
 Civil Contempts. — Where the order is made in connection with 
 relief granted a party, as part of a right established by him, as 
 where a defendant is ordered to comply specifically with the terms 
 of a contract which he is found to have made, a failure to obey 
 such an order is a civil contempt. In other words, a person who 
 fails or refuses to do something which he has been ordered to do, 
 or does something that he has been ordered not to do, for the 
 benefit of the opposite party to a cause, is guilty of a civil con- 
 tempt, and the object of the punishment is to coerce the perform- 
 ance of an act remedial in its nature. 4 
 
 2. Infra, § 303. 4. Ex parte Clark, 208 Mo. 121, 
 
 3. See Vilter Mfg. Co. r. Humphrey 106 S, W. 990 (1907). 
 132 Wis. 587, 112 N. VV. 1095, 13 L. 
 
 R. A. (N. S.) 591 (1907). 
 
279 Court Must Have Had Jurisdiction. § 213 
 
 Criminal Contempts. — Should it happen, however, that the act 
 which a person is ordered to do is one which affects the due and 
 orderly administration of justice, rather than applies to the rights 
 of the parties, the dignity of the court itself is involved and an 
 entirely different situation, viewed from a moral or social stand- 
 point, is developed. The interests of society demand that such an 
 order should be enforced in its own behalf, i. e., by punishment. 
 Such a contempt is a criminal one. In all cases where such an 
 offense is claimed, an element of wilful intent may well be 
 required. 
 
 Advice of Counsel. — Advice of counsel is no defense to a pro- 
 ceeding for contempt of court; although where the party said to 
 be in contempt is a layman and not an officer charged with the 
 enforcement of the law the fact may be considered in mitigation. 5 
 
 Notice Necessary. — In either case the person to be affected 
 by proceedings in contempt must have had notice of the issuance 
 of the order. 6 
 
 Impossibility of performance, not caused by the fault of the 
 person in question is an excuse. 7 
 
 Jurisdiction. — In all proceedings for the enforcement of a 
 judicial order, the fact that the court making the order had juris- 
 diction is an important preliminary fact to be affirmatively shown. 8 
 If the court has jurisdiction, the order must be obeyed though it 
 may have been improvidently or erroneously granted. 8 Any person 
 
 5. Coffin v. Burstein, 74 N. Y. S. served with it. In re Wilk (N. Y. 
 274, 68 App. Div. 22 (1902) ; Royal 1907) 155 Fed. 943. 
 
 Trust Co. v. Washburn, etc., Ry. Co., Personal service has, however, been 
 
 (Wis. 1902) 113 Fed 531. required. Grant v. Greene, 106 N. 
 
 6. State v. McGahey, (N. D. 1903) Y - S - 532 > m A PP- Div - 756 < 1907 )- 
 97 N. W. 865. It has even been held 7 - MoHeniy v. State, (Miss. 1907) 
 
 that where disobedience to a decree is _ _ ' „ 
 
 ,..„,.. , . . 8. Early v. People, 117 111. App. 
 
 not wilful, and does not clearly ap- ' rr 
 
 pear to have arisen from an intent to „ ,, , „, 
 
 ,. , , . , 9. Meeks v. State, 80 Ark 579, 98 S. 
 
 set at naught or bid defiance thereto, w 37g (190g) . Butler v _ champrm> 
 
 the power to punish for contempt 124 m App _ 2g (19(ff) . Bwedigh . 
 
 cannot be properly exercised. Kahl- American Telephone Co. v. Fidelity & 
 
 bon v. People, 101 111. App. 567 Cagualty Co . of New Y ork, 208 111. 
 
 (1902). A contempt must be wilful, 563> 70 N _ E 76g (1904) . Blmgtedt 
 
 and cannot arise from mere inability. „ People, 102 111. App. 231, (1902) ; 
 
 Moseley v. People, 101 111. App. 564 Lytle v. Galveston, H. & S. A. Ry. 
 
 (1902). If a person has actual knowl- Co., (Tex. Civ App. 1905) 90 S. W. 
 
 edge of an order of court, he is liable 316; Pike v. Frost, (Wis. 1905) 139 
 
 for the consequences of violating it, Fed 865. See also Russell v. Lumber 
 
 although he has not been formally Co., 102 Ga. 563, 29 S. E. 271 (1897) ; 
 
§ 214 Court and Juey; Cotjkt. 230 
 
 proceeds at his peril, 10 though he were the judge of the court 
 whose action is under review. Where an order is made without 
 jurisdiction, there can be no punishment. 11 In case of an admin- 
 istrative order, 12 however, the question of jurisdiction is rather 
 one as to the inherent powers of the court under the law, qua 
 court, than as to whether the tribunal could properly decide the 
 case on its merits. 
 
 Jurisdiction to Ascertain Jurisdiction. — Thus, a court of gen- 
 eral powers may lawfully take jurisdiction of a cause for the pur- 
 pose of ascertaining whether it will finally admit the cause to its 
 docket for further action as having full jurisdiction of it. Such 
 a court may make a valid order suspending all proceedings until 
 it can determine this preliminary question. Such order is an 
 administrative one and its validity is irrespective of whether the 
 court ought to decide that i will or will not take jurisdiction of 
 the case itself. All of which it has, in dealing with the prelimi- 
 nary matter, taken jurisdiction is the application. ~No person has 
 an option to obey an order of a court staying all proceedings 
 until it can determine whether it has jurisdiction or not. A court 
 of general jurisdiction has, certainly, lawful authority to that 
 extent in any case before it and such an order will be disobeyed 
 by any one at his peril. 13 
 
 § 214. (Functions of Judicial Office; Executive; Compel 
 Obedience to Directions) ; Attorneys. — Prominent among officers 
 of the court who, as ministers of justice, give obedience to the 
 
 State etc rel. Thatcher v. Horner, 16 New York. — People f. Fee- 
 Mo. App. 191 (1884); Jenkins v. naughty, 51 Misc. 468, 101 X. Y. 
 State, 59 Neb. 68, 80 N. W. 368 Suppl. 700 (1906). 
 (1899) ; Forrest r. Price, 52 N. J. Eq. North Dakota. — State v. MeGahey, 
 16, 29 Atl 215 (1893) ; Shults V. An- 97 N. W. 865 (1903); Fornran v. 
 drews, 54 How. Prac. 378 (1877); Healey, 93 N. W. 866 (1903). 
 People ex rel. Post V. Grant, 13 Civ- Mississippi.— McHenry v. State, 44 
 Proc. R. 305 (1888); State V. Na- South. 831 (1907). 
 thans, 49 S. C. 199, 27 S. E. 52 South Carolina.— State v. Scarbor- 
 (1896) ; Vanvabry t>. Staton, 88 Tenn. ough, 70 S. C. 288, 49 S. E. 860 
 334, 12 S. W. 786 (1890). Want of (1904) ; State v. Rice, 67 S. C. 236, 
 jurisdiction is not waived by pleading 45 S. E. 153 (1903). Citing State 
 to the merits. State v. Newton, (N. v. Nathans, 49 S. C. 199, 27 S. E. 52 
 D. 1907) 112 N. W. 52. (1896) ; James c Smith, S S. C. 183 
 
 10. In re Noyes, 121 Fed. 209, 57 (1870). 
 
 C. C. A. 445 (1902). 12. Supra, § 213. 
 
 11. District of Columbia. — Drew V. 13. Ruprecht v. Henrici, 127 111. 
 Hogan, 26 App. Cas. (D. C.) 55 App. 350 (1906) ; U. S. r. Shipp, 203 
 
 (1905). U. S. 563, 27 S. Ct. 165, 51 L. ed. 319 
 
'281 Bona Fide Advice of Attorney not a Contempt. § 214 
 
 judge as the chief ministrant upon justice, are the attorneys 
 practicing at the bar, as is the American phrase. 1 A practitioner 
 who counsels and advises the commission of an act contrary to 
 the dignity of the court is deservedly deemed guilty of the same 
 offense, as he who follows his advice. 2 Counsel must at once desist 
 from speaking for a client when ordered by the court to do so. 3 
 An officer of the court is no more at liberty to assist in violating 
 one of its orders than he would be to disobey it. It is not essential 
 for purposes of punishment that the attorney offending should be 
 a member of the bar of that particular court; one who practices 
 by leave or the courtesy of the court is obligated to be equally 
 mindful of its dignity with one who appears as of right. 4 Counsel 
 should, however, at the tim© of doing the act to which objection is 
 made have been acting in his official capacity. 5 It has very 
 reasonably been held that clients are not liable to the displeasure 
 of the court for acts done by their attorneys to which they have 
 given no assent. 6 
 
 Advice given in good faith does not, however, subject the attor- 
 ney to punishment. A lawyer has the right to advise his client 
 as to the validity of an order of court, or of a writ issued under 
 its authority, so far as this affects the client's interests; and his 
 advice to the effect that such order or writ is illegal and void, if 
 
 (1906). See also Pike v. Frost, (Wis. 3 Myl. & C. 316, 14 Eng. Ch. 316 
 
 1905) 139 Fed. 865. (183G). 
 
 1. Michigan. — Nichols v. Grand Canada. — Nieholls v. McDonald, 4 
 
 Rapids Super. Ct., 89 N. W. 691 U. C. L. J. 259 (1858). 
 
 (1902) 2. People v. Tenth Judicial Dist. 
 
 New Mexico. — Territory V. Clancy, Ct., 29 Colo. 182, 68 Pac. 242 (1901) ; 
 
 7 N. M. 580, 37 Pac. 1108 (1894). Lowenthal v. Hodge, 120 N. Y. App. 
 
 New York.— Nuccio v. Porto, 73 N. Div. 304, 105 N. Y. Suppl. 120 (1907). 
 
 Y. App. Div. 88, 76 N. Y. Suppl. 96 See Territory v. Clancy, 7 N. M. 580, 
 
 (1902); Reynolds v. Parkes, 3 Dem. 37 Pac. 1108 (1894). 
 
 Surr. 399 (1884). 3. Ex parte Shortridge, (Cal. App. 
 
 Texas.— Dillon v. State, 6 Tex. 55 1907) 90 Pac. 478. 
 
 (1851) ; Smith v. Brown, 3 Tex. 360, 4. Chafee v. Quidnick Co., 13 R. I. 
 
 49 Am. Dec. 748 (1848). 442 (1881). 
 
 United States. — Ex p. Davis, 5. State t*. Parsons, 48 W. Va. 275, 
 
 (Fla.) 112 Fed. 139 (1901); An- 37 S. E. 548 (1900) ; State v. Hans- 
 
 derson v. Comptois, 109 Fed. 971, 48 ford, 43 W. Va. 773, 28 S. E. 791 
 
 C. C. A. 1, 111 Fed. 998, 50 C. C. A. (1897). 
 
 76 (1901). G. Satterlee v. De Corneau, 7 Rob. 
 
 England.— In re Freston, 11 Q. B. 666 (1868) ; Harris v. Clark, 10 How. 
 
 D. 545, 52 L. J. Q. B. 545, 49 L. T. Pr. 415 (1854) ; In re Feehan's Es- 
 
 Rep. N. !3. 290, 31 Wkly. Rep. 804, tate, 73 N. Y. S. 1126, 36 Misc. Rep. 
 
 (1883); Matter of Ludlow Charities, 614(1902). 
 
§ 215 Court and Jury; Court. 282 
 
 given in good faith, will not render Mm liable for contempt, 
 because of an error in judgment. But he is guilty of contempt if 
 he goes beyond the right to advise in matter of law and, actuated 
 by a spirit of resistance, counsels or conspires with his client or 
 others to disobey an order of court and obstruct its enforcement. 7 
 Mere nonfeasance by one not connected with pending litigation 
 will not usually be deemed punishable. Thus, an attorney who 
 gains possession, under a lawful process, of the records of 
 another court does not become guilty of an offense by declining 
 to return them on demand under an order of that court. 8 
 
 § 215. (Functions of Judicial Office; Executive; Compel 
 Obedience to Directions); Corporations. — Corporations are con- 
 strained to obey the orders of the court, equally with individuals 
 or partnerships. Its officers, agents and attorneys are required 
 to discharge the obligation of the corporation 1 according to their 
 degree of authority: e. g., the manager will be regarded as the 
 officer to be held if his authority to comply with the order is com- 
 plete. 2 Where action is forbidden the offending officer who has 
 acted is alone regarded by the court, provided his associates neither 
 previously assented or subsequently approved. 3 Any other member 
 of the corporation, however, who joins in the unlawful act may 
 be held liable to the same penalties. 4 Officers disobeying, in the 
 name of the corporation, an order of the court are dealt with as 
 
 7. Anderson v. Comptois, 109 Fea. R. Co., 12 Abb. Pr. 171, 20 How. Pr. 
 971, 48 C. C. A. 1 (1901) ; In re Du- 358 (1860). 
 
 bose, 109 Fed. 971, 48 C. C. A. 1 Vermont.— In re Consolidated Een- 
 
 (1901). [Judgment affirmed on re- derin S Co -> 80 vt - 55 - 66 Atl - 790 
 
 hearing 111 Fed. 998, 50 C. C. A. < 1907 ) termed in 207 U. S. 541, 28 
 
 76]. See also Wells v. Com., 21 Grat. S - Ct - 178 ^ 
 
 500, 508 (1871). VnUed ® Mes -- U - S - "■ Memphis, 
 
 ' v ' /TT „ _ _, „ etc., Pv. Co., (Tenn.) 6 Fed. 237 
 
 8. In re Leaken, (U. S. C. C. Ga. ,' v ' 
 
 (1881). 
 1905) 137 Fed. 680. ' ' . r „ . _ n T _, 
 
 ' England. — In re Hooley, 79 L. T. 
 
 1. Illinois.- Franklin Union, No. K g fl Mlmsion 404 
 
 4 v. People, 220 111. 355, 77 N. E. nggg), 
 
 176 (1906). z Sercomb V. Catlin, 128 111. 556, 
 
 Iowa.— Bloomington Church v. 21 N _ K 606) 15 ^ st Eep 147 
 
 Muscatine, 2 Iowa 69 (1855). (1889). 
 
 Ifeio Jersey. — West Jersey Traction 3- Tj na „, Dod^ 39 jj # j, Eq 173 
 
 Co. v. Board of Public Works, 58 N. (1884). 
 
 J. L. 536, 37 Atl. 578 (1896). 4. Davis v. New York, 2 Duer 451 
 
 New York. — People r. Albany, etc., (1853). 
 
283 Officers of Couet Obey its Oedeks §§ 216, 217 
 
 offenders against justice. 5 "Where, on the contrary, action by the 
 corporation is required by the order, the officers can act only as 
 authorized by the constitution and by-laws of the corporation. 
 An officer, therefore, is not liable for failure to act alone where 
 the joint action of others is required by the constitution or by-laws 
 of the corporation. 
 
 Municipal Corporations. — The municipal corporation whose 
 officers have failed to obey the orders of a court may be dealt with 
 as an offender against justice. 7 
 
 Unincorporated Associations. — Where an order of a court is 
 directed to an unincorporated association and the precept has been 
 disobeyed, any officers or members prominent and active in its 
 management may be punished for the default of the association. 
 This rule has been applied to labor organizations. 8 
 
 § 216. (Functions of Judicial Office; Executive; Compel 
 Obedience to Directions); Court Officers The judge, in pur- 
 suance of his judicial and administrative functions may exact 
 obedience from court officers of all grades and relation to the 
 administration of justice. A federal court may enforce obedience 
 to its mandates by a state officer discharging a duty to a federal 
 court. 1 The legal tribunal may enforce obedience not only to its 
 direct but to its implied commands: e. g., it may punish an 
 officer for violating its implied direction not to reveal to persons 
 against whom its process has issued the fact of such issuance. 2 
 
 § 217. (Functions of Judicial Office; Executive; Compel 
 Obedience to Directions; Court Officers); Clerks, Attendants, 
 Etc. — Clerks of court are constrained to obey the orders of the 
 judge when the latter is acting within the scope of his administra- 
 tive powers. 1 A clerk designated to receive deposits 2 and all other 
 
 5. Simon v. Aldine Pub. Co., 12 N. 8. Patterson v. Wyoming Valley 
 Y. Civ. Proc. 290 (1887) [affirmed in Dist. Council, 31 Pa. Super. Ct. 112 
 
 14 Daly 279, 8 N. Y. St. 377 (1887)]. (1906). 
 
 See also People v. Dwyer, 1 N. Y. 1. In re Birdsong, 39 Fed. 599, 4 L. 
 
 Civ. Proc. 484 (1882). R. A. 628 (1889). 
 
 6. Demorest v. Midland R. Co., 10 2. State v. O'Brien, 87 Minn. 161, 
 Ont. Pr. 82 (1883). See also Hugh- 91 N. W. 297 (1902). 
 
 son V. People, 91 111. App. 396 (1899). 1. State V. Simmons, 1 Ark. 265 
 
 7. Marson v. City of Rochester, 185 (1839); In re Contempt by Two 
 N. Y. 602, 78 N. E. 1106 (1906) [of- Clerks, 91 Ga. 113, 18 S. E. 976 
 firming 97 N. Y. Suppl. 881]; Mar- (1893); Ex p. Thatcher, 7 111. 167 
 son v. City of Rochester, 112 N. Y. ( 1845 ) ; Territory v. Clancey, 7 N. 
 App. Div. 51, 97 N. Y. Suppl. 881 M. 580, 37 Pac. 1108 (1894). 
 (1906). 
 
§§ 218, 219 Court and Juey; Court. 284 
 
 persons, like receivers, 3 who assume financial obligations under the 
 direction of the judge are held, for obvious reasons, with excep- 
 tional strictness to the performance of their fiduciary tasks. 
 Court attendants who are placed in charge of witnesses whose 
 separation has been ordered 4 are, as it were, part of the arm of 
 the court and are necessarily responsive to the judge's will. 
 
 § 218. (Functions of Judicial Office; Executive; Compel 
 Obedience to Directions; Court Officers); Sheriffs, Constables, 
 
 Etc. — Obedience is due from the sheriff, 1 his deputies and all in- 
 ferior officers, to the judge of a court while the latter is acting in 
 his official capacity. But where a sheriff is placed in a position of 
 difficulty in deciding between conflicting mandates of the court 
 he cannot be held for the consequences of an honest error in judg- 
 ment. 2 He will be equally excused for declining to obey a writ 
 issued without jurisdiction. 3 In like manner, a jailer who in 
 good faith acts on the orders of the judge of his own county in 
 declining to obey the orders of a judge of another county is not 
 guilty of an offense against justice. 4 
 
 § 219. (Functions of Judicial Office; Executive; Compel 
 Obedience to Directions); Jurors — The jury, while acting on 
 
 2. In re Western Mar., etc., Ins. 2. Greene v. Carpenter, (Can. 
 Co., 38 111. 289 (1865) ; Southern De- 1902) Rap. Jud. Que. 22 C. S. 104. 
 velopment Co. v. Houston, etc., R. Co., " Misbehavior in office, willful neglect 
 27 Fed. 344 (1886). of duty and disobedience to a lawful 
 
 3. Tindall v. Wescott, 113 Ga. mandate of the court, all imply bad 
 1114, 39 S. E. 450, 55 L. R. A. 225 faith, and not a simple mistake or er- 
 ( 1901 ) ; Ex p. Haley, 99 Mo. 150, 12 ror of judgment. If a party to an ac- 
 S. W. 667 (1889). tion is injured by a mistake of the 
 
 4. Cross v. State, 11 Tex. App. 84 sheriff in the discharge of an official 
 (1881). duty, he can hold him and his sure- 
 
 1. Arkansas. — In re Lawson, 3 ties liable in damages, but cannot pro- 
 Ark. 363 (1840). ceed against him as for a contempt. 
 
 Georgia. — Hunter v. Phillips, 56 An inexperienced officer, before he has 
 
 Ga. 634 (1876). been in office a month, should not be 
 
 New York. — In re Leggat, 162 N. fined or imprisoned because he did not 
 
 Y. 437, 56 N. E. 1009, 31 N. Y. Civ. correctly decide difficult and import- 
 
 Proc. 6 (1900); People V. Stone, 10 ant questions of law, in relation to 
 
 Paige 606 (1844). which learned counsel differ, and over 
 
 South Carolina. — Rice v. McClin- which the court may well hesitate." 
 
 tock, Dudley 354 (1838) ; Thomas v. Oswego Second Nat. Bank i>. Dunn, 
 
 Aitken, Dudley 292 (1838). 63 How. Pr. 434 (1882). 
 
 Texas.— Sparks V. State, 60 S. W. 3. Lindsay v. Allen, (Tenn. 1904) 
 
 246 (1900). 82 S. W. 648. 
 
 Wisconsin. — State V. Brophy, 38 4. Boone r. Riddle, 86 S. W. 978, 
 
 Wis. 413 (1875). 27 Ky. Law Rep. 828 (1905). 
 
285 Administrative Boards axd Judicial Obders § 220 
 
 judicial business, whether within or without the courtroom, must 
 obey the orders of the presiding justice regarding any conduct 
 pertinent to the trial. In this connection, it is the duty of the 
 jury to obey, and within the administrative power and duty of the 
 judge to enforce obedience to his orders. Thus, if the presiding 
 justice requests the members of a grand * or petty jury to keep 
 their deliberations secret, he may well punish any member of the 
 jury who disobeys the order. Where the jurors are ordered not 
 to express an opinion regarding the merits of a pending matter, 2 
 they must refrain from doing so. If they are ordered by the 
 judge not to separate from each other, 3 he who acts in contra- 
 vention of the order comes within the executive power of the 
 court. 
 
 § 220. (Functions of Judicial Office; Executive; Compel 
 Obedience to Directions) ; Magistrates and Inferior Tribunals 
 
 The power of a presiding judge extends to requiring persons to 
 be sworn before magistrates or inferior tribunals acting according 
 to law and to testify in accordance with their oath. He may 
 order anyone having relevant information to appear and testify 
 before a grand jury. 1 The rule is the same for commissioners. 
 In like manner, a witness may be ordered to testify before a notary 
 public. But the simple order of the notary is not in itself suffi- 
 cient ; the compulsory order is that of the court. 2 
 
 Boards of Health. — The order to which obedience is demanded 
 
 1. In re Summerhayes, 70 Fed. 769 Massachusetts. — Heard v. Pierce, 8 
 (1895). Cush. 338, 54 Am. Dec. 757 (1851). 
 
 2. Georgia. — State v. Helvenston, New York. — In re Hackley, 24 N. 
 R. M. Charlt. 48 (1820). Y. 74, 24 How. Pr. 369 (1861) ; Mat- 
 
 Indiana. — Murphy v. Wilson, 46 ter of Taylor, 60 N. Y. St. 136, 28 
 
 Ind. 537 (1874). N. Y. Supp. 500, 8 Misc. 159 (1894). 
 
 New Jersey. — Crane V. Sayre, 6 N. Utah. — Eos p. Harris, 4 Utah 5, 
 
 J. L. 110 (1822). 5 Pac. 129 (1884). 
 
 New York. — Ecu p. Hill, 3 Cow. 355 United States. — U. S. V. Caton, 25 
 
 (1824). Fed. Cas. No. 14,758, 1 Cranch C. C. 
 
 United States. — Offutt v. Parrott, 150 (1803). See also Bradley, etc., 
 
 18 Fed. Cas. No. 10,453, 1 Cranch C. Co. v. Taylor, 112 N. C. 141, 17 S. 
 
 C. 154 (1803). E. 69 (1893); Ecc p. Peck, 19 Fed. 
 
 3. Howe v. Welch, 11 N. Y. Civ. Cas. No. 10,885, 3 Blatchf. 113 
 Proc. 444 (1887) ; Reynolds V. Parkes, (1853) ; In re Judson, 14 Fed. Cas. 
 2 Bern. Surr. 399 (1884). No. 7,563, 3 Blatchf. 148 (1853). 
 
 1. Alabama. — Newsum v. State, 2. Burnside v. Dewstoe, 9 Ohio 
 
 78 Ala. 407 (1885). Dec. (Reprint) 589, 15 Cine. L. Bui. 
 
 California. — In re Rogers, 129 Cal. 197 (1886). 
 468, 62 Pac. 47 (1900). 
 
§ 221 Court and Jury; Court. 286 
 
 may be addressed to a public administrative board, e. g., a board 
 of bealth. 3 
 
 § 221. (Functions of Judicial Office; Executive; Compel 
 Obedience to Directions); Public — Any person or member of 
 tbe public, party or stranger, who interferes with the orderly 
 administration of justice may be summarily dealt with by the 
 judge. 1 For example, it is regarded as being against the dignity of 
 judicial administration for a person to seek to give publicity to 
 any fact which the court desires should remain unknown until 
 made public in the due course of the proceedings. A judge may 
 properly punish a newspaper reporter who seeks to learn, by 
 eavesdropping, as to the deliberations of a jury, with a view to 
 communicating the information to the public. 2 In like manner, 
 it is improper for any person to seek to obtain information as to 
 judicial action in anticipation of the regular course of proceed- 
 ings, even though the purpose be a comparatively innocent one. 
 Thus, a man is not at liberty to arrange a code of signals with a 
 juryman to be employed while he is in the juryroom, though the 
 object is merely to enable the outsider to wager on the result to 
 better effect. 3 In any matter not of a professional nature an at- 
 torney appears not as a member of the court but as an individual. 4 
 His knowledge of what is fitting and loyal to the court may merely 
 aggravate his offense, without altering its essential character. Any 
 person who interferes to prevent or even to dissuade another from 
 obeying an order of the court will be deemed to have obstructed 
 public justice. 5 
 
 3. Spokes v. Banbury, etc., Bd. of Rep. 610 (1897) ; Avory v. Andrews, 
 
 Health, 11 Jur. (N. S.) 1010, 35 L. J. 51 L. J. Ch. 414, 46 L. T. Rep. (N. 
 
 Ch. 105, 13 L. T. Rep. (N. 8.) 453 S.) 279, 30 Wkly. Rep. 564 (1882). 
 
 (1865) [affirming L. R. 1 Eq. 42, 14 Mere failure to communicate an 
 
 Wkly. Rep. 128]. order may be an insult to the court. 
 
 1. Sew Jersey. — State v. Doty, 32 Silliman v. Whitmer, 173 Pa. St. 401, 
 
 N. J. L. 403, 90 Am. Dec. 671 (1868). 37 Wkly. Notes Cas. 497, 34 Atl. 56 
 
 New York.— Hull i\ L'Eplattimer, (1896). 
 
 49 How. Pr. 500 (1875). 2. Orman v. State, 24 Tex. App. 
 
 Ohio.— State v. Post, 6 Ohio S. & 495, 6 S. W. 544 (1887). 
 
 C. PI. Dec. 200, 4 Ohio N. P. 157 3. State v. Doty, 32 N. J. L. 403, 
 
 (897). 90 Am. Dec. 671 (1868). 
 
 United States. — In re Acker 4. State P. Keene, 11 La. 596 
 
 (Mont.) 66 Fed. 290 (1894). (1837). 
 
 England. — Wellesley v. Morning- 5. Thomas t\ Gwynne, 8 Beav. 312 
 
 ton, 11 Beav. 180 (1848) ; Seward v. (1845) ; McCartney r. Simonton, Ir. 
 
 Paterson, 1 Ch. 545, 66 L. J. Ch. 267, R. 5 Eq. 594 (1843). 
 76 L. T. Rep. (N. S.) 215, 45 Wkly. 
 
287 Evidence Must be on a Material Point. §§ 222-221 
 
 § 222. (Functions of Judicial Office; Executive; Compel 
 Obedience to Directions); Witnesses — A summons of a court, 
 in the form of a subpoena or similar writ is, according to its pre- 
 cept, a direct order of the court from which it was issued. The 
 witness must attend, as directed, 1 provided, of course, the writ 
 was issued under proper authority. 2 
 
 § 223. (Functions of Judicial Office; Executive; Compel 
 Obedience to Directions; Witnesses) ; Compulsory Exhibition of 
 Person. — For some consideration as to the power of the court to 
 order a party or witness to submit to an examination of his body, 
 or part thereof, in or out of court, reference may be had to the 
 subject of evidence by perception. 1 
 
 § 224. (Functions of Judicial Office; Executive; Compel 
 Obedience to Directions; Witnesses); Order to Produce — An 
 
 order to produce books, if justified by law, e. g., where a register 
 in bankruptcy issues an order to a bankrupt to produce his books, 1 
 or in cases where the precept comes from a court to a witness by 
 a subpoena duces tecum, 2 it must be obeyed. The same rule 
 applies to the production of other writings or probative objects, 
 so that a witness may examine them in connection with his testi- 
 mony. 3 
 
 So, by special order, the court may direct the production of 
 books, papers or other documents. Failure to produce such docu- 
 ments is not, however, strictly speaking, a resistance to the execu- 
 tion of a lawful order by the court, being a mere nonfeasance. 4 
 
 It is, moreover, a condition upon punishment that the evidence 
 sought to be elicited, by means of the judge's orders, from oral 
 testimony, documentary evidence or perception, should not only 
 be relevant but material. 5 
 
 1. Baldwin r. State, 126 Ind. 24, 2. Hanimm v. McKae, (Can. 1897) 
 25 N. E. 820 (1890); State v. New- 17 Ont. Pr. 567 [affirmed in 18 
 ton, 62 Ind. 517 (1878) ; Tredway v. Ont. Pr. 185 (1898)]. 
 
 Van Wagenen, 91 Iowa 556, 60 N. W. 3. Ludlow v. Knox, 4 Abb. Dec. 326, 
 
 130 (1894); Woods v. De Figaniere, 7 Abb. Pr. (N. S.) 411 (1869). 
 
 1 Rob. 607, 641, 16 Abb. Pr. 1 (1863) ; 4. People v. Webster, 14 How. Pr. 
 
 Bleecker v. Carroll, 2 Abb. Pr. 82 242, 3 Park. Crim. 503 (1857); Peo- 
 
 (1855). pie v. Benjamin, 9 How. Pr. 419 
 
 2. White v. Morgan, 119 Ind. 338, (1853). 
 
 21 N. E. 968 (1889). 5. California.— Ex p. Zeehandelaar, 
 
 1. See Evidence by Perception. 71 Cal. 238, 12 Pac. 259 (1886). 
 
 1. In re Allen, 1 Fed. Cas. No. 208, Kansas. — Davis' Petition, 38 Kan. 
 
 13 Blatchf. 271 (1876). 408, 16 Pac. 790 (1888). Compare 
 
§§ 225, 226 
 
 CoUET AND JtTEY ; CoDET. 
 
 288 
 
 Production of Evidence for Inspection. — -A, court may order 
 any person shown to be in possession of any object available as 
 evidence to produce it for its inspection. A subordinate branch 
 of a tribunal, such as a grand jury, 6 may not have the right 
 virtute officii to order such production. 
 
 § 225. (Functions of Judicial Office; Executive; Compel 
 Obedience to Directions; Witnesses); Separation of Witnesses, — 
 
 The power of the court to order a separation of witnesses in any 
 given case, the details of such an order and some of the conse- 
 quences of disobedience to its terms are given elsewhere. 1 Where 
 a witness, placed, as it is said, " under the rule " remains during 
 the examination of other witnesses without permission, his con- 
 duct is in contravention of the right of the judge to direct the 
 course Of the witnesses attending at a trial. 2 
 
 § 226. (Functions of Judicial Office; Executive; Compel 
 Obedience to Directions; Witnesses); Testimony Required 
 
 Every person, upon being directed by the presiding judge to do so, 
 must submit to be sworn as a preliminary to testifying. 1 If he 
 
 In re Merkle, 40 Kan. 27, 19 Pae. 401 
 (1888). 
 
 Montana. — In re MaeKnight, 11 
 Mont. 126, 27 Pac. 336, 28 Am. St. 
 Rep. 451 (1891). 
 
 New York. — Matter of Leich, 65 
 N. Y. Supp. 3, 31 Misc. 671 (1900) ; 
 Matter of Odell,' 19 N. Y. St. 259, 6 
 Dem. Sur. 344 (1887). 
 
 Pennsylania. — Kauschmeyer v. 
 Bank, 2 L. T. (X. S.) 67 (1880). 
 
 United States. — In re Judson, 14 
 Fed. Cas. No. 7,563, 3 Blatchf. 148 
 (1853) ; Ex p. Peck, 19 Fed. Cas. No. 
 10,885, 3 Blatchf. 113 (1853). 
 
 6. Wyatt v. People, 17 Colo. 252, 
 28 Pac. 961 (1892). 
 
 1. Infra, note 3. See, also: 
 
 California. — People v. Boscovitch, 
 20 Cal. 436 (1862). 
 
 Georgia. — Hoxie v. State, 114 G-a. 
 19, 39 S. E. 944 (1901). 
 
 Illinois. — Bulliner v. People, 95 
 111. 394 (1880). 
 
 Iowa. — Grimes v. Martin, 10 Iowa 
 347 (1860). 
 
 Nevada. — State v. Salge, 2 Nev. 
 321 (1866). 
 
 New York. — 'Friedman v. Myers, 14 
 N. Y. S. 142 (1891). 
 
 Ohio. — Dickson v. State, 39 Ohio 
 St. 73 (1883). 
 
 Oregon.— Hubbard v. Hubbard, 7 
 Or. 42 (1879). 
 
 Texas. — Cross v. State, 11 Tex. 
 App. 84 (1881). 
 
 West Virginia. — Gregg v. State, 3 
 W. Va. 705 (1869). 
 
 2. California. — People v. Bosco- 
 vitch, 20 Cal. 436 (1862). 
 
 Georgia.-. — Hoxie i\ State, 114 Ga. 
 19, 39 S. E. 944 (1901). 
 
 Ohio. — Dickson v. State, 39 Ohio 
 St. 73 (1883). 
 
 Texas. — Cross v. State, 11 Tex. 
 App. 84 (1881). 
 
 Canada. — Sadlier v. Smith, 14 U. 
 C. L. J. (N. S.) 30 (1877). 
 
 1. Ex p. Stice, 70 Cal. 51, 11 Pac. 
 459 (1886) : Heard v. Pierce, 8 Cusli. 
 338, 54 Am. Dec. 757 (1851); Com. 
 V. Roberts, 2 Pa. L. J. Eep. 340, 4 
 Pa. L. J. 126 (1841). 
 
289 Judge Peotects Proceedings of His Own Oouet. § 227 
 
 have conscientious scruples against swearing, he may indeed be 
 permitted to affirm, under the circumstances mentioned by any 
 statute on the subject. 2 A judge is justified in ordering a witness, 
 having sworn or affirmed, to answer a given question 3 and may 
 punish any refusal to do so* in any case where the court has juris- 
 diction. 5 Such a rule may well be applied to any refusal by a 
 judgment debtor to state the disposition of his property; 6 and, 
 a fortiori, it embraces the case of the wife of a judgment debtor, 
 who may be ordered to answer as to whether any of her husband's 
 property has come into her possession or control. 7 
 
 § 227. (Functions of Judicial Office; Executive) ; Protect the 
 
 Course of Justice — The presiding judge will protect the purity 
 and unobstructed course of justice as a matter of paramount im- 
 portance. More insulting to the dignity of a court of justice than 
 any disorderly disturbance of its outward proceedings, or the most 
 contemptuous refusal to obey the will of its minister presiding at 
 the trial, is any attempt to corrupt or debauch the moral quality 
 of justice itself. The judge will be prompt to resent and punish 
 so grave an offense against those interests of society of which he is 
 the guardian. 
 
 By this is understood, not the course of justice generally, but 
 as administered by his own court. He will not undertake to pro- 
 tect the orderly administration of other tribunals. 1 Thus, a federal 
 
 2. U. S. v. Coolidge, 25 Fed. Cas. fuaal to testify is not punishable as 
 No. 14,858, 2 Gall. 364 (1815). violation of an order requiring the 
 
 3. Nevada. — Maxwell v. Rives, 11 person to be sworn and testify as a 
 Nev. 213 (1876). witness. Manzella v. Ryan, 73 N. Y. 
 
 New York.— People v. Marston, 18 App. Div. 137, 77 N. Y. Supp. 132 
 
 Abb. Pr. 257 (1864); Clark -p. Brooks, (1902). 
 
 26 How. Pr. 254 (1864) ; Taylor v. 5. In re Hall, 10 Mich. 210 (1862) ; 
 
 Wood, 2 Edw. 94 ( 1833 ) . In re Morton, 10 Mich. 208 ( 1862 ) . 
 
 Ohio. — Amnion v. Johnson, 3 Ohio 6. Berkson v. People, 154 111. 81, 39 
 
 Cir. Ct. 263 (1888). N. E. 1079 (1894) ; Warren v. Ros- 
 
 Pennsylvania. — In re Kelly, 200 enberg, 94 Wis. 523, 69 N. W. 339 
 
 Pa. St. 430, 50 Atl. 248, 86 Am. St. (1896) ; In re Rosenberg, 90 Wis. 
 
 Rep. 719 (1901) ; Carondelet Ave., 581, 63 N. W. 1065, 64 N. W. 299 
 
 etc., Co. V. Fairmount Ins. Assoc, 15 (1895) ; Uhrig v. Uhrig, (Can. 1892) 
 
 Wkly. Notes Cas. 125 (1884) . 15 Ont. Pr. 53. But see Bernheimer v. 
 
 Texas. — Holman v. Austin, 34 Tex. Kelleher, 31 Misc. 464, 64 N. Y. 
 
 €68 (1871). SupplT4b9 (1900). 
 
 4. In re Kelly, (Pa. 1901) 50 Atl. 7. In re O'Brien, 24 Wis. 547 
 248. (1869). 
 
 Other conduct, however objection- 1. A judicial officer cannot punish 
 
 able, which does not amount to a re- for contempt, unless the contempt is 
 
 Vol. I. 19 
 
§ 228 Couet and Juey; Cotjet. 290 
 
 judge will not intervene to prevent the employment of the process 
 of his court as a means of impeding justice in a state tribunal. 2 
 In like manner a judge will not intervene to protect the course of 
 justice in an inferior court from which an appeal lies to his own.* 
 But where, in a capital case, an appeal has been allowed on behalf 
 of the accused to the supreme court of the United States from a 
 death sentence imposed in a state court, killing the accused to 
 prevent this appeal from being prosecuted in the supreme court 
 of the United States is an affront against the dignity of that body.* 
 
 § 228. (Functions of Judicial Office; Executive; Protect the 
 Course of Justice); Prevent Insult to the Judge. — No person what- 
 ever will be permitted to assail in public addresses, or otherwise,, 
 the motives and character of the judges of courts in such a manner 
 as to bring the administration of justice into contempt. 1 From 
 this point of view, a charge against a judge may be none the less 
 objectionable because it is true. 2 
 
 Intent not Material. — If the effect of an intentional act is to 
 embarrass the orderly administration of justice, the fact that the 
 actor disclaims having had any such purpose or desire is not im- 
 portant. 3 Where, however, the allegations of a proceeding for con- 
 tempt involve imputation of a crime to the existence of which a 
 particular mental state is necessary, the accused must be affirma- 
 tively shown to have had it. 4 The contrary has, however, been. 
 held. 5 
 
 § 229. (Functions of Judicial Office; Executive; Protect the 
 Course of Justice) ; Attorneys. — Any attorney who wilfully ob- 
 structs the course of justice, even by a nonfeasance, 1 as where h& 
 contumaceously absents himself from court, 2 may be summarily 
 
 of the court over which he presides. 3. Terry v. State, (Nebr. 1906) 110 
 
 Ormond v. Ball, 120 Ga. 916, 48 S. E. N. W. 733; King v. Charlier, (Can. 
 
 383 (1904). 1903) Rap. Jud. Que. 12 B. R. 385. 
 
 2. In re Riggsbee, 151 Fed. 701 4. U. S. v. Carroll, 147 Fed. 947 
 (1907). (1906). 
 
 3. Emery v. Law, 149 Mich. 383, 5. Powers v. People, 114 111. App. 
 112 N. W. 951, 14 Detroit Leg. N. 323 (1904). 
 
 465 (1907) . 1. Ex parte Clark, 208 Mo. 121, 10& 
 
 4. U. S. v. Shipp, 203 U. S. 563, 27 S. W. 990 (1907). 
 
 S. Ct. 165, 51 L. ed. 319 (1906). 2. In re Clark, 126 Mo. App. 391» 
 
 1. U. S. v. Gehr, 116 Fed. 520 103 S. W. 1105 (1907). The absence 
 (1902). from the courtroom of an attorney, 
 
 2. Tracy v. State, 28 Ohio Cir. Ct. to the delay and embarrassment of 
 R. 453 (1906). a trial, if it amounts to a contempt, 
 
291 Respective Comment on Judicial Proceedings. § 229 
 
 treated. A lawyer who advises a course which results in contempt 
 is himself guilty of that offense. 3 Indeed, the professional knowl- 
 edge of an attorney renders any assault on the integrity of justice 
 especially heinous.* For example, counsel who has repeatedly in- 
 sisted upon the making of an order which the judge has as fre- 
 quently declined to make, cannot abandon a half-tried case on the 
 spot, although his offense is due to excess of zeal. 5 A legal prac- 
 titioner has, however, rights as well as duties. Within his prov- 
 ince, the attorney is as much a part of the administration of 
 justice as is the judge. An honest error in seeking to protect the 
 interests of his client in a respectful manner cannot be treated as 
 an offense. This is true although he advises one court to make an 
 order against the officer of another which that other regards as 
 insulting to its dignity. 6 In general, where an attorney is pursu- 
 ing in good faith what he supposes to be his right in a court of 
 justice, he is not guilty of contempt though he falls into error and 
 violates rules of court and statutes not penal. To constitute con- 
 tempt in such a case, there must be something in the circumstances 
 under which the act is done that is disrespectful to the judge or 
 a hindrance of the administration of the affairs of the court. The 
 act must, moreover, be done wilfully and for an illegitimate or 
 improper purpose. 7 One may criticise an opinion of a court, take 
 issue with it on its conclusions of law, or question its conception 
 of the facts, so long as his criticisms are made in good faith and 
 in ordinarily respectful language, when not designed to wilfully 
 or maliciously misrepresent the position of the court, or tend to 
 bring it into disrepute, or lessen the respect due the authority to 
 which a court is entitled. 8 
 
 constitutes one which is indirect 4. Seastream V. New Jersey Exhi- 
 
 rather than direct. Ex parte Clark, bition Co., (N. J. Ch. 1905) 61 A. 
 
 208 Mo. 121, 106 S. W. 990 (1907). 1041. 
 
 The absence of an attorney from the 5. People v. Newburger, 98 N. Y. 
 
 court in which he has business, and App. Div. 92, 90 N. Y. Supp. 740 
 
 when he should be there to attend to (1904). 
 
 it, and when his absence necessarily 6. In re Watts, 190 U. S. 1, 23 S. 
 
 impedes or delays the court's busi- Ct. 718, Adv. S. U. S. 718, 47 L. ed. 
 
 ness, is contempt of court. In re 933 (1903). 
 
 Clark, 126 Mo. App. 391, 103 S. W. 7. Hunt v. State, 27 Ohio Cir. Ct. 
 
 1105 (1907). R. 16 (1904). 
 
 3. People v. District Court of Tenth 8. In re Breen, (Nev. 1908) 93 Pac. 
 
 Judicial District, 29 Colo. 182, 68 997; In re Maestretti, (Nev. 1908) 
 
 Pac. 242 (1901). 93 Pac. 1005. 
 
§§ 230, 231 Court and Jury; Court. 292 
 
 § 230. (Functions of Judicial Office; Executive; Protect the 
 Course of Justice) ; Court Officers. — A court will protect officers 
 and appointees exercising powers under it from indignities offered 
 to them in the discharge of their official duty. Thus, a United 
 States court will protect a trustee in bankruptcy from assault 
 while engaged in the performance of his duties as trustee. 1 For, 
 in general, attacking an officer of the court for the way in which 
 ihe has discharged a judicial duty, is an assault upon the court 
 itself for what it has done in the administration of justice. 2 Any 
 attempt to tamper with a court officer in charge of a jury while 
 in the conscientious performance of his duty 3 is a gross insult to 
 the dignity of the court. These officers are to be prevented from 
 doing what is wrong, as well as protected in doing what is right. 
 Court officers and attendants are not themselves at liberty to ob- 
 struct or pervert the administration of justice* — e. g., by giving 
 information to one about to be served with a search warrant that 
 such a step is intended. 5 
 
 § 231. (Functions of Judicial Office; Executive; Protect the 
 Course of Justice) ; Grand Jurors. — Newspaper attacks upon 
 grand jurymen, tending to bring them into " hatred, ridicule or 
 contempt," to interrupt their proceedings, or otherwise embar- 
 rass their action, constitute an assault upon the integrity of 
 justice. 1 Writing letters to a similar purport falls under a like 
 condemnation. 2 For example, it is not proper to charge that a 
 grand jury, or any member of it, is unfit or disqualified for the 
 work in hand. 3 An individual attacked in his private capacity 
 gains, however, no additional right to exemption from comment 
 
 1. O'Neal, (Fla. 1903) 125 Fed. that one whom he is summoning as a 
 967. juror is a friend of one of the parties 
 
 2. Ece parte MeLeod, 120 Fed. 130 is not punishable. Kiehards v. IT. S., 
 (1903). The highest consideration of (Alaska, 1903) 126 Fed. 105. 
 
 the public good demands that the 5. State v. O'Brien, (Minn. 1902) 
 
 court3 protect their officers against re- 91 N. W. 297. See also State V. 
 
 venges induced in consequence of the O'Brien, (Minn. 1902) 91 N. W. 297. 
 
 performance of their duties, as well as 1. Allen t\ State, 131 Ind. 599, 30 
 
 against violence while engaged in the N. E. 1093 (1892) ; Fishback v. State, 
 
 actual discharge of such duties. Ex 131 Ind. 304, 30 N. E. 1088 (1892). 
 
 parte McLeod, 120 Fed. 130 (1903). 2. Matter of Tyler, 64 Cal. 434, 1 
 
 3. Sinnott v. State, 11 Lea, 281 Pac. 884 (1884). See also Bergh's 
 (1883). See also Keppele V, Wil- Case, 16 Abb. Pr. (N. S.) 266 (1875). 
 liams, 1 Dall. 29, 1 L. ed. 23 (1776) 3. In re Van Hook, (N. Y. 1818) 
 (pocketing venire). 3 City Hall Eec. 64. 
 
 4. But mere knowledge bj a sheriff 
 
293 Discussion with Juror Punishable as Contempt. § 232 
 
 in that social relation because he chances to serve, at the time, as 
 member of a grand jury. 4 
 
 Past acts of any grand jury constitute a fair subject for com- 
 ment unless the criticism shall appear to have some apparent tend- 
 ency to embarrass pending or future business still remaining to 
 be performed by it. 6 
 
 § 232. (Functions of Judicial Office; Executive; Protect the 
 Course of Justice); Jurors; Discussions. — The juryman, being 
 legally required to render his verdict according to the law and the 
 evidence given him, will be protected by the administrative power 
 of the judge from any attempt to cause him to act, in his judicial 
 capacity, on other evidence, or from any other motive than belief 
 in it. Each party has a substantive right to such a trial j 1 and in 
 the enjoyment of it he will be secured by the powers of the court. 
 
 Discussions with Juryw,en. — Any effort on the part of a juror 
 to elicit extrajudicial evidence from sources outside the courtroom, 
 as by conversation with the parties, 2 and any oral discussions with 
 jurymen calculated to affect them in the impartial discharge of 
 their duty, 3 even if it takes place in the courtroom,* will be deemed 
 by the judge an assault upon the integrity of justice; and both 
 the juror and the person seeking to influence him 5 will be sum- 
 marily punished. 6 For this result, it is not essential that the 
 
 4. In re Spooner, (N. Y. 1820) 5 impanelled on any particular jury is 
 City Hall Rec. 109. within the meaning of this rule. 
 
 5. Storey v. People, 79 111. 45, 22 Marvin v. Dist. Court of Polk County, 
 Am. Hep. 158 (1875). (Iowa 1905) 102 N. W. 119. 
 
 1. Infra, §•§ 408 et seq. 4. Baker v. State, 82 Ga. 776, 9 S. 
 
 2. State v. Helvenston, (Ga.) R. E. 743, 14 Am. St. Rep. 192, 4 L. R. 
 M. Charlt. 48 (1820) ; Ruff v. Rader, A. 128 (1889). 
 
 2 Mont. 211 (1874) ; In re Gorham, 5. McCaully v. United States, 25 
 
 129 N. C. 481, 40 S. E. 311 (1901) ; App. D. C. 404 (1905) ; Emery v.. 
 
 In re May, 1 Fed. 737, 2 Flipp. 562 State, (Nebr. 1907) 111 N. W. 374,. 
 
 (1880). 9 L. R. A. (N. S.) 1124; In re Gor~ 
 
 3. Drady v. Dist. Court of Polk ham, 129 N. C. 481, 40 S. E. 311 
 County, (Iowa 1905) 102 N. W. 115; (1901) 
 
 In re Gorham, 129 1ST. C. 481, 40 S. E. 6. On the contrary, it has been held 
 311 (1901) ; Davidson v. Manlove, 2 that where the judge has made no- 
 Cold. 346 (1865). order against acquiring outside infor- 
 
 An attempt to ascertain how a mation, the court is not required to- 
 
 juryman stands on a given point, not penalize the juryman. People v. Oyer, 
 
 involving any effort to affect his etc., Ct., 36 Hull 277 (1885) [af- 
 
 views, is not punishable. McRae, firmed in 101 N. Y. 245, 4 N. E. 859,. 
 
 (Tex. Cr. App. 1903) 77 S. W. 211. 54 Am. Rep. 691 (1886)]. 
 
 One summoned as a juror but not 
 
§§ 233-236 Oouet and Jury; Couet. 294 
 
 matter discussed should be actually pending before the jury, or is 
 certain to come before them] it is sufficient if it may com© before 
 them. 7 
 
 § 233. (Functions of Judicial Office; Executive; Protect the 
 
 Course of Justice; Jurors); Obstructing Justice !N"or will any 
 
 person be permitted, as a juryman, willfully to obstruct the cause 
 of justice. Thus, for example, a juryman, summoned to attend 
 in a jurisdiction where it is a disqualification to have formed and 
 expressed an opinion regarding the guilt of the accused, will not 
 be permitted, with impunity, to subsequently disqualify himself 
 by expressing such an opinion with intention to create such a dis- 
 qualification. 1 
 
 § 234. (Functions of Judicial Office; Executive; Protect the 
 Course of Justice; Jurors); Tampering with. Jury. — Ignorance 
 and honest mistake may plead for indulgence in case of a discus- 
 sion with a juryman as to matters which may come before him. 
 Intentional tampering with a juryman's integrity is an unexcus- 
 able insult to the court. 1 This occurs where an attempt is made 
 to bribe one of a jury, 2 or offer to that effect is made to a jury- 
 man. 3 
 
 § 235. (Functions of Judicial Office; Executive; Protect the 
 Course of Justice; Jurors); Threatening Jury. — Threatening the 
 members of a grand or traverse jury is an assault upon the dig- 
 nity of the court before which the proceedings with which the 
 jurymen are concerned are pending. 
 
 § 236. (Functions of Judicial Office; Executive; Protect the 
 
 Course of Justice); Magistrates and Inferior Tribunals Where 
 
 a magistrate seeks to perpetrate a fraud upon the court, as where 
 a coroner presents for allowance by the judge a fictitious claim 
 
 7. U. S. v. Kilpatrick, 16 Fed. 765 N. W. 691 ; Langdon v. Judges of 
 
 (1883). Wayne Cir. Ct., 76 Mich. 358, 43 N. 
 
 1. U. S. v. Devaughan, 25 Fed. Cas. W. 310 (1889) ; Gandy v. State, 13 
 
 No. 14,952, 3 Cranch C. C. 84 (1827). Nebr. 445, 14 N. W. 143 (1882) ; U. 
 
 1. Be Odum, 133 N. C. 250, 45 S. S. v. Carroll, 147 Fed. 947 (1906). 
 E. 569 (1903) ; Harwell v. State, 10 3. Little v. State, 90 Ind. 338, 46 
 Lea 544 (1882). Am. Rep. 224 (1883); Nichols l\ 
 
 2. Hurley v. Com., 388 Mass. 443, Judge of Superior Court of Grand 
 74 N. E. 677 (1905); Nichols v. Rapids, (Mich. 1902) 8 Detroit Leg. 
 Judge Super. Ct., (Mich. 1902) 89 N. 1197, 89 N. W. 691. 
 
295 Newspaper Attacks Embarrassing Justice. §§237, 23S 
 
 against the state, 1 an assault has been made against the dignity 
 of the court. 
 
 § 237. (Functions of Judicial Office; Executive; Protect the 
 Course of Justice) ; Newspapers. — Warmth of feeling is apt to 
 disturb the judgment and destroy much of a due appreciation of 
 the relative importance of various considerations. It has proved 
 easy, in times of personal or popular excitement to forget that such 
 conditions are inimical to the doing of justice; or to realize tha't 
 it is the duty of the court to preserve all connected with judicial 
 proceedings from any influence which would tend to supplant the 
 guidance of reason and the supremacy of the rules of law. Great 
 injury has undoubtedly been caused to due administration by acts 
 calculated to forestall public opinion through the newspapers, argu- 
 ing the issues in advance of the evidence, anticipating, predicting 
 and even demanding, either in the name of individuals or that of 
 the " public," i. e., of society, a particular result of the proceedings. 
 Parties, witnesses, jurors and all other members of the court, have 
 been invited to do certain acts or threatened, more or less directly, 
 with unpleasant consequences should they fail to do so. Such 
 publications make it extremely difficult to select an impartial jury 
 for most important cases or that they should remain impartial in 
 rendering their verdict. In the absence of statutory limitation, 1 
 such conduct, so far as preventable, will be checked by a judge 
 who is aware of the ends which his administration of justice seeks 
 to attain, and the powers with which he has been clothed for their 
 attainment. 
 
 § 238. (Functions of Judicial Office; Executive; Protect the 
 Course of Justice; Newspapers) ; Embarrassing the Administra- 
 tion of Justice. — Any publication concerning a pending cause or 
 regarding a matter likely to become the subject of judicial in- 
 quiry, which in any way tends to embarrass 1 the orderly adminis- 
 
 1. Eoo parte Toepel, (Mich. 1905) It is not material, in the matter of 
 
 102 N. W. 369, 11 Detroit Leg. N. liability, that the cause is not pend- 
 
 759. ing nor to be tried at a time then 
 
 1. In re Daniels, (N. C. 1904) 131 determined. But the circumstance 
 
 Fed. 95. that the matter was to be heard judi- 
 
 1. R. v. Parke, 72 Law J. K. B. cially at a time then unascertained 
 
 839 ( 1903 ) , 2 K. B. 432, 89 Law T. may be relevant upon the question of 
 
 439, 52 Wkly. Rep. 215, 67 J. Pac. a suitable punishment for the offense. 
 
 421 (1904); R. v. Parke, 72 Law J. Globe Newspaper Co. v. Com., 188 
 
 K. B. 839, 2 K. B. 432, 89 Law T. Mass. 449, 74 N. E. 682 (1905). 
 439, 67 J. P. 421 (Eng. 1903). 
 
§ 239 Couet and Jukt; Court. 296 
 
 tration of justice will be deemed an offense against the dignity of 
 the court. 2 To charge, for example, the supreme court of a state 
 and certain of its judges with having been influenced by corrupt 
 motives in their rulings in causes still pending for rehearing, is 
 obviously calculated to bring justice into contempt. 3 Any publica- 
 tion, by newspaper or otherwise, which embarrasses the due and 
 orderly administration of justice, or tends to sully, pollute or cor- 
 rupt it, is an affront to the court before whom the proceedings 
 affected are pending. 4 " Nothing is more incumbent upon courts 
 of justice, than to preserve their proceedings from being misrep- 
 resented; nor is there anything of more pernicious consequence, 
 than to prejudice the minds of the public against persons con- 
 cerned as parties in causes, before the cause is finally heard." B It 
 is not material, in this connection, whether the statements made 
 are true 6 or false; or whether, if false, they were by reason of in- 
 tention or inadvertence, 7 or that the assault was directed at the 
 members of the court and that the latter were not affected by it. s 
 The protection is not designed for the personnel of the court, but 
 for the dignity of judicial administration. The intent of the pub- 
 lisher is equally immaterial, on the matter of liability, 9 though it 
 has a bearing as to what punishment would be proper. 10 
 
 § 239. (Functions of Judicial Office; Executive; Protect the 
 Course of Justice; Newspapers); Past Proceedings The exist- 
 ence of a pending suit which the publication may affect, while a 
 usual incident in the mischief, is not one absolutely essential to 
 liability for publication. The true object of the court's action 
 is the protection from public assault of the administration of 
 justice. The interests involved are usually sufficiently protected 
 by compelling abstention from comment in a pending cause. This, 
 however, is not necessarily so in all cases. It has been said, indeed, 
 
 2. Globe Newspaper Co. v. Com., 188 - 6. Hughes v. Terr., (Ariz. 1906) 
 Mass. 449, 74 N. E. 682 (1905); In 85 Pac. 1058; People v. News-Time3 
 re Providence Journal Co., (R. I. Pub. Co., (Colo. 1906) 84 Pac. 912. 
 1907) 68 Atl. 428. 7. In re Providence Journal Co., 
 
 3. People v. News-Times Pub. Co., (R. I. 1907) 68 Atl. 428. 
 
 (Colo. 1906) 84 Pac. 912. 8. People V. News-Times Pub. Co., 
 
 4. U. S. V. Holmes, 26 Fed. Cas. No. (Colo. 1906) 84 Pac. 912. 
 
 15,383, 1 Wall. Jr. 1 (1842) [cited 9. People v. News-Times Pub. Co., 
 
 in U. S. v. Anonymous, 21 Fed. 761, (Colo. 1906) 84 Pac. 912. 
 
 768 (1884)]. 10. Globe Newspaper Co. v. Com., 
 
 5. Anonymous, 2 Atk. 469 (1742), 188 Mass. 449, 74 N. E. C82 (1905). 
 per Hardwicke, C. 
 
297 Improper Influence of Peess Publications. § 240 
 
 that no matter how defamatory of a court or judge a publication 
 may be, it cannot be regarded as a contempt of court unless it be 
 written and published with reference to a case then pending be- 
 fore the court. 1 Still, it is clear that a litigant is not at liberty as 
 soon as his case is disposed of, and therefore, is no longer pending, 
 to publish libelous statements concerning the presiding judge. 
 This is a grave assault on the dignity of judicial proceedings. 2 A 
 newspaper publisher is equally obnoxious to the imputation" of 
 committing a flagrant offense against justice who suggests that the 
 judge who renders a certain decision was venal and corrupt. 3 The 
 following distinction has properly been taken : Contempts relating 
 to a pending cause may either consist in abusing parties concerned 
 in cases pending in court, or in prejudicing mankind against per- 
 sons before the cause is heard, while contempts consisting of 
 scandalizing the court itself need not relate to a pending suit.* 
 
 § 240. (Functions of Judicial Office; Executive; Protect the 
 Course of Justice; Newspapers); Improper Influence The pub- 
 lication which is objectionable is one which concerns a pending 
 cause. But to publish, in a newspaper or elsewhere, and circulate 
 through the community utterances which tend to influence, one 
 way or the other, the outcome of litigation, supplies something 
 other than argument or evidence to the jury as a ground for their 
 action and is an aggravated assault upon the dignity of the court. 1 
 
 1. Ex parte Green, (Tex. Cr. App. Disapproving Com. v. Dandridge, 2 
 
 1904) 81 S. W. 723 [citing State v. Va. Cas. 409 (1824) ; Ex parte Moore, 
 
 Anderson, 40 Iowa, 207 (1875) ; Stu- 63 N. C. 397. (1869) ; Em parte Mc- 
 
 art v. People, 3 Scam. (111.) 395 Leod, (Ala. 1903) 120 Fed. 130; State 
 
 (1842) ; Story v. People, 79 111. 45, v. Morrill, 16 Ark. 384 (1855) ; State 
 
 22 Am. Rep. 158 (1875) ; Ex parte v. Shepherd, (Mo. 1903) 76 S. W. 79; 
 
 Hickey, 4 Smedes & M. (Miss.) 751 In re Chadwick, (Mieh. 1896) 67 N. 
 
 (1844) ; Ex parte Wright, 65 Ind. 504 W. 1071]. 
 
 (1879); Cheadle v. State, 110 Ind. 2. Burdett v. Coin., 103 Va. 838, 48 
 
 301, 11 N. E. 426, 56 Am. Rep. 199 S. E. 878 (1904). 
 
 (1886) ; Ex parte Barry, 85 Cal. 603, 3. State V. Shepherd, 177 Mo. 205, 
 
 25 Pac. 256, 20 Am. St. Rep. 248 76 S. W. 79 (1903). 
 
 (1890); Rosewater v. State, (Neb. 4. State v. Shepherd, 177 Mo. 205, 
 
 1896) 66 N. W. 640; State v. Ed- 76 S. W. 79 (1903). 
 
 wards, (S. D. 1902) 89 N. W. 1011; 1. Arkansas.— State v. Morrill, 16 
 
 State v. Kaiser, (Or. 1890) 23 Pac. Ark. 384 (1855). 
 
 964, 8 L. R. A. 584; State v. Tugwell, California. — Ex p. Barry, 85 Cal. 
 
 (Wash. 1898) 52 Pac. 1056, 43 L. R. 603, 25 Pac. 256, 20 Am. St. Rep. 
 
 A. 717; People v. Stapleton, (Colo. 248 (1890). 
 
 1893) 33 Pac. 167, 23 L. R. A. 787; Colorado.— People v. Stapleton, 18 
 
 McClatchy v. Superior Court, (Cal. Colo. 568, 33 Pac. 167, 23 L. R. A. 
 
 1897) 51 Pac. 696, 39 L. R. A. 691. 787 (1893); Cooper V. People, 13 
 
§ 240 
 
 Court and Jury; Court. 
 
 298 
 
 As the effort of the court is rather to protect the course of justice 
 than to punish individuals, and as the injury to the cause of 
 justice is equally great whatever may have been the intent with 
 which such a publication has been made, the nature of the intent 
 of the actor is immaterial. 2 After the cause has finally been de- 
 cided, all persons connected 1 with it — - even the judge himself — 
 may be criticised by the press in the public interest. 3 
 
 Colo. 373, 22 Pac. 790, 6 L. R. A. 430 
 (1889). 
 
 Illinois. — People v. Wilson, 64 111. 
 195, 16 Am. Rep. 528 (1872). 
 
 Indiana. — Cheadle v. State, 110 
 Ind. 301, 11 N. E. 426, 59 Am. Pep. 
 199 (1886). 
 
 Louisiana. — State v. Judge Civ. 
 East. Ct., 45 La. Ann. 1250, 14 So. 
 310, 40 Am. St. Rep. 282 (1893). 
 
 M ontana.— State v. Faulds, 17 
 Mont. 140, 42 Pae. 285 (1895) ; In 
 re MacKnight, 11 Mont. 126, 27 Pac. 
 336, 28 Am. St. Rep. 451 (1891); 
 Territory v. Murray, 7 Mont. 251, 15 
 Pac. 145 ( ; 1887). 
 
 Nebraska. — Percival v. State, 45 
 Nebr. 741, 64 N. W. 221, 50 Am. St. 
 Rep. 568 (1895). 
 
 New Hampshire. — In. re Sturoc, 48 
 N. H. 428, 97 Am. Dec. 626 (1866) ; 
 Tenney's Case, 23 ST. H. 162 (1851). 
 
 New Jersey. — In re Cheeseman, 49 
 N. J. L. 115, 6 Atl. 513, 60 Am. St. 
 Rep. 596 (1886). 
 
 New Mexico. — In re Hughes, 8 N. 
 M. 225, 43 Pac. 692 (1895).' 
 
 New York. — In re Bronson, 12 
 Johns. 460 (1815) ; In re Darby, 3 
 Wheel. Crim. 1 (1824). 
 
 North Carolina. — In re Moore, 63 
 N. C. 397 (1869). 
 
 Ohio. — Myers v. State, 46 Ohio St. 
 473, 22 N. E. 43, 15 Am. St. Rep. 
 638 (1889). 
 
 Oklahoma. — Burke v. Territory, 2 
 Okla. 499, 37 Pac. 829 (1894). 
 
 Pennsylvania. — Bayard v. Pass- 
 more, 3 Yeates 438 (1802) ; Respub- 
 lica v. Oswald, 1 Dall. 319, 1 Am. 
 Dec. 246, 1 L. ed. 155 (1788). 
 
 South Dakota. — State v. Edwards, 
 15 S. D. 383, 89 N. W. 1011 (1902). 
 
 Washington. — State v. Tugwell, 19 
 
 Wash. 238, 52 Pac. 1056, 43 L. R. A. 
 717 (1898). 
 
 West Virginia. — State v. Frew, 24 
 W. Va. 416, 49 Am. Rep. 257 (1884). 
 
 United States. — Gorham Mfg. Co. 
 v . Emery, etc., Dry-Goods Co., 92 Fed. 
 774 (1899) ; TJ. S. v. Duane, 25 Fed. 
 Cas. (Pa.) No. 14,997, Wall. Sr. 102 
 (1801). 
 
 England. — Daw r. Eley, L. R. 7 Eq. 
 49, 38 L. J. Ch. 113, 17 Wkly. Rep. 
 245 (1868) '; In re Crown Bank, L. R. 
 
 44, Ch. D. 649, 59 L. J. Ch. 767, 63 
 L. T. Rep. (N. S.) 304, 39 Wkly. Rep. 
 45 (1890); Reg. v. Skipworth, 12 
 Cox. C. C. 371 (1873). 
 
 Canada. — Reg. v. Wilkinson, 41 TJ. 
 C. Q. B. 47 (1877). 
 
 2. Telegram Newspaper Co. v. Com., 
 172 Mass. 294, 52 N. E. 445, 70 Am. 
 St. Rep. 280, 44 L. R. A. 840 (1899). 
 
 3. Arkansas. — Compare State v. 
 Morrill, 16 Ark. 384 (1855). 
 
 Colorado. — Cooper v. People, 13 
 Colo. 373, 22 Pac. 790, 6 L. R. A. 
 430 (1889). 
 
 Illinois. — Storey v. People, 79 111. 
 
 45, 22 Am. Rep. 158 (1875). 
 Indiana. — Cheadle v. State, 110 
 
 Ind. 301, 11 N. E. 426, 59 Am. Rep. 
 199 (1886). 
 
 Iowa. — State v. Andersons 4° Iowa, 
 207 (1875); Dunham v. State, 6 
 Iowa 245 ( 13-58). 
 
 Michigan. — Compare In re Chad- 
 wick, 109 Mich. 588, 67 N. W. 1071 
 (1896). 
 
 Nebraska. — Rosewater v. State, 47 
 Nebr. 630, 66 N. W. 640 (1896) ; Per- 
 cival v. State, 45 Nebr. 741, 64 N. W. 
 221, 50 Am. St. Rep. 561 (1895). 
 
 Ohio. — Post v. State, 14 Ohio Cir. 
 Ct. Ill, 7 Ohio Cir. Dec. 257 (1897). 
 
 Oregon. — State v. Kaiser, 20 Oreg. 
 
299 Faie Criticism of Proceedings Permitted. §§ 241, 242 
 
 § 241. (Functions of Judicial Office; Executive; Protect the 
 
 Course of Justice; Newspapers) ; Intimidation The mischief is 
 
 still greater where intimidation is attempted by a newspaper or 
 other publication. 1 The mora studied is such an attempt the more 
 sternly will it be rebuked by. the judge. 2 
 
 Any form of practical intimidation of any portion of tbe 
 tribunal, 3 especially wbere such is the intended effect, of tbe utter- 
 ance, is a still graver indignity to the self-respect of justice, and 
 the bigh esteem in the community wbicb it must demand, for its 
 own protection and that of society. 
 
 § 242. (Functions of Judicial Office; Executive; Protect the 
 Course of Justice; Newspapers) ; Special Orders as to Publication. 
 
 — The general rule seems fairly established that a correct report 
 of tbe evidence taken on pending trials may properly be given in 
 the public press ; * fair, criticism, even of pending cases, is allow- 
 able. 2 Especial indulgence is very properly accorded, in the public 
 
 New York. — In re Bronson, 12 
 Johns. 460 (1815); Noah's Cafe, 3 
 City Hall Reo. 13 (1818). 
 
 Ohio. — State v. Post, 6 Ohio S. & 
 C. PI. Deo. 200, 4 Ohio N. P. 157 
 (1897). 
 
 United States. — Hollingsworth v. 
 Duane, 12 Fed. Cas. No. 6,616, Wall. 
 Sr. 77 (1801); U. S. v. Duane, 25 
 Fed. Cas. No. 14,997, Wall. Sr. 102 
 (1801). 
 
 England. — Littler v. Thomson, 2 
 Beav. 129, 17 Eng. Ch. 129 (1839) ; 
 Reg. v. O'Dogherty, 5 Cox C. C. 348 
 (1848); Tichborne v. Tichlborne, 39 
 L. J. Ch. 398, 22 L. T. Rep. (N. S.) 
 55, 18 Wkly. Rep. 621 (1870) ; Kitcat 
 v. Sharp, 52 L. J. Ch. 134, 48 L. T. 
 Rep. (N. S.) 64, 31 Wkly. Rep. 227 
 (1882); Hunt v. Clarke, 58 L. J. 
 Q. I!. 490, 61 L. T. Rep. (N. S.) 
 343, 37 Wkly. Rep. 724 (1889). 
 
 1. McClatchy v. Sacramento Co. 
 Super. Ct., 119 Cal. 413, 51 Pac. 696, 
 39 L. R. A. 691 (1897). 
 
 2. Stuart v. People, 4 111. 395 
 (1842) ; In re Press-Post, 6 Ohio S. 
 & C. PI. 10, 3 Ohio N. P. 180 (1896). 
 
 50, 23 Pac. 964, 8 L. R. A. 584 
 (1890). 
 
 Wisconsin. — State v. Eau Claire 
 Co. Cir. Ct., 97 Wis. 1, 72 N. W. 
 193, 65 Am. St. Rep. 90, 38 L. R. A. 
 554 (1897). 
 
 1. State v. Bee Pub. Co., 60 Nebr. 
 282, 83 N. W. 204, 50 L. R. A.' 195 
 (1900); Burke v. Territory, 2 Okla. 
 499, 37 Pac. 829 (1894) ; Mackett V. 
 Heme Bay, 24 Wkly. Rep. 845 (1876). 
 The threat employed may be that 
 of popular disapproval. People v. 
 Wilson, 64 111. 195, 16 Am. Dec. 528 
 (1872). 
 
 2. Bowden v. Russell, 46 L. J. Ch. 
 414, 36 L. T. Rep. (N. S.) 177 
 (1S77). 
 
 3. Colorado. — Bloom v. People, 23 
 Colo. 416, 48 Pac. 519 (1897); Peo- 
 ple v. Stapleton, 18 Colo. 568, 33 Pac. 
 167, 23 L. R. A. 787 (1893). 
 
 Illinois. — People v. Wilson, 64 111. 
 195, 16 Am. Rep. 528 (1872). 
 
 Iowa. — Field v. Thornell, 106 Iowa, 
 7, 7-5 N. W. 685, 68 Am. St. Rep. 281 
 (1898). 
 
 Mississippi. — Compare Ex p. Hickey, 
 4 Sm. & M. 751 (1844). 
 
 "New Mexico. — In re Hughes, 8 N. 
 M. 225, 43 Pac. 692 (1895). 
 
§§ 243, 244 Court and Juey; Court. 300 
 
 interest, where the criticism does not attach to any pending case, 
 but is leveled iagainst a system in which it is claimed that 
 abuses exist. 3 Tbe power of a judge, by special order, to add to 
 the ordinary and established duty of the newspaper publisher is 
 a question of some doubt. It has been held that such a person 
 could print true accounts of court proceedings although the judge 
 has specially ordered that it should not be done.* A ruling has, 
 however, been made to the contrary effect. 8 
 
 § 243. (Functions of Judicial Office; Executive; Protect the 
 Course of Justice; Newspapers); Place of Publication. — The 
 
 place of an offensive publication may well be other than the one 
 where the court is sitting. The mischief is done if the newspaper 
 or other vehicle of an assault on judicial dignity circulates among 
 persons liable to be injuriously affected thereby. 1 That the pub- 
 lication ever actually came to the notice of the persons to be af- 
 fected by it need not be shown. 2 
 
 § 244. (Functions of Judicial Office; Executive; Protect the 
 Course of Justice); Parties and Public. — The judge has a right 
 to freedom from personal abuse from suitors, their sympathizers 
 or, indeed, from anyone, who feels resentment against him on ac- 
 count of his judicial acts. The prosecutor in a criminal case is not 
 at liberty to upbraid or vilify the judge who imposes too light a, 
 sentence to meet his approval, even after an adjournment of court 
 has been taken. 1 Where a criminal cause is pending, to state or 
 openly to insinuate, at a public meeting or elsewhere, that defend- 
 ant in a pending prosecution is not guilty, coupled with the affirma- 
 tion that there is a conspiracy against him, and that he cannot 
 or will not have a fair trial, is a gross offense against the dignity 
 
 3. In re Shannon, 11 Mont. 67, 27 Newspaper Co. v. Com., 172 Mass. 
 Pac. 352 (1891). 294, 52 N. E. 445, 70 Am. St. Rep. 
 
 4. In re Shortridge, 99 Cal. 526, 34 280, 44 L. R. A. 159 (1899) ; In re 
 Pac. 227, 37 Am. St. Rep. 78, 21 Sturoe, 48 N. H. 428, 97 Am. Dec. 
 L. R. A. 755 (1893). But see Rex v. 626 (1869) ; Myers v. State, 46 Ohio 
 Clement, 4 B. & Aid. 218, 23 Rev. Rep. St. 473, 22 N. E. 43, 15 Am. St. Rep. 
 260, 25 Rev. Rep. 710, 6 E. C. L. 458 638 (1889). 
 
 (1821). 2. Gazette Co. v. Com., 172 Mass. 
 
 5. Dunham V. State, 6 Iowa 245 294, 52 N. E. 445, 70 Am. St. Rep. 
 (1858). 280, 44 L. R. A. 155 (1899). 
 
 1. State v. Judge Civ. Dist. Ct., 1. Ex parte MeCown, 139 N. C. 95, 
 
 45 La. Ann. 1250, 14 So. 310, 40 31 S. E. 957 (1905). 
 Am. St. Rep. 282 (1893) ; Telegram 
 
301 Assaulting Couet Officebs a Contempt. § 245 
 
 of judicial administration. 2 Comments on a cause, written or 
 spoken, while it is pending, which are of a nature to prejudice 
 any of the parties, constitute an indirect contempt of court. 3 Still 
 more clearly, a corrupt agreement entered into for a financial con- 
 sideration to affect the action of the presiding judge is an offense 
 against justice. 4 For a litigant to seek by any means to avoid the 
 due and lawful effect of the process of a court to whose judgment he 
 has become subject richly merits rebuke. Thus, when one court has 
 made an order in a cause pending before it, for a party to institute 
 similar proceedings in another court in order to prevent the en- 
 forcement of the prior order is an insult to the court first obtaining 
 jurisdiction. 8 The penalties will not, however, apply to one whose 
 name has been used without his consent and who has by no means 
 connived or consented or agreed to the proceedings. 6 A party can- 
 not without insulting the court which has made an order against 
 him, in a controversy lawfully submitted to it, violate such order 
 while prosecuting an appeal from it. 7 
 
 § 245. (Functions of Judicial Office; Executive; Protect the 
 Course of Justice); Service of Process. — A court will require that 
 the due and regular service of its process should not be impeded, 
 delayed or obstructed, 1 by those who have notice of the facts. 2 
 Delaying a messenger of a court will, therefore, be resented by the 
 judge. 3 Counseling and advising disobedience or resistance to the 
 commands of such a writ is reprehensible as an insult to the cause 
 of judicial administration. 4 Personal violence inflicted upon one 
 
 2. King v. Charlier, ( Can. 1903 ) Massachusetts. — Clark v. Parkin- 
 Rap. Jud. Que. 12 B. R. 385. son, 10 Allen 133, 87 Am. Dec. 628 
 
 3. King v. Charlier, (Can. 1903) (1865). 
 
 Rap. Que. 12 B. R. 385. New York.— People v. Gilmore, 26 
 
 4. In re Taylor, (Cal. 1886) 10 Pac. Hun 1 (1881) ; Conover v. Wood, 5 
 88; In re Buckley, 69 Cal. 1, 10 Pac. Abb. Pr. 84 (1857). 
 
 69 (1886). Pennsylvania. — Com. v. Curtis, 14 
 
 5. Terry v. State, (Nebr. 1906) 110 Phila. 361, 37 Leg. Int. 83 (1880). 
 N. W. 733. United States.— Albertson v. The T. 
 
 6. Terry v. State, (Nebr. 1906) 110 I. Nevius, 48 Fed. 927 (1892) ; In re 
 N. W. 733. Bowles, 41 Fed. 752 (1890); In re 
 
 7. People v. Horn, 34 Colo. 304, Doolittle, 23 Fed. 544 (1885). 
 
 86 Pac. 263 (1906). 2. State v. District Court of Seventh 
 
 1. California. — De Witt v. Fresno 'Judicial Dist, 29 Mont. 230, 74 Pac. 
 
 Co. Super. Ct., 47 Pac. 871 (1897). 412 (1903). 
 
 Illinois. — Horr v. People, 95 111. 3. Ex p. Page, 1 Rose 1 (1810). 
 
 169 (1880). i. King v. Barnes, 113 N. Y. 476, 
 
 Louisiana.— State V. Herron, 24 La. 21 ST. E. 182, 415, 23 N. Y. St. 263 
 
 Ann. 619 (1872). (1889) [affirming 51 Hun 550, 4 
 
§ 246 Coubt and Jury; Coukt. 302 
 
 who is serving the process, because he is doing so, is an affront to 
 the court out of which it issues. 5 But the mere issuance of a 
 warrant by a magistrate does not make one who refuses to submit 
 to its precept guilty of an offense against justice. 6 Where specific 
 remedies are provided by law, they must be resorted to ; and it is 
 not every act rendering ineffectual an order of court which can 
 be followed up by the imprisonment for contempt of the person 
 who brought about that result. 7 Secreting the property sought to 
 be replevied so that it cannot be reached is equally reprehensible. 8 
 Hiding to escape arrest, if an offense against justice at all, is not 
 a direct affront to the court. 9 Respect for the writ itself — the 
 piece of paper — is not required. 30 Nor is protection extended to 
 •the officer, as an individual. A mere personal altercation between 
 an officer serving a writ and the person on whom it is served is not 
 protected by process of contempt. 11 The court will examine below 
 surface indications and into the substance of the transaction. So 
 regarded, acts apparently innocent, such as withdrawing a bid 
 made at a trustee's sale, 12 may, in reality, constitute an attempt 
 to obstruct justice 
 
 § 246. (Functions of Judicial Office; Executive; Protect the 
 Course of Justice); Witnesses. — Equally alert will the judge be 
 to prevent the use of threatening or insulting language to wit- 
 
 N. Y. Suppl. 247, 22 N. Y. St. 47, 6. Ormond V. Ball, 120 Ga. 916, 
 
 51, 54 (1889)]; In re Noyes, 121 48 S. E. 383 (1904). 
 
 Fed. 209, 57 C. C. A. 445 (1902). 7. State ex rel. Duffy & Behan v. 
 
 Advising a client that a writ is void Civil Dist. Court for Parish of Or- 
 
 because of lack of jurisdiction on the leans, 112 La. 182, 36 So. 315 (1904). 
 
 part of the court is not overstepping 8. State v. District Court of Second 
 
 the province of counsel. In re Noyes, Judicial Dist. for Silver Bow County, 
 
 121 Fed. 209, 57 C. C. A. 445 (1902). (Mont. 1906) 83 Pac. 641. See also 
 
 5. Price V. Hutchinson, (Eng.) L. State ex rel. Duffy & Behan v. Civil 
 
 E. 9 Eq. 534, 18 Wkly. Rep. 204 Dist. Court for Parish of Orleans, 112 
 
 (1870); Dastoines v. Apprice, Cary La. 182, 36 So. 315 (1904). 
 
 91 (1820); Bow v. West, Cary 38 9. Broderick v. Genesee Cir. Judge, 
 
 (1820) ; Emery v. Bowen, (Eng.) 5 125 Mich. 274, 84 N. W. 129 (1900). 
 
 L. J. Ch. (N. S.) 349 (1836). But 10. Weeks V. Whitely, 3 Dowl. P. C. 
 
 see also Adams v. Hughes, 1 Brod. 536, 1 Hurl. & W. 218 (1835). 
 
 & Bing. 24, 5 E. C. L. 482 (1819). 11. Junius Hart Piano House v. 
 
 It is a contempt of court to seek to Ingman, 119 La. 1017, 44 So. 850 
 
 punish a judicial officer for his official (1907). 
 
 acts elsewhere than before a consti- 12. Quidnick Co. v. Chafee, 13 R. I. 
 
 tuted tribunal. Ex parte McLeod, 367 (1882). 
 120 Fed. 130 (1903). 
 
303 Bkibeet of Witnesses a Contempt of Coubt. §§ 247, 248 
 
 nesses, 1 as by insulting him in open court, stigmatizing him a 
 " liar." 2 Until the witness has been subpoenaed or summoned to 
 ■attend, the interest of the court has not attached to him, and he 
 cannot be shielded by its executive power. 3 While the protection of 
 the court may be extended to one for whose attendance as a wit- 
 ness a summons has been sued out, such an effect does not follow 
 the issuance of process in blank. 4 
 
 § 247. (Functions of Judicial Office; Executive; Protect the 
 Course of Justice; Witnesses) ; Arrest. — Arresting a witness on 
 civil process while going to or from the court or while in at- 
 tendance thereon may be a contempt of the court in which the 
 proceedings are pending. 1 Even where it is not objectionable to 
 serve a party or one of his witnesses with legal process while in 
 attendance on a trial, 2 still, if the person served is present on the 
 express understanding that he shall be protected by the court, and 
 he is at the time in custody of a court officer assigned for his pro- 
 tection, a judge may reasonably resent the service. 3 
 
 § 248. (Functions of Judicial Office; Executive; Protect the 
 
 Course of Justice; Witnesses); Bribery All persons will be 
 
 compelled to refrain from assailing the course of justice by im- 
 proper conduct directed toward witnesses. Thus, actual or at- 
 tempted bribery of a witness 1 will be promptly dealt with under 
 the executive powers of the court. 2 It is not material, in this con- 
 nection, whether the bribe be given or tendered for the purpose of 
 
 1. U. S. v. Carter, 25 Fed. Cas. No. 3. Bridges v. Sheldon, 7 Fed. 17, 
 14,740, 3 Cranch C. C. 423 (1829). 18 Blatchf. 295, 509 (1880). See 
 
 2. U. S. v. Emerson, 25 Fed. Cas. also In re Healey, 53 Vt. 694, 38 Am. 
 No. 15,050, 4 Cranch C. C. 188 (1831); Hep. 713 (1881). 
 
 Welby v. Still, (Eng. 1892) 66 L. T. Witnesses, however, have duties to 
 
 Rep. (N. S.) 523. justice as well as claims upon it. The 
 
 3. McConnell v. State, 46 Ind. 298 court will compel them, as well as all 
 (1874). See also Schlesinger V. other persons, to abstain from conduct 
 Flersheim, 2 D. & L. 737, 14 L. J. impairing the efficiency of the ad- 
 Q. B. 97 (1845). ministration of justice, obstructing 
 
 4. Dobbs v. State, 55 Ga. 272 its due course, or tending to diminish 
 (1875). the popular respect to which it is en- 
 
 1. Smith v. Jones, 76 Me. 138, 49 titled and which is essential to the 
 Am. Rep. 598 (1884) ; State v. Buck, adequate discharge of its functions. 
 63 N. H. 670 (1883). See also 1. U. S. v. Carroll, 147 Fed. 947 
 Butler v. People, 2 Colo. 295 (1874). (1906). 
 
 2. Ew p. Schulenburg, 25 Fed. 211 2. Fisher v. McDaniel, 9 Wyo. 457, 
 (1885) ; Blight v. Fisher, 3 Fed. Cas. 64 Pac. 1056 (1901). 
 
 No. 1,542, 1 Pet. C. C. 41 (1809). 
 
§§ 249,250 Couet and Juey; Oouet. 304 
 
 causing the witness to modify his evidence 3 or to induce him to 
 abstain from giving any evidence whatever, as where he is per- 
 suaded to absent himself from court. 4 
 
 § 249. (Functions of Judicial Office; Executive; Protect the 
 Course of Justice; Witnesses) ; False Swearing — Of possible acts, 
 few are so antagonistic to the objects of judicial administration 
 as the intentional false swearing which seeks to baffle the search 
 for truth, without which justice is impossible. Such swearing is 
 a flagrant insult to the dignity of the court ; and the same offense 
 is committed by an attorney 1 or other person 2 who procures the 
 giving of perjured testimony. The nature of the subject-matter 
 of the false evidence may affect, according to its importance or 
 consequence, the action of the court in awarding punishment. 
 False swearing as to the disposition of property stands in a dif- 
 ferent position from more important matters. 3 But the offence, 
 regardless of the materiality of the evidence given, may properly 
 be dealt with as a contempt. 
 
 § 250. (Functions of Judicial Office; Executive; Protect the 
 Course of Justice; Witnesses); Illustrations. — False swearing in 
 an affidavit is a punishable 'act, 1 for which ignorance is no excuse ; 
 though it may properly be regarded in assessing punishment. 2 So 
 falsely testifying as a surety in an undertaking which is to be the 
 basis of an order of arrest is equally culpable. 3 
 
 3. In re Hooley, 79 L. T. Rep. (N. England. — Stockham v. French, 1 
 S.) 306, 6 Manson 404 (1898) (sup- Bing. 365, 8 E. C. L. 550 (1823). 
 pression). The contrary has been held in 
 
 4. In re Brule, (Nev.) 71 Fed. 943 Louisiana. State t*. Lazarus, 37 La. 
 (1895). Ann. 314 (1885). 
 
 1. Beattie V. People, 33 111. App. 1. In re Goslin, 180 N. Y. 505, 72 
 651 (1889); Gibson v. Tilton, (Md. N. E. 1142 (1904). See also In re 
 1829) 1 Bland 352, 17 Am. Dec. 306. Goslin, 88 N. Y. Suppl. 670, 95 App. 
 
 2. Ricketts v. State, (Tenn. 1903) Div. 407 (1904). 
 
 77 S. W. 1076. 2. Seastream v. New Jersey Ex- 
 
 3. Illinois. — Berkson V. People, 154 hibition Co., (N. J. Ch. 1905) 61 
 111. 81, 39 N. E. 1079 (1894). Atl. 1041. 
 
 New York. — Eagan v. Lynch, 3 3. Nuccio v . Porto, 76 N. Y. St. 96, 
 
 N. Y. Civ. Proc. 236 (1883); Bern- 72 App. Div. 88 (1902). 
 
 heimer v. Kelleher, (N. Y. 1900) 31 An attorney who knowingly induces 
 
 Misc. 464, 64 N. Y. Suppl. 409. the court to accept a worthless bond 
 
 Wisconsin. — In re Rosenburg, 90 is guilty of a like offense. Nuccio v. 
 
 Wis. 581, 63 N. W. 1065, 64 N. W. Porto, 76 N. Y. Suppl. 96, 72 App. 
 
 299 (1895). Div. 88 (1902). 
 
 United States. — In re Fellerman, 
 149 Fed. 244 (1906). 
 
305 Suppbessing Testimony a Contempt. §§ 251, 252 
 
 Fabricating real or documentary evidence, as where certain 
 pages of a book are forged and then presented to the court as the 
 basis for a preliminary injunction, 4 stands in the same position. 
 
 § 251. (Functions of Judicial Office; Executive; Protect the 
 Course of Justice; Witnesses) /Intimidation Putting a wit- 
 ness in such fear of personal violence that he is forced to modify 
 his evidence is clearly a most deadly thrust at justice, and will 
 be accordingly punished. 1 The use of threatening language to a 
 witness which has the effect of forcing him to vary his testimony 
 is, according to the extent and seriousness of the forced deviation, 
 of similar injury to the cause of justice. 2 
 
 Intimidation. — No person is at liberty to intimidate a witness 
 by such acts as will cause him to refuse to testify. 3 This is 
 equally the rule in civil and criminal cases.* 
 
 § 252. (Functions of Judicial Office; Executive; Protect the 
 Course of Justice; Witnesses); Suppressing Testimony. — Bribery 
 is by no means the sole method in which justice suffers indignity 
 by being deprived of the witnesses or facts by which its search 
 for truth may be aided. The same injury is done whenever a 
 witness, who has been duly summoned, is in any way prevented 
 from attending for the purpose of giving testimony. 1 The neces- 
 
 4. Chicago Directory Co. v. United ruling Baldwin v. State, 11 Ohio St. 
 
 States Directory Co., 123 Fed. 194 681 (I860)]. 
 
 (1903). Tennessee.— McCarthy v. State, 89 
 
 1. Partridge v. Partridge, Tothill Tenn. 543, 15 S. W. 736 (1891). 
 40, 21 Eng. Rep. (Reprint) 117 Utah.— Ex p. Whetstone, 9 Utah 
 (1639). 156, 36 Pac. 633 (1893). 
 
 2. Shaw v. Shaw, 8 Jur. (N. S.) Virginia. — Com. v. Feely, 2 Va. 
 141, 31 L. J. P. M. 35, 6 L. T. Rep. Cas. 1 (1815). 
 
 (N. S.) 477, 2 Swab. 6 Tr. 517 (1861). United States.— See Ex p. Savin, 
 
 3. Re Young, 137 N. C. 552, 50 S. 131 U. S. 267, 9 S. Ct. 699, 33 L. 
 E. 220 (1905). ed. 150 (1889). 
 
 4. In re Young, 137 N. C. 552, 50 Bona fide attempts to settle pending 
 S. E. 220 (1905). causes and to prevent the necessity 
 
 1. Kansas. — In re Nickell, 47 Kan. for testimony present a situation 
 
 734, 28 Pae. 1076, 2'7 Am. St. Rep. very different from the one under con- 
 
 315 (1892). ridcration. Herrmann v. Herrmann, 
 
 Massachusetts. — Com. v. Reynolds, 81 N. Y. Suppl. 811, 82 App. Div. 
 
 14 Gray 87, 74 Am. Dec. 665 (1859). 437 (1903). 
 
 Michigan. — Montgomery v. Palmer, Technical defects in the subpoena, 
 
 100 Mich. 436, 59 N. W. 148 (1894). not known to the persons who decoyed 
 
 Ohio. — • Hale v. State, 55 Ohio St. away the witnesses will receive no con- 
 
 210, 45 N. E. 199, 60 Am. St. Rep. sideration in this connection, as tend- 
 
 691, 36 L. R. A. 254 (1896) [over- ing to justify the conduct of those 
 
 Vol. I. 20 
 
§ 253 Court and Juby; Cottet. 306 
 
 sity and power for punishing one who, knowing that a subpoena 
 has issued to compel the attendance of a witness, conceals him so 
 that the service cannot be made, is beyond question. 2 
 
 Advising a witness to leave the jurisdiction of the court, 3 or to 
 absent himself from the trial 4 is an insult to the presiding judge. 
 
 One who refuses to produce a person under his control, e. g., an 
 articled clerk, 5 is guilty of the same offense. 
 
 Removing hooks, papers or other writings so that their produc- 
 tion cannot be compelled, 6 i. e., in such a way that they cannot 
 be reached by compulsory legal process, is an offense of a similar 
 nature. 
 
 § 253. (Functions of Judicial Office; Executive); Enforce- 
 ment by Contempt Proceedings — As mentioned elsewhere, the ex- 
 ecutive powers of the court are most frequently ascertained and 
 vindicated upon proceedings for contempt, so called. The pro- 
 ceeding is a special one, without direct connection with the matter 
 in which it occurs. 2 No court is required ex debito justitice to find 
 a person in contempt and award punishment for it. The matter 
 is one of administration. Long delay in applying for relief may 
 furnish ground for declining to act. 3 Being to ascertain guilt and, 
 if found, to award punishment for it, the proceeding partakes of 
 the nature of a criminal trial. 4 The complaint requires equal 
 particularity of statement, 5 and proof of guilt should be clear 
 and satisfactory. 6 A contempt proceeding is summary, and the 
 extent of the hearing as to questions of law rests in the discretion 
 
 who have sought to suppress material Therefore, it is no defense to such 
 
 evidence. Scott i>. State, (Tenn. 1902) proceedings that the prior conduct of 
 
 71 S. W. 824. the main action has been irregular. 
 
 2. Haskett v. State, 51 Ind. 176 Christensen v. People, 114 111. App. 
 (1875); Clements v. Williams, 2 40(1904). 
 
 Scott 814 (1836). 8. Matheson v. Hanna-Schoellkopf 
 
 3. Whittem v. State, 36 Ind. 196, Co., 123 Fed. 836 (1903). 
 
 ( 1871 ) ; In re Whetstone, 9 Utah 156, 4. U. S. v. Richards, 1 Alaska 613 
 
 36 Pac. 633 (1893). (1902). 
 
 4. Ex p. Robinson, 19 Wall. 505, 5. Back v. State, (Nebr. 1906) 106 
 22 L. cd. 205 (1873). N. W. 787. But a statute allowing 
 
 5. Green v. Hill, 3 Del. Ch. 92 for criminal appeals does not apply 
 (1866). to judgments enforcing the dignity 
 
 6. Com. v. Braynard, (Mass. 1826) of the court. State v. Peralta, 115 
 Thatch. Crim. Cas. 146; Bonesteel v. La. 530, 39 So. 550 (1905). 
 
 Lynde, 8 How. Pr. 226 (1853). 6. Wells v. Diet. Court of Polk 
 
 1. Infra, § 204. County, (Iowa 1905) 102 N. W. 108. 
 
 2. In re Depue, 185 N. Y. 60, 77 
 N. E. 798 (1906). 
 
307. Measuee of Proof in Criminal Contempts. § 254 
 
 of the court, though one charged with contempt has the right to 
 be heard in his defense. 7 
 
 § 254. (Functions of Judicial Office; Executive; Enforce' 
 ment by Contempt Proceedings); Civil and Criminal Cases. — 
 A distinction is taken in certain cases between civil and criminal 
 contempts. In essence, the two are the same. Proceedings for 
 contempts are of two classes, criminal, which are conducted to 
 preserve the power and vindicate the dignity of the courts and 
 to punish for disobedience of their orders ; and civil, instituted to 
 protect and enforce the rights of private parties and compel obedi- 
 ence to the orders, judgments, etc., of courts made to enforce such 
 parties' rights and remedies. 1 
 
 Civil contempts have been defined as being such contempts as 
 affect a private person, as, for instance, where a party refuses to 
 obey an order of court which will benefit such private persons. 2 
 
 Criminal contempts are those which are committed in presence 
 of the court and disturb its administration of justice either 
 physically and directly, as by disorderly conduct, or morally and 
 indirectly by bringing the administration of justice into public 
 disgrace. Criminal contempts are all acts committed against the 
 majesty of the law, or against the court as an agency of the 
 government, and in which, therefore, the whole people are con- 
 cerned. 3 Criminal contempts are thus defined in the New York 
 code : 4 " Disorderly, contemptuous, or insolent behavior, com- 
 mitted during " the sitting of court, " in its immediate view and 
 presence, and directly tending to interrupt its proceedings, or to 
 impair the respect due to its authority." 
 
 Good faith and the advice of counsel operate to reduce punish- 
 ment, e. g., to a nominal fine. 8 It has been held that on proceed- 
 ings for criminal contempt proof of the necessary or constituent 
 facts should be made to a certainty beyond a reasonable doubt. 6 
 
 7. State v. Nicoll, 40 Wash. 517, son v. Munsey, (Utah 1905) 80 Pac. 
 
 82 Pac. 895 (1905). 743. 
 
 1. In re Nevitt, 117 Fed. 448, 54 3. State v. Shepherd, 177 Mo. 205, 
 C. C. A. 622 (1902). 76 S. W. 79 (1903). 
 
 2. State v. Shepherd, 177 Mo. 205, 4. Code Civ. Proc, § 8, subd. 1. 
 76 S. W. 79 (1903). Contempt pro- 5. Rumney v. Donovan, 28 Mont, 
 feedings in connection with equity 69, 72 Pac. 305 (1903). 
 
 processes as for the violation of an 6. Hollister v. People, 116 111. App. 
 
 injunction are civil in their nature 338 (1904); Connell v. State, (Nebr. 
 and a deposition may be used. David- 1907) 114 N. W. 294; Saal v. South 
 
§ 255 
 
 Court and Juky; Cotjbt. 
 
 308 
 
 In such cases, in other words, the " presumption of innocence " 
 so-called, has been invoked. 7 
 
 § 255. (Functions of Judicial Office; Executive; Enforce- 
 ment by Contempt Proceedings); Direct and Constructive 
 
 Closely related to the distinction between civil and criminal con- 
 tempts is that between direct and constructive ; — the direct con- 
 tempt being, as a rule, punished criminally, constructive contempts 
 being dealt with civilly. 
 
 Direct Contempts. — The administrative power and dignity of 
 the court necessarily involve the right of punishing summarily 
 for offenses against justice committed in the immediate presence 
 and hearing of the judge, 1 or so near as to interrupt proceedings 
 before him. 2 These are called direct contempts. 3 An act by any 
 person done in presence of the presiding judge* which shows dis^ 
 
 Brooklyn Ry. Co., 106 N. Y. S. 996, 
 122 App. Div. 364 (1907); Johnson 
 v. Austin, 78 N. Y. S. 501, 76 App. 
 Div. 312 (1902) ; State v. Davis, 50 
 W. Va. 100, 40 S. E. 331 (1901). 
 Where obviously incriminating evi- 
 dence has been received in silence by 
 the accused, the " presumption of in- 
 nocence " is said to be no longer oper- 
 ative to its full extent. State v. 
 O'Brien, (Minn. 1902) 91 N. W. 297. 
 7. Hunt v. State, 37 Ohio Cir. Ct. 
 R. 16 (1904). 
 
 1. Illinois. — Ferriman v. People, 
 128 111. App. 230 (1906). 
 
 Indiana. — Mahoney v. State, 72 N. 
 E. 151 (1904). 
 
 Kansas. — State v. Anders, 68 Pac. 
 668 (1902). 
 
 Missouri. — Crow v. Shepherd, 177 
 Mo. 205, 76 S. W. 79 (1903). 
 
 New York. — Saal V. South Brook- 
 lyn By. Co., 106 N. Y. S. 996, 122 
 App. Div. 364 (1907) ; In re Teitel- 
 baum, 83 N. Y. S. 887, 84 App. Div. 
 351 (1903). Where the record shows 
 a trial for indirect contempt con- 
 ducted summarily, as though for a 
 direct offense, appellant is entitled to 
 be discharged until formal proceed- 
 ings against him are instituted. State 
 ■». Anders, (Kan. 1902) 68 Pac. 668. 
 
 2. Eas parte Clark, 208 Mo. 121, 106 
 
 S. W. 990 (1907) ; State V. Shepherd, 
 177 Mo. 205, 76 S. W. 79 (1903) ; 
 O'Neal, (Fla. 1903) 125 Fed. 967. 
 
 3. The court can punish for a direct 
 contempt only where the offense took 
 place in the sight and hearing of the 
 judge. Fellman v. Mercantile F. & 
 M. Ins. Co., 116 La. 733, 41 So. 53 
 (1906). A court may punish for a 
 
 direct contempt without issue or trial 
 in any form. Burdett v. Com., 103 
 Va. 838, 48 S. E. 878 (1904). 
 
 Venue.— In a prosecution for con- 
 tempt in the presence of the court, 
 defendant is not entitled to a change 
 of venue because of alleged prejudice. 
 Connell v. State, (Nebr. 1907) 114 
 N. W. 294. 
 
 4. Arkansas. — Neel v. State, 9 Ark. 
 259, 50 Am. Dec. 209 (1849). 
 
 Colorado. — Watson v. People, 11 
 Colo. 4, 16 Pac. 329 (1887). 
 
 Indiana. — Snyder v. State, 151 
 Ind. 553, 52 N. E. 152 (1898). 
 
 Michigan. — In re Wood, 82 Mich. 
 75, 45 N. W. 1113 (1890). 
 
 Missouri. — In re Clark, 126 Mo. 
 App. 391, 103 S. W. 1105 (1907). 
 
 New York. — Richmond v. Dayton, 
 10 Johns. 393 (1813). 
 
 North Carolina. — In re Oldham, 89 
 N. C. 23, 45 Am. Rep. 673 (1883). 
 
 North Dakota. — State v. Root, 5 
 
309 
 
 CONSTBTJCTIVE CONTEMPTS DEFINED. 
 
 §255 
 
 respect for his person or authority while acting in his official 
 capacity" is an offense against the power and dignity of the court. 8 
 The judge needs no evidence ; he is himself, in such cases, the per- 
 cipient witness ; 7 should pleadings be deemed advisable, they may 
 be of the briefest and simplest discription. 8 
 
 Constructive Contempts. — Constructive contempts, on the other 
 hand, may be denned as those arising from matters not occurring 
 in court, but which tend to degrade or make impotent the author- 
 ity of the judge, or which tend to impede or embarrass the adminis- 
 tration of justice. 9 In dealing with contempts not committed in 
 
 N. D. 487, 67 N. W. 590, 57 Am. St. 
 'Rep. 568 (1896). 
 
 Pennsylvania. — In re Hirst, 9 Phila. 
 216, 31 Leg. Int. 340 (1874). 
 
 South Carolina. — State v. Apple- 
 gate, 2 McCord 110 (1821); State 
 V. Johnson, 2 Bay 385 (1802) ; Lin- 
 ing v. Bentham, 2 Bay 1 (1796). 
 
 Virginia. — Com. v. Stuart, 2 Va . 
 Caa. 320 (1822). 
 
 United States. — U. S. v. Anony- 
 mous, 21 Fed. 761 (1884). 
 
 An act is done " in presence of the 
 Court " when done so near as to dis- 
 turb the orderly conduct of public 
 business. Winship v. People, 51 111. 
 296 (1869); Field v. Thornell, 106 
 Iowa 7, 75 N. W. 685, 68 Am. St. Rep. 
 281 (1898) ; Detournion v. Dormenon, 
 (La. 1810) 1 Mart. 137. Insulting 
 a judge on the courthouse steps is 
 against the dignity of the court. 
 Com. v. Dandridge, 2 Va. Cas. 408 
 (1824). 
 
 Military evolutions so near as to 
 disturb the judge by their music are 
 in " presence " of the judge. State v. 
 Coulter, (Ohio 1833) Wright 421; 
 State v. Goff, (Ohio 1832) Wright 
 78. 
 
 5. Matter of Taylor, 60 N. Y. St. 
 136, 28 N. Y. Suppl. 500, 8 Misc. 159 
 (1894) ; People v. Barrett, 56 Hun 
 351, 9 N. Y. Suppl. 321, 18 N. Y. 
 Civ. Proc. 180, 24 Abb. N. Cas. 430, 
 8 N. Y. Crim. 13 (1890); Fisher v. 
 MoDaniel, 9 Wyo. 457, 64 Pac. 1056, 
 87 Am. St. Rep. 971 (1901) ; Ex p. 
 Savin, 131 U. S. 267, 9 S. Ct. 699, 
 
 33 L. ed. 150 (1889) ; U. S. v. Emer- 
 son, 25 Fed. Cas. No. 15,050, 4 Cranch 
 
 C. C. 188 (1831) ; U. S. v. Carter, 25 
 Fed. Ca3. No. 14,740, 3 Cranch C. C. 
 423 (1829) ; In re Johnson, 20 Q. B. 
 
 D. 68, 52 J. P. 230, 57 L. J. Q. B. 1, 
 58 L. T. Rep. (N. S.) 160, 35 Wkly. 
 Rep. 51 (1887); French v. French, 
 1 Hog. 138 (1824). 
 
 A judge, even in the courtroom, 
 while the court is not in session is 
 simply a citizen. Snyder v. State, 151 
 Ind. 553, 52 N. E. 152 (1898). The 
 rule is the same where a judge is en- 
 gaged on a ministerial rather than a 
 judicial act, e. g., where he is examin- 
 ing a docket. Fitler v. Probaseo, 2 
 Browne 137 (1811). 
 
 6. Baker v. State, 82 Ga. 776, 9 
 S. E. '743, 14 Am. St. Rep. 192, 4 
 L. R. A. 128 (1889) ; Stewart v. 
 State, 140 Ind. 7, 39 N. E. 508 
 (1895) ; Penn v. Brewer, (Md. 1841) 
 12 Gill & J. 113; U. S. V. Gehr, 116 
 Fed. 520 (1902). 
 
 7. Gordon v. State, (Nebr. 1905) 
 102 N. W. 458. 
 
 8. Ferriman v. People, 128 111. App. 
 230 (1906). 
 
 9. O'Neil v. People, 113 111. App. 
 195 (1904); State v. Shepherd, 177 
 Mo. 205, 76 S. W. 79 (1903) ; Saal 
 v. South Brooklyn Ry. Co., 106 N. Y. 
 S. 996, 122 App. Div. 364 (1907). 
 An indirect or constructive contempt 
 is one offered elsewhere than in the 
 presence of the court, and which tends 
 to degrade or weaken its authority, 
 or in some manner to impede the due 
 
§§ 256,257 Couet and Juey; Couet. 310 
 
 the presence of the judge, the offender must be brought before the 
 court by a rule or some sufficient process. 10 
 
 /;;, other words, while the power to punish in cases of direct 
 contempts and constructive contempts is the same, the procedure 
 is different; in cases of direct contempt the court acts spon- 
 taneously and commits the offender summarily ; while in cases of 
 constructive contempts the court, on information, issues a citation 
 to the offender to show cause why he should not be punished for 
 contempt. 11 The information in a proceeding for contempt is 
 sufficient if it clearly apprise the defendant of the nature of the 
 charge against him, and no particular form is, in general, essen- 
 tial. 13 
 
 § 256. (Functions of Judicial Office; Executive; Enforce- 
 ment by Contempt Proceedings; Direct and Constructive); 
 
 Constructive Presence of Judge. — The court is said to be present 
 wherever during its sessions, the judge, court officers, jurors and 
 other persons in attendance for the performance of judicial or 
 ministerial functions in aid of judicial proceedings, are present, 
 engaged in their respective duties, in the part of the courthouse 
 reserved to their use. 1 It may be doubted, however, whether this 
 is anything more than a restatement of the rules under which the 
 judge protects the administration of justice from attacks made 
 when, though the court is sitting, the judge is not near enough to 
 be said with literal exactness to be present. For example, a dis- 
 turbance before a grand jury cannot be properly dealt with as 
 an offense done in the direct presence of the court itself. 2 
 
 § 257. Judge Sitting as a Jury — With exceptions due to dif- 
 ferences in intellectual equipment and a consequent absence of 
 
 administration of justice. Ex parte 1, Com. v. Clark, 13 Pa. Co. Ct. 
 
 Clark, 208 Mo. 121, 106 S. W. 990 439 (1893); U. S. v. Anonymous, 21 
 
 (1907). Fed. 761 (1884). A claim to occupy 
 
 10. Burdett v. Com., 103 Va. 838, a room in the courthouse as a matter 
 48 S. E. 878 (1904). of right, coupled with retention of 
 
 11. Ex parte Clark, 208 Mo. 121, possession cannot be deemed an in- 
 106 S. W. 990 (1907) ; Crow v. Shep- suit to the order of a commissioner's 
 herd, 177 Mo. 205, 76 S. W. 79 court which requires the tenant to 
 
 (1903) ; Em parte Morris, 28 Ohio vacate. Watson v. Scarborough, (Ala. 
 
 Cir. Ct. R. 611 (1906). 1906) 40 So. 672. 
 
 12. Hake v. People, 230 111. 174, 82 2. Ex parte Hedden, (Nev. 1907) 
 N. E. 561 (1907) ; Aaron V. United 90 Pac. 737. 
 
 States, (Mo. 1907) 155 Fed. 833, 84 
 C. C. A. 67. 
 
311 Judge's Discretion to Make Special Findings. § 258 
 
 danger of being misled by certain classes of evidence liable to be 
 overestimated by an untrained mind, 1 tbe rules which govern tbe 
 action of a jury apply equally to a judge sitting instead of one. 
 Thus, a verdict will be directed where but one outcome of 
 a hearing would be rational. 2 There must be a finding on 
 every material fact alleged in the complaint and controverted 
 by the answer necessary to support the judgment rendered. 3 
 Where the evidence is uncontradicted, the party is entitled 
 to definite and direct findings with reference thereto. 4 Should 
 the primary facts found lead to but one conclusion, the court 
 is not required to make a specific finding of the constituent 
 fact; 5 on the contrary, where he finds the constituent facts, as he 
 should do in all cases where the relation between the probative and 
 constituent facts is not one of law, i. e., rationally necessary, the 
 judge is not bound in addition to find the probative facts. 6 If 
 there be a conflict between the general and special findings made 
 by the trial court, the special finding will control. 7 
 
 The waiver by the parties of the benefit of a jury is not con- 
 clusive upon the judge. He may still, if in his administrative 
 duty expedient, call and empanel a jury for the trial of the cause. 8 
 
 § 258. (Judge Sitting as a Jury); Administrative Orders 
 
 The court, sitting as a jury, may make such administrative orders 
 as he might have made were he presiding over a jury trial. Thus, 
 where a party has closed his case and the judge has decided the 
 issue, he may set aside the judgment, allow the party to withdraw 
 his rest and introduce further evidence. 1 A request for special 
 findings should be made at the commencement of the trial, and, 
 if not then made, the right is waived, and thereafter it lies within 
 the discretion of the court whether it will make a special finding 
 
 1. In the trial of an action by the 5. Mount v. Board of Com'rs of 
 court without a jury there is no Montgomery County, (Ind. 1907) 80 
 necessity for the rigid insistence upon N. E. 629. 
 
 the rules of evidence which would 6. Eobson v. Price, (Mich. 1903) 
 
 otherwise be proper. Shelley v. Wes- 10 Detroit Leg. N. 459, 96 N. W. 433. 
 
 cott, 23 App. D. C. 135 (1904). 7. Citizens* Bank v. Stockslager, 1 
 
 2. Infra, §§ 390 et seq. Nebr. (Unof.) 799, 96 N. W. 591 
 
 3. Bell v. Adams, (Cal. 1907) 90 (1901). 
 
 Pac. 118; Shuler V. Lashhorn, 67 Kan. 8. Fleming v. Wilson, 39 Wash. 
 
 694, 74 Pac. 264 (1903) ; Crowley v. 106, 80 Pac. 1104 (1905). 
 
 Crowley, 72 N. H. 241, 56 Atl. 190 1. Parker v. Ricks, 114 La. 942, 38 
 
 (1903). So. 687 (1905) ; Cochran v. Moriarty, 
 
 4. Lackmann v. Kearney, 142 Cal. (Nebr. 1907) 111 N. W. 588. 
 112, 75 Pac. 668 (1904). 
 
§ 259 Couet and Juky; Couet. 312 
 
 or not. 2 He may also, if he desires, specially find as to facts 
 not placed in issue by the pleadings but is under no obligation 
 so to do. 3 Similarly, if a statement of fact is to be submitted 
 to the judge for approval, it must be placed before him as early 
 as the close of the arguments. 4 The trial court cannot be required 
 to state the evidence upon which his fact findings are based. 5 
 
 § 259. (Judge Sitting as a Jury); Rulings of Law. — While 
 there is a certain appearance of incongruity in the spectacle of a 
 judge solemnly laying down rules of law to himself as a jury to 
 guide his deliberations as to matters of fact, it is within the right 
 of a litigant to demand that he do so, 1 provided there is sufficient 
 evidence to render a proposition applicable to the case. 2 On 
 trial by the court, a party asking a ruling correct in law has a 
 right to know whether in deciding the case against him the judge 
 acted on the rule of law stated. 3 Where a decision rests on one 
 of two alternatives, one adjudged under a correct ruling, and 
 the other under an incorrect one, the decision cannot be sustained. 4 
 
 The assumption of facts as proved cannot be made in an instruc- 
 tion by the court to himself as a jury. 5 Propositions asked as 
 propositions of law, which pertain purely to questions of fact, are 
 properly refused. 6 
 
 2. Indiana. — Tevis v. Hammersmith ness of the facts found by the court. 
 (Ind. App. 1907) 81 N. E. 614. King v. Morristown Fuel & Light Co., 
 
 Missouri. — Moberly v. City of 31 Ind. App. 476, 68 N. E. 310 
 
 Trenton, 181 Mo. 637, 81 S. W. 169 (1903). 
 
 (1904). 2. Hayes v. Metropolitan St. Ey. 
 
 Montana.— Bordeaux V. Bordeaux, Co., 84 N. Y. Suppl. 271 (1903). It 
 
 32 Mont. 159, 80 Pac. 6 ( 1905 ) . is only in cases where the parties are 
 
 New Mexico. — Bank of Commerce entitled to a jury trial, and have 
 
 V. Baird Min. Co., 85 Pac. 970 (1906). waived a jury, that they are author- 
 
 South Dakota. — State v. Coughran, ized by statute to call on the court 
 
 103 N. W. 31 (1905). to pass on propositions of law. Samp- 
 
 3. Burton v. Mullenary, 147 Cal. son v. Commissioners of Highways of 
 259, 81 Pac. 544 (1905); Jennings Chestnut Tp., 115 111. App. 443 
 v. Frazier, (Ore. 1905) 80 Pac. 1011. (1904); Clifford V. Gridley, 113 111. 
 
 4. Hartmann r. Schnugg, 99 N. Y. App. 164 (1903). 
 
 Suppl. 33, 113 App. Div. 254 (1906). 3. Jaquith t>. Morrill, 191 Mass. 
 
 S.Thompson v. Mills, (Tex. Civ. 415, 78 N. E. 93 (1906). 
 
 App. 1907) 101 S. W. 560. *• Jaquith V. Morrill, 191 Mass. 
 
 1. Murphy p. Smith, 112 111. App. 415, 73 N. E. 93 (1906). 
 
 404 (1904) ; White v. Black, 115 Mo. 5. United Railways & Electric Co. 
 
 App. 28, 90 S. W. 1153 (1905) ; E. of Baltimore t). H. Wehr & Co., 103 
 
 E. Souther Iron Co. v. Laclede Power Md. 323, 63 Atl. 475 (1906). 
 
 Co., 109 Mo. App. 353, 84 S. W. 450 6. Crerar v. Daniels, 209 111. 296, 
 
 (1904). An exception to the court's 70 N. E. 569 (1904) ; Raferty v. Eas- 
 
 eonclusions of law admits the correct- ley, 111 111. App. 413 (1903). 
 
313 Finality of Judge's Action. §§i 260-^63 
 
 § 260. (Judge Sitting as a Jury); Use of Argument — Where 
 
 a case is tried by the court, and it is satisfied as to the evidence 
 and the law, it is not compelled to listen to argument. 1 
 
 § 261. (Judge Sitting as a Jury); View by Judge — The ex- 
 pedient of giving a judge sitting as a jury the same opportunity 
 of viewing the locus or other facts rendered important by the 
 evidence which a jury would have, seems clearly of value in the 
 ascertainment of truth. Good administrative judgment is shown 
 in permitting it. 1 It has, however, been refused, unless the 
 parties consent to it. 2 The judge is not at liberty to use his 
 observation contrary to the evidence. 3 
 
 §262. (Judge Sitting as a Jury); Weight of Evidence. — The 
 
 question of the weight of evidence is dealt with by the judge 
 sitting as a jury in the same way that a jury would deal with it. 
 Absence of direct contradiction by the mouth of a witness does 
 not make a fact undisputed, in such a way as to require 'the court 
 to find the same, in an equity case, for the court is at liberty to 
 discredit any witness. 1 
 
 § 263. (Judge Sitting as a Jury) ; Action of Appellate Courts 
 
 Where the judge has incorrectly applied the law, the error is dealt 
 with as in case of a jury trial. Should a finding of fact be taken 
 to an appellate court, the only scientifically proper question is the 
 same as that presented to a trial judge on a motion for a new 
 trial; Is the verdict or finding one which can be justified in 
 point of reason ? This as bas been said, is a question of law. The 
 appellate court, however, quite frequently assumes or has imposed 
 upon it by the legislature, the burden of determining a different 
 and more onerous proposition, one also which follows the analogy 
 of a motion for a new trial, viz: was the verdict or finding in 
 accordance with the weight of the evidence? This is a question 
 of fact, and seems beyond the proper duty of an appellate court, 
 and also subversive of any fair construction of the right of trial 
 by jury; for, when two rational results may be reached on evi- 
 
 1. Barnes v. Benham, 13 Okl. 582, 3. Bigham v. Clubb, (Tex. Civ. 
 
 75 Pac. 1130 (1904). App. 1906) 95 S. W. 675. 
 
 1. Hatton v. Gregg, (Cal. App. 1. Allia v. Hall, 76 Conn. 323, 56 
 1906) 88 Pae. 592. Atl. 637 (1904). 
 
 2. Atlantic & B. By. Co. v. Citj 
 of Cordele, 125 Ga. 373, 54 S. B. 155 
 (1906). 
 
§ 264 Cotjbt and Jtjby; Cotjbt. 314: 
 
 deuce, if it is not the right of the party to say that the jury are 
 to decide which shall be taken, the right to a jury trial is a mere 
 trap for prolonging litigation. The practice, however, is well estab- 
 lished. Thus, it is proper to attack the court's findings of fact 
 in an appellate court by specifications of insufficiency of the evi- 
 dence to sustain them. 1 
 
 § 264. (Judge Sitting as a Jury; Action of Appellate 
 Courts) ; Distinctions between Law and Fact Distinctions be- 
 tween law and fact still obtain where there is no jury. Since 
 the judge sitting as a jury not only finds the constituent facts but 
 applies the rule of law to them, constant danger exists lest the two 
 may become blended and confused. While this distinction be- 
 tween law and fact is to a large degree in itself an artificial one 
 and has no proper place in a system of jurisprudence where, as in 
 the civil, canon or equity systems, the judge tries all issues, 
 where a judge sits as a jury he is administering a system of law, 
 procedure and practice which is, as it were, geared absolutely on 
 this difference. It is, therefore, frequently essential to the rights 
 of the parties that it be observed. Thus, for example, where counsel 
 requested findings of fact and conclusions of law, it is not sufficient 
 for the court to substantially answer such request by his inde- 
 pendent findings, where he does not show what he regards as his 
 answer to each request. 1 A ruling of law does not take the place 
 of a finding of fact, except where the law gives a final effect to 
 the fact established, or where the evidence is of -such a conclusive 
 character that the minds of men of ordinary intelligence will not 
 differ as to its effect. 2 Per contra, the judge cannot be asked to 
 make a finding of fact in the guise of announcing a proposition of 
 law. 3 Where the findings are sufficient as to all material issues, a 
 judgment will not be reversed or new trial granted for failure to 
 make findings on certain immaterial ones.* Conversely, where the 
 
 1. Kenworthy v. Mast, 141 Cal. 268, 3. Zachariae v. Swanson (Tex. Civ. 
 
 74 Pac. 841 (1903). App. 1903), 77 S. W. 627. 
 
 1. Musselman v. Musselman, 140 8. Whipple v. Tucker, 123 111. App. 
 
 Cal. 197, 73 Pac. 824 (1903) ; Kent 223 (1905) ; United Railways & Elec- 
 
 v. Common Council of City of Bing- trie Co. of Baltimore v. H. Wehr & Co., 
 
 hamton, 86 N. Y. Supp. 411, 90 App. 103 Md. 323, 63 All. 475 (1906). 
 
 Div. 553 (1904) j Pittsburg Stove & 4 Garveyv. La Shells (Cal. 1907), 
 
 Range Co. v. Pennsylvania Stove Co., 91 Pac. 498. 
 208 Pa. 37, 57 Atl. 77 (1904) ; Le- 
 high Valley Coal Co. v. Everhart, 208 
 Pa. 118, 55 Atl. 864 (1903). 
 
315 Evidence a Matter of Administration. §§ 2'65, 266 
 
 court fails to find on all of the material issues made by the plead- 
 ings, the judgment must be reversed unless a finding on such issue 
 would not" affect the judgment entered. 6 Should the court be re- 
 quired to find the facts it is his duty to do so, as it would, in a 
 similar case, be that of the jury, 6 i. e., find the constituent facts so 
 far as necessary 7 rather than the probative or evidentiary ones. 8 
 It is no objection to a finding of fact by the trial court that it is 
 " wholly based on reasoning and presumption." 8 
 
 § 265. (Judge Sitting as a Jury; Action of Appellate 
 Courts); Federal Courts. — In the federal courts, the judge may 
 make general or special findings of fact as an administrative mat- 
 ter not reviewable. 1 Special findings by a trial judge in an action 
 at law in a federal court, where a jury has been waived, have the 
 same effect as special verdicts of a jury, and must embrace a find- 
 ing on every material issue joined in the case ; otherwise the result 
 is a mistrial. 2 
 
 § 266. Evidence as a Matter of Administration — In no branch 
 of judicial procedure is the proportion of administration naturally 
 and normally so great as in the law of evidence. In none are the 
 elements characteristic of administration so prominent as here. 
 Administration, for example, is guided by sound reasoning. 1 
 Thus, for example, reason is the controlling influence in the law 
 of evidence. 2 The constant appeal to logical -reasoning which 
 runs through all parts of the law of evidence, in all subsidiary or 
 incidental findings of fact, determinations of relevancy, the conclu- 
 sions as to credibility, probative force and the like indicate the great 
 preponderance of administration in the law of evidence when com- 
 pared to that exhibited by other forms of procedure. Painstaking, 
 
 5. State v. Baird, 13 Idaho 29, 89 sions of fact drawn therefrom and es- 
 Pac. 298 (1907). sential to the settlement of the con- 
 
 6. Supra § 76. flicting claims of the parties be 
 
 7. Contaldi v. Errichetti, 79 Conn. stated. McKenzie v. Haines, (Wis. 
 273, 64 Atl. 211 (1906); Wood V. 1905) 102 N. W. 33. 
 
 Broderson (Idaho 1906) 85 Pac. 490. 9. Metcalf v. Central Vermont Ry. 
 
 8. Moody v. Peirano, (Cal. App. Co. 78 Conn. 614, 63 Atl. 633 (1906). 
 1906) 84 Pao. 783; Fairfield v. Hart, 1. School Dist. No. 11, Dakota Co., 
 (Mich. 1905) 11 Detroit Leg. N. 777, Nebr. V. Chapman, 152 Fed. 887, 82 
 102 N. W. 641. Where a trial judge C. C. A. 35 (1907). 
 
 is required to state in his decision the 2. Towle v. First Nat. Bank, 153 
 
 facts found by him and his conclu- Fed. 566, 82 C. C. A. 520 (1907). 
 
 sions of law thereon, it means not 1. Supra, § 176. 
 
 merely that evidentiary facts be ,2. Supra, § 59. 
 stated, but that the ultimate conclu- 
 
§ 267 Coubt and Juky; Coubt. 316 
 
 scrupulous care in the use of the reasoning faculty has taken the 
 place of all other methods and the reason acknowledges no other 
 guide than logic and experience. Again, the essentia]* object of 
 administration is the attainment of justice. 3 The object of the 
 law of evidence is the ascertainment of truth as a necessary pre- 
 liminary to the doing of justice.* It is obvious that in few con- 
 nections would it be more difficult satisfactorily to prescribe a hard 
 and fast rule than in the effort to ascertain the truth with regard 
 to disputed matters of fact. The attempt to apply formal or me- 
 chanical tests to the discovery of truth or the detection of error or 
 falsehood has, to a very large extent, been abandoned as worse than 
 useless. 
 
 It cannot he doubted that in the law of evidence is a large 
 element of positive or substantive law. Nor is it questionable 
 that a still larger admixture of procedural rules having the 
 force of law must be regarded as part of it. But, in a special 
 sense, and to an extent beyond that which is true in case of other 
 forms of procedure, the law of evidence is a matter of adminis- 
 tration. 8 
 
 § 267. Stare Decisis as Applied to the Law of Evidence. — 
 
 The objection to any proposed exercise of administrative power, 
 that no case has gone so far in a particular jurisdiction, may easily 
 be accorded undue importance. The motto of stare decisis is of 
 and should concern only the substantive law. No question can 
 properly arise as to the propriety of following precedent in pass- 
 ing upon the substantive rights of the parties, including those 
 relating to established rules of procedure as distinguished from 
 those of practice or administration. Nothing but confusion could 
 result, uncertainty as to all tenures of property, were any other 
 course generally followed. But it is otherwise with regard to 
 administration. A litigant has, in the nature of things, no better 
 right to insist that a particular course be pursued in arriving at 
 truth by the use of reason than he would have that his judges shall 
 or shall not wear gowns. Matters of administration, rules of evi- 
 dence, are, properly considered, purely utilitarian, mere methods 
 
 . 3. Supra, § 172. Ibulk of the law of evidence should be 
 
 4. " Knowledge of the truth is es- of this nature. These rules should 
 sential to justice." Lane V. Ey. Co. for the most part guide judicial dis- 
 21 Wash. 119, 57 Pac. 367 (1899). cretion, instead of excluding it." Sal- 
 
 5. "It is probable that the great mond, Jurisp. 2d ed. 27. 
 
317 Blending of Law and Administration. § 267 
 
 of doing something else. In this, indeed the parties may have 
 rights, but not in the method by which it is done. This is more 
 properly a subject of direct judicial control, of rules of court, or 
 even the mere establishment of a practice. Many of the difficulties 
 under which the administration of justice at present labors — 
 making it tedious, expensive and of uncertain issue — arise from 
 ignoring so obvious a distinction. It is not hard to see that while 
 a man may properly be said to have a legal right in the descent of 
 real property or as to what shall constitute the elements of a valid 
 deed, he cannot well be said to have such a right to demand that 
 his claim to the land shall be adjudicated between certain hours of 
 the day or that the genuineness of the signature to 'the deed shall 
 or shall not be determined by inferences drawn from " comparison 
 of hands." Perhaps no result of the almost inextricable blending 
 of substantive law with the rules of procedure or the canons of ad- 
 ministration is so seriously against the public interest as that it 
 has assisted in concealing this otherwise obvious distinction, and 
 creating the impression that rules of evidence, the administrative 
 practices of the courts, are, properly speaking, rules of law in the 
 enforcement of which the parties have rights upon appeal. The 
 only substantive right of the party in the exercise of a power of 
 administration is that reason should have been employed. 
 
 In dealing with witnesses this is recognized and universally fol- 
 lowed. No litigant, for example, would seriously expect to reverse 
 a verdict upon appeal because he had not been allowed to cross- 
 examine as long as he saw fit, if he has been accorded a reasonable 
 opportunity for testing the evidence of the witness ; or because the 
 judge ordered a separation of the attendant witnesses. 
 
 Blending Substantive Law with Administration. — But recogni- 
 tion of the fact that no legal right exists to any particular exercise 
 of an administrative power apparently ceases when jurisprudence 
 comes to deal with the admissions of evidence or rulings as to the 
 probative weight of particular inferences. The interblending of 
 substantive law with the rules of practice or administration is apt 
 to occur when the significant ruling is made that " evidence is 
 admissible " or " not admissible " to prove a particular fact ; that 
 it is a " presumption of law " that certain inferences are correct ; 
 that a jury "would be justified" in finding from certain facts a 
 given result. Here this blending has most frequently taken place. 
 It is not difficult to understand why this confusion is so easy to 
 overlook and so hard to notice. The concealment was, originally 
 
§ 267 Couet and Juey; Couet. 318 
 
 at least, intentional and contrived by some of the keenest and most 
 astute minds which have ever shaped the policy of the English 
 law. To legislate and to seem not to legislate, was the problem, 
 before these judges. The phrases above mentioned are among the 
 now familiar devices — almost the catch-words — by which this 
 attempt to conceal judicial legislation in matter of substantive law 
 was accomplished. Universally, it was conceded that rulings as to 
 evidence, properly so called, were matters of administration, of 
 practice, and, therefore, easily manipulated in the court's " dis- 
 cretion," i. e., his view of his administrative duty, to any de- 
 sired end conducive to the public interest. In dealing with sub- 
 stantive law, the court was bound by precedent, often narrow, 
 archaic and unjust; still it was a precedent and not lightly to be 
 disregarded. In the field of evidence, the judge's hands were free. 
 The material was mobile, plastic. To reach these intrinsically 
 good ends which the judges sought, all that was necessary was to 
 clothe a ruling on the substantive law in the language of evidence ; 
 as that a particular fact was " admissible " or would be " pre- 
 sumed," or that one who objected " had the burden of proof " and 
 lo! the substantive law had taken a new step forward, another 
 trammel of precedent had been broken, and no one had noticed. 
 The judge had merely declared the rule which had always been 
 the law. 1 
 
 A Startling Confusion. — But subterfuges, even for excellent 
 ends, often have their disadvantages. This particular one has 
 ended by largely obscuring the very important and essential prin- 
 ciple of judicial administration on which it originally rested, the 
 free hand of the court in dealing with matters of evidence. For 
 it necessarily resulted when a proposition of substantive law 
 was thus blended with or made to assume the garments of a rule 
 of evidence, that, whatever might be the proper claim of the liti- 
 gant in the part which was really a rule of administration, he un- 
 doubtedly had legal rights in that portion of the blended whole 
 which was substantive law. If the two could be separated, the 
 legal rights might be made to attach to the substantive law alone. 
 
 1. The influence of a desire to per- century English jurisprudence in 
 
 feet the precision of legal rules, which using reason not as a test for admis- 
 
 is elsewhere considered, may not be sihility but for devising general 
 
 overlooked in this connection. Infra, grounds for excluding entire classes 
 
 §§ 556 et seq. Nor should the peculi- of evidence he permitted entirely to 
 
 arity of eighteenth and nineteenth escape attention. 
 
319 Magic and Bewildeeing Realm. § 268 
 
 If the blending was inextricable, tbe litigant bad rigbts in tbe 
 proposition as a whole; tbe more cleverly tbe union was effected, 
 tbe more obviously just sucb a contention would necessarily ap- 
 pear, tbe more readily would it be conceded. Tbe step from reserv- 
 ing rigbts in questions of substantive law carefully contrived to re- 
 semble questions of evidence, to reserving as of rigbt, questions of 
 pure evidence or administration, bas proved an easy, and, indeed, 
 almost an inevitable one. In other words, tbose wbose aim was to 
 bewilder otbers and conceal tbe real work that was going on, bave 
 ended by tbemselves losing tbe clue ; and bave left judges, lawyers 
 and litigants alike, to wander, patbless and guideless, in a magic 
 realm wbere several very dissimilar things are made to wear pre- 
 cisely identical maskings, so sbrewdly fasbioned as absolutely to 
 resemble eacb other, revealing by no outward indication an identity 
 which is learned only by first carefully disrobing any particular 
 wearer; while yet, in this wonderful country, at every turn, 
 such a bewildering interchange of garments, masks, and even 
 features, is constant among its denizens as to render it highly 
 improbable that anything will turn out ultimately to be quite 
 what at first it appears to be. It is a realm in which, for example, 
 a term like " presumption " has half a dozen distinct roles to play ; 
 and almost any ruling on evidence, being grasped and firmly held 
 long enough for careful scrutiny, will be found to change, under 
 one's very gaze ; and back of tbe features of evidence and shining 
 at first through them and a little later instead of them will appear 
 the enshrouded lineaments of some familiar rule of substantive 
 law. 2 
 
 § 268. Recapitulation — To recapitulate this brief outline of tbe 
 judge's functions, it may be said tbat these powers are of three 
 general classes or descriptions: (1) Judicial functions which spe- 
 cially concern the enforcement of the rules of law, tbe ascertain- 
 ment of the existence of facts and the application of the rule of 
 law to tbe facts so ascertained; (2) administrative powers which 
 concern tbe manner in which tbe rules of law, substantive or pro- 
 
 2. "A great portion of these rules represented as passing on questions 
 (of evidence), as laid down by the of evidence when in reality it is deal- 
 courts and by our text writers, are ing with some other branch, either of 
 working a sort of intellectual fraud substantive law or procedure." Pro- 
 by purporting to be what they are fessor J. B. Thayer, Preliminary 
 not. To the utter confusion of nil Treatise on Evidence, 511 (1898). 
 orderly thinking, a court is frequently 
 
§ 268 Couet and Jttey; Couet. 320 
 
 cedural or the usages of practice are to be conditioned in scope and 
 operation by the higher social objects of litigation; and, (3) execu- 
 tive and police powers conferred for the purpose of enabling the 
 judge to protect the dignity of his office, the public respect due to 
 it and the purity of justice itself. It is further to be observed 
 that the essential and fundamental consideration, so far as relates 
 to the law of evidence, is not as to whether a rule of law which 
 controls the action of the judge is substantive or procedural; but 
 as to whether there is a rule on this subject, or there is none, i. e., 
 as between law, on the one hand, and administration on the other. 
 The presiding judge announces the rule of substantive law and 
 applies it to the facts or allows or requires the jury to do so, ac- 
 cording to their respective duties. The judge is bound by and 
 applies the rules of procedural law in the same way. In exercis- 
 ing powers of administration the sole procedural rule and condition 
 is that reason must be exercised, other control and direction being 
 exerted by broad principles or canons designed for the doing of 
 justice, which it is the special object of administration to attain. 
 In judging of the reasonableness of the court's administrative 
 action, the existence of any custom or usage of practice relating 
 to it or any similar administrative questions, may properly be 
 considered. It may be noted that the executive or police powers 
 of the presiding judge are but specific illustrations of his general 
 function of administration. 
 
 Applying these broad classifications to the subject of the law of 
 evidence, it becomes clear that while a large admixture of sub- 
 stantive law is present within its boundaries, and a still greater 
 proportion of procedural rules, either by statute or judicial legis- 
 lation, which also have the force of law, that, in essence and by 
 necessary consequence of the objects which it seeks to attain and 
 the variety of means by which it endeavors to reach them, the law 
 of evidence is a branch of judicial administration. As such, it is 
 properly controlled, not by precedent, but by these canons or prin- 
 ciples to the consideration of which the inquiry is soon to advance. 
 
 Before entering upon this inquiry, it seems appropriate, how- 
 ever, to consider, in the succeeding chapter, certain of the pro- 
 cedural rules and administrative principles connected with what 
 is, so far as the law of evidence is concerned, probably the most 
 dominating and characteristic factor in an English trial at com- 
 mon law — the institution of the jury. 
 
CHAPTER V. 
 
 COUET AND JURY; JURY. 
 
 Institution of the jury, 269. 
 first stage j 26'9. 
 
 early forms of trial other than that by jury, 269a. 
 
 (a) trial by witnesses, 269b. 
 
 bargain or transaction witnesses, 269c. 
 
 (b) trial by compurgation, 269d. 
 number of compurgators, 269e. 
 popular courts, 269f. 
 
 royal courts, 269g. 
 
 decline of compurgation, 269h. 
 
 (c) trial by ordeal, 269i. 
 
 early forms of ordeal, 269j. 
 forms of ordeal in England, 269k. 
 scope of ordeal in England, 2691. 
 decline of ordeal in England, 269m. 
 '(d) trial by battle, 269n. 
 
 scope of trial by battle, 269o. 
 decline of trial by battle, 269p. 
 second stage, 270. 
 
 the Franhish inquisition, 270a. 
 
 indirect influence on popular courts, 270b. 
 scope of the assize, 270c. 
 criminal cases, 270d. 
 the Grand Assize, 270e. 
 Petty Assizes, 270f. 
 separation of jurata, 270g. 
 growth of the jurata, 270h. 
 personal "knowledge required, 270i. 
 third stage contrasted, 271. 
 
 transition to the jury acting upon evidence, 27la. 
 a lighter view, 27lb. 
 third stage, 271c. 
 
 reserved powers for the judge, 272. 
 Vol. I. 21 [321] 
 
Couet and Juby; Juky. 322 
 
 Function of the jury, 273. 
 
 duty of ascertainment, 274. 
 jury confined to the issue, 275. 
 Comment on facts, 276. 
 
 English and Federal courts, 277. 
 the American minority, 278. 
 Connecticut, 278. 
 Minnesota, 279. 
 Pennsylvania, 280. 
 American majority, 281. 
 
 assumption of facts, 282. 
 refusal of assumptive instructions, 283. 
 uncontroverted facts, 284. 
 weight and credibility, 285. 
 when comment is permitted, 286. 
 customary cautions, 287. 
 admissions, 288. 
 falsus in uno, 289. 
 hearsay, 290. 
 opinion evidence, 291. 
 photographs, 292. 
 
 positive and negative evidence, 293. 
 witnesses, 294. 
 
 written and oral evidence, 295. 
 hypothesis of fact, 296. 
 illustrations of fact, 297. 
 meaning of terms, 298. 
 misrepresentation or mistake corrected, 299. 
 Subordination of judge to jury, 300. 
 
 (1) emotion versus reason, 301. 
 
 (2) general versus technical experience, 302. 
 
 (3) personal versus social interests in litigation, 303. 
 reasons for inversion, 304. 
 
 Zaier developments, 305. 
 'Granting of new trials, 306. 
 
 verdicts against reason, 307. 
 
 verdicts contrary to the weight of evidence, 308. 
 
 ;«<2<7e ftoi an appellate tribunal, 309. 
 action of appellate courts, 310. 
 
 palpable confusion, 311. 
 
323 Justice in Anglo-Saxon England. § 269 
 
 technical errors as to evidence, 312. 
 substantive law, 313. 
 English rule, 314. 
 
 harmless error, 314. 
 
 admissions, 315. 
 
 exclusions, 316. 
 
 equity causes, 317. 
 
 a more technical rule, 318. 
 
 under the judicature act, 319. 
 American majority, 320. 
 
 Federal courts, 321. 
 
 criminal cases, 322. 
 
 a purely voluntary situation, 323. 
 
 /utfiZe legislation, 324. 
 
 fcasw o/ majority rule, 325. 
 
 technical inerrancy required, 326. 
 American minority, 327. 
 
 prejudice from error, 328. 
 
 equity practice, 329. 
 
 criminal cases, 330. 
 
 taking jury's opinion, 331. 
 
 § 269. (Institution of the Jury) ; First Stage. — As the judge 
 in all ages and civilizations has represented sovereignty in its 
 function of awarding justice, so does the jury represent the 
 peculiar Teutonic or Germanic idea of the right of the people — 
 the body of free tribesmen, freemen, citizens or the like, to have a 
 voice in their government, in any of its branches. It is the wild, 
 free Witenagemote, the Al-thing. 
 
 First Stage. — In its earliest stage, such bodies, acording to 
 their jurisdiction, were courts as well as legislative assemblies, 
 with all the turbulent irresponsibility of self-assertive freemen. 
 Law and fact were alike within the individual knowledge of the 
 freemen. The custom of the tribe, the act of the accused, the 
 rights of the claimant were alike within their knowledge. Sym- 
 pathy, emotion, dispatch of immediate matters regardless of the 
 effect or precedent, such were prominent features of this rough 
 and ready justice of the Saxon tribes in England. 1 
 
 1. Brittle v. People, 2 Nebr. 198 819 (1897); Profatt Jury Tr. c. 1, 
 (1873) ; Smith v. Times Pub. Co. 178 §§ 30, 34, 35. 
 Pa. St. 481, 36 Atl. 296, 35 L. R. A. 
 
§269 Couet and Juey; Jury. 324 
 
 " The great fundamental thing, to be noticed first of all, out of 
 which all else grew, was the conception of popular courts and 
 popular justice. We must read this into all the accounts of our 
 earliest law. In these courts it was not the presiding officers, one 
 or more, who were the judges; it was the whole company: as if 
 in a Xew England town-meeting, the lineal descendant of these 
 old Germanic moots, the people conducted the judicature, as well 
 as the finance and politics, of the town. 2 These old courts were 
 a sort of town-meeting of judges. Among the Germanic races 
 this has always been so; nothing among them was more ancient 
 than the idea and practice of popular justice. 3 This notion among 
 a rude people carried with it all else that we find, — the preserva- 
 tion of very old traditional methods, as if sacred; a rigid adher- 
 ence to forms ; the absence of a development of the rational modes 
 of proof. Of the popular courts Maine says, in the admirable 
 sixth chapter of his ' Early Law and Custom,' while speaking of 
 the Hundred Court and the Salic Law : ' I will say no more of 
 its general characteristics than that . . . it is intensely tech- 
 nical, and that it supplies in itself sufficient proof that legal tech- 
 nicality is a disease, not of the old age, but of the infancy of 
 societies.' " 4 It is to be noted that during this stage of the jury's 
 development, no suggestion is made as to any action by the com- 
 munity or any portion of it, under the sanction of an oath. The 
 oath was a proper thing for the party who appears before the 
 community in council. It may be his oath-ordeal, his appeal 
 to the arbitriwm Dei, the judgment of God. But no oath imposes 
 a fetter upon the action of the community or its representatives. 5 
 
 2. See Forsyth, Tvial by Jury, the Anglo-Saxona were no foreshad- 
 
 DT) 70 71. owings, of the twelve men under oath. 
 
 8. Thayer, Prelim. Treat., p. 8, The number twelve runs through most 
 
 citing Maine, Early Law and Custom, Teutonic jurisprudence and the in- 
 
 c. 6 ; Pop. Gov., pp. 89-92 ; Essays in quisitio of the Normans finds its 
 
 Anglo-Saxon Law, 2-3. counterpart in the Saxon jury of ac- 
 
 4. Quoted in Thayer, Prelim. Treat, cusation, the grand jury of later 
 8. " The popular courts of the Anglo- times. For example, " in order to 
 Saxons were the means of cultivat- provide a class of persons in the 
 ing, diffusing, and maintaining a county court who should be possessed 
 spirit of freedom, order, and self- of the requisite knowledge, to be qual- 
 government, and in these courts we ified as witnesses, it was provided by 
 find the characteristic element of their the laws of Edgar (I, 5), that in every 
 jurisprudence." Proffutt on Jury 'burh' and in every hundred, there 
 Trial § 14. should be twelve witnesses before 
 
 5. Yet it would scarcely be accu- whom all contracts of buying and 
 rate to say that among the laws of bartering were to be made, and it was 
 
325 
 
 " Pboof " in Eaely English Pkoceduee. 
 
 269a 
 
 It may be convenient and helpful to a more complete under- 
 standing, before proceeding to the consideration of the institution 
 of the jury itself, to examine briefly certain of its original con- 
 temporaries, using Prof. Thayer as our guide. 
 
 § 269a. (Institution of the Jury; First Stage); Early Forms 
 of Trial other than that by Jury — Forms of trial other than that 
 by jury grew up and nourished at this stage of legal evolution and, 
 after a more or less protracted lingering in conservative England, 
 died, leaving trial by jury to stand as their sole survivor. 1 How- 
 ever differing among themselves, these various modes of proof 
 about to be described, possessed the common feature that from the 
 modern standpoint, they were not trials at all. No appeal to 
 reason was made ; no attempt to convince the judgment was under- 
 taken. 2 A party, plaintiff or defendant, claimed to establish his 
 right or acquit himself of liability by doing something regularly 
 and in order. If he showed to the court that he was entitled to 
 avail himself of an opportunity to go through the form, he was 
 admitted to do so. 3 The result conclusively and mechanically 
 
 also provided that no contract of 
 which they had not knowledge should 
 be deemed valid." Proffatt on Jury 
 Trial, § 15. "But the most im- 
 portant and suggestive regulation oc- 
 curs in the laws of Ethelred, in the 
 third part, in section 3. It is [or- 
 dered] ' That a gemot be held in 
 every wapentake ( another name of the 
 hundred) ; and the xii senior thanes 
 go out, and the reeve with them, and 
 swear on the relic that is given to 
 them in hand that they will accuse no 
 innocent man, nor conceal any guilty 
 one.'" Proffatt on Jury Trial, £ 16. 
 1. The present and immediately 
 succeeding sections, §§ 269-271, are 
 in effect, a summary of certain of the 
 conclusions reached by Prof. J. B. 
 Thayer, in chapters I and II of Part 
 I of his Preliminary Treatise on Evi- 
 dence at the Common Law. It will 
 not be necessary to say that no ade- 
 quate intimation is or, indeed, can be 
 here given of the historical value and 
 unique charm of scholarship which 
 characterize the Preliminary Treatise 
 
 itself. See also Proffatt on Jury 
 Trial, §§ 9-40. 
 
 2. " I use the word trial, because 
 it is the word in common use during 
 recent centuries. But as applied to 
 the old law this word is an anachron- 
 ism. The old phrases were probatio, 
 purgatio, defensio; seldom, if ever, in 
 the earlier period, triatio. In those 
 days people ' tried ' their own issues ; 
 and even after the jury came in, e. g., 
 in the early part of the thirteenth 
 century, one is sometimes said to clear 
 himself {purgare se) by a jury; just 
 as a man used to be said in our colo- 
 nies to ' clear himself ' and ' acquit 
 himself ' by his own oath, as against 
 some accusations and testimony of 
 an Indian. Plym. Col. Rec. XI, 234, 
 235 (1673) ; 1 Prov. Laws Mass. 151 
 (1693-1694)." Thayer, Prelim. Treat. 
 16. 
 
 3. "The body of the judicial busi- 
 ness of the popular courts, seven and 
 eight centuries ago, lay in administer- 
 ing rules that a party should follow 
 this established formula or that, and 
 
§ 269a Cotjet and Juby; Jury. 326 
 
 gives success or failure. Practically, the same situation is pre- 
 sented where a prisoner has been presumptively found guilty in 
 a criminal case and is directed to purge himself by an appropriate 
 test. In either case, the issue of repeating the formularies, under- 
 going the prescribed requirements or the like, and that alone, 
 proved the right or liability, established the guilt or innocence.' 
 In general, something must be done or shown by one of the parties 
 to entitle him to ask the court for the application to his case of 
 a particular mode of making proof; or something must appear to 
 authorize the judges to compel a person before the court to undergo 
 the prescribed test. 4 There then remains the second step, that the 
 party so authorized or constrained should undergo the test itself. 
 The consequences, as well as the things to be done are rigidly 
 fixed, formal, inevitable. " There were many modes of trial and 
 some range of choice for the parties ; but the proof was largely 
 ' one-sided,' so that the main question was who had the right or, 
 rather, the privilege, of going to the proof. For determining this 
 question there were traditional usages and rules, and the decision 
 of it was that famous Beweisurtheil which disposed of cases be- 
 fore they were tried. Since the trial was a matter of form, and 
 the judgment was a determination what form it should take, the 
 judgment naturally came before the trial." 5 
 
 " The old forms of trial (omitting documents) were chiefly 
 these: (1) Witnesses; (2) the party's oath, with or without 
 fellow-swearers; (3) the ordeal; (4) battle. They were corn- 
 according as he bore the test should ceedings under which one accused of 
 be punished or go quit. The concep- crime is, in many jurisdictions, first 
 tion of the trial was that of a pro- presented to the court hy a grand jury 
 ceeding between the parties, carried as a necessary preliminary to being 
 on publicly, under forms which the tried by a petit or traverse jury, 
 community oversaw." Thayer, Pre- In respect to documents, the double 
 
 lim. Treat., 8. stage of proceedings has had im- 
 
 4. " They [the popular courts] lis- portant modern effects upon the sub- 
 tened to complaints which often must stantive or procedural law, as will 
 follow with the minutest detail cer- more fully be made to appear here* 
 tain forms ' de verbo in verbum,' after. See Documentary Evidence. 
 which must be made probable by a These are markedly prominent in con- 
 ' fore-oath,' complaint- witnesses, the nection with the doctrine of profert 
 exhibition of the wound, or other vis- and, through the rules of profert, 
 ible confirmation." Thayer, Prelim. upon those of the " Best Evidence 
 Treat., 9. Pule" (q. v.) and the "Parol Evi- 
 
 A modern survival from this rela- dence Rule" (q. v.). 
 tion between the two successive stages 5. Thayer, Prelim. Treat., 9. 
 
 of a single trial is seen in the pro- 
 
327 The Secta in Teial by Witnesses. § 269b 
 
 panions of trial by jury -when that mighty plant first struck its 
 root into English soil." 6 
 
 § 269b. (Institution of the Jury; First Stage; Early Forms 
 of Trial other than that by Jury); (a) Trial by Witnesses 
 
 Trial by witnesses " appears to have been one of the oldest kinds 
 of ' one-sided ' proof. There was no testing by cross-examina- 
 tion ; the operative thing was the oath itself, and not the probative 
 quality of what was said, or its persuasion on a judge's mind." * 
 The preliminary proof of right to establish a claim or defense by 
 this mode of proof lay in the production of the collection of wit- 
 nesses itself, the secta, as it was called. 2 " It was the office of the 
 secta to support the plaintiff's case, in advance of any answer 
 from the defendant." 3 The adverse party may produce a corre- 
 sponding secta, in which case, the contest is decided upon a 
 comparison of the respective sectce, their numbers, respectability 
 or the agreement of their stories. 4 On the other hand, the oppo- 
 nent may rest his case upon the examination of his adversary's 
 secta. If the secta, when so interrogated, agreed in their testi- 
 mony, the party proposing them succeeded ; 5 should they disagree 
 or know nothing about the matter, he lost. 6 
 
 6. Thayer, Prelim. Treat., 16. See Trial, 46; Braeton's Note Book, iii, 
 
 also Stephen, PI. (Tyler's ed.) 114, Case 1115 (1234); Bracton, 302. 
 129; 3 Blackstone, Comm. 329. Social position among the witnesses 
 
 1. Thayer, Prelim, Treat. 17, cit- being approximately equal, numbers 
 ing Brunner, Schw. 54-59, 84 et seq., in the secta was apt to carry the day. 
 195 et seq., Big. PI. A. N. XX, Stat. Oaths being counted, a process of can- 
 Wall., § 14, Lyon, 2 Hist. Dover, 292, cellation demonstrated on which side 
 294. lay the right of the matter. Thought 
 
 2. Brunner, Schw. 428 et seq., 2 about such disputed matters was a 
 Pollock & Maitland, Hist. Eng. Law, sad ptfzzle and any rough and ready 
 603 et seq. solution was welcome. Lib. Ass. 
 
 3. Thayer, Prelim. Treat. 13, citing 273, 26; Brooke, Ab. Trial, 90. Evi- 
 2 Palgrave Eng. Com., p. clxxxvii, dently the English common law was 
 pi. 21 (1221); s. e„ Maitland, PI. preserved from the folly of predicat- 
 Crown for Gloucester, 92, pi. 394; ib. ing probative weight upon the num- 
 45, pi. 174 and notes pp. 145, 150; ber of witnesses which has always 
 1 Pike's Hist. Crime 52. See also characterized the civil law by some 
 Ass. Clarend., s. 12 (1166). See also cause entirely apart from the wisdom 
 T. B. Ed. II, 507 (1323) ; Brunner, of the English in this particular. 
 Schw. 170 et seq., -laa, Sup. and Force, 5. 2 Braeton's Note Book Case, 325 
 4th ed. 95-6. " Nullus ballivus ponat (1229). 
 
 de cetero aMquem ad legem simplici 6. 3 Braeton's Note Book Case, 
 
 loguela sua, sine testibus fidelious ad 1693 (1226). Except when thus ex- 
 
 hoc inductis." Magna Charta, Art. amined the secta, the complaint-wit- 
 
 38 (1215). nesses, need not be sworn. 
 
 4. Dyer, 185a, pi. 65 ; Fitzherb. 
 
§ 269c COTJET AND JtJBY ; JtTEY. 328 
 
 Decline of Trial by Witnesses. — Proof of this nature might 
 be made in any form of action. The secta has not been actually- 
 produced for several centuries, 7 though its allegation in pleading 
 — et inde producit sectam, and therefore he brings his suit, has 
 survived in common law declarations into very retfent times. 
 
 § 26&c. (Institution of the Jury; First Stage; Early Forms 
 of Trial other than that by Jury; [a] Trial by Witnesses); 
 
 Bargain or Transaction Witnesses — Bargain or transaction wit- 
 nesses furnished a characteristic and important part of the scope 
 of this form of trial. Certain dealings took place in the presence 
 of persons preappointed and selected in advance for the purpose 
 of establishing their nature should . disputes arise on the point. 
 The proof in such cases was entirely one-sided ; there was no cross- 
 examination. 1 The proof or test was merely as to what these 
 transaction witnesses should say when interrogated by the judges 
 of the King's court; or, in earlier times, declared to the body of 
 freemen who constituted the popular tribunals. This method of 
 proof by anticipatory witnesses goes back to very early times 2 and 
 is obviously of the same historical lineage as the selection of at- 
 testing witnesses to wills, deeds and other formal instruments 
 where attestation is required by law or adopted by the parties. 3 
 Prominent among these important transactions thus witnessed 
 were those relating to dower,* the granting of charters 8 and the 
 like. " In my opinion," says Brunner, " undoubtedly we are to 
 include under the head of formal witness-proof these: (1) The 
 
 7. Y. B. 17 Ed. Ill, 48, 14 (1343) ; 1. Liber Albus, 10 Ed. II (1316). 
 Maitland, "Mirror," XXIV; Id. 162, 2. See Capitulary of Louis Le 
 71 (1290). See also 2 Pollock & Debonnaire of the year 819 (Capitu- 
 Maitland, Hist. Eng. Law, 213. In lari Primum Ludovici Pii, A. D. 819. 
 1314, counsel assert that the Court of Baluse, Capitularia Regum Fran- 
 Common Bench will not permit ex- corum, 1, 601), quoted in Thayer's 
 animation of the secta. Y. B. Ed. Prelim. Treat. 17. 
 II, 242 (1314). Yet the fact that a 3. See Documentaby Evidence. 
 plaintiff has no secta may well defeat 4. Brunner, Schw. 342-344, 432- 
 his claim even as late as 1324. Y.B. 434; PI. Ab. 21, Col. 2 (1198). 
 Ed. II, 582 (1324). For an earlier 5. Big. PL A. N. 239, citing Chron. 
 case to the same effect, see 2 Rot. Joe. de Boakel. 37 (Camden Soc). 
 Cur. Reg. 102 (1199) 
 
329 Technicality of Pboceduee in Compuegation. § 269d 
 
 proof of age; 6 (2) the proof of death; 7 (3) the proof of property 
 in a movable chattel." s 
 
 § 269d. (Institution of the Jury; First Stage; Early Forms 
 of Trial other than that by Jury); (b) Trial by Compurgation. 
 
 — A second mode of trial or rather proof, among the Saxon and 
 other Germanic tribes was wager of law, or, as it was frequently 
 called, compurgation. 1 In this, the person admitted or compelled 
 to proof by oath, swears in due and highly technical form, 2 to the 
 truth of his contention and, at the same time, he produces fellow- 
 swearers to make oath that his oath is <a true one ; — not neces- 
 sarily that they themselves know anything as to the truth of the 
 fact stated by the principal or party oath-taker. They were more 
 
 6. Bracton's Note Book, ii, Case 46, 
 Cited in Braoton, f. 4246 (1219). 
 
 In later development, the functions 
 of a jury may be given to these wit- 
 nesses; — as hy selecting them under 
 royal authority requiring that the 
 jurors should be of a definite age, de- 
 manding to know by what they fix the 
 date which they announce, and simi- 
 lar matters. Liber de Antiquis Legi- 
 bus, pp. cxlix-cliii (1409); Camden 
 Soc. (1846); Bellewe, 237 (1397); 
 (thunder, tempest, pestilence, etc.) 
 Baigent, Crondal Records, 431-436 
 (1348); PI. Ab. 293, Col. 1 (1297). 
 In other words, certain of the features 
 of an inquisitio are presented, and 
 into this form of inquiry the proceed- 
 ing later grew. Keilwey, 176-7 
 (1515). A method of determining 
 age by inspection of the judges pre- 
 vailed also during this period. Supra, 
 § 151. But, in certain cases, the ex- 
 ercise of this power was not unat- 
 tended with difficulty. " There is not 
 a man in England who can rightly 
 adjudge her of age or under age. 
 Some women who are thirty years old 
 will seem eighteen." Y. B. 50 Edw. 
 Ill, 6, 12 (1375), per Cavendish, 
 C. J. The right to refer the matter 
 to an inquest, inquisitio, i. e., a jury 
 of the second stage, was unquestion- 
 able. Y. B. 21 H. VII, 40, 58, 
 Brooke's Ab. Trial, 60 (1219). 
 
 ,7. Torne v. Bolff, Dyer (Ed. 1601) 
 185a; s. c, Old Benloe, 86 (1560). 
 Cases which arose with special 
 frequency were those relating to the 
 death of the husband in proceedings 
 to secure dower. Y. B. Edw. II, 24 
 (1308) ; Selden, Fortescue de Land, 
 c. 21, n. 8; Br. ST. B. ii, Case 356 
 (1229); Wm. Salt Soc. Coll. (Staf- 
 fordshire), iii, 120-121 (1203). The 
 use of this form of trial was not en- 
 tirely abolished in England until 
 1834. 
 
 8. Bracton's Note Book, iii, Case 
 1115 (1234) (mare). Schw. 205. 
 
 1. 3 Black Com. 342, 343; 4 Black 
 Com. 368, 414; 1 Pollock & Maitland, 
 426; 2 Ibid. 212, 598, 631-634; Prof- 
 fatt on Jury Trial, § 12. 
 
 2. " In the city of Lille, down to 
 the year 1351, the position of every 
 finger was determined by law, and 
 the slightest error lost the suit irre- 
 vocably." Lea, Sup. and Force, (4th 
 ed.) 78, cited in Thayer, Prelim. 
 Treat., 25. "All comes to naught if 
 the principal withdraws his hand 
 from the book while swearing, or does 
 not say the words in full as they are 
 charged against him. . . . If a defend- 
 ant fails to make his law he has to pay 
 whatever the plaintiff has thought fit 
 to demand." Selden Soc. Publica- 
 tions, vol. rV, p. 17, cited in Thayer, 
 Prelim. Treat., p. 25. 
 
§269e 
 
 COTJBT AND JtJEY; JuEY. 
 
 330 
 
 nearly his " backers," more frequently than not, his relatives. 3 
 Persons known to have perjured themselves could no longer avail 
 of compurgation but were put to the ordeal.* 
 
 § 269e. (Institution of the Jury; First Stage; Early Forms 
 of Trial other than that by Jury; [b] Trial by Compurgation); 
 
 Number of Compurgators — While the number of these helper 
 oath-takers, or compurgators, varied, 1 the custom was to require 
 at least twelve, including the party. 2 The latter was said to purge 
 
 3. Lea, Sup. and Force ( 4th ed. ) ; 
 Lewis, Anc. Laws of Wales, 30, 112. 
 " The organization of Anglo-Saxon 
 society in those days was such that 
 there was ample opportunity given to 
 neighbors to become acquainted with 
 a man's general character, and his 
 reputation for veracity, so that decla- 
 rations of his neighbors concerning 
 his credibility might be received with 
 no small degree of confidence. It was 
 on this principal, ' fama publico.,' a, 
 man was accused and put on his de- 
 fence, and in the same way he cleared 
 himself. This was one of the distin- 
 guishing features of Anglo-Saxon law, 
 that an accused person should only be 
 put upon trial by the sworn present- 
 ment of his accusers, his neighbors, 
 which is evidently the principle out 
 of which our grand jury originated, 
 and is truly one of the best safe- 
 guards bequeathed to us by our Saxon 
 forefathers." Proffatt on Jury Trial, 
 § 12. See also Laws of Ethelred, 
 Mirror, C. I., § 15. 
 
 4. " We have ordaiued concerning 
 those men who were perjurers, if that 
 were made evident, or an oath failed 
 to them, or were not proved, that they 
 should afterwards not be oathworthy, 
 but worthy of the ordeal." Laws of 
 Edward, Ancient Laws and Institutes, 
 p. 69, quoted in Proffatt on Jury 
 Trial, § 12. In the same way, the 
 Saxon laws provided that in case of 
 notoriously untrustworthy men — 
 men who were tiht-lysig — no purga- 
 tion would be allowed. The same 
 course was adopted where the accused 
 had been taken with the mainour 
 
 [thing stolen] upon him, and the ac- 
 cusation was supported by the oaths 
 of a competent number of friends join- 
 ing with the accuser, which oath was 
 called vorath or forath. Proffatt on 
 Jury Trial, § 18. "And let every 
 one (accused) buy himself law with 
 XII ores, half to the lord, and half to 
 the wapentake, and let every man of 
 previous bad character gc to the three- 
 fold ordeal, or pay fourfold." Laws 
 of Ethelred, quoted in Proffatt on 
 Jury Trial, § 18, n. 1. 
 
 1. Early statutes indicate the exist- 
 ence of a wide range in the number 
 of compurgators which might be re- 
 ceived as sufficient. Thus, in a stat- 
 ute of Richard II (Ch. 5), in the 
 year 1382, compurgation by 3 or 4 
 helpers was permitted. By the later 
 statute of Henry V (St. 1, Hen. 5, 
 c. 6) in 1413, in aid of those who as 
 liege subjects of the king had assisted 
 in putting down the late Welsh rebel- 
 lion and had thereby become subject 
 to prosecution from the rebels, and 
 who without this assistance would 
 have been " imprisoned until that they 
 made satisfaction or till they cleared 
 themselves of the death of Buch rebels, 
 and other trespasses, by an assach 
 after the custom of Wales, that is to 
 say, by the Oath of Three Hundred 
 Men," such prosecution by the late 
 rebels is forbidden under severe pen- 
 alties. 
 
 2. Multiples of twelve were also 
 common, the number varying in a 
 criminal case, in a rough way, with 
 the seriousness of the offense. For ex- 
 ample, on an indictment for murder 
 
331 
 
 Compurgation in the Popular Courts. 
 
 §269f 
 
 or defend himself duodecimo, rmwa? i. e., by his own oath and 
 that of eleven others 4 or, as Lord Coke puts it, " an eleven and 
 himself." B 
 
 § 269f. (Institution of the Jury; First Stage; Early Forms 
 of Trial other than that by Jury; [b] Trial by Compurgation) ; 
 
 Popular Courts. — Compurgation was of great antiquity 1 and en- 
 joyed much mediaeval popularity, 2 especially among the peace- 
 loving citizens of the towns. 3 In England it was the customary 
 procedure in the county* and hundred 5 courts 6 for civil and crimi- 
 nal 7 cases alike. 
 
 36 compurgators were ordered. Palg. 
 Com. i, 217; ii, p. CXVI, note. See 
 also John Lyon's History of Dover, 
 ii, 265. Special provisions appear in 
 the charters of the City of London 
 which, while retaining 18 or 36 com- 
 purgators, give the defendant certain 
 privileges of challenge and the like 
 analogous to those creating a struck 
 jury in more modern times. Liber 
 Albus, Mun. Gild. Lond. i, 57-59, 92, 
 104, 203. 
 
 3. 3 Pollock & Maitland, His.t. Eng. 
 Law, 598, n. 4; De Gruchy, Ane. 
 Cont. de Norm. 192, n. 6. 
 
 4. Y. B. 33 H. VI, 8 (1454-1455), 
 per Serjeant Needham; Laws of 
 Canute, c. 66, Lea, Sup. & Force 
 (4th ed. ), 48. " Cum undecim secum 
 
 jurantihus." Statute of Wales (1284). 
 See also King v. Williams, 2 B & C. 
 538 (1824) ; s. c, 4 D. & K. 3, p. 33. 
 
 5. 2 Inst. 45, quoted in Thayer's 
 Prelim. Treat. 14. 
 
 1. Hessels & Kern Col. 208, 
 XXXVII. 
 
 2. Charters of London contain a 
 clause entitling citizens to the bene- 
 fits of compurgation — a welcome sub- 
 stitute for either ordeal or battle. 
 Liber Albus, Mun. Gild. Lond. i, 128 
 et seq.; Norton's London, 324, note; 
 Palg. Merchant and Friar, 180. The 
 privilege of replacing a deceased com- 
 purgator by swearing above his grave 
 seems to have been deemed of more 
 doubtful probative value in later 
 times. Liber Albus, Mun. Gild. Lond. 
 i, 137-8; Riley's ed., 123, note. 
 
 3. Black Book of the Admiralty, 
 II, 170-173. 
 
 4. " The court of general and su- 
 perior jurisdiction was the county 
 court, or shire-gemot which met every 
 six months, and was presided over by 
 the sheriff, and composed of all the 
 freemen of the shire, who were termed 
 suitors. In this court was tried all 
 matters affecting the freeholders of 
 the shire on the principle of arbitra- 
 tion, without any forms of regular 
 justice, or the rules of a legal tri- 
 bunal." Proffatt on Jury Trial, § 15. 
 "And thrice a year let there be a 
 burh-gemot, and twice a shire-gemot, 
 under penalty of the wite, as is right, 
 unless there be need oftener. And let 
 there be present the bishop of the 
 shire, and the ealdorman, and there 
 let both expound as well the law of 
 God as the secular law.'' Laws of 
 Canute, 18, quoted in Proffatt on Jury 
 Trial, § 15, n. 3. 
 
 Manorial Courts.— The use of com- 
 purgation in the Courts-Baron, 
 Courts-Leet and other manorial courts 
 was frequent. Palg. Com. i, 262-3 ; 
 Seldon Soc. Publications, vols. II 
 and IV. " If the suit was grounded 
 upon a plaint the opinion of the 
 suitors or the compurgatory oath con- 
 stituted the common-law trial. . . . 
 The same rule was observed in the 
 manorial courts, in which by common 
 right all pleas were determined by 
 wager of law." Palg. Com. i, 262-3. 
 
 5. Palg. Com. ii, p. cxvi, note 
 (Winchelsea in Sussex, 1440). These 
 
269g 
 
 Coubt and Jury; Juet. 
 
 332 
 
 § 269g. (Institution of the Jury; First Stage; Early Forms 
 of Trial other than that by Jury; [b] Trial by Compurgation); 
 
 Eoyal Courts. — Even in the King's tribunals compurgation was 
 the standard mode of making proof in personal and criminal 1 
 
 ular government; and though trial 
 by jury was then unknown, it cannot 
 be doubted that the share of the 
 people in these courts where all or- 
 dinary justice was administered must 
 have led the way to that most demo- 
 cratical of judicial institutions." 1 
 Macintosh, Hist. Eng., p. 81, quoted 
 in Proffatt on Jury Trial, § 14. 
 
 7. Dr. Hooke's case, Gardiner, 
 Star Chamber and High Commission 
 Cases (Camd. Soc), 276; Palgrave, 
 Merchant and Friar, 182-3; Pollock 
 and Maitland, Hist. Er.g. Law i, 426. 
 
 1. Bracton, 410 ; Glanvill, Bk. 1, cc. 
 9 and 16 (1187) ; Maitl. PI. Cr. i., 
 case 61; Palg. Com. ii., p. cxix, note; 
 Rot. Cur. Peg. i, 200 (1198). 
 
 After the Assize of Clarendon, 
 however, in 1166, in which Henry II 
 did much to establish the jury as the 
 controlling factor of judicial trials, 
 compurgation seems not to have been 
 ordered as a means of making proof 
 in serious criminal cases. " The mode 
 of trial was to be what it had been 
 before the Conquest, with the differ- 
 ence that compurgation was no longer 
 permitted in those cases which were 
 of sufficient importance to be brought 
 before the justices in eyre." Pike, 
 Hist. Crime, i, 130, quoted in Thayer, 
 Prelim. Treat. 26. See also Palg. 
 Com. i, 259; Pike, Hist. Crime, i, 
 122, 123; Stubbs, Select Charters 
 (6th ed.), 142. 
 
 When trial by ordeal was removed 
 from criminal proceedings by the im- 
 plied prohibition of the Lateran 
 Council, trial by jury or by appeal of 
 battle alone remained as available 
 forms under which to make proof or 
 purge oneself. The difficulties ex- 
 perienced by courts in compelling a 
 prisoner to plead to the country, i. e., 
 the jury, are elsewhere noted. Not- 
 withstanding all impediments, how- 
 
 are among the latest reported in- 
 stances of compurgation in criminal 
 cases. 
 
 The hundred court is characterized 
 by Maine as " the oldest and most 
 nearly universal of the organized 
 Teutonic courts." Maine, Early Law 
 and Custom, 144, cited Thayer, Pre- 
 lim. Treat. 25. "The Court of the 
 Hundred was the next court inferior 
 to the county court. It was to be 
 convened every four weeks, and was 
 a tribunal for adjudicating matters 
 appertaining to persons belonging to 
 the same hundred, and had a limited 
 jurisdiction. ... It was really the 
 important police court of Anglo-Saxon 
 times." Proffatt on Jury Trial, § 16. 
 " I will that each reeve have a gemot 
 always once in four weeks, and so do 
 that every man be worthy of folk- 
 right, and that every suit have an 
 end and a term, when it shall be 
 .brought forward." Laws of Edward, 
 § 11, quoted in Proffatt on Jury 
 Trial, § 16, n. 2. " First, that they 
 meet within four weeks, and that 
 every man do justice to another." 
 Laws of Edgar, § 1, quoted in Prof- 
 fatt on Jury Trial, | 36, n. 2. 
 
 The Saxon assertiveness against 
 royal authority is evidenced in a pro- 
 vision of the laws of Canute that 
 only when he had no home court, 
 should a litigant apply to the king. 
 "And let no one apply to the king 
 unless he may not be entitled to any 
 justice within his hundred." Canute, 
 Laws, 17, quoted in Proffatt on Jury 
 Trial, § 16, n. 3. 
 
 6. "The meetings of the people at 
 the courts of shires, hundreds, and 
 tythings, at which the humbler classes 
 were necessarily more important than 
 in the ordinary assemblies, contribu- 
 ted still more to cultivate the gener- 
 ous principles of equal law and pop- 
 
333 
 
 Compurgation in Debt and Detinue. 
 
 § 269h 
 
 actions. Even in real actions, where trial by battle 2 was the cus- 
 tomary mode of "proving" the truth as to disputes, a party 
 might be ordered or permitted to resort to compurgation in sub- 
 sidiary matters. 3 
 
 § 269h. (Institution of the Jury; First Stage; Early Forms 
 of Trial other than that by Jury; [b] Trial by Compurgation) ; 
 
 Decline of Compurgation Compurgation is thus seen to have 
 
 been unable to withstand the growing power of trial by jury and 
 gradually declined in frequency 1 and both popular and judi- 
 cial 2 approbation. Its survival in the actions of debt 3 and of 
 
 ever, the impetus thua given to the 
 trial by jury on the practical aboli- 
 tion of compurgation and ordeal ia 
 self-evident. 
 
 2. Infra, § 269n. 
 
 3. Thayer's Prelim. Treat. 25, 
 citing Bigelow, PI. A., n. XVIII; 
 Glanv. VIII, 9; 1 Palgrave, Eng. 
 Com. 262-3. "Even in the king's 
 court the incidental traverses in a 
 real action, such as the denial of 
 the summons by the tenant, were al- 
 ways determined by compurgators, 
 and in all personal actions wager of 
 law was the regular mode of trial, 
 until new proceedings were instituted 
 which enabled the judges to introduce 
 the jury trial in its stead." Palg. 
 Com. i, 262-3. 
 
 1. PI. Ab. 291, col. I (1293). 
 
 As a matter of administration the 
 judges could still order compurgation 
 in cases where it was necessary to 
 meet an unjust claim. Y. B. 19 H. 
 VI, 10, 25 (1440) (contract). See 
 also Y. B. 33 H. VI, 7, 23 (1454) ; 
 Y. B. 15 Edw. Ill, 299 (1341) ; Y. B. 
 30 & 31 Edw. I, 189 (1302) ; 2 Hot. 
 Cur. Reg. 125 (1198) ; Bracton, 3346. 
 366; JenVins, Rep. IX (contract). 
 Legislative relief was at times af- 
 forded in the same way, in order to 
 remedy exceptional situations. St. 5, 
 Henry IV, c. 8(1403). 
 
 2. Courts will not admit a man to 
 wage his law without good admoni- 
 tion and due examination. Slade's 
 case, 4 Rep., p. 95 (1602), per Coke, 
 C. J. 
 
 3. " We can admonish him, but if 
 he will stand by his law, we cannot 
 hinder it, seeing it is a method the 
 law allows." Company of Glaziers 
 case, Anon., 2 Salk. 682 (1699), per 
 Holt, C. J., quoted in Thayer, Pre- 
 lim. Treat., 31. Of this case Chief 
 Justice Holt suggested in a later case 
 that a different result might have 
 been reached by the court had the 
 plaintiff been more vigilant and reso- 
 lute in insisting upon bis rights. " It 
 was," he observes, " a gudgeon swal- 
 lowed, and so it passed without ob- 
 servation." London v. Wood, 12 Mod. 
 669, 684 (1701), per Holt, C. J. 
 quoted in Thayer, Prelim. Treat., 32. 
 
 The particulars of the already un- 
 familiar process of compurgation are 
 thus described by the reporter : " The 
 defendant was set at the right corner 
 of the bar, without the bar, and the 
 secondary asked him if he was ready 
 to wage his law. He answered yes ; 
 and then he laid his hand upon the 
 book, and then the plaintiff was 
 called; and a question thereupon 
 arose whether the plaintiff was de- 
 mandable? And a diversity taken 
 where he perfects his law instanter, 
 and where a day is given in the same 
 term, and when in another term. Aa 
 to the last, they hold he was demand- 
 able, whether the day given was in 
 the same term or another. Then the 
 court admonished him and also his 
 compurgators, which they regarded 
 not so much as to desist from it; 
 accordingly, the defendant was sworn, 
 
§ 269h 
 
 Couet and Jtjet; Juby. 
 
 334 
 
 detinue 4 furnished no small part of the professional eagerness to 
 welcome the judicial substitutes of indebitatus assumpsit 5 and 
 trover, respectively. The great advantage of these transparent 
 fictions was that in them the defendant could no longer "wage 
 his law." 6 With the characteristic conservatism of the English, 
 
 tract, the defendant may -wage his 
 law is for that the defendant may 
 satisfy the party in secret, or before 
 witness, and all the witnesses may 
 die; . . . and this for aught I 
 could ever read is peculiar to the law 
 of England." . . . Coke, 2 Inst. 45 
 (1642). 
 
 4. Steph. PI. (Tyler's ed.) 131-2. 
 
 5. "Manwood (C. B.) said that it 
 was the folly of the plaintiff, because 
 that he may change his action into 
 an action of the case upon an as- 
 sumpsit, wherein the defendant can- 
 not wage his law." Goldsborough, 51, 
 pi. 13 (1587), quoted in Thayer, 
 Prelim. Treat. 30; Doctor and Stu- 
 dent, ii. c. 24, end. 
 
 In the Company of Glaziers case 
 (Anon., 2 Salk. 682 [1699]), where 
 "wager of law," i. e., compurgation, 
 was allowed on an action of debt 
 on a by-law, it was remarked " per 
 Northey (plaintiff's counsel), this 
 will be a reason for extending in- 
 debitatus assumpsits further than be- 
 fore. Holt, C. J. We will carry them 
 no further." Quoted in Thayer's 
 Prelim. Treat. 31. " One shall hardly 
 hear at present of an action of debt 
 brought upon a simple contract." 3 
 Black. Com. 347, 348. 
 
 6. " In the room of actions of ac- 
 count a bill in equity is usually filed. 
 So that wager of law is quite out of 
 use; . . . but still it is not out 
 of force. And therefore when a new 
 statute inflicts a penalty and gives 
 . . . debt for recovering it, it is 
 usual to add ' in which no wager of 
 law shall be allowed;' otherwise an 
 hardy delinquent might escape any 
 penalty of the law by swearing that 
 he had never incurred oi else had dis- 
 charged it." 3 Black. Com. 347-8. 
 
 that he owed not the money mode et 
 forma, as the plaintiff had declared, 
 nor any .penny thereof. Then his 
 compurgators standing behind him, 
 were called over, and each held up his 
 right hand, and then laid their hands 
 upon the book and swore, that they 
 believed what the defendant swore was 
 true." Anon., 2 Salk. 682, quoted in 
 Thayer, Prelim. Treat., 31. 
 
 Absence of other proof. — The in- 
 ability of the mediaeval brain to sift 
 out the truth from a mass of conflict- 
 ing testimony is mentioned else- 
 where in connection with ordeal. 
 Infra, § 269t. Compurgation, as 
 amounting in reality to ordeal by 
 oath-taking, invoked the arbitrium, 
 Dei, judgment of God, in practically 
 the same way as ordeal itself; and 
 was regarded by the mediaeval mind 
 as being rendered necessary by the 
 same inability to discover other proof 
 which arose from the self-limitation 
 imposed upon their mental powers by 
 men of that day. 
 
 As a matter of sound administra- 
 tion it would seem to follow that 
 wager of law was unnecessary and 
 therefore inadmissible where satisfac- 
 tory evidence on which the reasoning 
 faculty could be exercised is furnished 
 from other sources. As compurgation 
 became judicially diberedited this 
 view-point came naturally to the 
 front. Thus, in London v. Wood, 12 
 Mod. 669, 684 (1701), debt on a by- 
 law of the city of London where wager 
 of law was refused, Holt, C. J., said: 
 " The secrecy of the contract which 
 Taises the debt is the reason of the 
 wager of law; but if the debt arise 
 from a contract that is notorious, 
 there shall be no wager of law" (p. 
 679). "The reason wherefore in an 
 action of debt upon a simple con- 
 
335 Obdeal op Woeld-Wide Application. §§ 269i, 269j 
 
 compurgation lingered 7 until it enabled a party to puzzle the court 
 by actually offering to "wage his law," as late as 1824. 8 The 
 institution was thereupon formally abolished, 9 as had, indeed, 
 been anticipated by Palgrave, should a suitor arise who should 
 venture to rely upon it. 10 
 
 § 269i. (Institution of the Jury; First Stage; Early Forms 
 of Trial other than that by Jury) ; (c) Trial by Ordeal. — In a 
 
 sense, trial by witnesses, 1 as well as compurgation, and trial by 
 battle are ordeals, in that they all involved the arbitrium Dei, the 
 direct judgment of God. 2 So far as probative effect could be 
 predicated of these so-called modes of proof, it is probable that 
 it consists in the assumption, very similar to that involved in the 
 eanction of the modern oath, 3 that as God, as a perfect Being, 
 necessarily punishes false swearing and protects innocency and 
 right, any appeal to His intervention successfully undergone 
 demonstrates the enjoyment by the invoking person of His favor. 
 Still, as the development and treatment of certain forms of test 
 or proof-making, commonly spoken of as " trial by ordeal," pre- 
 sent marked points of difference from others, it may be convenient 
 to give them separate, though necessarily brief, consideration. 
 
 § 269j. (Institution of the Jury; First Stage; Early Forms 
 of Trial other than that by Jury; [c] Trial by Ordeal); Early 
 Forms of Ordeal — " Nothing is older [than trial by ordeal] ; and 
 to this day it nourishes in various parts of the world. The in- 
 vestigations of scholars discover it everywhere among barbarous 
 
 7. " If a man," argued counsel, number of compurgators as he shall 
 " were now to tender his wager of be advised are sufficient. . . . Rule 
 law, the court would refuse to allow refused. The defendant [say the re- 
 it." ..." This was denied by the porters] prepared to bring eleven 
 court," adds the reporter. Barry V. compurgators, but the plaintiff aban- 
 Robinson, 1 B. & P. (N. R.), p. 297 doned the action." King v. Williams, 
 (1805), cited in Thayer, Prelim. 2 B. & C. 538, 4 D. & R. 3 (1824). 
 Treat. 33, in notis. 9. " No wager of law shall be here- 
 
 8. "Debt on simple contract. De- after allowed." St. 3 & 4 Will. IV, 
 fendant pleaded nil debet per legem. c. 42, § 13 (1833). 
 
 . . . Langslow applied to the court 10. Palg. Com., i. 262-3. 
 
 to assign the number of compurga- 1. Supra, § 2696. 
 
 tors. . . . The books [he says] 2. 4 Black. Com. 342; 1 Pollock & 
 
 leave it doubtful. . . . This species Maitland, Hist. Eng. Law, 15, 131, 
 
 of defense is not often heard of now. 433; 2 Ibid 596, 641, 647; Proffatt 
 
 . . . Abbott, C. J. The court will on Jury Trial, | 12. 
 
 not give the defendant any assistance 3. Infra, § 2712. 
 
 in this matter. He must bring such 
 
§ 269j 
 
 Court and Juey; Juet. 
 
 336 
 
 people, and the conclusion seems just that it is indigenous with 
 the human creature in the earliest stages of his development." 1 
 The ordeal, properly so-called, and, to a certain extent, all reliance 
 upon the arbitrium Dei, judgment of God, 2 as in compurgation 3 
 and battle,* grew out of the baffled state of the mediaeval mind 
 when there was an absence of percipient witnesses, where an oc- 
 currence was secret, or a dispute arose between the only persons 
 who knew. Patient sifting of conflicting testimony, weighing, by 
 the aid of deliberative tests carefully evolved by the use of the 
 reasoning faculty, the probability of the story of a witness, seemed 
 to the Teuton something beyond human power, a mystery in 
 which Divine knowledge could alone be a satisfactory guide. 
 Hence the necessity of a direct appeal to Heaven. 5 This expecta- 
 tion of a decision in the ordeal which can only be settled by the 
 
 1. Thayer, Prelim. Treat., 34, citing 
 Patetta, Ordalie, e. 1; Inst, of Nar- 
 ada, Jolly's Trans., 44-54. 
 
 2. In earlier forms before the medi- 
 aeval chureh had so firmly established 
 the supremacy of ecclesiastical thought 
 in all branches of human activity, 
 the appeal was directly to the instru- 
 mentality of the ordeal. Thus, in the 
 early Indian ordeal by balance, in 
 which the party was weighed before 
 and after taking his oath, his 
 guilt being indicated by his growing 
 heavier, the invocation to the scales 
 is as follows: "0 balance, thou 
 only knowest what mortals do not 
 comprehend. This man being ar- 
 raigned in a cause is weighed upon 
 thee. Therefore mayest thou deliver 
 him lawfully from his perplexity." 
 Inst, of Narada, part I, c. 5, 
 §§ 127-8, cited in Thayer, Prelim. 
 Treat., 35 in notis. So of the fire, 
 water, poison or the like. " The bal- 
 ance, fire, water, poison, and sacred 
 libation are said to be the five divine 
 tests for the purgation of suspected 
 persons." Inst, of Narada, part I, 
 c. 5, § 110, quoted in Thayer, Prelim. 
 Treat., 35 in notis. 
 
 Yet a religious element frequently 
 enters into very early ordeals. Thus, 
 in the Indian ordeal by poison, in 
 which a most technical ritual was 
 
 prescribed, the invocation to the 
 poison reads as follows : " Thou, 
 poison, art the son of Brahma, thou 
 art persistent in truth and justice; 
 relieve this man from sin, and by thy 
 virtue become as ambrosia to him. 
 On account of thy venomous and 
 dangerous nature thou art the de- 
 struction of all living creatures ; thou 
 art destined to show the difference 
 between right and wrong like a wit- 
 ness. Thou knowest the good actions 
 and the conduct of men, whether it 
 be good or bad, in short whatever 
 men do not comprehend. This man 
 is arraigned in a cause and wishes 
 to obtain aquittal; therefore mayest 
 thou lawfully deliver him from this 
 perplexity." 
 
 3. Supra, § 269d. 
 
 4. Infra, § 269n. 
 
 5. " He whom the blazing fire burns 
 not, whom the water soon forces not 
 up, or who meets with no speedy mis- 
 fortune must be held veracious in his 
 testimony on oath. Let ordeals be 
 administered if an offense has been 
 committed in a solitary forest, at 
 night, in the interior of a house, and 
 in cases of violence and of denial of 
 a deposit." . . . Inst, of Narada, 
 Jolly's Trans., part I, c. 5, §§ 103-4, 
 quoted in Thayer, Prelim. Treat., 35. 
 
337 
 
 Trial by Obdeal in England. 
 
 §269k 
 
 superior intelligence to which appeal is made is very evident in 
 the earlier invocations, e. g., the one used in the Sanscrit formu- 
 lary in the fire-ordeal. 8 
 
 § 269k. (Institution of the Jury; First Stage; Early Forms 
 of Trial other than that by Jury; [c] Trial by Ordeal); Forms 
 of Ordeal in England. — The forms of ordeal commonly employed 
 in England were those of fire 1 and water. 2 Apparently the use 
 of these tests was arranged by the justices somewhat according to 
 the social position of the person undergoing the ordeal. Thus 
 
 6. "Thou, O fire, dwellest in the 
 interior of all creatures like a wit- 
 ness. Thou only knowest what mortals 
 do not comprehend. This man is ar- 
 raigned in a cause and desires acquit- 
 tal. Therefore mayest thou deliver 
 him lawfully from his perplexity." 
 Inst, of Narada, part I, c. 6, §§ 10, 11, 
 quoted in Thayer, Prelim. Treat., 35 
 in notis. 
 
 1. " Fire-ordeal was performed! 
 either by taking up in the hand, un- 
 hurt, a piece of red-hot iron of one, 
 two, or three pounds' weight; or else 
 by walking barefoot, and blindfold, 
 over nine red-hot ploughshares, laid 
 lengthwise at unequal distances; and 
 if the party escaped being hurt he 
 was adjudged innocent; but if it hap- 
 pened otherwise, as without collusion 
 it usually did, he was then condemned 
 as guilty." 4 Black. Com. 343. 
 
 2. Plac. Ab. 90, col. 2. See also 
 Maitland, Sel. PI. Cr. 1, cases 116, 
 119, 133, 125. "Water-ordeal was 
 performed either by plunging the bare 
 arm up to the elbow in boiling water, 
 and escaping unhurt thereby, or by 
 casting the person suspected into a 
 river or pond of cold water; and if 
 he floated therein without any action 
 of swimming, it was deemed an evi- 
 dence of his guilt, but if he sunk he 
 was acquitted. It is easy to trace 
 out the traditional relics of this 
 water-ordeal in the ignorant barbar- 
 ity still practiced in many countries 
 to discover witches by casting them 
 into a pool of water and drowning 
 
 Vol. I. 22 
 
 them to prove their innocence." 4 
 Black. Com. 343. 
 
 The Indian ordeal by water is thus 
 regulated, under the conditioning en- 
 vironment of that country. " Persons 
 laboring under suspicion should dive 
 into water. The water in this kind 
 of ordeals should be very clear, very 
 cool, free from leeches and mud, 
 broad, and not too shallow. The per- 
 son, shall enter into the water up to 
 his navel, but he should avoid diving 
 deeper that that. Another man shall 
 discharge three arrows from a moder- 
 ate bow. A strong bow is 700 feet, 
 a moderate bow 600, an inferior bow 
 500 angulas long; this is the rule of 
 the bow. But if the arrows have been 
 discharged from a very strong or very 
 inferior bow, one shall assign a space 
 of 64 feet for him who has to dis- 
 charge the arrows. If the arrows have 
 been discharged in the right manner 
 {sthite tu vdna-sampdte) a skilful 
 and honourable man of a twice-born 
 class, who is a swift runner, should 
 be chosen, and enjoined to fetch one, 
 the accused diving under water in the 
 meantime. Having worshipped the 
 deities Yama and Varuna, he shall 
 dive under water which has no strong 
 current. This proceeding shall be 
 superintended by thoroughly honest 
 persons, who know the rules of the 
 law-code and are free from both love 
 and hatred. But if, while the second 
 arrow having been discharged is 
 brought back by a strong man, he 
 continues under water, he obtains ac- 
 
269k 
 
 Couet and Juky; Jury. 
 
 338 
 
 Glanvill says: 3 "An accused person who is disabled by mayhem 
 tenetur se purgare . . . per Dei judicium . . . scilicet 
 per callidum ferrum si fuerit homo liber, per aquam si fuerit 
 rusticus." 4 In the legislation of Henry II ordeal was ordered as 
 the mode of criminal trials, though the decree of exile might still 
 be enforced against him whom the decree of Heaven, upon solemn 
 appeal, had just declared to be innocent. " It was the hard order 
 of the Assize of Clarendon that he who had come safely through 
 the ordeal might be required to abjure the realm, a circumstance 
 which recalls the shrewd scepticism of William Eufus when he 
 remarked of the judicium Dei that God should no longer decide 
 in these matters, — he would do it himself." 5 
 
 quittal. Otherwise he is guilty, 
 though only one limb of his have been 
 seen; or he shall dive down in an- 
 other place than that where he first 
 dived. The trial not having been de- 
 cided, an experienced man shall again 
 make him dive under the water, in 
 order that the judges may be enabled 
 without fail to distinguish right from 
 wrong. If only his ear, eye, face, 
 or nose become visible, while he is 
 standing in the water, he is guilty; 
 he obtains acquittal, if he is not seen 
 at all. Women must not be compelled 
 to undergo this ordeal, nor men of 
 feeble constitution; it is on account 
 of their timidity that women are ex- 
 empted, feeble men on account of their 
 incapacity to bear fatigue." Inst, of 
 Narada, Jolly's Trans., part I, c. 7, 
 §§ 1-13 inc. 
 
 3. Glanv., Book XIV, c. 1 (1187). 
 
 4. See also Dialogus de Soaccario, 
 ii, 7 (1177) ; 1 Pollock and Maitland, 
 Hist. Eng. Law, 154, n. 7. 
 
 Ordeal by corsned. — An additional 
 form of ordeal mentioned by certain 
 of the authorities consisted of the 
 use of a morsel of some kind which 
 was swallowed by the person under- 
 going the ordeal with the accompani- 
 ment of an imprecation that the 
 morsel might choke or otherwise in- 
 juriously affect the person who took 
 it, were he guilty. 4 Black. Com. 
 
 345; Proffatt on Jury Trial, § 12. 
 "Another species of purgation, some- 
 what similar to the former, but prob- 
 ably sprung from a presumptuous 
 abuse of revelation in the ages of dark 
 superstition, was the corsned, or 
 morsel of execration: being a piece 
 of cheese or bread, of about an ounce 
 in weight, which was consecrated with 
 a form of exorcism; desiring of the 
 Almighty that it might cause con- 
 vulsions and paleness, and find no 
 passage, if the man was really guilty ; 
 but might turn to health and nourish- 
 ment, if he was innocent : as the water 
 of jealousy among the Jews was, by 
 God's special appointment, to cause 
 the belly to swell and the thigh to 
 rot, if the woman was guilty of 
 adultery. This corsned was then 
 given to the suspected person, who 
 at the same time also received the 
 holy sacrament; if indeed the corsned 
 was not, as some have suspected, the 
 sacramental bread itself ; till the sub- 
 sequent invention of transubstantia- 
 tion preserved it from profane uses 
 with a more profound respect than 
 formerly." 4 Black. Com. 345. 
 
 5. Thayer, Prelim. Treat., 38, citing 
 Brunner, Schw. 182; Eadmer, Hist. 
 Nav. (Rolls Series), 102; Frederic II, 
 Lea, Sup. & Force (4th ed.), 422 
 (1231) ; Pollock and Maitland, Hist. 
 Eng. Law, ii, 597. 
 
339 Late Instances of Ordeal, in England. §§ 2691, 269m 
 
 § 2691. (Institution of the Jury; First Stage; Early Forms 
 of Trial other than that by Jury; [c] Trial by Ordeal); Scope 
 of Ordeal in England. — Trial by ordeal was a chief method of 
 making proof among both Saxons and Normans 1 in England. It 
 possessed the attractive feature which made it invaluable as a 
 dernier resort, last expedient. It could always be applied. Erom 
 trial by battle 2 a party might be debarred by non-age, sex, weak- 
 ness of body or the like. Compurgation might be inoperative 
 from lack of compurgators, or because they failed to agree. But 
 the ordeal was normally at hand wben otber tests failed, regard- 
 less of individual characteristics of the party in mind, body or 
 estate. This made ordeal specially usable in criminal cases. In 
 this connection it was not only employed in the popular courts 
 when compurgation was not available, but was adopted by Henry 
 II in the Assizes of Clarendon (1166) and Northampton (1176) 
 as the established mode in criminal proceedings where public 
 accusation had been made in accordance with the King's legisla- 
 tion. 8 
 
 § 269m. (Institution of the Jury; First Stage; Early Forms 
 of Trial other than that by Jury; [c] Trial by Ordeal); Decline 
 
 of Ordeal in England. — The decree of the Eourth Lateran Council 
 at Eome in November, 1215, 1 forbidding the clergy to take part 
 in the imposition of the ordeal was construed as a ban of Holy 
 Church against its use 1 in other connections, and a death blow was 
 dealt the institution of ordeal and the development of trial by 
 jury to a corresponding extent further fostered and encouraged. 2 
 Ordeal, never having been actually abolished, enterprising 
 suitors continued to demand it as a matter of right. In 1679, 
 an instance of this occurred. 3 
 
 1. Bigelow, PI. A. N. passim; be had." Maitland, "'Mirror," 173, 
 Glanv., Book XIV, c. 1 (1187). Book 5, e. 1, § 127 (1290). See also 
 
 2. Infra, § 269w. Maitland, Gloucester Pleas, case 383 
 
 3. Rot. Cur. Reg., i, 204 (1198) ; and p. XXII; and notes on this case 
 see also Rich. I. in PI. Ah. 13-17. at p. 150 and on case 434, at p. 151, 
 
 1. Sacros. Cone. XIII, ch. 18, cited in Thayer, Prelim. Treat., 38 
 
 pp. 954-5. in notis. 
 
 2. 2 Br. N. B., case 592 (1231). 3. Whitehead's Case, 7 How. St. 
 
 " It is an abuse, that proofs and Tr. 383, cited in Stephen, 1 Hist. Cr. 
 
 purgations are not made by the mir- Law, 253«. 
 acle of God where no other proof can 
 
§§ 269n, 2<69o Cotjet and Juet; Juey. 340 
 
 § 268n. (Institution of the Jury; First Stage; Early Forms 
 of Trial other than that by Jury); [d] Trial by Battle Wager 
 
 of 'battle, trial by battle, defending oneself " by bis body " or 
 however the many-titled mode of proof may be called, was dis- 
 tinctly a Norman institution. It was a characteristic product of 
 a warlike race and of the turbulent and self -relying times in which 
 it flourished. 1 In its peculiar form, the Saxons do not seem to 
 have used it. 2 Indeed the great towns of England eagerly sought 
 exemption from trial by battle, — " quod nullus eorum fociat 
 helium." 3 In essence, it was a judicial duel in which the judg- 
 ment of Heaven was invoked to designate, by the result of a per- 
 sonal combat, on which side of a disputed proposition of fact lay 
 the truth. Battle thus was established as the ultima ratio legum 
 in much the same way, and with the same logical inconclusiveness 
 that it is still employed in the settlement of international con- 
 troversies. As an appeal to the arbitriurn Dei, trial by battle was, 
 in effect, an ordeal. But its distinctly Norman and mediaeval 
 character, as well as its separate scope in English judicial admin- 
 istration, seem to entitle it to the treatment as a distinct form of 
 trial which it has commonly received. 
 
 § 269o. (Institution of the Jury; First Stage; Early Forms 
 of Trial other than that by Jury; [d] Trial by Battle); Scope 
 
 of Trial by Battle As might be inferred from its Xorman char- 
 acter, trial by battle was demandable only in the King's Courts. 
 In these tribunals, not only could it be claimed in personal J and 
 real actions of any nature, 2 or in criminal appeals in offenses of 
 a certain grade; it was a favorite method of settling a conflict 
 between the opposing sectce produced by the parties in a trial by 
 
 1. Bishop Wulfstan v. Abbot Wal- Crim. Law, i, 44S; PI. Ab. 26, col. 2, 
 ter. Essays in Anglo-Saxon Law, 379, Lincoln; Thorpe, i, 502. 
 
 Bigelow, PI. A. N„ 19 ; 3 Black. Com. 1. " A debt ... is proved by the 
 
 337, App. 3 ; 4 Black. Com. 346, 418, court's general mode of proof, viz., 
 
 422, 424. See also Brunner Schw., by writing or by duel." Glanv., Book 
 
 197, 400-1; 1 Pollock and Mait- 10, c. 17, cited in Thayer, Prelim, 
 
 land, Hist. Eng. Law, 16, 28, 68, 129, Treat., 39. 
 
 2 JUd. 203, 212, 597, 630, 664. 2. " They may come to the duel or 
 
 2. Pollock and Maitland, Hist. Eng. other such usual proof as is ordinarily 
 Law, i, 16. received in the courts," etc. Glanv., 
 
 3. Mun. Gild. Lond., i, 128, § 5; Book 13, c. 11, cited in Thayer, Pre- 
 Patetta, Ordalie, 307, 308; Pike, Hist. lim. Treat., 40. 
 
341 Disadvantages of Tkial by Battle. § 269p 
 
 witnesses. 3 Naturally, this mode of making proof, like its com- 
 panion forms, trial by witnesses, compurgation or ordeal can 
 scarcely with any propriety be called a trial. Under certain cir- 
 cumstances, a trial by battle might be had in a manorial court* 
 Even the judge of a lower court who had given judgment against 
 a suitor might be compelled to answer to him in the King's Court 
 in a trial by battle on a charge of false judgment. 5 While com- 
 paratively few instances of the trial by battle are actually re- 
 corded, 6 sporadic cases may be found in the early records. 7 
 
 § 269p. (Institution of the Jury; First Stage; Early Forms 
 of Trial other than that by Jury; [d] Trial by Battle); Decline 
 
 of Trial By Battle — As war ceased to be the principal occupation 
 of the people of England, as feudalism declined and commerce 
 increased, the imperfections of trial by battle as a method of set- 
 tling disputes of fact became more conspicuous. Wager of battle 
 was unsuited to persons of peaceful disposition, the aged, or those 
 inferior in personal strength. 1 The privilege of fighting by a 
 champion was early conferred upon women ; and, at a later period, 
 upon others. 2 But, in all cases, the oppression of the poor and 
 
 3. Supra, § 2696 ; Lea, Sup. and that the champion should be a witness 
 Force (4th ed.), 120. See also Bran- who swore to hia testimony before 
 ner Schw., 197-8 ; It., 68, 401, citing doing battle for it. A hired champion 
 Glanv., Bk. 10, c. 12, Bk. 2, u. 21. might, if the fact were discovered, be 
 
 4. Glanv., Book 9, c. 1. severely punished, as by losing a foot. 
 6. Glanv., Book 8, c. 9. See also 1 Maitland, Sel. PI. Cr., 192; s. c, 
 
 St. de Magn. Ass. et Duellis, St. Brocton, 1516 (1220). The effort to 
 
 Realm., i, 218. prevent the use of hired champions 
 
 6. Selden, Duello, cs. 9, 13. was, however, abandoned by the courts 
 
 7. Cro. Car., 522 (1538) ; 2 Rush- in 1275 by St. West., I, c. 41, which 
 worth's Coll., 788; Bigelow, Placta says: " Since it seldom happens that 
 Anglo-Normannica, 41-43, 61, 305; 1 the demandant's champion is not for- 
 Rotuli Curiae Regis, 23, 24, 26; sworn in making oath that he or his 
 Mich. T., 6 Rich. I. (1191), cited in father saw the seisin of his lord or 
 Selden, Duello, u. 13. ancestor and his father commanded 
 
 1. In a criminal case, a person of him to deraign, it is provided that 
 sixty and over may decline battle; the demandant's champion be not 
 and the rule was the same where he bound to swear this; but be the oath 
 was maimed. Glanv. (Beames' Trans.), kept in all other points." Thus was 
 Bk. XIV, Ch. 1. licensed that which had previously 
 
 2. Hearsay. — As in ease of the jury, long existed ; and it was no longer 
 the champion might swear not alone necessary that the champion should be 
 of his own knowledge but of that of a complaint-witness, testifying to 
 his father. Glanv., Bk. II, c. 3. facts known to himself or told him 
 
 In England it was at first required by his father. 
 
§269p 
 
 Couet and Juby; Juey. 
 
 342 
 
 weak by the rich and strong which this system made possible 
 could not long escape general attention in England 3 or in any- 
 country where trial by battle prevailed. 4 It was largely for the 
 express purpose of providing for the people of England a safer, 
 cheaper and less burdensome and oppressive mode of proof than 
 the trial by battle that Henry II took the steps in regard to the 
 use of the inquisitio which so greatly fostered the growth of trial 
 by jury. The duel was heartily detested as a Norman innovation 
 upon the established Saxon customs out of which the jury grew; 
 it was humiliating, costly and in many ways oppressive. The 
 popular acclaim given to the organized use of the jury in its 
 stead is undoubtedly voiced by Glanvill. 5 The duel, in conse- 
 quence of these and similar considerations, gradually waned in 
 
 3. St. of Vouchers, 30 Edw. I, st. 1 
 (1292). 
 
 There were, nevertheless, sturdy 
 persons to whom the old system was 
 endeared. " It is an abuse that the 
 justices drive a lawful man to put 
 himself on the country when he offers 
 to defend himself against the approver 
 by his body." Mirror, Bk. 5, c. 5, 
 § 19, quoted in Thayer, Prelim. Treat., 
 57. 
 
 4. " Saint Louis abolished battle in 
 his country [France] because it hap- 
 pened often that when there was a 
 contention between a poor man and 
 a rich man, in which trial by battle 
 was necessary, the rich man paid so 
 much that all the champions were 
 on his side, and the poor man could 
 find none to help him.'' Orandes 
 Chroniques de France, vol. 4, pp. 427, 
 430, al. 3, cited in Brunner, Schw. 
 295, note, and in Thayer, Prelim. 
 Treat., 41, in notis. 
 
 5. The well known passage from 
 Glanvill, who had a large share in di- 
 recting these reforms, in praise of 
 Henry IPs work reads substantially as 
 follows : " The Grand Assize is a royal 
 favor granted to the people by the 
 goodness of the king, with the advice 
 
 of the nobles. It so well cares for 
 the life and condition of men that 
 every one may keep his rightful free- 
 hold and yet avoid the doubtful 
 chance of the duel, and escape that 
 last penalty, an unexpected and un- 
 timely death, or, at least, the shame 
 of enduring infamy in uttering the 
 hateful and shameful word ['craven'] 
 which comes from the mouth of the 
 conquered party with so much dis- 
 grace, as the consequence of his de- 
 feat. This institution springs from 
 the greatest equity. Justice, which, 
 after delays many and long, is scarcely 
 ever found in the duel, is more easily 
 and quickly reached by this proceed- 
 ing. The assize does not allow so 
 many essoins [excuses for delay] as 
 the duel; thus labor is saved and the 
 expenses of the poor reduced. More- 
 over, by as much as the testimony 
 of several credible witnesses outweighs 
 in courts that of a single one, by so 
 much is this process more equitable 
 than the duel. For while the duel 
 goes upon the testimony of one sworn 
 person, this institution requires the 
 oaths of at least twelve lawful men." 
 Glanv., Bk. II, c. 7, quoted in Thayer, 
 Prelim. Treat., 42 in notis. 
 
343 Second Stage of Juey's Development. § 270 
 
 popularity 6 and by 1565 had become practically unknown. 7 Still, 
 as late as 1819, trial by battle was adjudged to be a constitutional 
 mode of trying criminal appeals ; and the famous case of Ashford 
 v. Thornton 8 was finally determined in this highly sensational 
 way. Trial by battle was thereupon formally abolished. 9 
 
 § 270. (Institution of the Jury); Second Stage When the 
 
 judges of the Norman kings came to discharge the royal duty and 
 prerogative of administering justice, it very naturally happened 
 that, as a matter of right or convenience, resort should be had to 
 the body of freemen, so far as the community affected by the sessions 
 then held should supply them, for the determination of certain 
 issues of fact. The judges might, and if proper steps were taken 
 by the parties concerned, must award and supervise the more for- 
 mal or, as may be said, procedural methods of trial. They might 
 arrange the battle, and carry it through to the " proof " by its re- 
 sult. They could establish the ordeal and see to it, that down to 
 its minutest detail the customary steps were observed. But trial 
 by battle or by ordeal was dangerous to life and limb — better 
 adapted to the war-loving baron or squire than to the more peaceful 
 tradesman, or tiller of the soil. A weak or timid suitor, even a 
 woman, might have a just cause. Trial per juratam had the fur- 
 ther advantage that it could be made to answer a specific question. 
 Disputes on matters of fact were constantly arising which the 
 general verdict of the battle or the ordeal could scarcely settle — 
 
 6. The details of a wager of tattle tion, soon developing into the pos- 
 in criminal appeals are given in cer- sessory and petitory actions of real 
 tain comparatively late cases with the property law, and at the same time 
 curious particularity which speaks of revealing the very features of the 
 a practice not in present use. Y. B. jury system, advances steadily to 
 1 H. VI, 6, 20, 29 (1422) ; Y. B. 9 commanding influence and to perma- 
 H. IV, 3, 16 (1407); Y. B. 17 Edw. nent place. Beside the old purely 
 III, 2, 6; s. c, Lib. Ass., 48, 1 (1342). verbal procedure, the Norman proced- 
 
 7. " I could not learn that it was Tire by writ has taken firm root, and 
 ever abrogated." Smith, Com. Eng- forms of action begin to appear, 
 land, Bk. II, c. 8. though as yet failing to give promise 
 
 Bigelow succinctly states the result of the subtleties and conflicts of their 
 
 as follows; — "The typical procedure later stage." Bigelow, PI. A.-N., In- 
 
 of the Anglo-Saxons, the ordeal, is trod., XII. 
 
 joined by the typical procedure of the 8. 1 B. & Aid. 405 (1819). See 
 
 NormanB, the duel, and lingers on also Neilson, Trial by Combat, 330 
 
 and finally, in the thirteenth century, (1815). 
 
 dies out beside it ; while the newly 9. Stat. 59 Geo. Ill, c. 46. 
 introduced procedure of the inquisi- 
 
§ 270a Coubt and Jury ; Juby. 344 
 
 matters of seizin, dower and the like. Of their own knowledge, 
 the royal judges knew nothing as to these things. By reason of 
 these other considerations, trial per juratam grew in popu- 
 lar favor; and finally came to supersede, to a very considerable 
 degree, the modes of proof associated with earlier and ruder times. 
 When the formal, perjury-breeding compurgation was laid aside, 
 there still remained this trial, as it were, by the community. The 
 thought of laboriously hearing the statements of those who knew 
 and disentangling truth from error or mistake had apparently not 
 yet occurred to anyone. 
 
 But the jurata, the jury itself, had acquired much of the form 
 which it exhibited in the second stage of its development from a 
 distinctly Norman source ; — which it may be helpful briefly to 
 examine before proceeding to the third and present stage of the 
 jury's growth. 
 
 § 270a. (Institution of the Jury; Second Stage); The Prank- 
 ish Inquisition. — While the institution of the jury was evolved 
 out of the community knowledge appealed to in the popular 
 courts of the county, hundred and the like, which was common 
 to both Saxon and Norman, the particular machinery by which 
 this community knowledge became available to the cause of 
 judicial administration was essentially Frankish in origin and 
 development. The Frankish kings early in their strong and com- 
 paratively centralized government employed the inquisitio, inquisi- 
 tion, in connection with many branches of the public service. 1 On 
 
 1. " The capitularies and documents An element of Roman law, or, more 
 of the Carlovingian period have a pro- properly, of its influence, may not un- 
 cedure unknown to the old Germanic reasonably be thought to have affected 
 law, which has the technical name of the growth of the inquisitio. The 
 inquisitio. The characteristic of it is Norman had learned much from the 
 that the judge summons a number of more highly civilized nations he had 
 the members of the community, ee- conquered. As Bigelow puts it: 
 lected by him as having presumably a " There are plain indications that the 
 knowledge of the facts in question, law of Normandy was not wholly free 
 and takes of them a promise to declare from the influence of the semi-Roman 
 the truth on the questions to be put law and civilization of the South of 
 by him. . . . This inquisition . . . France. The stimulating influence of 
 was applied both in legal controversy the better institutions of the South 
 and in administration, and we must had powerfully affected all the Con- 
 observe that the departments of ad- tinental German nations: primitive 
 ministration and justice were then institutions passed by steady transi- 
 considerably united." Thayer, Prelim, tion into new forms, and new institu- 
 Treat., p. 48. tions arose by the side of the old. 
 
345 Gebmanic Objection to Compulsion. § 270a 
 
 the Norman reorganization of English judicial institutions after 
 the Conquest of 1066, the inquisitio was, with great naturalness, 
 called into operation in the new Saxon environment. Domesday 
 Book (1085) 2 is an excellent instance of the results of its appli- 
 cation in the field of administration relating to taxation, 3 although 
 it should he remembered that the use of the inquisitio in England 
 was in fact somewhat earlier than Domesday Book. 4 
 
 Legislation of Henry II. — The great step in connection with 
 the sovereign's administration of justice was taken by Henry II 
 (1154-1189). To transfer causes from the county and hundred 
 courts into the royal tribunals, for the better serving of the subject 
 and the incidental enhancement of the revenues of the Crown, 
 this able and powerful monarch, familiar as Duke of Normandy 
 •with the value of the inquisition, conceived a plan, which well 
 deserves the encomium of Ranulph de Glanville, his chief justice 
 and prime minister. The procedure, in brief, was that of per- 
 mitting a citizen who felt aggrieved to sue out a royal writ re- 
 turnable to an assize, as it was called. 6 Among a conservative 
 Germanic people, tenacious of custom and insistent upon per- 
 
 The Normans in France ceased to be sioners of Domesday Book naturally 
 
 Northmen, and became almost as far offered to make proof from time to 
 
 separated from the Anglo-Danes as time according to law. Bigelow, PI. 
 
 ■from the Anglo-Saxons; and the Nor- A. N., pp. 37-61, 293-307. 
 
 man Conquest became the turning- 3. Bigelow, Placita Anglo-Norman- 
 
 point in the history of Germanic in- nica. See Pollock and Maitland, 
 
 stitutions in England. German law, Hist. Eng. Law, i, XXI and 75 et 
 
 now shaken, tottered to its fall." seq. 
 
 Bigelow, PI. A.-N. Introd., XI. 4. Bigelow, PI. A. N., 24, citing 
 
 2. The lines of administration of Lib. Eliensis, 256 (1080). 
 
 finance and those of justice lie, as was 5. The result reached was practi- 
 
 usual with the Norman kings, very cally to give a party by royal writ 
 
 close together. " Questions of title to the right to direct the King's inqui- 
 
 land and services, and disputes over sitio to certain sworn members of the 
 
 the status of persons were of constant community, called the grand or petty 
 
 occurrence before the commissioners, assize, who were selected in a partic- 
 
 and the results are briefly stated." ular way and who returned to the 
 
 Bigelow, PI. A. N. XLIX. The work king's justices upon oath an answer, 
 
 was thoroughly done. "Not even an technically a recognitio, to the spe- 
 
 ox nor a cow, nor a swine was there ciflc question covered by the writ 
 
 left which was not set down in his which the party had obtained from the 
 
 records." See Palg., Com. i, 271-3. King. See Br. N. B. ii, case 592 ; St. 
 
 Persons appearing before the commis- 52 H. Ill, c. 22 (1267). 
 
§ 270b 
 
 CoTJET AND JUBY; JuET. 
 
 346 
 
 sonal freedom of initiative, it was a powerful effort of sovereignty 
 to compel the persons who afterward became known as the jury 
 to appear and submit to be sworn ; — and, after that, to go fur- 
 ther and examine 8 and report to the judges the truth of a given 
 matter of fact. 7 
 
 § 270b. (Institution of the Jury; Second Stage; The Frank- 
 ish Inquisition) ; Indirect Influence on Popular Courts. — The 
 
 King's justices also in an indirect way came to exercise under this 
 legislation a supervisory jurisdiction over the course of justice 
 as then administered in the popular courts, 1 e. g., those of the 
 
 6. The other aspect of the matter is 
 at least equally remarkable. That 
 Teutonic litigants who had had, from 
 earliest times under the leges et con- 
 suetudines of the realm the right to 
 " prove " themselves entitled or inno- 
 cent under a time hallowed form 
 should consent to abide by what a. set 
 of their neighbors, using their knowl- 
 edge, should say about it was an un- 
 heard of thing. A judicial system 
 which could only kill a mute prisoner 
 but could not force him to plead or 
 plead for him {infra, § 270d) is 
 hardly a code of laws into which the 
 legislation of Henry II could com- 
 fortably fit. As Professor Thayer 
 says : " The real wonder is that so 
 much was done; for the introduction 
 of a compulsory procedure of thi3 
 sort was very foreign to the concep- 
 tions of the older law. By that, men 
 had ' tried ' their own cases. To put 
 upon a man who had the right to go 
 to the proof — instead of the probatio, 
 defensio, purgatio, of the older law, 
 where he produced the persons or the 
 things that cleared him — the neces- 
 sity of submitting himself to the test 
 of what a set of strangers might say, 
 witnesses selected <by » public officer 
 — this was a wonderful thing." 
 Thayer, Prelim. Treat., 56. Even in 
 
 very early times Englishmen have 
 been sensitive regarding any attempt 
 by the sovereign to act contrary to 
 the established customs of the realm. 
 In this very matter of compelling a 
 person to take an oath when tendered 
 to him, some sturdy standing out 
 against royal authority has been done 
 by freemen tenacious of their rights. 
 PI. Ab. 227, Col. 2 (1291). "La 
 primier et la soveraigne abusion est 
 que le Roy est oustre la ley." Mirror, 
 bk. 5, c. 5, § 1. 
 
 7. Henry II accomplished this; — 
 thereby organizing the jury. The cir- 
 cumstance is not alone a tribute to 
 the power of his influence but demon- 
 strates the extreme unpopularity of 
 trial by battle, especially after the 
 abandonment of ordeal. 
 
 1. The King's power to order the 
 making of an examination and its re- 
 turn (recognitio) under oath, enabled 
 him, by directing a writ to a popular 
 court to turn the freemen of that 
 community or a designated number 
 of them into what, for practical 
 purposes in those days, was a jury. 
 This appears as early as Henry I 
 (1100-1135). 2 Palg. Eng. Com. 184, 
 n. ; Bigelow, PI. A. N. 139. See also 
 Case of Bishop Gundulf (temp. Wil- 
 liam Conqueror) infra, in this section. 
 
34:7 Ambiguity of the Teem "Assize." § 270c 
 
 county 2 or hundred. 3 Perjury in making a false oath in the re- 
 turn of an attainted verdict assumed to have been based upon per- 
 sonal knowledge was severely punished by royal judges or appro- 
 priate legislation. 4 The subsequent step to a judicial iter, a jour- 
 ney in eyre by the royal judges to county courts proved a natural 
 and easy one. 5 
 
 § 270c. (Institution of the Jury; Second Stage); Scope of 
 the Assize — In England, as previously in Normandy, 1 a great 
 step in judicial reform was gained when the obtaining of a royal 
 writ was a matter of right 2 instead of being a matter of preroga- 
 tive and special favor as had hitherto been the case. The process 
 of obtaining the response of the community or its representatives 
 under oath in pursuance of the rights acquired under a royal 
 writ, i. e., this private use of the early inquisitio by permission 
 and authority of the Crown, was most frequently spoken of as a 
 "recognitio." Properly speaking, as might be inferred, the in- 
 quisito is the question, the answer to it is the recognitio. The 
 latter is the return under oath as to the result of the jury's in- 
 quiry, the speaking of the truth as to the matter, — the vere- 
 dictum, the verdict. 
 
 "Assize " an Ambiguous Term. — The term " assize " came by 
 a not infrequent use of language to extend to the designated writs, 
 
 2. Men of Wallinford and Oxford v. 3. See Ranuli v. Ralph, Bigelow, PI. 
 
 The Abbot of Abingdon (1158) (Bige- A. N. 307, citing 1 Domesday Book, 
 
 low, PI. A. N. 198, citing 2 Hist. 424. See also, to same effect, 2 Palg., 
 
 Mons. Abingd. [Rec. Com.] 227); Com. 183; Bigelow, PI. A. N. 119 
 
 Gundulf, Bishop of Rochester v. (1122). 
 
 Pichot, Sheriff of Cambridge, Bige- 4. The theory that an erroneous 
 
 low, PI. A. N. 34, citing Anglia Sacra, criminal verdict could not be retried 
 
 338, Hickes, Dis. Ep. 33; Essays in because it would be double jeopardy 
 
 Anglo-Saxon Law, 374 (before 1087). had apparently not, as yet, arisen. 
 
 " It is not contested that the institu- Bigelow, PI. A. N. 137 ; 2 Palg. Eng. 
 
 tion of a jury existed in the time of Com. 184, n. 
 
 the Conqueror. The document which 5. The King v. The Abbot of Tavi- 
 
 remains of the dispute between Gun- stock (1099) ; Bigelow, PI. A. N. 69, 
 
 dulf, tho bishop of Rochester, and citing 2 Monasticon, 497 (ed. 1846). 
 
 Pichot, the sheriff, ascertains the See also Hist. Proc. 93. 
 
 fact." Turner, Hist, of Anglo-Saxons, 1. Brunner, Schw. 304-305. 
 
 vol. 1, p. 535, quoted in Proffatt on 2. 1 Black. Com. 148; 3 Black. Com. 
 
 Jury Trial, § 23 n. 2. This is " the 58 ; 1 Hallam, Const. Hist. 8, n., 9. 
 earliest mention of anything in the 
 nature of a jury." Reeves, Hist. Eng. 
 Law (Finl. ed.), i, 137. 
 
270c 
 
 Couet and Juby; Juey. 
 
 348 
 
 instituting the inquisitio to which the recognitio or answer of 
 the assembly (also " assisa ") was to be returned. 8 
 
 Grand and Petty Assizes. — The assizes were respectively desig- 
 nated the grand and the .petty. These differed, not only in the 
 method prescribed for selecting the jury itself, but as to the mat- 
 ters treated by that jury when duly constituted, reduced by chal- 
 lenges and ready for its work. The grand assize* was an appro- 
 priate method of trying a real action; 5 — sharing that function 
 with trial by battle. " It was optional with the tenant, but not 
 with the demandant." 6 The petty assizes, recognitiones, as they 
 were often called, on the other hand, were in main possessory 
 actions, where the question of seizin alone was involved. 7 These 
 recognitions, recognitiones, were equally obligatory on both 
 
 3. The term recognitio came later to 
 indicate the solemn answer under oath 
 returned to proceedings instituted by 
 the ducal writ of the dukes of Nor- 
 mandy. Brunner, Schw. 293-294. In 
 England, the term assize (assisa), at 
 first denoting the administrative as- 
 sembly, partly legislative, partly 
 judicial, came shortly to cover in ad- 
 dition all that belonged to the assem- 
 bly, the writs which were tried there, 
 the answers of the tribunals there con- 
 vened. " In England the technical ex- 
 pression ' assisa ' got established for 
 recognition in the narrower sense. 
 Assisa means, in the first place, the 
 thing, the assembly, as well judicial 
 as legislative. In its extended sense, 
 it means what belongs to or comes 
 from such an assembly, the judgment 
 or the ordinance. As to these specific 
 assizes which introduced the recogni- 
 tions, the term * assize ' has passed 
 over to them." Brunner, Schw. 299. 
 " This name assize is nomen equina- 
 cum, for sometimes it is taken for a 
 jury [quoting the beginning of the 
 record of an assize of novel disseisin, 
 assisa venit recognitura, etc.]. . . 
 And sometimes it is taken for the 
 whole" writ of assize. . . And some- 
 times assize is taken for an ordi- 
 nance." Iiittleton, § 234, quoted in 
 Thayer, Prelim. Treat., 57, in notis. 
 
 See also Mirror (Whittaker's Selden 
 Soc. ed.), c. 25, p. 65. As to the re- 
 lation between these several writs, 
 their original or ancillary character 
 and the like, see Glanv., bk. XIII, 
 c. 1 and 2; 1 Pollock and Maitland, 
 Hist Eng. Law, 128; Reeves, Hist. 
 Eng. Law (Finl. ed.) 223-232. 
 
 The laws enacted at a given assisa, 
 the ordinances adopted there, are 
 equally to be regarded as entitled to 
 style themselves assizes. Thus, the 
 Assize of Clarendon (1166), North- 
 ampton (1176), the Assize of Arms 
 (1181), and the Assize of the Forest 
 (1184) are phrases frequently em- 
 ployed as designating the enactments 
 or ordinances promulgated by these 
 conventions. See Thayer, Prelim. 
 Treat., 58. See also Brunner, Schw. 
 303; Glanv. bk. II, c. 7, 19; bk. XIII, 
 c. I; Stubbs, Charters (6th ed.) 135, 
 140, 150, 156. 
 
 4. Infra, § 270e. 
 
 5. The writ of right is described as 
 early as Glanville. Glanv. bk. I, 
 c. 5. 
 
 6. Thayer, Prelim. Treat., 55. To 
 protect the tenant in appealing to the 
 King's court from the popular tribu- 
 nal, a writ of prohibition will be di- 
 rected to the latter. Glanv. bk. II, 
 C. 3. 
 
 7. Infra, § 270f. 
 
349 
 
 Pleading to a Jury in Criminal Cases. §. 270d 
 
 parties. 8 Possessory recognitions were commonly designated as 
 
 Number of Assizes. — No precise reason appears why the origi- 
 nal number of these assizes should not have been greatly increased. 
 For example, no satisfactory explanation, except the existence of 
 ordeal, 9 can readily be suggested as to why assizes were not ex- 
 tended so as to cover criminal cases. Such a step would at once 
 have eliminated all necessity for the peine forte et dure, 10 and 
 have had other important beneficial procedural effects. 
 
 § 270d. (Institution of the Jury; Second Stage; Scope of 
 the Assize); Criminal Cases. — When ordeal was practically elim- 
 inated by the decree of the Fourth Later an Council of the Roman 
 Catholic Church (1215), trial by battle or per juratam alone 
 remained for use in criminal cases. 1 In this dilemma, 2 the effort 
 of the royal judges was to induce the defendant voluntarily to 
 place himself upon a jury. 3 
 
 8. See Britton, 2186. 
 
 9. Supra, § 269i. 
 
 10. Infra, § 270d. 
 
 1. Dugd. Orig. Jur. 87. The Con- 
 stitution of Clarendon, in establish- 
 ing a jury of accusation and requir- 
 ing a resort to the ordeal in criminal 
 cases, was assumed to have abolished 
 compurgation in this connection quoad 
 the royal court. 
 
 2. " The next eyre [judicial journey 
 of the royal judges] . . . took place 
 in the winter of 1218-19. The judges 
 had already started on their journeys 
 when an order of the king in council 
 was sent round to them . . . = ' When 
 you started on your eyre it was as yet 
 undetermined what should be done 
 with persons accused of crime, the 
 Church having forbidden the ordeal. 
 For the present we must rely very 
 much on your discretion to act wisely 
 according to the special circumstances 
 of each case.' The judges were then 
 given certain general instructions: 
 Persons charged with the graver 
 crimes, who might do harm if allowed 
 to abjure the realm, are to be impris- 
 oned, without endangering life or 
 limb. Those charged with less crimes, 
 who would have been tried by the or- 
 
 deal, may abjure the realm. In the 
 case of small crimes there must be 
 pledges to keep the peace. Maitland, 
 Glouc. Pleas XXXVIII." Thayer Pre- 
 lim. Treat., 69, in noiis. See also 
 Rymer's Foedera (old ed.), 228, ib. 
 (Rec. Com. ed.) 154. 
 
 3. Br. N. B. ii, case 592. The 
 king's justices spend much time in 
 seeking to convince the accused of the 
 fairness of a jury. Frequently, the 
 defendant replies that they are preju- 
 diced against him, desire to have him 
 punished regardless of the facts, and 
 asks for the right to make some other 
 form of proof. Maitland, Court Baron 
 (4 Seld. Soc. Pub.). Where (p. 62) 
 one accused of larceny and who offers 
 battle which is declined by the stew- 
 ard, is in vain urged to plead to a 
 jury. A very interesting summary is 
 given in Thayer, Prelim. Treat., 73. 
 This also was done in the manorial 
 courts. For stewards and other offi- 
 cers experienced much the same 
 difficulty in their own limited juris- 
 dictions. A reference to the nature 
 of the criminal jury, which consisted 
 in part of the jury of accusation may 
 assist to explain the defendant's posi- 
 tion in the matter. 
 
§ 270d Court and Jury ; Jury. 350 
 
 Accused Alight Have a Jury. — The prisoner might have a jury 
 at the assize if he desired one. After the abandonment of ordeal 
 in 1215 the jurata obviously became the natural mode of proof in 
 criminal cases in the King's courts, where compurgation had, 
 as has been noted,* no standing except in collateral matters. On 
 incidental pleas in criminal cases, e. g., an excepiio, an assize 
 might unquestionably be had. 5 By Magna Charta such writs were 
 no longer to be refused or sold by the Crown but were demandable 
 as of right. 6 Apparently, then, one accused of crime could have 
 a jury if he asked for it, i. e., he might put himself on the 
 country {patria)? The peculiarity of the situation, however, is 
 obvious. No compulsory assize is provided in criminal cases — 
 as there might well have been. For nearly six hundred years no 
 one felt it necessary to supply a compulsory criminal assize or the 
 equivalent of one. 
 
 The Criminal Jury. — A single fact assists to explain the hesi- 
 tation of accused persons in pleading to a jury. Should the 
 criminal defendant conclude to place himself upon the jury or 
 patria, he was in the hands of an entirely different body than 
 would be chosen to judge him in a civil matter. The Assize of 
 Clarendon (1166) provided for an accusing jury; — which, after 
 all, in many cases, might merely have the office of stating the 
 
 4. Supra, § 269j7, n. 1. terwards ' puts himself on the county 
 
 5. Of this nature was a plea that a of Surrey or on all men in England 
 criminal complaint was maliciously who know him.' At Easter came 
 and oppressively brought. 1 Maitland, twenty-four Knights from Surrey, at 
 PI. Cr., case 54 (1207) (see also the king's summons, who declared Mm 
 cases 81, 87, 91, 92, years 1202-5) ; to be a robber. 'And since he put 
 2 Palg. Com., p. 186; Rot. Cur. Reg. himself upon these, let him be 
 ii, 30, 97, 230, 265 (1200). hanged.'" 1 Maitland, Sel. PI. Cr., 
 
 6. " Niehil detur vel capiatur de 193, quoted in Thayer, Prelim. Treat., 
 cetero pro brevi inquisitionis de vita 83. This concession to the accused 
 vel membris sed gratia concedatur et was not, however, invariably accorded. 
 non negetur." Art. 36, Magna Charta " If he made choice of the trial per 
 (1215). patriam, he was not to prefer the 
 
 7. Extent of the "country." — The patria of any hundred he liked, for 
 accused might be permitted at times that was to be determined by the 
 to place himself upon a jury drawn judge, who might assign which twelve 
 from a particular territory selected by he pleased of those returned for each 
 himself; and this verdict of sworn hundred. This practice was in order 
 men drawn from this designated to guard against partiality and collu- 
 patria would be accepted as conclu- sion ; for, says Bracton, a man might 
 sive. Thus, for example, in 1220, " a have lived very reputably in one 
 party begins by putting himself ' on patria, and not so in another." 
 the county of Essex or Norfolk or Reeves, Hist. Eng. Law. ch. 8, p. 477, 
 Southampton or all of them,' and af- quoted in Proffatt on Jury Trial, § 29. 
 
351 Constitution of the Criminal Juky. § 270d 
 
 facts as to who was under suspicion. 8 The defendant in putting 
 himself upon the criminal jury, in reality to a considerable degree 
 fell into the hands of the same men who had accused him. 9 The 
 jurors at these assizes were, as a rule, either knights or persons of 
 quality and social position, as required by the Assize of Claren- 
 don. Under that ordinance, the criminal accusations were to be 
 made by men of superior position, per xii legaliores homines de 
 hundredo, et per iv legaliores homines de qualibet villata. The 
 trial jury was selected from the same jurors thus brought into 
 attendance. The regular practice seems to have been for the trial 
 jury to be composed, in part at least, of the persons who had 
 brought the charge or pointed to the accused as suspected. "As 
 we read the rolls and Bracton's text, what normally happens is 
 this : the hundred jury, without being again sworn, — it has 
 already taken a general oath to answer questions truly, — is asked 
 to say in so many words whether this man is guilty or no. If it 
 finds him guilty, then ' the four townships ' are sworn and answer 
 the same question. If they agree with the hundredors, sentence 
 is passed. This we believe to have been the normal trial. But 
 there were many juries about, for every hundred had sent one, 
 and upon occasion the justices would turn from one to another 
 and take its opinion about the guilt of the accused. By the end 
 of Henry Ill's reign (1272) it is common that the question of 
 guilt or innocence should be submitted to the presenting jury, 
 to the jury of another hundred, and to the four vills. They are 
 put before us as forming a single body, which delivers an unani- 
 mous verdict." 10 Much irregularity, however, prevailed and other 
 combinations were easily possible. 11 
 
 8. When asked by the justices to 12; Britton, Nichol's Ed., 29, 30 
 declare precisely, prcecise dicere, as to (1291). This practice was subse- 
 whether the accused was guilty, they quently ratified by statute, it being 
 might acquit him. 2 Pollock and enacted " that no indictor be put on 
 Maitland, Hist. Eng. Law, 645. an inquest upon the deliverance of one 
 
 9. " Certainly, indictors be not indicted for trespass or felony, if he 
 there, [on the inquest] it is not well be challenged for this cause by the 
 for the King." Y. B. 14 & 15 Edw. party indicted." Stat. 25 Edw. Ill, 5, 
 III, 261 (1340). c. 3 (1351). 
 
 Later, a sense of fairness intervened 10. 2 Pollock and Maitland, Hist, 
 
 and the fact that a juryman had of Eng. Law, 644, quoted in Thayer, 
 
 united in an indictment was regarded Prelim. Treat., 81. 
 
 as good ground of exceptio, challenge, 11. North. Ass. Rolls, (Surtees Soc.) 
 
 on the part of the accused. Y. B. 30 374 (1279) (juries of accusation and 
 
 & 31 Edw. I, 531 (1302). Britton, one specially elected). 
 
§ 270d 
 
 Couet and Juey; Juet. 
 
 352 
 
 Accused could not be forced to place himself on a jury. While 
 the accused might have a jury, it by no means followed that he 
 wanted one. Indeed, he might have the best of reasons for pre- 
 ferring not to submit the consideration of his punishment to the 
 neighborhood who knew or thought they knew all about him and 
 what he had done. The accused, it was agreed both in England 12 
 and Normandy, 13 could not be forced to place himself upon the 
 country, e. g., no one could effectively do it for him. 14 
 
 Peine Forte et Dure. — The legal right of an accused to stand 
 mute was impliedly recognized by the statute of Westminster 1 15 
 which provides a penalty or punishment (peine) calculated to 
 stimulate the assent of an accused person to having his case tried 
 by a jury. The practice of the peine forte et dure, thus author- 
 ized continued until its abolition in 1772. 16 
 
 In cases of felony or treason, 17 as forfeiture of goods and attaint 
 of blood followed upon conviction, many resolute men declined to 
 plead. Judges were astute in devising reasons to induce them to 
 do so; 18 but not a few were obdurate or loved their heirs more 
 
 12. This principle of administration 
 has been abandoned in England since 
 Stat. 7 & 8 Geo. IV, c. 28. 
 
 13. Brunner, Schw. 474. 
 
 14. Early exceptions are to be 
 found where prisoners who had not 
 placed themselves on the country were, 
 nevertheless, tried by a jury and exe- 
 cuted in pursuance of its verdict. 
 Hale, Pleas of the Crown, ii, 3'22 n. ; 
 s. c, Maitland, PI. Cr. i, Cases 153, 
 157; Maitland, Glouc. Pleas, XXIX. 
 See also Stat. Wal., e. XI. There is 
 much force in the suggestion of Brac- 
 ton that since a woman or an infirm 
 person cannot be tried by battle, and 
 since ordeal had been abolished, such 
 persons should be forced to plead to a 
 jury. Brae. bk. Ill, cc. 21, 22. 
 
 Upon general principles of early 
 law, no necessity for any form of 
 trial is experienced where the ac- 
 cused is taken in the fact, or upon 
 fresh pursuit or is discovered while in 
 possession of the stolen goods, i. e., 
 with the mmnour upon him. Y. B. 
 30 & 31 Edw. I, 545; North. Ass. 
 Rolls, (Surtee's Soe.) 70 (1256); 
 Maitland, Br. N. B. ii, 138; Brae. 
 
 N. B. in, Case, 1724; Maine's Anc. 
 Law, c. 10. Possibly the looseness of 
 this practice assisted to give rise to 
 the stricter rule that standing mute 
 was not equivalent to confession. 
 
 15. " Notorious felons, openly of ill- 
 fame, who will not put themselves on 
 inquests for felonies with which they 
 are charged before the justices at the 
 king's suit, shall be put in strong and 
 hard imprisonment {en le prison forte 
 et dure) as refusing the common law 
 of the land. But this is not to be un- 
 derstood of persons who are taken on 
 light suspicion.'' 3 Edw. I, c. 12 
 (1275). 
 
 16. Stat. 12 Geo. Ill, c. 20, § 1. 
 See. on the entire subject, 2 Pollock 
 and Maitland, Hist. Eng. Law, 647; 
 St. 7 Ann., c. 21, § 5. 
 
 17. Trials for misdemeanor are rare 
 in the second stage of the jury's de- 
 velopment. The royal judges appar- 
 ently go directly from presentment to 
 sentence. 2 Pollock and Maitland, 
 Hist. Eng. Law, 649. 
 
 18. Smith, Com. Eng. bk. 3, c. 26 
 (1565). 
 
353 
 
 Infliction of the Peine Forte Et Duke. 
 
 270d 
 
 than their life, which was thereupon crushed out by the peine 
 forte et dure. 19 Stretched on the bare ground with a rope drawn 
 to the corners of the room from each foot and wrist, 20 a sharp 
 stake under the back, or some similar torture applied, 21 weights 
 piled upon the chest " as much as he may bear, and more," 22 
 black bread one day and foul 23 water the next, 2 * in a vain attempt 
 to make the accused plead to the indictment, by placing himself 
 
 19. In a somewhat grim reference 
 to the practices of the Church for sin, 
 this situation of an accused is spoken 
 of as a penance, graunt penance. 
 
 20. " Needham went to Newgate 
 and asked judgment in forma quae 
 sequitur. That the appellee be re- 
 manded to his prison . . . and be 
 put in a cell, and be naked on the 
 bare ground without litter or rushes, 
 or cloth or anything, and shall lie 
 there naked on hia back, ... his 
 head and feet covered, and that one 
 arm be drawn with a cord to one 
 quarter of the cell, and the other to 
 the other quarter, and that one foot 
 be drawn to one quarter of the cell 
 and the other to the other, and that 
 on his body be put a piece of iron as 
 much as he can bear, and more (un 
 piece de ferre tant come il poit suffre 
 et port sur luy, et pluis), and the 
 first day after, he shall have three 
 morsels of barley bread without any 
 drink, and the second day he shall 
 thrice drink, without bread, as much 
 as he can of water standing near the 
 prison, and this shall be his diet until 
 he be dead." Y. B. 14 Edw. IV, 8, 17 
 (1474), quoted in Thayer, Prelim. 
 Treat., 76. 
 
 21. Kelyng (old ed.), 37 (1662) 
 (thumbs tied together with whip- 
 cord) ; Pal. Com. ii, 189-191; 2 Pike, 
 Hist. Crime, 194, 195, 283-285; Smith, 
 Com. Eng. hk. 2, c. 26 (1565) (table 
 on him). 
 
 22. " We find Gascoigne, by advice 
 of all the justices, awarding the pen- 
 alty with further details. Two ap- 
 pealed of robbery and ' mute of malice, 
 to delay their death,' are to lie on the 
 ground naked, save trowsers, to have 
 
 Vol. I. 23 
 
 put upon them as great a weight of 
 iron as they can bear and more (tant 
 de [err et pois come Us puissent porter 
 et pluis), and to have for food only 
 the poorest bread that can be found, 
 and standing water from the place 
 nearest to the jail, and these only on 
 alternate days, bread only on one day, 
 and only water on the next — and so 
 to lie till death." Y. B. 8 H. IV, 1, 
 2 (1406), quoted from Thayer, Pre- 
 lim. Treat., 75. 
 
 23. " The judgment was that two 
 persons accused should lie prostrate 
 and have as much weight put on them, 
 etc., etc., and that their heads should 
 not touch the earth, and they would 
 only have Rye bread, et le prochein 
 ewe standing al dit prison; 'it shall 
 not be running water, and they shall 
 stay so until they are dead.' " Keil- 
 wey, 70, pi. 4 (1505). Thayer, Pre- 
 lim. Treat., 75 in notis. " That 
 he should be put in a house on the 
 ground in his shirt, laden with as 
 much iron as he could bear (charge 
 de tant de fer cum il poit porter), 
 and that he should have nothing to 
 drink on the day when he had any- 
 thing to eat, and that he should 
 drink water which came neither from 
 fountain nor river." John de Darley's 
 Case, Y. B. 30 & 31 Edw. I, 510 
 (1303), quoted in Thayer, Prelim. 
 Treat., 75. 
 
 24. For certain details of the ap- 
 plication of the peine forte et dure, 
 see 4 Black. Com. 328; Britton, 
 Nichols, I, 26-37; Fleta, bk. 1, c. 34, 
 § 33. Women were exposed to the 
 same treatment. 1 Pike, Hist. Crime, 
 211. 
 
§ 270e Court and Jury; Juby. 354 
 
 " upon the country," 25 the unfortunate victim of mediaeval justice 
 exemplified the curious inability of the procedure of the times 
 to violate what were regarded as the unalienable privilege of an 
 accused to plead or not as he saw fit. 26 
 
 llodern judicial administration finds no difficulty in entering 
 the plea of not guilty or even to adjudge him guilty as charged, 27 
 where one accused of felony stands mute. 28 It presents, however, 
 what to the jurist of the future may seem almost equally odd, 
 permitting an indicted person various privileges of silence and, 
 when these have enabled him to escape punishment, turning him 
 loose upon society with a constitutional guarantee that, however 
 clearly his offense may subsequently be established in spite of 
 these privileges of silence, he shall never be prosecuted for it 
 again. 
 
 § 270e. (Institution of the Jury; Second Stage; Scope of 
 the Assize); The Grand Assize — The selection of the juries for 
 the grand assize was regulated by the constitutions of Clarendon 
 (1166) and of Northampton (1176). 1 The steps began with the 
 selection of four knights of assize " girt with swords," gladiis 
 cinctos, 2 for each county. Further details, as to selection of other 
 
 25. The Mirror, not unnaturally, 2. " Girt with swords above their 
 looks upon all this as an abuse. Lib. garments." Lord Windsor v. St. John, 
 5, c. 1, § 54. Dyer, 1036 (1554). The writ re- 
 
 26. " It is a singular proof of the quires the knights to be girt with 
 want of attention to any general prin- swords not that they should appear 
 ciples of legislation that a custom actually with swords but to indicate 
 equally foolish and barbarous should those who were able to do knight 
 have continued so long unaltered. service. Coke, 2 Inst. 597. The royal 
 And the subject is one, among others, writ for summoning the knights of a, 
 which shows that the English law grand assize, as given by Glanvill, is 
 must forfeit many of the encomiums as follows : " The King to the Sheriff, 
 . . . which have so long passed cur- Health. Summon, by good summoners, 
 rent amongst us." Palg. Com., quoted four lawful Knights of the Vicinage 
 in Thayer, Prelim. Treat., 78. See 1 of Stoke, that they be at the Pente- 
 Stephen, Hist. Cr. Law, 300. cost before me, or my Justices, at 
 
 27. 7 & 8 Geo. IV, c. 28 (1827); Westminster, to elect on their oaths, 
 12 Geo. Ill, c. 20 (1772). twelve lawful Knights of that Vicin- 
 
 28. 7 & 8 Geo. IV, c. 28 (1827) ; age, who better know the truth, to re- 
 11 & 12 Will. Ill, c. 7, § 6 (1700). turn on their oaths, whether M. or R. 
 See also Stat, of Wales, c. 11 (1284) have the greater right in one Hyde of 
 ( in matters of trespass ) . Land in Stoke, which M. claims 
 
 1. 3 Black. Com. 341, 351, App. 5; against E. by my Writ, and of which 
 
 4 Black. Com. 422; 1 Pollock andMait- K., the Tenant, hath put himself upon 
 
 land, Hist, of Eng. Law, 125 ; 2 Ibid. my Assise and prays a Recognition to 
 
 62, 601, 618, 627. be made, which of them have the 
 
355 
 
 Gkand and Petty Assize Contrasted 
 
 § 270f 
 
 knights, challenges, etc., are minutely given in the early author- 
 ities. 3 The pompous formality of the method of selecting the jury 
 of the grand assize* nourished in much popular and judicial 5 
 favor, 6 until abolished in 1834. 7 
 
 § 270f. (Institution of the Jury; Second Stage; Scope of 
 the Assize); Petty Assizes. — By contrast with the Grand Assize 
 which seems more properly to have been used to designate the 
 
 greater right in that Land and, cause 
 their names to be imbreviated. And 
 summon, by good Summoners, R. who 
 holds the Land, that he be then there 
 to hear the election, and have there 
 the Summoners, etc." Glanv. (Beames' 
 Trans.) bk. II, c.XI. 
 
 3. Y. B. 7 H. IV, 20, 28 (1406); 
 Y. B. 30 & 31 Edw. I, 117 (1302). A 
 party might challenge a juror for hav- 
 ing formerly given false evidence or 
 for bias, serfdom, consanguinity, af- 
 finity, enmity or close friendship. 
 Bract. Bk. 4, c. 19. 
 
 4. "These knights [the four] and 
 twelve of the recognitors so elected, 
 together making a jury of Bixteen, 
 constitute what is called the grand 
 assize." Stephen, Plead. (Tyler's ed.) 
 129. 
 
 5. The history of the times and 
 the menacing claims of the Church, 
 represented by Thomas a Becket, 
 should not be overlooked in connection 
 with the applause which followed 
 Henry IPs legislation, establishing the 
 Assize and, through it, the jury. The 
 claims of the Church threatened the 
 autonomy of the English Crown and 
 the Canon law presented a rational 
 and powerful instrumentality of the 
 clergy operating in the ecclesiastical 
 courts. The hopeless formalism of 
 the procedure of the popular tribunals 
 gave great aid to the growth of the 
 more intelligent, if still formal, pro- 
 cedure of the Ecclesiastical Courts. 
 The struggle of the royal judges to 
 curb the growth of clerical power in 
 judicature was one which meant much 
 to the politics as well as to the juris- 
 prudence of the realm. The compara- 
 
 tively flexible and rational system of 
 the inquisitio exacting a response 
 under oath from certain representa- 
 tives of the community, was, it is fair 
 to conjecture, in part at least, de- 
 signed to meet a situation partly 
 political in its nature. It was, there- 
 fore, naturally welcomed both by the 
 royal judges and the popular tri- 
 bunals and such portion of the people 
 as were loyal to the government of 
 England, as loyalty was then under- 
 stood. Here again, as in later years, 
 the jury gained a reputation as a pal- 
 ladium of liberty from political causes 
 very remote from questions of juris- 
 prudence. Much shrewd inference is 
 contained in the suggestion of Dr. 
 Brunner (Schw. 300-304): "The 
 need of innovation must have already 
 made itself felt, for the reason that 
 a dangerous rival to the rude and in- 
 elastic procedure of the temporal 
 eourts was growing up, in the canon 
 law. . . It may therefore be re- 
 garded as no mere coincidence that 
 Henry II, the reformer of procedure, 
 was the man who first succeeded in 
 forcing the ecclesiastical jurisdiction 
 into narrower limits." See also Bige- 
 low, PI. A. N., XXVII, n.; Brunner, 
 Schw., 300-304; Y. B. 30 & 31 Edw. I, 
 492 (1303), per Bereford, J. 
 
 6. North Ass. Rolls ( Surtees Soc. ) , 
 137 (1269); 2 Rot. Cur. Reg. 27 
 (1199); 1 Rot. Cur. Reg. 197, 198, 
 200, 201 (1198). See also Brunner, 
 Schw., p. 365. 
 
 7. The latest case in England is 
 apparently, Davies v. Lowndes, 1 
 Bing. N. C. 597 (1835), retried 5 
 Bing. N. C. 161 (1838). 
 
§ 270f 
 
 Court and Jury; Jury. 
 
 356 
 
 recognitio arising under a writ of right in a real action, 1 certain 
 possessory writs directed for summoning and impaneling a jury 
 for the trial, rendering a recognition on, certain specified ques- 
 tions were classed as petty assizes. 2 As commonly employed at a 
 later period, these petty assizes were four: (1) Utrum, 3 (2) 
 Novel Desseisin, 4 (3) Mort D' ancestor, 6 and. (4) Darrein Present- 
 ment. 6 Extraordinary writs, both original and ancillary could 
 be issued by special indulgence of the Crown, while, by consent 
 of the parties, the assize could be used for the settling of matters 
 other than those for which express provision had been made ; — or, 
 as Glanvill puts it, ad aliquam controversiam terminandam. 1 
 
 The writ directed in case of the petty assize differs materially 
 from that used in case of the Grand Assize. A specimen writ is 
 given by GlanvilL 8 
 
 1. Supra, § 270e. 
 
 2. 1 Pollock and Maitland Hist. 
 Eng. Law, 128 ; 2 Ibid 567. Whether 
 additional assizes were at first pro- 
 vided, and if so, as to their nature, 
 seems uncertain. The official records 
 of the legislation of the Assizes of 
 Clarendon and Northampton are lost, 
 and can be reconstructed merely from 
 the fragments of Glanvill supplemented 
 by the industry of scholars like Pal- 
 grave, Pollock, Maitland or Thayer. 
 2 Palg. Com. 166. See 1 Stubbs 
 Const. Hist. 469, as to the value 
 of Palgrave's discovery of a manu- 
 script copy of Glanvill in the 
 British Museum — " The most import- 
 ant document in the nature of law or 
 edict which has appeared since the 
 Conquest." See Thayer, Prelim. Treat., 
 61. 
 
 Eight of these minor recognitions 
 are mentioned by Glanvill. " De 
 •morte antecessoris, de ultima presenta- 
 tion, utrum tencmentum sit feudum 
 ecclesiastieum vel laieum, utrum 
 seisitus de feodo vel de vadio, utrum 
 sit infra etaiem (c. 16), utrum seisitus 
 de feodo vel de warda (c. 14), utrum 
 presentaverit occasione feodi vel wardc, 
 de nova disseisina; and the writs for 
 these are given in succession," quoted 
 in Thayer, Prelim. Treat., 64. 
 
 3. For this assize provision is made 
 
 in Constitutions of Clarendon, chap. 
 IX.. See 1 Pollock & Maitland, Hist. 
 Eng. Law, 123, 218. 
 
 4. Assize of Northampton (1176), 
 Art. 5. See, however, 1 Pollock & 
 Maitland, 124, in which the date of 
 the assize is given as 1166. 
 
 Number of essoins. — No excuses 
 for delay [essoins] are allowed in the 
 petty assize of novel disseisin and but 
 two in other possessory recognitions. 
 As compared to the numerous essoins 
 permitted on the trial by battle, 
 this was a great relief to a suitor 
 without endless powers of endurance. 
 
 5. The assize is apparently provided 
 by the assize of Northampton (1176), 
 Art. 4. 
 
 6. By the Constitutions of Claren- 
 don (1164), regulating the vexed rela- 
 tions between the King and the Church, 
 the presentation and advowson to liv- 
 ings are placed in charge of the King's 
 courts and the assize of Darrein Pre- 
 sentment is provided for ascertaining 
 the right. See Stubbs, Charters (6th 
 ed.), 136. 
 
 7. Rot. Cur. Peg., ii, 189 (1200). 
 
 8. "The King to the Sheriff, Health. 
 If G., the son of T. shall make you 
 secure of prosecuting his claim, then, 
 summon by good Sunimoners, twelve 
 free and lawful men of the Neighbor- 
 hood of such a Vill, that they be be- 
 
357 Influences Fostering Growth of Jukata. §§ 270g, 270b. 
 
 § 270g. (Institution of the Jury; Second Stage); Separation 
 
 of Jurata. — The body of freemen selected for. the trial of these 
 assizes or re'cognitiones were early separated from the general 
 body of the community and spoken of as the jurata; or jurata 
 patriae} For the times, this was procedural legislation of a high 
 order ; and had, as is observed elsewhere, the incidental advantage 
 of enabling a suitor to avoid the dangers and expense of trial by 
 battle which, up to that time, had been the appropriate mode of 
 making proof in a real action. "An inquest or jury, in civil 
 causes, was never adopted according to the usual course of the 
 popular courts of Anglo-Saxon origin? unless by virtue of the 
 king's special precept." 2 In the King's Courts if the jurata dis- 
 agreed new jurors were added until twelve agreed in opinion. 3 
 Severe penalties were imposed upon a jury for false swearing; — 
 including infamy and forfeiture of goods. 4 
 
 § 270h. (Institution of the Jury; Second Stage); Growth of 
 
 the Jurata. — But influences other than the objections to contem- 
 poraneous modes of proof, 1 distrust of the ecclesiastical tribunals 2 
 or even the successful administration of the assize to which these 
 and other causes contributed, assisted to foster the growth of the 
 jurata or jury. To the King, as the fountain of justice, resort 
 
 fore me, or my Justices, on such a Bishop of Rochester, referred to in 
 
 day, prepared on their oath to return, Proffatt on Jury Trial, § 23. A 
 
 if T. the father of the aforesaid G. king's judge, Otho, Bishop of Bayeux, 
 
 was seised in his Demesne as of Fee, presided over the county court, all 
 
 of one Yardland, in that Vill, on the being sworn. The men of the county 
 
 day of his death — if he died after my were then ordered to choose twelve 
 
 first Coronation, and if the said G. of their number who were sworn, 
 
 be his nearer Heir. And, in the mean- These confirmed the verdict; but, cer- 
 
 time, let them view the Land and cause tain of their number having confessed 
 
 their names to be imbreviated ; and to perjury in so doing, the twelve 
 
 summon, by good Summoners, R. who were tried and punished. See also 
 
 holds that Land, that he be then there Hickes, Thes. Dissert. Epist., p. 33. 
 
 to hear such Recognition ; and have 3. This, it will be noted, is also the 
 
 there the Summoners etc., Witness number usual in a compurgation; 
 
 etc." Glanv. (Beames' Trans.), Bk. and seems to be the historical, and 
 
 XIII, c. 3. probably the sole, reason why a grand 
 
 1. 1 Pollock & Maitland, Hist. Eng. jury of twenty-three may act by a 
 Law, 128. See also Pike, Y. B. 12 & majority vote, while a petit or tra- 
 13 Edw. III., pp. XXXIX-LXX. verse jury of twelve is required to be 
 
 2. Palg. Com., i, 262-263. An early unanimous. 
 
 instance of this sort took place in the 4. Glanv., Bk. I., c. 19. 
 
 reign of the Conqueror between Pichot, 1. Supra, § 269p. 
 
 sheriff of Cambridgeshire on behalf of 2. Supra, § 270e, n. 5. 
 the king in opposition to Gundulf, 
 
§ 270h 
 
 Court and Jury; Jury. 
 
 358 
 
 was to be had when the ordinary machinery of the courts proved 
 inadequate. In all such instances, the form of trial ordered by* 
 royal favor, or by means of legislation 3 was that of the jury. 4 
 The practice of the Norman kings, to whom the administration of 
 justice was a financial perquisite of no small value, of exacting 
 a large and uncertain fee for awarding a writ, even where the 
 suitor was entitled to receive it, 5 or of granting special privileges 
 to which the petitioner had no claim, 6 was an early and grievous 
 abuse corrected by Magna ChaHa (1215) 7 . 
 
 Subsequent developments in respect to judicial administration 
 ran smoothly along similar lines. The curtailing in 1258 of the 
 royal right to issue new writs 8 and the substituted authorizing of 
 the clerks in chancery to issue such writs in consimili casu, i. e., 
 actions on the case, 9 exerted a powerful influence in increasing the 
 scope of the jury's jurisdiction. In the same way, actions of 
 
 3. For example, by St. West. I., 
 c. 12 (1275), one accused of felony 
 who refuses to put himself on a jury 
 is treated as refusing *' the common 
 law of the land." Sec Thayer, Pre- 
 lim. Treat., 60, in notis. Juries were 
 required in the Inquest of Sheriffs 
 (1170), in the Assize of Arms (1181), 
 in the Assize of Northampton (1176). 
 See Thayer, Prelim. Treat., 61. 
 
 4 It became, therefore, the estab- 
 lished form of trial, to be used when 
 no conflicting provision had been ex- 
 pressly made by law. 
 
 5. 1 Eot. Cur. Reg. 354, 375 
 (1199). 
 
 6. Bigelow, Hist. Proc. 187-190. 
 
 7. The demand of the barons upon 
 King John included Art. 30 " Ne jus 
 vendatur, vel differatur vel vetitum 
 sit." The concession of King John 
 in Art. 40 of Magna Charta (1215) 
 was equally explicit: " NulH ven- 
 demus, nulli negaiimus aut differemus 
 rectum aut justiciam." See .Stubbs, 
 Charters (6th ed.) 293; Thayer, Pre- 
 lim. Treat., 66. 
 
 The judicium parium of the 29th 
 Article of Magna Charta (1215) — 
 that no freeman shall be hurt in 
 either his person or property "nisi 
 per legale judicium parium suorum 
 
 vel per legem terrae " — has been as- 
 sumed to be the foundation of the 
 English right to » trial by jury. 4 
 Black. Com. 349. The judicium 
 parium had, however, an established 
 meaning at this time; — the decision 
 as to the tenure of a tenant of a 
 given lord by the formal statement of 
 his fellow tenants. In other words, 
 should a dispute arise between a lord 
 and his vassal respecting any agree- 
 ment about holding land, the vassal 
 was to prove his case by the testi- 
 mony of his peers, i e., those holding 
 by the same tenure as his own. 
 Laws of William I, Leg. Gul. Cong. 
 23. See also Laws of Henry I, Leg. 
 21, § 7. The object of the barons in 
 securing the insertion of this clause 
 (Art. 29) in Magna Charta was to 
 prevent seizure of their lands by the 
 King. They desired benefit of a 
 trial. Lingard, Hist. Eng., vol. 2, 
 c. 14. The enactment is, therefore, 
 the endorsement of the principle of 
 trial by equals which underlies trial 
 by jury rather than the establish- 
 ment or even the ratification of that 
 institution. 
 
 8. Bigelow, PI. A. N. Introd. 
 XXVIII-XXX. 
 
 9. St. Westm. II, c. 24 (1285). 
 
359 Personal Knowledge of Jukoes Essential. § 270i 
 
 trespass, though of early origin, 10 were frequently tried before a 
 jury at a somewhat later period. 11 As early as 1436, the acknowl- 
 edged supremacy of the jury as a method of trial is inferemtially 
 asserted in a statute designed for the remedying of certain abuses 
 in this form of procedure. 12 The statute, after reciting that " Our 
 Lord, the King, considering that the trial of the life and death, 
 lands and tenements, goods and chattels of every person of his 
 liege people of this realm, touching matters in deed [fact] , by the 
 law of 1»he same realm doth remain and stand and daily is very 
 likely to be had and made, by the oaths of inquests of twelve men 
 duly summoned in his courts," proceeds to remedy the evils of 
 which complaint has been made. 
 
 § 270i. (Institution of the Jury; Second Stage); Personal 
 Knowledge Required. — It cannot too firmly be grasped that these 
 juratores, the jurymen, did not at this stage of the evolution of 
 the institution weigh the evidence of those who knew — the wit- 
 nesses — who should testify before them. The jury themselves 
 were those who knew things and decided the issue laid before them 
 by the justices upon that knowledge. " The knowledge required 
 of them is their own perception, or what their fathers have told 
 them, or what they may trust as fully as their own perceptions 
 (per proprium visum et cuuditum vel per verba patrwm. Moorum, 
 et per talia quibus fidem teneantur liabere ui propriis)." 1 Thus, 
 for example, in the writ of right the plaintiff, upon the assize 
 being ordered, was given, according to Glanvill, 2 a subsidiary 
 writ for summoning four knights of the county and neighborhood 
 to choose twelve others of the same neighborhood best acquainted 
 with the truth of the maAter in dispute. These knights, upon be- 
 ing assembled, are placed under oath and inquiry is made as to 
 whether any of them are ignorant of the fact in dispute. Should 
 any prove ignorant, they stand aside and others are chosen in their 
 sitead. It followed that where, in a criminal case, the offense had 
 been committed secretly there could be no trial by jury. This had 
 
 10. Bigelow, Hist. Proc. 160. See also Heselrigg's case, PI. Ab. 285, 
 
 11. "And since in a plea of tres- col. 1 (1291); Prof. Ames, Harv. 
 pass the defendant can hardly escape Law Eev. Ill, 29, n. ; 2 Pollock and 
 making his defense by the country, Maitland, Hist. Kng. Law, 524, n. 
 the justice, by consent of parties, 12. Stat. 15 H. VI, c. 5. 
 
 shall make inquiry of the truth by 1. Thayer, Prelim. Treat., 63. 
 
 lawful inquest." 1 St. Realm, p. 66. 2. Glanv. bk. I, cc. 12, 14, 15. 
 
§ 270i Court and Jury; Jury. 360 
 
 been the special field of the ordeal and of compurgation. When 
 these were don© away, battle alone remained. 3 
 
 A Lingering Survival. — Long after the general theory had been 
 accepted that the jury were to judge of the effect of oral or docu- 
 mentary evidence a certain degree of personal knowledge was 
 attributed to them. 4 By the time of Henry IV the duty of the 
 jury to decide upon the evidence furnished them in court has 
 become established. 5 
 
 Administrative Details. — The thought that the jury had an in- 
 herent and essential sanctity and were anything beyond an in- 
 strumentality of judicial administration designed for the ascer- 
 tainment of truth had not, as yet, developed. " In the capacity 
 of witnesses the jury were subject to interrogation by the court 
 as to the source and means of their knowledge, and whenever the 
 justices holding the trial had good reason to believe the charge 
 to be well-founded and suspected that the jurors through fear, 
 love or malice were inclined to conceal the truth, they might sep- 
 arate {he jury one from the other and make a separate examina- 
 tion in order to discover the truth of the matter." ° The recognitio 
 of the jurata, i. e., the verdict of the jury, might be either general 
 or special. 7 As in later times, 8 the jurata might be used by the 
 justices to give an answer or recognitio as to minor or subsidiary 
 matters, per juratam patrice vet visineti. 
 
 3. Reeves, Hist. Eng. Law, c. 8, 5. " Que le jury ap>-es ceo que Us 
 p. 476. furent juris, ne devient veier ne por- 
 
 4. Reeves, Hist. Eng. Law, e. 11, ter oves que euao nul auter evidence, 
 p. 164. To secure this personal sinon ceo que a eux fuit livrere par 
 knowledge, certain of the jury were le court, et per le party mis en court 
 to be from the hundred of the ac- sur I'evidence monstrc." Y. B. 2 
 cused. Stat. 27 Eliz., c. 6. " And Henry IV. 
 
 do you challenge a juryman because 6. Proffatt on Jury Trial, § 29, cit- 
 
 he is supposed to know something of ing Bract. 1436. 
 
 the matter ? For that reason the 7. " The knights may either say, 
 
 juries are called from the neighbor- directly and shortly, that one party 
 
 hood, because they should not be or the other has the greater right, or 
 
 wholly strangers of the fact." Read- merely set forth the facts, and thus 
 
 ing's case, 7 State Tr. 259 (1679), enable the justices to say it, — what 
 
 per Sir Francis North, quoted in we call a special verdict.'' Thayer, 
 
 Proffatt on Jury Trial, § 34. Per- Prelim. Treat., 63. 
 
 sonal knowledge is now no longer re- 8. Supra, §§ 97 et seq. 
 
 quired. It is sufficient that the jurors 
 
 should be selected from the body of 
 
 the county. 6 Geo. IV, c. 50. 
 
361 Primitive Conditions in Eakly England. §§ 271, 271a 
 
 § 271. (Institution oi the Jury; Second Stage); Third 
 
 Stage Contrasted — The jury in the second stage of its de- 
 velopment presented striking features of dissimilarity of function 
 and mode of judicial operation to those exhibited by the institu- 
 tion as it exists at the present day. Though earlier forms of trial 
 were becoming gradually obsolete, as the direct intervention of 
 Heaven upon solemn appeal became limited to the solemnity of 
 the oath, the sole available test of truth for many issues of fact 
 was the general knowledge of a community, which had but few 
 and simple things with which to concern itself. This was the 
 same sort of " knowledge " as that of the tribal assemblage of the 
 first stage of the jury's evolution. To certain selected representa- 
 tives of this community-knowledge, placed under oath and so called 
 juratores or jury certain issues of fact were committed. No evi- 
 dence in the modern sense of that term was offered for their con- 
 sideration; but, upon their own knowledge, hearsay, rumor, in- 
 formation of their fellows, and the like, under the sanction of the 
 oath, and the penalty of attaint 1 in case of a false verdict, the 
 juratores returned their veredictum, or verdict — the statement 
 as to the truth of the proposition of fact referred to them by the 
 court. 
 
 § 271a. (Institution of the Jury; Second Stage); Transi- 
 tion to the Jury Acting upon Evidence. — The growing com- 
 plexity of an advancing civilization was, however, during the 
 period which has briefly been considered, making it increas- 
 ingly difficult for either the accusing or the trial jury to determine 
 matters upon their own knowledge. Under the primitive condi- 
 tions of Anglo-Saxon and early Norman days in England, where 
 each man, whether freeman or villein, knew intimately the few 
 and simple affairs of his neighbors; and where such knowledge 
 was made of personal importance by the patriarchal responsi- 
 bility of each wapentake (hundred) or tithing for the acts of its 
 members, it might be reasonable to expect that a plain issue of 
 general interest might be submitted to twelve men of the neigh- 
 borhood (de viceneto) with a fair prospect of their determining 
 
 1. Attaint, and " many anomalies of and principle of jury trial, in its 
 the like kind such as the peine forte perfection, were understood; and 
 et dure for refusing to plead, banish- afford as a caution against attribut- 
 ing a party on trial for challenging ing much weight to rules and prece- 
 peremptorily more than twenty jurors dents of such a period." Com. v. 
 instead of simply overruling his chal- Anthes, 5 Gray (Mass.) 185, 198 
 lenge, and many other practices of like (1855) . 
 kind, show how little the true nature 
 
§ 271a 
 
 Ooubt and Jtjby; Juey. 
 
 362 
 
 it correctly upon their own knowledge. Occasionally, as where an 
 act was done secretly or without witnesses, the plan broke down. 
 But in such cases there was always the invocation of the arbitrium 
 Dei, by some form of ordeal, lex manifesta; and, on the whole, 
 personal knowledge was fairly adequate for the needs of the 
 times in other connections. 
 
 Changed social conditions eventually demanded a modification 
 in the mode of proof before the jurata. The increasing difficulty 
 of finding a jury with actual personal knowledge made the pen- 
 alties for an attaint 1 for a false verdict by the jury, even without 
 the continual intervention of open perjury 2 and gross corruption, 3 
 press with unwelcome hardship upon those selected as members 
 of the jurata* Additional knowledge must come from other 
 
 1. "Whenever a party had a right 
 to suspect a wrong judgment, he ob- 
 tained a writ summoning twenty-four 
 jurors, who should consider the same 
 matter as the former jury of twelve. 
 When they were assembled the pro- 
 ceedings and record of the former trial 
 were read' to them; they immediately 
 took cognizance of the subject, after 
 being sworn, and the judge explained 
 to them the matters in dispute; and 
 when they declared their decision, if 
 he thought fit he might require each 
 to declare the grounds of his decision. 
 If this latter jury found a different 
 verdict from the former, the punish- 
 ment of the jury first impanelled was 
 severe ; they were immediately arrested 
 and imprisoned, their lands and chat- 
 tels were forfeited to the king, and 
 they became for the future unworthy 
 of credit; as Bracton says, they were 
 no longer Othesworth." Proffatt on 
 Jury Trial, § 32, citing Bracton, 392. 
 
 " Still later a more severe punish- 
 ment was inflicted, that their wives 
 and children should be turned out of 
 their houses, which were to be de- 
 molished and their trees and meadows 
 destroyed, but subsequently a pecuni- 
 ary penalty was inflicted instead of 
 this terrible penalty." Proffatt on 
 Jury Trial, § 32, citing Co. Litt. 2946. 
 
 2. " For as much, as certain people 
 of this realm doubtless to make a 
 false oath than they ought to do, 
 whereby much people are disherited 
 
 and lose their right; it is provided, 
 that the king, of his office, shall from 
 henceforth grant attaints, upon in- 
 quests in plea of land, or of freehold, 
 or of anything touching freehold when 
 it shall seem to him necessary." Stat. 
 ;s Edw. I., c. 38, quoted in Proffatt 
 on Jury Trial, § 32. "The evil 
 [which is obviously the ground for the 
 severe penalties prescribed for the 
 punishment of an attainted jury] is 
 further mentioned in 3 Hen. VII. c. 1 ; 
 11 Hen. VII. cc. 21, 24 ; 23 Hen. VIII. 
 c. 3, which is entitled ' An act against 
 perjury and untrue verdicts.' " 
 
 3. "In the 11 Hen. VI., c. 4, the 
 remedy by attaint is still more facili- 
 tated, and this emphatic language is 
 used. ' Our lord the king by the 
 grievous complaint of his commons, 
 considering the great mischiefs had 
 within the realm, and yet not rem- 
 edied, and also the great damage and 
 disherison that cometh by the usual 
 perjury of jurors impanelled upon in- 
 quests, as well in the courts of our 
 lord the king, as of other, the which 
 perjury doth abound and increase 
 daily more than it was wont, for the 
 great gifts that such jurors take of 
 the parties in pleas sued in the said 
 courts.' " Therefore it is enacted, etc. 
 11 Hen. VI. c. 4, quoted in Proffatt 
 on Jury Trial, § 32, n. 1. 
 
 4. " The theory on which this writ 
 of attaint was allowed, and on which 
 the punishment was based which it 
 
363 Joining Preappointed Witnesses to Jueata. § 2tfla 
 
 sources if the system were to continue to work out a satisfactory 
 approximation to justice. This reinforcement could come only 
 from those who had personal information to give, the one who 
 had himself observed the fact in question, the oyant et voyant, 
 the ivitness in the modern application of that term. Yet it was 
 many years before evidence was commonly produced in court, or 
 a defendant customarily allowed to clear himself by any other 
 oath than that of the jury. 
 
 Preappointed Witnesses. — Probably the earliest use of the 
 modern witness, he who testifies to the jury as to his own knowl- 
 edge, was in connection with the preappointed bargain or trans- 
 action witnesses, to which brief reference has above been made. 8 
 Where individuals had been called in to witness a transaction, or 
 had signed or otherwise authenticated a document as attesting or 
 subscribing witnesses, the administrative expedient was adopted 
 by the justices of joining them to the jurata, with whom they re- 
 tired and in whose consultations they participated. 8 
 
 Other causes contributed to compel the modern use of witnesses. 
 As an accusing jury, the jurata must examine into the trust- 
 worthiness of the stories which had come to them. As soon as 
 
 awarded, was that the jurors being as to the manner of exercising their 
 witnesses were qualified to declare the important functions. Even so lately 
 truth, and a mistake or wrong decision as the reign of Henry III. they ex- 
 could only be attributed to wilful ercised a kind of mixed duty, partly 
 perjury and corruption. -It was, there- as witnesses, partly as judges of the 
 fore, incumbent on those who dis- effect of testimony; in the case of a 
 charged this office to make themselves disputed deed the witnesses were en- 
 acquainted with the matter in con- rolled amongst the jury, and the trial 
 troversy by personal inspection and was per patriam et per testes; and 
 inquiry before the day of trial so as to so great an extent was their char- 
 to be possessed of the requisite knowl- acter then of a testimonial nature, 
 edge for forming a judgment." Prof- that it was doubted whether they were 
 fatt on Jury Trial, § 32, citing capable of deciding in the case of a 
 Bracton, 293. crime secretly committed, and where 
 
 The granting of new trials was the patria could have no actual knowl- 
 
 naturally a welcome substitute for the edge of the fact (Bract, f. 173). It 
 
 attaint. Infra, § 308 et seq. was, however, at this period, that the 
 
 Attaint was abolished by Stat. 6 capacity of juries to exercise a far 
 
 Geo. IV., c. 50. wider and more important function in 
 
 5. Supra, § 209c. judging of the weight of testimony 
 
 6. " That the modern jury are the and circumstantial evidence, began 
 same with the jurata patriqs of Glan- to be appreciated, for about this time 
 vill and Bracton, their name, nmn- the trial by ordeal fell into disuse; 
 ber, and general duty, which to this and when this superstitious inven- 
 days is dicere veritatem, sufficiently tion, the ancient refuge of ignorance, 
 prove, although it is clear that a had been rejected as repugnant to the 
 very great change has taken place more enlightened notions of the age, 
 
271b 
 
 Court and Jury; Jury. 
 
 364 
 
 the jury were required to weigh the testimony of others, the law of 
 evidence came into being as a necessary adjunct. They must be 
 guided and assisted by the judges before whom they appeared. The 
 intuitive knowledge of the jury, mysteriously derived from a 
 highly venerated but not very obvious source, had not at that time 
 been discovered. Undoubtedly the main influence in bringing about 
 these changes was that of judicial administration. 7 Fortescue 
 (temp. Henry VI) 8 describes what is practically the function of 
 a modern jury. 9 The full constitution of a jury of the present 
 day may be said to date from the beginning of the Tudor period 
 of English history; 1 * a time when the power of the prerogative 
 reached its highest point, 11 and the juries, venal and corrupt, 
 acted as mere creatures of the Crown. 12 The jury in the time of 
 the Stuarts became involved in the political quarrels between this 
 prerogative of the Crown and the liberties of the subject ; — to 
 which attention is now to be directed. 13 
 
 § 271b. (Institution of the Jury; Second Stage); A Lighter 
 View. — The foibles of our ancestors, the formality of their pro- 
 
 it happily became a matter of neces- 
 sity to substitute a rational mode of 
 inquiry by the aid of reason and ex- 
 perience for such inefficacious and un- 
 righteous practices." Starkie, Evi- 
 dence, pp. 8, 9, note (c), quoted in 
 Proffatt on Jury Trial, § 27. 
 
 7. Supra, § 174. 
 
 8. De Laud. Leg., c. 26. 
 
 9. The opening of the case being 
 described, the author continues: 
 
 " After which each of the parties 
 has liberty to produce before the court 
 all such witnesses as they please, or 
 can get to appear on their behalf; 
 who being charged .upon their oaths 
 shall give in evidence all that they 
 know concerning which the parties are 
 at issue; and if necessity so require, 
 the witnesses may be heard and ex- 
 amined apart. . . . The whole of the 
 evidence being gone through, the jur- 
 ors shall confer together at their 
 pleasure as they shall think most con- 
 venient upon the truth of the issue 
 before them, with as much delibera- 
 tion and leisure as they can well de- 
 sire." Proffatt on Jury Trial, § 34. 
 
 10. Proffatt on Jury Trial, § 34. 
 
 11. BushelPs Case, Vaughan, 135 
 (1677). 
 
 12. " In ancient times, more especi- 
 ally in the reign of Henry VIII.; 
 when from the devastation made in 
 the civil wars, amongst the ancient 
 nobility, and other causes disturbing 
 the balance of the constitution, the 
 influence of the crown was become ex- 
 orbitant, and seems to have been at 
 its zenith, to be accused of a crime 
 against the state and to be convicted 
 were almost the same thing. The one 
 was usually so certain a consequence 
 as the other that exclusively of Lord 
 Dacres' case in the reign of Henry 
 VIII., and that of Sir Nicholas 
 Throckmorton in his daughter Mary's, 
 the examples to the contrary are very 
 rare. But those which do occur ought 
 to be remembered in justice to the 
 times they belong to, as a sort of 
 balance for the reproach deservedly 
 cast upon them, for the culpable 
 facility of condemnation so conspicu- 
 ous in most other instances." Har- 
 grave's Note to Lord Dacres' Case, 
 1 How. St. Tr. 407 (1535). See also 
 Throckmorton's Case, 1 How. St. Tr. 
 870 (1554). 
 
 13. See Trial of Seven Bishops in 
 1688, Macauley, Hist, of Eng., ch. 8. 
 
365 Juey Deal Only with the Issue. § 27lc 
 
 cedure, their reliances upon mechanical processes of doing things, 
 are thus humorously stated by a well-informed writer. Discussing 
 the alleged fondness of the citizens of England for the institution of 
 the jury, as at present constituted, the critic, after considering 
 briefly the jury in its first stage of development, proceeds to say: 
 " Some centuries later, when a sort of jury had come into vogue, 
 there was good cause to love it. It provided an alternative to the 
 other modes of trial then existing, modes which were even more 
 haphazard than the verdict of the jury, and which incidentally 
 were less comfortable to an accused man. Compurgation was still 
 used. On this plan, if five witnesses swore a man guilty of theft, 
 he might escape by the oaths of six who had not seen him steal. 
 But this resulted in frequent inaction, and, as the mediaeval idea 
 of justice required that someone should be hanged, the other modes 
 of settling a doubt were resorted to. Trial by battle and trial by 
 ordeal were both methods of decision which should commend them- 
 selves, to all but an accused person on account of their fine, bluff, 
 open-handed, Anglo-Saxon characteristics. Trial by battle, be- 
 ginning as it did with invocation, combined the attractions of a 
 prize-fighl; with those of a religious ceremony. Trial by ordeal 
 was more popular among prosecutors, because it eliminated the 
 unpleasant chances of battle. The accused person, being bound 
 band and foot, was thrown into a pond. If he ' swam,' as it was 
 expressed, he was taken out and dealt with as guilty. If be sank 
 and drowned, bis innocence was manifest, and he was buried with 
 all decency and respect. But the horns of this dilemma were some- 
 what close-set. A not unreasonable dissatisfaction was felt 
 amongst the criminal classes, which at that time constituted the 
 bulk of the population. Even the red-hot harrows which were in- 
 troduced as a reformed method of trial by ordeal, were felt to be 
 but one step in the right direction. Accordingly, mediaeval genius 
 turned with relief to the jury. This was then a great advance, and 
 its popularity calls forth no surprise." * 
 
 § 271c. (Institution of the Jury); Third Stage.— The jury, 
 in its third and final stage, under the direction of the judge, 
 weigh the statements of witnesses, the declarations of docu- 
 ments or otherwise follow the rational leadings of their perceptive 
 faculties, upon materials of fact supplied by others. Here, as in the 
 second stage, only a limited range of fact is submitted to them by 
 the court; i. e., the issue as formulated by the pleadings. 1 The 
 
 1. 20 Jurid. Rev. pp. 61, 62. 1. Infra, § 942. 
 
§ 272 Coubt and Jury j Jury. 366 
 
 characteristic difficulty in this period, from the standpoint of ju- 
 dicial administration is created, as will be more fully noticed later, 
 during the political struggles of England in certain centuries be- 
 tween democracy and the power of the Crown ; in which the party 
 of broader popular privilege found it expedient to exalt the power 
 of the jury at the expense of that of the judges. A customary 
 humane protest against -the rigors of the criminal code in England 
 gave further popular esteem to the jury as curbing the ferocity 
 for blood of which judges were, frequently against their wills and 
 consciences, the forced representatives. Treason and criminal 
 libel, the instrumentalities by which that which the popular party 
 regarded as tyranny, sought to crush and exterminate critics of its 
 policy, 2 were by no means the only offenses in connection with 
 which the jury earned, by their rebellion against the orders of the 
 court, a popularity which the system rather curiously retains, 
 under absolutely changed social and political conditions. The en- 
 tire penal code of these centuries was tempered merely by the 
 humanity of juries. 3 
 
 § 272. (Institution of the Jury); Reserved Powers for the 
 Judge. — It is important to observe that the duties and powers of 
 the jury are specific; the enumerated powers of the court are 
 merely typical and symbolical of others not specified. No reserve 
 of power or function exists in case of the jury. Functions of the 
 mixed tribunal not assigned to the jury are all with the judge. 
 The jury are but an instrument for the attainment of justice. The 
 
 2. Infra, § 304. in verdicts of guilty where judges, 
 
 3. " Throughout all our constitu- as was then their wont, strained the 
 tional history juries stand out prom- law to the breaking point of severity, 
 inently as bulwarks of liberty. At a notably in cases of treason and libel, 
 time when judges were the mere min- But the law at that time, both Scots 
 ions of kings and cabals, juries more and English, was full of a cruelty 
 than held their own in popular favor. which, strictly enforced, would dis- 
 It was small wonder if the amateur gust a Nero. Thus when a jury 
 band of verdict-givers was loved for swore a five pound note to be of the 
 its greater honesty. The trial of the value of thirty-nine shillings and 
 Seven Bishops is a sufficient illustra- eleven pence, in order to save a poor 
 tion of this. London went half-mad wretch from strangulation, Black- 
 with joy over the jury which disa- stone himself calls it ' pious perjury.' 
 greed. Some of the jurymen, it was Pious or not, one can readily under- 
 said, had been bribed by the Crown, stand the popular approval which the 
 but the obduracy of others resulted in jury system gained in these times, an 
 acquittal. This was put down to the approval which has lingered illogi- 
 credit of the system. In the course cally, and which cannot now be reas- 
 of the next, the eighteenth century, onably supported by its ancient 
 juries did undoubted service to the merits." 20 Jurid. Rev. p. 62. 
 cause of mercy by refusing to bring 
 
367 Ascertainment of Truth as to the Issue. §§ 273, 274 
 
 responsibility for attaining it in the individual case and care for 
 the general gain to the community at large, rest upon the judge. 
 As power and function go hand in hand, his are the reserved, un- 
 enumerated powers which alone suffice for the proper execution of 
 so extended a mandate as that for the administration of justice. 
 
 § 273. Function of the Jury — The special and distinctive func- 
 tion of the jury in a trial by judge and jury according to the 
 established usages of the English law, is limited to the ascertain- 
 ment of what is the truth as to a particular proposition of fact 
 which the parties, through the operation of a preliminary branch 
 of procedure called pleading, have seen fit to submit to their de- 
 cision. To aid them in so doing, to guide their reasoning in an 
 orderly and decorous manner, to prevent their being misled by 
 unworthy considerations or influenced by weightless facts, is the 
 primary object of the English law of evidence. Without bearing 
 constantly in mind the existence of his impulsive, ignorant but 
 usually well-intentioned yoke-fellow in the service of justice, it is 
 frequently impossible to understand the action of the English or 
 American judge in administering this branch of procedural law, 
 or to gain any adequate appreciation of the real reasons for many 
 of the rules of the law itself or as to the basis on which its prin- 
 ciples of administration rest. 
 
 § 274. (Function of the Jury); Duty of Ascertainment. — 
 It is to be noted that this duty of the jury is limited to ascertain- 
 ment. The court, as a whole, exists for the purpose of doing jus- 
 tice, according to certain conventionalized standards which the 
 community has established and embodied in their substantive or 
 procedural law, oral or written. But a necessary preliminary to 
 the administration of justice is the ascertainment of truth. The 
 parties come to the court in dispute as to the truth of a material 
 proposition. One, the actor, asserts the affirmative of this propo- 
 sition, the other, reus or nonactor, with equal positiveness, denies 
 it. The existence of some fact essential to their respective rights 
 is disputed between them. Until this dispute is determined jus- 
 tice cannot be done. The judge is powerless to act in the matter. 
 If the fact is so important that the parties are willing to hazard 
 the result of the litigation upon a decision as to its existence it 
 becomes what Stephen calls 1 " fact in issue " and the ascertain- 
 ment as to the truth regarding it is the special function of the 
 jury. With the subsequent steps, in which the truth of the issue, 
 
 1. Supra, § 62. 
 
§§ 275, 276 Court and Juky; Jury. 368 
 
 as ascertained by the jury, is used as a basis for carrying out what 
 the community regards as justice, the jury have normally no 
 concern. They merely give a verdict, ascertain and speak the 
 truth as to the issue. 
 
 § 275. (Function of the Jury); Jury Confined to the Issue 
 
 This function of ascertainment is one which the jury is well 
 adapted to discharge ; and a very useful contribution to the admin- 
 istration of justice is thus effected by the introduction of the 
 average com m on sense, experience and standards of conduct preva- 
 lent in the community for the purpose of determining what is the 
 truth regarding disputed matters of fact with which the jurors 
 are familiar. They are to use and of necessity do use the gen- 
 eral knowledge of the community in dealing with the matters on 
 which they are to pass and it seems eminently beneficial that 
 parties litigant should have their conduct interpreted by the same 
 standards as those under which the acts themselves were done. 
 In dealing with the credibility of witnesses, the probability of 
 alleged occurrences, the general weight of evidence, the jury are 
 especially well qualified by experience to aid the court in this 
 specific field of ascertaining the truth. 
 
 It is commonly said that " It is the office of the judge to instruct 
 the jury in points of law; of the jury to decide on matters of 
 fact." * But this, as is also stated elsewhere, seems too broad an 
 assignment of function to the jury. The province of the jury 
 is properly confined to deciding the truth of the issue, first ascer- 
 taining the constituent facts, and next, in many cases, proceeding 
 to apply to these constituent facts the rule of law announced by 
 the court. That the jury are, in all cases, to find the constituent 
 facts is conceded. All inferences of fact — themselves matter 
 of fact — are to be drawn by the jury. The conflicting testimony 
 and inferences to be drawn from it are for them, and not for the 
 court, either at the trial or on the motion for judgment non 
 obstante veredicto. 2 
 
 § 276. Comment on Pacts A difference of judicial opinion 
 
 and practice exists as to whether the court, in discharge of its 
 
 duty to promote the attainment of substantial justice, is at liberty 
 
 while recognizing the right of the jury to judge as to the truth 
 
 of the facts, including the credibility of witnesses and the general 
 
 weight of evidence, to endeavor to assist them by his comments 
 
 1. Penn Co. v. Conlan, 101 111. 93, 2. Lamb v. Prettyman, 33 Pa. Super 
 
 107 (1881). Ct. 190 (1907). 
 
369 Comment on Facts; American Minoeity. §§ 2/17, 278 
 
 in these and other particulars. In the normal and typical dis- 
 charge of the jury's function of ascertaining truth, it would have 
 the benefit of the suggestions and comments of the court, which 
 while not affecting their autonomy and independence of action, 
 furnished them help from a trained and disinterested mind, con- 
 trolled by the wider social interests of litigation and enriched by 
 long professional experience in dealing with questions which the 
 jury are usually approaching for the first time. Such was trial 
 by judge and jury at common law. 
 
 § 277. (Comment on Facts); English and Federal Courts 
 
 The common law relation of judge and jury in this particular con- 
 tinues to be the practice of the English judges, a fact which assists 
 largely to account for the very satisfactory efficiency of the system 
 of jurisprudence over which they preside. 
 
 Federal Courts. — Such also is and for many years has been the 
 practice of the judges of the Federal courts of the American 
 Union. 1 In these courts the judge is permitted to comment on the 
 weight of the evidence, 2 provided the jury be distinctly and cogently 
 informed that it is mere advice and suggestion which they are 
 entitled to disregard. 
 
 § 278. (Comment on Facts); The American Minority; Connec- 
 ticut — The Federal courts do not stand entirely alone among the 
 tribunals of America in preserving the common law landmarks as 
 to the respective provinces of court and jury. Connecticut adopts 
 
 1. Simmons v. United States, 142 the law or the evidence." Capitol 
 U. S. 148, 155 (1891) ; U. S. v. Hall, Traction Co. v. Hof, 174 U. S. 13 
 44 Fed. 864 ( 1890 ) ; Lovejoy v. U. S. (1899). "But he (the judge), 
 128 U. S. 171, 173, 8 Sup. Ct. R. 77 should take care to separate the law 
 (1888) ; United States v. Philadel- from the facts and to leave the latter 
 phia, etc., Co., 123 U. S. 113 (1887) ; in unequivocal terms to the jury as 
 Vicksburg, etc., R. Co. v. Putnam, 118 their true and peculiar province." 
 U. S. 545, 553 (1886) ; McLanahan Starr v. U. S. 153 U. S. 614 (1893). 
 v. Ins. Co. 1 Pet. 170, 182 (1828). Where the decided weight of evidence 
 " Trial by jury in the primary and on an issue is in favor of one party, it 
 usual sense of the term at the is not improper for the judge in a Fed- 
 common law and in the American con- eral court to express his opinion to 
 stitutions, ... is a trial by a that effect in his charge to the jury, 
 jury of twelve men, in the presence leaving it to them, however, to deter- 
 and under the superintendence of a mine the fact. Butler v. Barrett & 
 judge empowered to instruct them on Jordan, (Pa. 1904) 130 Fed. 944. 
 the law and to advise them on the 2. State v. Moses, 2 Dev. 452, 458 
 facts, and (except on acquittal of a (1830) ; Vicksburg R. Co. v. Putnam, 
 criminal charge) to set aside their 118 U. S. 545, 553, 7 Sup. 1 (1886). 
 verdict if in his opinion it is against 
 
 Vol. I. 24 
 
§§ 279,280 Coukt and Juky; Jury. 370 
 
 a rule of administration to which no just exception can be taken. 1 
 The court, for example, may caution a jury which has heard the 
 evidence of a child of nine, who has talked the matter over with his 
 mother, to remember the aptitude of such a child to repeat what he 
 has heard. 2 Where the court submitted the questions of fact to the 
 jury, without any direction as to how they should find in regard 
 to them that the court either directly or inferentially expressed its 
 opinion on the facts is not error in the absence of abuse of dis- 
 cretion. 3 But it has been very properly held that no instruction 
 which tends to supplant the reasoning of the jury by that of the 
 judge is permissible. 4 
 
 § 279. (Comment on Facts; the American Minority); 
 
 Minnesota. — In like manner, the State of Minnesota permits a 
 trial court to express in civil cases to the jury in its instructions 
 to them its opinion of facts in issue, provided the ultimate deter- 
 mination as to the truth thereof is left to them. 1 As in other 
 states, no objection can reasonably be found to an assumption by 
 the court of the existence of an uncontroverted fact. 2 
 
 § 280. (Comment on Facts; the American Minority); 
 
 Pennsylvania. — In Pennsylvania, the judge is permitted to com- 
 ment on the evidence provided he does so fairly, 1 and is careful 
 
 1. Sackett V. Carroll, 80 Conn. 374, regard to the facts, he may request 
 68 Atl. 442 (1908). an instruction that the jury, and 
 
 2. Banks v. Connecticut Ry. & not the court, are to determine the 
 Lighting Co. 79 Conn. 116, 64 Atl. 14 facts." Ames v. Cannon 'River Mfg. 
 (1906). Co., 27 Minn. 245, 6 N. W. 787 
 
 3. Crotty v. Danbury, 79 Conn. 379, (1830). See also First Nat. Bank v. 
 65 Atl. 147 (1906) ; Shupack v. Gor- Holan, 63 Minn. 525, 65 N. W. 952 
 don, 79 Conn. 298, 64 Atl. 740 (1896). 
 
 (1906). 2. Johnson v. Crookston Lumber 
 
 4. To the same effect, regarding Co. (Minn. 1904) 100 N. W. 225. 
 proof of contradictory statements, see 1. Sperry v. Seidel, 218 Pa. 16, 66 
 Bradley V. Gorham, 77 Conn. 211, 58 Atl. 853 (1907) ; Bernstein v. Walsh, 
 Atl. 698 (1904). 32 Pa. Super. Ct. 392 (1907). "It 
 
 1. Bonness v. Felsing, 97 Minn. 227, is well settled that it is not error 
 
 106 N. W. 909 (1906). Without a for a judge in his charge to the jury, 
 
 statute on the subject, the trial court to express his opinion upon the facts, 
 
 may express to the jury its opinion if done fairly; in some cases it might 
 
 of the facts (People v. Vane, 12 be his duty to do so, provided he 
 
 Wend. 78 ; People v. White, 14 Wend. does not give binding instructions 
 
 111; People v. Rathbun, 21 Wend. or interfere with the province of the 
 
 509), though it may not, where there jury. Com. v. Johnson, 133 Pa. 293; 
 
 is a fair conflict of evidence, direct Com. v. Warner, 13 Pa. Super. Ct. 
 
 the jury how they shall find them. 461. Bernstein v. Walsh, 32 Pa. 
 
 If a party fears undue influence upon Super. Ct. 392 (1907). 
 the jury of what the court says in 
 
371 Comment on Facts; Ameeican Majokity. § 281 
 
 to explain to the jury that they are not bound to follow his sugges- 
 tions. 2 In like manner, he may properly comment upon the fact 
 that a party has not seen fit to call a witness upon whose state- 
 ment he is relying. 3 In all cases, he must leave the jury free to 
 determine the case on the evidence. 4 Therefore, a charge which re- 
 moves from the jury their right to pass upon the credibility of 
 witnesses is improper. 5 Nor may the judge assume the existence 
 of material facts, 6 except where these are undisputed. 7 
 
 Excellent administrative considerations are thus stated by the 
 Supreme Court: 8 "As a general rule, that the judge should 
 submit the facts, without expressing his opinion thereon, and 
 without making an argument in favor of either side, is safer, 
 more satisfactory, and better accords with the rights of parties to 
 have disputed facts decided by the jury. It is difficult for a judge 
 to act as an advocate for one of the parties without giving just 
 cause of offence. Exceptional cases arise where it is the duty of 
 the judge to express his opinion of {he facts and guide the minds 
 of the jury to a correct view of the evidence; and, therefore, it 
 has been settled that when he does so without misleading or con- 
 trolling them in the disposition of the facts, there is no ground for 
 reversing. Often the court below is better able than the court of 
 review to judge of the propriety or necessity of commenting on 
 the evidence or the character of witnesses. The address of counsel 
 to the jury may have been the moving cause, and of that a court 
 of review would know nothing. For instance, if a witness testify 
 to a decisive fact, yet inconsistent with other testimony, and coun- 
 sel presses on the jury that if they disbelieve the witness he is 
 perjured, the court could properly inform the jury that their ad- 
 verse verdict would not convict him of perjury, and that it would 
 only show they thought him mistaken." 
 
 § 281. (Comment on Facts); American Majority. — The 
 
 great majority of the American states have in their constitutions 
 
 2. Knee v. McDowell, 25 Pa. Super eide the case on the evidence." 
 
 Ct. 641 (1904). Lappe v. Gfeller, 311 Pa. 462, 60 Atl. 
 
 8. Rondinella v. Metropolitan Life 1049 (1905). 
 
 Ins. Co. 24 Pa. Super Ct. 293 (1904). 5. Thomas v. Law, 25 Pa. Super. 
 
 4. Lappe V. Gfeller, 211 Pa. 462, 60 Ct. 19 (1904). 
 
 Atl. 1049 (1905). "It is the prac- 6. Conger v. Wiggins, 208 Pa. 122, 
 
 tice, and we have held that the trial 57 Atl. 341 (1904). 
 
 judge may in his charge express his 7. Wolf Co. v. Western Union Tel. 
 
 opinion and make comments on the Co. 24 Pa. Super. Ct. 129 (1904). 
 
 testimony, witnesses or parties, pro- 8. Leibig v. Steiner, 94 Pa. 466, 
 
 vided he leave the jury free to de- 472 (1880). 
 
§ 281 
 
 Coubt and Juby; Juby. 
 
 372 
 
 and statutory legislation turned " trial by judge and jury " as it 
 existed at common law into " trial by jury " — a very anomalous 
 and modern type of judicial procedure. The attempt, steadily 
 pursued by these, is apparently to reduce the function of a presid- 
 ing judge to one substantially analogous to that of the moderator 
 of a JSTew England town-meeting. 1 In this conception of the proper 
 position of a presiding judge, his duty is merely to preserve order 
 in the courtroom, rule as requested upon sufficient points of evi- 
 dence or substantive law to enable the defeated party to take an 
 appeal to a higher court ; and, having- done this, simply turn the 
 case over to the joint control of counsel acting as masters of cere- 
 mony and of the jury sitting as arbitrators between the litigants. 
 
 Judicial Decision. — Where such statutory or constitutional en- 
 actments have not been made, comment by the judge is restrained 
 by judicial decision. 2 „ 
 
 In pursuance of the line of thought above referred to as domi- 
 nating a majority of American courts, a judge is forbidden to com- 
 ment upon the facts of any given case in instructing or other- 
 wise addressing the jury, 3 or even in their hearing intimating 
 
 1. " I am compelled, though reluct- 
 antly, to deny the motion for a new 
 trial in this case. My reluctance 
 arises from the fact that, in my opin- 
 ion, the weight of the evidence did not 
 sustain the contention that excessive 
 force was used in ejecting plaintiff 
 from the train, but that issue was 
 submitted to the jury, and was decided 
 in favor of the plaintiff, and as, under 
 our judicial system, the trial judge 
 in a civil jury case has little more 
 power or authority than a * mentor 
 at a town meeting,' I am not at lib- 
 erty to disturb the jury's finding on 
 that issue." This phraseology of the 
 trial judge was repudiated by the ap- 
 pellate court. But the characteriza- 
 tions of the position of a presiding 
 judge seems nevertheless, a graphic 
 one. Clark v. Ry. Co. 37 Wash. 537 
 (1905). 
 
 2. Alabama. — Huff V. Cox, 2 Ala. 
 310 (1841). 
 
 Arkansas. — Jenkins V. Tobin, 31 
 Ark. 306 (1876). 
 
 Georgia. — Wannack v. Mayor, 53 
 Ga. 162 (1874). 
 
 Illinois. — Frame v. Badger, 79 111. 
 441 (1875). 
 
 Indiana. — Union, etc., Co. v. Bu- 
 chanan, 100 Ind. 63, 81 (1884) ; Case 
 V. Weber, 2 Ind. 108 (1850). 
 
 North Carolina. — Crutchfield v. 
 Richmond, etc., R. Co., 76 N. C. 320 
 (1877). 
 
 Texas. — Ross v. State, 29 Texas 499 
 (1861). 
 
 3. Alabama. — Loveman v. Birm- 
 ingham Ry., L. & P. Co., (Ala. 1907) 
 43 So. 411. 
 
 California. — Manning v. App. Con- 
 sol. Gold Min. Co., (Cal. 1906) 84 
 Pac. 657. 
 
 Florida. — Supreme Lodge, K. P. v. 
 Lipscomb, (Fla. 1905) 39 So. 637. 
 
 Georgia. — Georgia Co-Operative 
 Fire Ass'n v. Lanier, 1 Ga. App. 186, 
 57 S. E. 910 (1907). 
 
 Idaho. — Kroetch v. Empire Mill 
 Co., (Idaho 1903) 74 Pac. 868. 
 
 Illinois. — People v. Peden, 109 111. 
 App. 560 (1903). 
 
 Indiana. — Indianapolis Traction So 
 Terminal Co. v. Richey, (Ind. App. 
 1907) 80 N. E. 170; Indianapolis St. 
 
373 
 
 Insteuction to Disregard Comment. 
 
 § 281 
 
 the opinion he has formed from the evidence; and a caution to 
 disregard this observation, addressed directly to the jury, may well 
 
 Ry. Co. v. Taylor, (Ind. 1905) 72 N. 
 B. 1045. 
 
 Iowa. — ■ Bauer v. City of Dubuque, 
 (Iowa 1904) 98 N. W. 355. 
 
 Massachusetts. — Rubinovitch v. Bos- 
 ton Elevated Ry. Co., (Mass. 1906) 
 77 N. E. 895. 
 
 Missouri. — Mclleynolds v. Quincy, 
 O. &. K. C. K. Co., 115 Mo. App. 676, 
 91 S. W. 446 (1906) ; Smith v. Sover- 
 eign Camp of Woodmen of the World, 
 179 Mo. 119, 77 S. W. 862 (1903). 
 
 Montana. — Harrington v. Butte & 
 Boston Min. Co., (Mont. 1905) 83 
 Pac. 467. 
 
 Nebraska. — Wiese v. Gerndorf, 
 (Neb. 1906) 106 N. W. 1025. 
 
 New York. — 'Corrigan v. Funk, 96 
 N. Y. Supp. 910, 109 App. Div. 846 
 ( 1905 ) ; Ward v. Metropolitan St. Ey. 
 Co. 90 N. Y. Supp. 897, 99 App. Div. 
 126 (1904). 
 
 North Carolina. — Campbell v. Ever- 
 hart, 139 N. C. 503, 52 S.' E. 201 
 (1905). 
 
 Oklahoma. — Goodwin v. Greenwood, 
 16 Okl. 489, 85 Pac. 1115 (1906). 
 
 Oregon. — Keen v. Keen, 90 Pac. 
 147, 10 L. R. A. (N. S.) 504 (1907). 
 
 South Carolina. — Niekles v. Sea- 
 board, etc., Ry., 74 S. C. 102, 54 S. E. 
 255 (1906) ; Ballentine v. Hammond, 
 68 S. C. 153, 46 S. E. 1000 (1904). 
 
 Texas. — Missouri, K. & T. Ry. Co. 
 of Texas V. Avis, 91 S. W. 877 
 (1906); Western Union Telegraph 
 Co. v. Campbell, 91 S. W. 312 (1905). 
 
 Wisconsin. — ■ Ferguson V. Truax, 
 (Wis. 1907) 110 N. W. 395. 
 
 Comments on the evidence and in- 
 sinuations and intimations of the 
 court as to the weight of the evidence 
 or credibility of the witnesses should 
 be avoided in instructions. Imboden 
 t\ Imboden's Estate, (Mo. App. 1905) 
 86 S. W. 263. 
 
 4. Oeorgia. — Atlantic Coast Line 
 R. Co. V. Powell, 127 Ga, 805, 56 
 6. E. 1006, 9 L. R. A. (N. S.) 769 
 (1907). 
 
 Idaho. — McKissick V. Oregon Short 
 Line Ry. Co., 13 Idaho 195, 89 Pac. 
 629 (1907). 
 
 Iowa. — Paxton v. Knox, (Iowa 
 1904) 98 N. W. 468. 
 
 Texas. — Thomson v. Kelley, 97 S. 
 W. 326 (1906) ; Bath V. Houston & T. 
 C. Ry. Co., 78 S. W. 993 (1904). 
 
 Washington. — 'Patten v. Town of 
 Auburn, 84 Pac. 594 (1906). 
 
 Wisconsin. — Davis v. Dregne, 97 N. 
 W. 512 (1903). 
 
 A statement commenting on the evi- 
 dence violates no right of a party 
 where it was not made in the pres- 
 ence of the jury. Coulter v. Barker's 
 Estate, (Minn. 1906) 107 N. W. 823. 
 It is equally objectionable to endorse 
 a remark made by counsel. Georgia 
 Ry. & Electric Co. v. Baker, 1 Ga. 
 App. 832, 58 S. E. 88 (1907) ; Per- 
 kins v. Knisely, 204 111. 275, 68 N. E. 
 486 (1903). A prohibition against 
 instructing a jury as to matters of 
 fact does not apply to incidental re- 
 marks by a trial judge during the ex- 
 amination of witnesses. Partelow v. 
 Newton & B. St. Ry. Co. (Mass. 1907) 
 81 N. E. 894. See also Fitzgerald v. 
 Benner, 219 111. 485, 76 N. E. 709 
 (1906); Continental Nat. Bank v. 
 First Nat. Bank, 1 Tenn. Ch. App. 449 
 (1902). 
 
 Out of the hearing of the jury the 
 court may with propriety address 
 a severe reprimand to a witness or 
 even threaten him with a. prosecution 
 for perjury under certain conditions. 
 Zink v. Lahart, (N. D. 1907) 110 N. 
 W. 931. 
 
 Regrets as to rule of law. Re- 
 marks by the judge indicating a dis- 
 sent from the position of the appellate 
 tribunal as the law of the case is not 
 objectionable ; — provided he yet loy- 
 ally applies the rule from which he 
 dissents. Lee v. Williams, 30 Pa. 
 Super. Ct. 349, 357 (1906). 
 
 Strictures on counsel by way of 
 reprimand not indicating any infer- 
 
§ 282 
 
 Couet and Juey; Juey. 
 
 374 
 
 be regarded as ineffective for the purpose. 5 The error is rendered 
 the more prejudicial where a judge incorrectly states to the jury 
 that there is no evidence to a given effect ; 6 or assumes that there is 
 evidence of a particular fact where in reality there is none. 7 
 
 § 282. (Comment on Facts; American Majority); Assump- 
 tion of Facts — The judge will not give expression to any idea 
 which could only exist properly in his mind if the truth of a con- 
 troverted fact were proved or disproved. 1 In like manner, a judge 
 cannot assume that evidence has been introduced which has not, in 
 
 ence the court may have drawn from 
 the evidence is not objectionable. Chi- 
 cago City Ry. Co. v. Shaw, 220 111. 
 532, 77 N. E. 139 (1906) ; Finan V. 
 New York Cent. & H. R. R. Co., 97 
 N. Y. Supp. 859, 111 App. Div. 383 
 (1906). Subsequent attempts to re- 
 move the impression so created may 
 properly, at times, be deemed as of 
 doubtful efficacy. Kramer v. North- 
 western Elevator Co., (Minn. 1904) 98 
 N. W. 96. Where, however, such re- 
 marks tend to prejudice unreasonably 
 the cause of the party, error may be 
 committed. Chicago City Ry. Co. v. 
 Enroth, 113 111. App. 285 (1904); 
 Kramer v. Northwestern Elevator Co., 
 (Minn. 1904) 98 N. W. 96; Kleinert 
 v. Federal Brewing Co., 95 N. Y. Supp. 
 406, 107 App. Div. 485 (1905) ; Dal- 
 las Consol. Electric St. Ry. Co. v. 
 McAllister, (Tex. Civ. App. 1905) 90 
 S. W. 933. The same result follows 
 under the general rule where the 
 comments of the court are calculated 
 to impair, with the jury, the weight 
 of the evidence itself. Dallas Consol. 
 Electric St. Ry Co. t'. McAllister, 
 (Tex. Civ. App. 1905) 90 S. W. 933. 
 
 Contradiction. — 'A judge is not at 
 liberty to call attention to what he 
 deems a contradiction in the evidence. 
 Merritt v. Bush, 122 111. App. 189 
 (1905). Where, however, the fact is 
 uncontroverted no error may have 
 ibeen committed. Herrstrom V. New- 
 ton & N. W. R. Co., (Iowa 1905) 105 
 N. W. 436. 
 
 5. Davis v. Dregne, (Wis. 1903) 97 
 N. W. 512. 
 
 6. Rose r. Kansas City, 125 Mo. 
 App. 231, 102 S. W. 578 (1907) ; Mc- 
 Iiaughlin v. Syracuse Rapid Transit 
 Ry. Co., 115 X. Y. App. Div. 774, 101 
 N. Y. Suppl. 196 (1906). Statement 
 of an obvious and uncontroverted in- 
 ference carries no prejudice. Webb V. 
 Atlantic Coast Line R. Co., 76 S. C. 
 193, 56 S. E. 954, 9 L. R. A. (N. S.) 
 1218 (1907). 
 
 7. Steltemeier v. Barrett, 115 Mo. 
 App. 323, 91 S. W. 56 (1905) ; Texas 
 & Louisiana Lumber Co. V. Rose, 
 (Tex. Civ. App. 1907) 103 S. W. 444. 
 
 Comment in questions. — The com- 
 ment may take the form of a ques- 
 tion — as " What would you have 
 had him (plaintiff in an action for 
 personal injuries) do more than he 
 did do? " Davis v. Dregne, (Wis. 
 1903) 97 N. W. 512. 
 
 Punning or mere judicial jocularity 
 on the part of a presiding judge will 
 not be regarded as reasonable, if the 
 remark may be construed as a pre- 
 judicial comment. Perkins v. Knisely 
 204 111. 275, 68 N. E. 486 (1903). 
 
 1. Alabama. — 'Louisville & N. R. 
 Co. v. Christian-Moerlein Brewing Co., 
 43 So. 723 (1907). 
 
 Arkansas. — Western Coal & Min- 
 ing Co. v. Jones, 87 S. W. 440 (1905) . 
 
 Florida. — Southern Pine Co. v. 
 Powell, 37 So. 570 (1904). 
 
 Georgia. — Atlantic & B. Ry. Co. v. 
 Hattaway, 126 Ga. 333, 55 S. E. 21 
 (1906) 
 
 Illinois. — Springfield Consol. Ry. 
 Co. P. Gregory, 122 111. App. 607 
 (1905) ; Forster, Waterbury & Co. V. 
 
375 
 
 Keftjsal of Chabge Assuming Facts. 
 
 28? 
 
 fact, been received; 2 nor that there is no other evidence on a given 
 point. 3 
 
 § 283. (Comment on Facts; American Majority); Re- 
 fusal of Assumptive Instructions — It follows that the judge will 
 not give a charge at the request of counsel which presents the 
 feature of assuming the existence or nonexistence of certain facts. 1 
 
 Peer, 120 111. App. 199 (1905) ; Swift 
 & Co. v. Mutter, 115 111. App. 374 
 (1904). 
 
 Indiana. — Sasse v. Rogers, 81 N. E. 
 590 (1907); Manion v. Lake Erie & 
 W. Ry. Co. 80 N. E. 166 ( 1907 ) ; In- 
 dianapolis St. Ry. Co. v. O'Donnell, 
 73 N. E. 163 (1905). 
 
 Iowa. — Hanson v. City of Cresco, 
 109 N. VV. 1109 (1906). 
 
 Kentucky. — 'Baltimore & O. S. W. 
 R. Co. v. Sheridan, 101 S. W. 938, 31 
 Ky. L. Rep. 109 (1907) ; McGrew's 
 Ex'r v. O'Donnell, 28 Ky. Law Rep. 
 1366, 93 S. W. 301 (1906) ; Straight 
 Creek Coal Co. v. Haney's Adm'r, 27 
 Ky. L. Rep. 1117, 87 S. W. 1114 
 (1905). 
 
 Maryland. — Baltimore & O. R. Co. 
 v. State, 64 Atl. 304 (1906). 
 
 Michigan. — Karrer v. City of De- 
 troit, 13 Detroit Leg. N. 765, 106 N. 
 W. 64 (1905). 
 
 Mississippi. — American Express Co. 
 V. Jennings, 38 So. 374 (1905). 
 
 Missouri. — York v. City of Everton, 
 131 Mo. App. 640, 97 S. W. 604 
 (1900); Klein v. St. Louis Transit 
 Co., 117 Mo. App. 691, 93 S. W. 281 
 (1906) ; Stripling v. Maguire, 108 Mo. 
 App. 594, 84 S. W. 164 (1904). 
 
 Montana. — Gallick v. Bordeaux, 78 
 Pac. 583 (1904). 
 
 New York. — Durst v. Ernst, 91 N. 
 Y. Supp. 13, 45 Misc. Rep. 627 
 (1904). 
 
 North Carolina. — ■ Brewster v. Cor- 
 poration of Elizabeth City, 54 S. E. 
 784 (1906); Peoples v. North Caro- 
 lina R. Co., 49 S. E. 87 (1904). 
 
 Rhode Island. — Taber v. New York, 
 P. & B. R. Co. 28 R. I. 369, 67 Atl. 9 
 (1907). 
 
 Texas.— Texas Cent. R. Co. v. Wal- 
 
 die, 101 S. W. 517 (1907) ; San An- 
 tonio & A. P. Ry. Co. v. Fisher, 99 
 S. W. 1043 (1907); International & 
 G. N. R. Co. v. Brice, 95 S. W. 660 
 
 (1906) ; Chicago, R. I. & M. Ry. Co. 
 p. Harton, 81 S. W. 1236 (1904). 
 
 Washington. — Hall v. West & Slade 
 Mill Co., 81 Pac. 915 (1905). 
 
 No prejudice exists if the fact be 
 undisputed. Cowles v. Carrier, 101 S. 
 W. 916, 31 Ky. L. Rep. 229 (1907). 
 Indicating that a certain fact is en- 
 titled to consideration is not objec- 
 tionable. Crosby v. Wells, 73 N. J. 
 L. 790, 67 Atl. 295 (1907). 
 
 2. Arnd v. Aylesworth, (Iowa 
 1907) 111 N. W. 407; Brazis v. St. 
 Louis Transit Co., 102 Mo. App. 224, 
 76 S. W. 708 (1903). 
 
 3. Duncan v. St. Louis & S. F. R. 
 Co., (Ala. 1907) 44 So. 418. This pro- 
 hibition extends to an announcement 
 that there is no evidence on a given 
 point. Patten v. Town of Auburn, 41 
 Wash. 644, 84 Pac. 594 (1906). 
 
 1. Alabama. — Birmingham Ry., 
 Light & Power Co. v. Hayes, 44 So. 
 1032 ( 1907 ) ; Birmingham Ry., Light 
 & Power Co. v. Moore, 43 So. 841 
 
 (1907) ; Fletcher v. Prestwood, 43 So. 
 231 (1907). 
 
 Arkansas. — Western Coal & Mining 
 Co. V. Burns, 84 Ark. 74, 104 S. W. 
 535 (1907). 
 
 California. — Matteson V. Southern 
 Pac. Co., 92 Pac. 101 (1907) ; Lyons 
 V. United Moderns, 83 Pac. 804 (1906) ; 
 Anderson v. Seropian, 147 Cal. 201, 
 81 Pac. 521 (1905). 
 
 Connecticut. — Kelley v. Town of 
 Torrington, 80 Conn. 378, 68 Atl. 
 855 (1908). 
 
 Florida. — Lewter v. Tomlinson, 54 
 Fla. 215, 44 So. 935 (1907). 
 
283 
 
 Coukt and Juey; Juky. 
 
 376 
 
 The degree of prejudice is intensified where a fact is assumed of 
 which there is no evidence. 2 It is equally objectionable to give an 
 instruction assuming, as part of a hypothesis, facts not shown 
 to exist ; 3 or giving to certain facts an undue prominence as factors 
 in the case. 4 Nor will he assume as matter of law, at the request of 
 counsel, that which is a matter of fact for the jury. 6 He cannot 
 be asked, for the same reason, to rule that there is no evidence on 
 a given point. 6 
 
 Georgia. — Augusta Naval Stores 
 Co. v. Young, 124 Ga. 261, 52 S. E. 
 898 (1905). 
 
 Illinois. — Illinois Cent. R. Co. v. 
 Johnson, 221 111. 42, 77 N. E. 592 
 (1906) ; Papineau v. White, 117 111. 
 App. 51 (1904); Chicago & A. By. 
 Co. v. Bell, 111 111. App. 280 (1903). 
 Indiana. — Beery v. Driver, 76 N. 
 E. 967 (1906). 
 
 Louisiana. — Muscarelli v. Hodge 
 Fence & Lumber Co., 45 So. 268 
 (1907). 
 
 Massachusetts. — Clark v. American 
 Express Co., 83 N. E. 365 (1908); 
 Hayes v. Moulton, 80 N. E. 215 
 (1907). 
 
 Missouri. — • Christian v. McDonald, 
 127 Mo. App. 630, 106 S. W. 1104 
 (1908); Ghere v. Zey, (Mo. App. 
 1908) 107 S. W. 418; Garner v. Met- 
 ropolitan St. By. Co., (Mo. App. 1908) 
 107 S. W. 427. 
 
 Montana. — Stephens v. Elliott, 36 
 Mont. 92, 92 Pac. 45 (19.07) ; Lind- 
 sley v. McGrath, 34 Mont. 564, 87 Pac. 
 961 (1906). 
 
 North Carolina. — Horton v. Sea- 
 board Air Line By., 145 N. C. 132, 58 
 S. E. 993 (1907) ; Williams v. Atlan- 
 tic, etc., R. Co., 140 N. C. 623, 53 S. 
 E. 448 (1906). 
 
 Ohio. — Cleveland, C. C. & St. L. By. 
 v. Sivey, 27 Ohio Cir. Ct. E. 248 
 (1905) ; Northern Ohio By. Co. v. 
 Eigby, 69 Ohio St. 184, 68 N. E. 1046 
 (1903). 
 
 Oklahoma. — Chicago, B. I. & P. By. 
 Co. v. Stibbs, 17 Okla. 97, 87 Pac. 
 293 (1906). 
 
 Pennsylvania. — Baker v. Moore, 29 
 Pa. Super. Ct. 301 (1905) ; McHenry 
 v. Bulifant, 207 Pa. St. 15, 56 Atl. 
 226 (1903). 
 
 South Dakota. — Bichardson v. 
 Dybedahl, (S. D. 1904) 98 N. W. 164. 
 
 Texas. — Houston & T. C. E. Co. v. 
 Gyech, 103 S. W. 703 ( 1907 ) ; May v. 
 Hahn, 97 S. W. 132 (1906) ; Houston 
 & T. C. E. Co. v. Burns, 90 S. W. 688 
 (1905). 
 
 West Virginia. — Cobb v. Dunlevie, 
 (W. Va. 1908) 60 S. E. 384. Be- 
 quests intimating to the jury the in- 
 ference to be drawn from the facts 
 therein carefully set out in detail are 
 properly refused. Insurance Co. of 
 North America v. Leader, 121 Ga. 
 260, 48 S. E. 972 (1904); Picard 
 v. Beers, (Mass. 1907) 81 N. E. 246; 
 Brady v. Kansas City, St. L. & C. E, 
 Co., 206 Mo. 509, 102 S. W. 978 
 (1907) ; St. Louis, I. M. & S. Ey. Co. 
 v. Stewart, 201 Mo. 491, 100 S. W. 
 583 (1907) ; Weaver v. Southern Ey. 
 Co., 76 S. C. 49, 56 S. E. 657 (1907). 
 
 2. Karl v. Juniata County, 206 Pa. 
 St. 633, 56 Atl. 78 (1903). 
 
 3. Elliott v. Howison, (Ala. 1906) 
 40 So. 1018. 
 
 4. Weil v. Fineran, (Ark. 1906) 93 
 S. W. 568. 
 
 5. Central of Georgia By. Co. V. 
 Hyatt, (Ala. 1907) 43 So. 867. 
 
 6. Montgomery St. By. Co. v. Smith 
 (Ala. 1905) 39 So. 757; Montgomery 
 St. By. v. Eice, (Ala. 1905) 38 So. 
 857; Dietrich v. City of Lancaster, 
 212 Pa. 566, 61 A. 1112 (1905). 
 
37? 
 
 Admitted Fact May be Assumed. 
 
 284 
 
 § 284. (Comment on Facts; American Majority); "ffnfion- 
 
 troverted Facts — The administrative reason why a judge is not at 
 liberty to instruct the jury on the basis of an assumption of the 
 existence of a disputed fact, is that so doing implies an intimation 
 to the jury as to what effect the evidence on that point has had on 
 his mind. This makes such an instruction a comment upon the 
 evidence within the prohibition of the substantive or procedural 
 law in the majority of the American states. 1 An instruction, how- 
 ever, may properly assume the existence of facts where the evi- 
 dence with respect to them is conclusive and uncontroverted. 2 The 
 same result follows where a fact is admitted. 3 The court may even 
 
 1. North Georgia Milling Co. v. 
 Henderson Elevator Co., 130 Ga. 113, 
 60 S. E. 258 (1908). 
 
 2. Alabama. — Birmingham Ry., 
 Light & Power Co. v. Jones, 41 So. 
 146 (1906) ; Emrich v. Gilbert Mfg. 
 Co., 138 Ala. 316, 35 So. 322 (1903). 
 
 Georgia. — Georgia S. & F. Ry. Co. 
 v. Stanley, 1 Ga. App. 487, 57 S. E. 
 1042 (1907) ; W. A. Greer & Co. v. 
 Raney, 120 Ga. 290, 47 S. E. 939 
 (1904); Eagle & Phenix Mills c.Her- 
 ron, 119 Ga. 389, 46 S. E. 405 (1904). 
 
 Illinois.—' Reed v. Manierre, 124 111. 
 App. 127 (1906); Illinois Cent. R. 
 Co. v. Becker, 119 111. App. 221 
 
 (1905) ; Chicago Union Traction Co. 
 v. Newmiller, 116 111. App. 625 (1904). 
 
 Indiana. — Indianapolis Traction & 
 Terminal Co. v. Smith, 77 N. E. 1140 
 
 (1906) ; Terre Haute Electric Co. V. 
 Kiely, 72 N. E. 658 (1904). 
 
 Iowa. — Ryan V. Incorporated Town 
 of Lone Tree, 98 N. W. 287 (1904). 
 
 Kentucky. — Henning v. Stevenson, 
 26 Ky. L. Rep. 159, 80 S. W. 1135 
 (1904). 
 
 Missouri. — Holton v. Cochran, 208 
 Mo. 314, 106 S. W. 1035 (1907) ; 
 Cahill v. Chicago & A. Ry. Co., 205 
 Mo. 393, 103 S. W. 532 (1907) ; Stoe- 
 bier ». St. Louis Transit Co., 203 Mo. 
 702, 102 S. W. 651 (1907) ; McManus 
 v. Metropolitan St. Ry. Co., 116 Mo. 
 App. 110, 92 S. W. 176 (1906). 
 
 Nebraska. — First Nat. Bank v. 
 Bower, 98 N. W. 834 (1904) ; Oelke 
 v. Theis, 97 N. W. 588 (1903). 
 
 South Carolina. — Wilson v. Moss, 79 
 S. C. 120, 60 S. E. 313 (1908) ; Mur- 
 douch v. Tuten, 76 S. C. 502, 57 S. E. 
 547 (1907) ; Jennings v. Edgefield 
 Mfg. Co., 72 S. C. 411, 58 S. E. 113 
 (1905). 
 
 Texas. — Western Cottage (Piano & 
 Organ Co. v. Anderson, 101 S. W. 
 1061 (1907) ; Heisig Rice Co. V. Fair- 
 banks, Morse & Co., 100 S. W. 959 
 (1907) ; San Antonio & A. P. Ry. Co. 
 V. Wood, 92 S. W. 259 (1905). 
 
 Washington. — Lownsdale v. Gray's 
 Harbor Boom Co., 36 Wash. 198, 78 
 Pac. 904 (1904). 
 
 Wisconsin. — Seivert v. Galvin, 113 
 N. W. 680 (1907). Where, in an 
 action for the price of goods sold, the 
 documentary evidence constitutes a 
 clear contract, it is not error so to 
 instruct the jury. McCullough Bros. 
 v. Armstrong, 118 Ga. 424, 45 S. E. 
 379 (1903). At least a prima facie 
 case should he established. Chicago 
 City Ry. Co. v. Carroll, 206 111. 318, 
 68 N. E. 1087 (1903) [affirming 102 
 111. App. 202 (1902)]. A fact ju- 
 dicially known to the court will be 
 •taken, as proved. Spiking v. Consol. 
 Ry. & Power Co., (Utah 1908) 93 
 Pac. 838. 
 
 3. Georgia. — Cooley v. Bergstrom, 
 3 Ga. App. 496, 60 S. E. 220 (1908) ; 
 Fitzgerald Cotton Oil Co. v. Farmers' 
 Supply Co., 3 Ga. App. 212, 59 S. E. 
 713 (1907). 
 
 Illinois.— Slvults v. Shults, 229 111. 
 420, 82 N. E. 312 (1907); Compher 
 
285 
 
 Court and Jury; Jury. 
 
 878 
 
 legitimately assume that a fact exists where it has been proved be- 
 yond the range of controversy. 4 Where the undisputed facts 
 clearly and necessarily establish a legal conclusion, the court may 
 so instruct the jury. To do so is not a violation of provisions of 
 law forbidding a judge to express or intimate his opinion as to 
 what has or has not been proved, such inhibition applying only 
 where the evidence is conflicting. 5 A fact is not to be assumed as 
 proved merely because it is alleged in the pleadings and not re- 
 ferred to in the evidence by either party. 
 
 The elements of damage universally recognized by the courts may 
 be stated where the fact of injury is not disputed. 7 It is, how- 
 ever, prejudicial error for the court, in a personal injury action, to 
 state to the jury, in his charge, his calculation of the amount of 
 damages sustained by plaintiff by loss of employment. 8 
 
 § 285. (Comment on Facts; American Majority); Weight 
 
 and Credibility — The judge will not, in these jurisdictions, be per- 
 mitted to give the jury his impression as to the probative force of 
 the testimony given by a witness, or any set of witnesses, 1 the 
 
 v. Browning, 239 111. 429, 76 N. E. 
 678 (1906). 
 
 Kentucky. — Louisville & N. R. Co. 
 v. Crow, 107 S. W. 807 (1908). 
 
 Missouri. — Cramer v. Nelson, 107 
 S. W. 450 (1908) ; Dee v. Nachbar, 
 106 S. W. 35 (1907). 
 
 New York. — Smith v. New York 
 Anti-Saloon League, 106 N. Y. S. 351, 
 121 App. Div. 600 (1907). 
 
 South Carolina. — Latour v. South- 
 ern Ry., 71 S. C. 532, 51 S. E. 265 
 (1905). 
 
 Washington. — Lownsdale v. Gray's 
 Harbor Boom Co., 36 Wash. 198, 78 
 Pac. 904 (1904). 
 
 4. Shafer v. Russell, (Utah 1905) 
 79 Pac. 559; Halverson v. Seattle 
 Electric Co., 35 Wash. 600, 77 Pac. 
 1058 (1904). 
 
 5. Colorado. — Craig v. Leschen & 
 Sons Rope Co., 87 Pac. 1143 (1906). 
 
 Georgia. — Georgia Ry. & Electric 
 Co. v. Cole, 1 Ga. App. 33, 57 S. E. 
 1026 (1907); Southern Ry. Co. V. 
 Chitwood, 119 Ga. 38, 45 S. E. 706 
 (1903). 
 
 Illinois. — Hartford Life Ins. Co. v. 
 
 Sherman, 223 111. 329, 78 N. E. 923 
 (1906) [affirming judgment, 123 111. 
 App. 202 (1905)]. 
 
 Indiana. — Town of Sellersburg v. 
 Ford, 79 N. E. 220 (1906). 
 
 Iowa. — Murphy r. Hiltibridle, 109 
 N. W. 471 (1906). 
 
 Missouri. — Deschner v. St. Louis & 
 M. R. R. Co., 200 Mo. 310, 98 S. W. 
 737 (1906). 
 
 Texas. — Commercial Telephone Co. 
 V. Davis, 96 S. W. 939 ( 1906 ) ; Texas 
 & N. O. Ry. Co. v. Moers, 97 S. W. 
 1064 (1906). 
 
 6. Harrison t\ Western Union Tel. 
 Co., 136 N. C. 381, 48 S. E. 772 
 (1904). 
 
 7. Illinois Cent. R. Co. r. Prickett, 
 210 111. 140, 71 N. E. 435 (1904) ; 
 Longan v. Weltmer, 180 Mo. 322, 64 
 L. R. A. 969, 79 S. W. 655 (1904) ; 
 Jennings r. Edgefield Mfg. Co., 72 
 S. C. 411, 52 S. E. 113 (1905). 
 
 8. Heller v. Donellan, 90 N. Y. 
 Suppl. 352, 45 Misc. Rep. 355 (1904). 
 
 1. Lingle V. Scranton Ry. Co., 214 
 Pa. 500, 63 Atl. 890 (1906) ; Coulter 
 v. B. F. Thompson Lumber Co., (Tenn. 
 
379 
 
 Judge Cannot State His Own Infebences. § 285 
 
 probability of their story 2 or the general weight of the evidence, 3 
 including the credibility of those who testify. 4 He cannot inti- 
 mate to the jury as to what inference he draws from the evidence 
 
 1906) 142 Fed. 706. An instruction 
 that preponderance of evidence is 
 that which carries conviction with 
 it, depends on the character of the 
 witness, his intelligence, his opportun- 
 ity for knowledge, and not necessarily 
 on the number of witnesses, is not a 
 charge on the facts. Montgomery v. 
 Seaboard Air Line Ry., 73 S. C. 503, 
 53 S. E. 987 (1906). 
 
 S. Norman Printers' Supply Co. v. 
 Ford, 77 Conn. 461, 59 Atl. 499 
 (1904); Belt Ry. Co. of Chicago v. 
 Confrey, 111 111. App. 473 (1903); 
 Hayes v. Moulton, (Mass. 1907) 80 
 N. E. 215; Imboden v. Imlboden's 
 Estate, (Mo. App. 1905) 86 S. W. 
 263. It is for the jury to say whether 
 the testimony of a witness that he 
 did not hear the ringing of a bell or 
 the blowing of a whistle at the cross- 
 ing, although he listened, shall be 
 given equal credit with the testimony 
 of a witness, similarly situated, that 
 he did hear. McLean v. Erie R. Co., 
 (N. J. 1904) 57 Atl. 1132. 
 
 The judge cannot announce an irre- 
 concilable conflict in the testimony. 
 The jury .should be allowed to harmon- 
 ize it if they can. Segaloff v. Inter- 
 urban St. Ry. Co., 102 N. Y. Suppl. 
 509 (1907). 
 
 3. Alabama. — Morris v. McClellan, 
 45 South. 641 ( 1908 ) ; Louisville & 
 N. R. Co. v. Higginbotham, 44 South. 
 872 (1907); Fletcher v. Prestwood, 
 43 So. 231 (1907). 
 
 Colorado. — Diamond Rubber Co. v. 
 Harryman, 92 Pac. 922 (1907). 
 
 Georgia. — Proctor v. Pointed, 127 
 Ga. 134, 56 S. E. Ill (1906). 
 
 Illinois. — Chicago Union Traction 
 Co. v. Lowenrosen, 222 111. 506, 78 
 N. E. 813 (1906) [affvrming judg- 
 ment, 125 111. App. 194 (1905)]. 
 
 Iowa. — In re Knox's Will, (Iowa 
 1904) 98 N. W. 468. 
 
 Kentucky. — City of Covington v. 
 
 Whitney, 99 S. W. 337, 30 Ky. L. 
 Rep. 659 (1907). 
 
 Maryland. — Orem Fruit & Produce 
 Co. of Baltimore City v. Northern 
 Cent. Ry. Co., (Md. 1907) 66 Atl. 
 436. 
 
 Massachusetts. — United Shoe Ma- 
 chinery Co. v. Bresnahan Shoe, etc., 
 Co., 83 N. E. 412 (1908). 
 
 Missouri. — Zander v. St. Louis 
 Transit Co., 206 Mo. 445, 103 S. W. 
 1006 (1907); Connelly v. Illinois 
 Cent. R. Co., 120 Mo. App. 652, 97 
 S. W. 616 (1906). 
 
 North Carolina. — Hancock v. West- 
 ern Union Tel. Co., 142 N. C. 163, 
 55 S. E. 82 (1906). 
 
 South Carolina. — McGrath v. Pied- 
 mont Mut. Ins. Co., 74 S. C. 69, 54 
 S. E. 218 (1906). 
 
 Texas. — International, etc., R. Co. 
 v. Howell, 105 S. W. 560 (1907) ; 
 Texas & P. Ry. Co. v. Coggin, 99 
 S. W. 431 (1907); Hotel Cliff Ass'n 
 v. Peterman, 98 S. W. 407 (1906). 
 
 Utah. — Loofborrow v. Utah Light 
 & Ry. Co., 88 Pac. 19 (1907). 
 
 M'ashingtonj — Schneider v. Great 
 Northern Ry. Co., 91 Pac. 565 (1907). 
 
 West Virginia. — Harman & Crock- 
 ett v. Maddy Bros., 49 S. E. 1009 
 (1905) . The same provision has been 
 made by statute. Universal Metal Co. 
 v. Durham & C. R. Co., 145 N. C. 293, 
 59 S. E. 50 (1907). Where the testi- 
 mony, if believed, is sufficient to be 
 submitted to the jury, the court 
 should not state that the evidence is 
 not strong, clear, and convincing. 
 Jones v. Warren, (N. C. 1904) 46 
 S. E. 740. Where the court refuses 
 to charge that there is no evi- 
 dence that the acts in question were 
 willful, it is not an expression of 
 opinion for him to say that there is 
 some evidence of such acts, if there 
 be such evidence. Thomasson v. 
 Southern Ry., 72 S. C. 1, 51 S. E. 
 
285 
 
 Coubt and Juet; Juky. 
 
 380 
 
 as to the truth of any issue in the case. 5 Nor can he express, di- 
 rectly or indirectly, his views as to the good faith of the parties. 6 
 
 443 (1905). Nor is it contrary to 
 good administration to say that there 
 is no evidence to sustain a given 
 claim, if there is none. Feitl v. Chi- 
 cago City Ky. Co., 113 III. App. 381 
 (1904). 
 
 Prima facie cases. — A statement as 
 to the existence of a prima facie case 
 is obviously a ruling on the weight 
 of the evidence. Parks v. St. Louis 
 Southwestern Ry. Co., (Tex. Civ. App. 
 1902) 69 S. W. 125. 
 
 4. Alabama. — Roe v. Doe ex dem. 
 Delage, 43 So. 856 (1907); Holman 
 v. Calhoun, 40 So. 356 (1906). 
 
 Illinois. — Elgin, J. & E. Ry. Co. v. 
 Lawlor, 229 111. 621, 82 N. E. 407 
 (1907) [affirming judgment 132 III. 
 App. 280 (1907)]; Kozlowski v. City 
 of Chicago, 113 111. App. 513 (1904). 
 
 Indiana. — Muncie Pulp Co. V. Kees- 
 ling, 76 N. E. 1002 (1906). 
 
 Maryland. — Western Maryland R. 
 Co. v. Shivers, 101 Md. 391, 61 Atl. 
 618 (1905). 
 
 Michigan. — Butler V. Detroit, Y. 
 &. A. A. Ry., 11 Detroit Leg. N. 539, 
 101 N. W. 232 (1904). 
 
 New York. — Durst v. Ernst, 91 N. 
 Y. Suppl. 13, 45 Misc. Rep. 627 
 (1904). 
 
 North Carolina. — Dobbins v. Dob- 
 bins, 53 S. E. 870 (1906) ; Smith V. 
 Cashie & Chowan R. & Lumber Co., 
 140 N. C. 375, 53 S. E. 233 (1906). 
 
 Oklahoma. — City of Newkirk r. 
 Dimmers, 17 Ok. 525, 87 Pac. 603 
 (1906). 
 
 Pennsylvania. — Lingle v. Scranton 
 Ry. Co., 214 Pa. 500, 63 Atl. 890 
 (1906); Colonial Trust Co. v. Getz, 
 28 Pa. Super. Ct. 619 (1905). 
 
 Texas. — Tyler Ice Co. v. Tyler 
 Water Co., 95 S. W. 649 (1906). 
 
 Washington. — Smith V. City of Se- 
 attle, 33 Wash. 481, 74 Pac. 674 
 (1903). 
 
 United States. — Beaumont V. Beau- 
 mont, 152 Fed. 55, 81 C. C. A. 251 
 (1907). 
 
 There is no presumption of law that 
 an unimpeached witness has testified 
 truly, and an instruction to that effect 
 is erroneous, as infringing on the 
 province of the jury. Chicago Union 
 Traction Co. v. O'Brien, 219 111. 303, 
 76 N. E. 341 (1905). 
 
 5. California. — Wyckoff v. Southern 
 Pac. Co., 87 Pac. 203 (1906). 
 
 Georgia. — Holland v. Williams, 126 
 Ga. 617, 55 S. E. 1023 (1906); 
 Standard Cotton Mills v. Cheatham, 
 125 Ga. 649, 54 S. E. 650 (1906). 
 
 Illinois. — Wood v. Olson, 117 111. 
 App. 128 (1904). 
 
 Indiana. — Home Ins. Co. v. Gagen, 
 76 N. E. 927 (1906). 
 
 New York. — Douglas v. Metropoli- 
 tan St. Ry. Co., 119 N. Y. App. Div. 
 203, 104 N. Y. Suppl. 452 (1907). 
 
 North Carolina. — Rnffin v. Atlantic 
 & N, C. R. Co., 142 N. C. 120, 55 
 S. E. 86 (1906). 
 
 Tennessee. — Louisville & N. R. Co. 
 v. Bohan, 116 Tenn. 271, 94 S. W. 
 84 (1906). 
 
 Texas. — Thompson r. Fitzgerald & 
 Ray, 105 S. W. 334 (1907); Dallas, 
 C. & S. W. Ry. Co. v. Langston, 98 
 S. W. 425 (1906). 
 
 Wisconsin. — Kamp v. CoxeBros. & 
 Co., 99 N. W. 366 (1904). But see 
 St. Louis. M. & S. E. R. Co. v. Con- 
 tinental Brick Co., (Mo. 1906) 96 
 S. W. 1011. A statement in an in- 
 struction that " You have the testi- 
 mony as to that," is not a charge on 
 the facts. Pickett v. Southern Ry. 
 Co., Carolina Division, 69 S. C. 445, 
 48 S. E. 466 (1904). A statement 
 as to the judges opinion or estimate 
 as to the value of the evidence in 
 some other connection, e. g., in an- 
 other tribunal, is not objectionable. 
 Montgomery r. Delaware Ins. Co., 67 
 S. C. 399, 45 S. E. 934 (1903). 
 
 G. Rondinella v. Metropolitan Life 
 Ins. Co., 24 Pa. Super. Ct. 293 (1904); 
 Rich v. Victoria Copper Min. Co., 147 
 Fed. 380, 77 C. C. A. 558 (1906). 
 
381 Difficulties in Drawing a Fixed Line. §§ 286, 287 
 
 § 286. (Comment on Facts; American Majority); When 
 
 Comment is Permitted Practical convenience has established 
 
 certain limitations upon the scope of the administrative or pro- 
 cedural rule which forbids, in a majority of American jurisdic- 
 tions, a judge to comment on the evidence. However far the Amer- 
 ican legislator may think fit to go in elevating the jury as the 
 central figure of a court room, or the average American lawyer may 
 seek to have the judge " keep his hands off " from his own attempts 
 to bring the jury around to his way of thinking, certain unavoid- 
 able requirements of a trial practically preclude the elimination of 
 general suggestions by the presiding judge. He must, at least, 
 hold the scales and tell the jury how to strike a balance and 
 recognize one when struck. While the judge is restrained from 
 intimating to the jury an idea of how, were he a juryman, he 
 would apply the reasoning faculty to the evidence or the law to 
 the facts, no objection exists to his leading the jury up to their 
 task of logical or legal reasoning and suggesting its nature to them, 
 Not telling them what is to be done, but directing them what to do ' 
 is regarded as the objectionable course. 
 
 § 287. (Comment on Facts; American Majority; When 
 Comment is Permitted); Customary Cautions. — While, as is 
 said elsewhere, 1 a presiding judge is restrained in a majority of 
 American state jurisdictions from commenting on the weight of 
 the evidence in the case on trial or as to the credibility of the 
 witnesses by which it is given, it would be an error to conclude 
 that, even in these states, judges are absolutely prevented from 
 commenting upon the evidence. It is, naturally, difficult to draw 
 a precise line between commenting on the weight of various classes 
 or species of facts and the effect of these criticisms in dealing with 
 the weight of evidence in any particular case which affords illus- 
 tration for the application of these comments; or to differentiate 
 with entire precision general criticisms of a class or type of wit- 
 nesses from comment upon the credibility of the story told in a 
 particular case. In truth, no such line has been or can be drawn, 
 and the fact is an illustration, were one needed, of the disad-, 
 vantages to the cause of justice involved in imposing a peremptory 
 rule of procedure upon a matter so largely in essence one of ad- 
 
 1. Central of Georgia Ey. Co. v. 1. Swpra, § 281. 
 
 Harper, 124 Ga. 836, 53 S. E. 391 
 (1906). 
 
§§ 283, 289 Court and Juky; Juey. 382 
 
 ministration. The most which an appellate court can well do, 
 under such circumstances, is to require that the trial judge should 
 act reasonably in view of the existence of the /egal inhibition against 
 comment. The fact shows the entirely administrative character of 
 the judge's action. For, where the presiding justice would, under 
 such a prohibition scarcely be at liberty to indicate to the jury 
 in what way the cautions which he is giving them affect his own 
 mind when applied to the facts of the particular case, he is quite 
 at liberty and is, indeed, reasonably required to state to them the 
 infirmative suggestions which the experience of mankind, es- 
 pecially those concerned with litigation, has established with 
 regard to certain classes of evidence, usually those secondary in 
 their nature f or with regard to the subjective or objective con- 
 siderations which affect the probative force of the testimony of 
 certain witnesses. Among the more frequent suggestions of a trial 
 judge are those relating to the following classes of evidence or 
 witnesses. 
 
 § 288. (Comment on Facts; American Majority; When 
 Comment is Permitted; Customary Cautions); Admissions — 
 
 General cautions as to the relative probative weight to be given 
 oral admissions would seem legitimate, and even, occasionally, nec- 
 essary. Such expressions, however, have been regarded as objec- 
 tionable under the procedural inhibition now under consideration. 1 
 So, where an instruction as to the relative probative value of ad- 
 missions as contrasted with that of self-serving statements by a 
 party as a witness would amount to a comment on the evidence, 
 it is to be refused. 2 
 
 § 289. (Comment on Facts; American Majority; When 
 Comment is Permitted ; Customary Cautions) ; Fdlsus in TJno. 
 ■ — A judge may properly caution a jury against one whom they 
 shall find has willfully attempted to deceive them. It is probable 
 that the strength of this inference has been overestimated in the 
 past. But the caution is still regarded as of value to the jury. An 
 instruction that, if the jury believe that a witness has willfully 
 eworn falsely to any material fact, they may in their discretion 
 
 2. Infra, § 339. 2. Brown v. Quincy, 0., etc., R. Co., 
 
 1. Goss v. Steiger Terra Cotta & 127 Mo. App. 614, 106 S. W. 551 
 
 Pottery Works, (Cal. 1905) 82 Pac. (1908). 
 
 681. 
 
383 Customaey Cautions as to Photographs. §§ 290-292 
 
 disregard his testimony, is proper. 1 It has even been said that 
 whether the rule of falsus in una, falsus in omnibus applies to the 
 consideration of the evidence in a case is primarily a question for 
 the court, and not for the jury. 2 
 
 § 290. (Comment on Facts; American Majority; When 
 Comment is Permitted; Customary Cautions); Hearsay. — 
 
 The infirmative suggestions attending the use of unsworn state- 
 ments used as evidence of the truth of the facts asserted, i. e., as 
 " hearsay," are referred to in another place. 1 In instructing a 
 jury it is not objectionable to inform the jury that testimony con- 
 cerning verbal statements of others should be received with great 
 caution; that the repetition of oral statements is subject to im- 
 perfection and mistake; that such kind of testimony should be 
 scanned closely; and that, where a witness can only give what he 
 thinks was the substance of what was said, the weight to be given 
 to such testimony depends largely upon the strength of memory 
 and intelligence of the witness. This does not invade the province 
 of the jury. 2 
 
 § 291. (Comment on Facts; American Majority; When 
 Comment is Permitted; Customary Cautions); Opinion Evi- 
 dence — The court may properly instruct the jury as to the mental 
 attitude in which properly to approach the consideration of " ex- 
 pert " evidence 1 or the inference of observers. 2 The judge may, 
 for example, suggest giving them the same probative force as other 
 evidence. 3 While it is customary for the court to charge regard- 
 ing the general value of expert or opinion evidence, 4 the request to 
 do so may properly be declined. 5 Where administrative action in 
 this particular is reasonable, it will not be revised in an appellate 
 court. 
 
 § 292. (Comment on Facts; American Majority; When 
 Comment is Permitted; Customary Cautions) ; Photographs. — 
 
 1. Sanders v. Davis, (Ala. 1907) 2. Infra, §§ 1836 et seq. 
 
 44 So. 979 ; Alabama Steel & Wire 3. Pritchett v. Moore, 125 G-a. 406, 
 
 Co. v. Griffin, (Ala. 1907) 42 So. 54 S. E. 131 (1906). 
 
 1034. 4. Infra, §§ 2568 et seq.; Cosgrove 
 
 2. Pumorlo v. City of Merrill, (Wis. v. Burton, (Mo. App. 1904) 78 S. W. 
 
 1905) 103 N. W. 464. 667. 
 
 1. Infra, §§ 2711 et seq. 5. Wood v. Los Angeles Traction 
 
 2. Ellis v. Republic Oil Co., (Iowa Co., 1 Cal. App. 474, 83 Pac. 547 
 
 1906) 110 N. W. 20. (1905). 
 1. Infra, §§ 2371 et seq. 
 
§§ 293, 294 Court and Jury; Jury. 384 
 
 Facts established by experience affecting the probative value of 
 photographic copies may properly be stated by the judge. In re- 
 ferring to such representations introduced in evidence, a statement 
 by the judge warning the jury not to be misled by them in esti- 
 mating distance, that they are unavoidably misleading, and that 
 it is in the nature of photography, is one within the legitimate 
 right of comment by the trial court. 1 
 
 § 293. (Comment on Facts; American Majority; When 
 Comment is Permitted; Customary Cautions); Positive and 
 
 Negative Evidence — It is not error to instruct that positive testi- 
 mony is rather to be believed than negative, with the qualification 
 that other things shall be the same and the witnesses of equal 
 credibility. 1 That proper qualifications should be given is, how- 
 ever, essential. 2 The court cannot, for example, instruct the jury 
 that the positive evidence of one witness is more to be credited 
 than the negative evidence of another. 8 
 
 § 294. (Comment on Facts; American Majority; When 
 Comment is Permitted; Customary Cautions); Witnesses. — 
 
 Calling attention of the jury to certain considerations affecting 
 the probative force of the testimony of witnesses, 1 as their experi- 
 ence or lack of it, 2 probable bias or its absence, 3 is not deemed ob- 
 jectionable, provided the jury are informed that the question of 
 the deliberative weight, if any, to be attached to these consider- 
 ations is entirely for them to determine. 
 
 1. McLean v. Erie R. Co., (N. J. 1904) 98 N. W. 554. An instruction 
 
 1904) 57 Atl. 1132. that in weighing the testimony of the 
 
 1. Southern Ry. Co. v. O'Bryan, 119 witnesses any interest on their part 
 
 Ga. 147, 45 S. E. 1000 (1903). may be considered, but in the same 
 
 SJ. Central of Georgia Ry. Co. v. connection cautioning the jury against 
 
 Sowell, 3 Ga. App. 142, 59 S. E. 323 drawing an unfair inference because 
 
 (1907). the witnesses are in defendant's em- 
 
 3. Cleveland, C, etc., Ry. Co. v. ploy, does not invade the province of 
 
 Schneider, 40 Ind. App. 38, 82 N. E. the jury. Lovely t\ Grand Rapids & 
 
 538 (1907). I. Ry. Co., (Mich. 1904) 11 Detroit 
 
 1. Strickler v. Gitchel, 14 Okl. 523, Leg. N. 424, 100 N. W. 894 (1904). 
 78 Pac. 94 (1904). The practice has been spoken ot as 
 
 2. Indianapolis Northern Traction permissible but not to be commended. 
 Co. v. Dunn, (Ind. App. 1905) 76 Hofacre v. City of Monticello, (Iowa 
 N. E. 269. 1905) 103 N. W. 488. And the course 
 
 3. Kirkpatrick i\ Allemannla Fire has even been deemed erroneous. 
 Ins. Co., 92 N. Y. Supp. 466, 102 App. Himrod Coal Co. v. Clingan, 114 111. 
 Div. 327 (1905) ; Kavanaugh v. City App. 568 (1904) ; Simons v. Mason 
 of Wausau, (Wis. 1904) 98 N. W. City & Ft. D. R. Co., (Iowa 1905) 
 550; Strasser v. Goldberg, (Wis. 103 N. W. 129. 
 
385 Pubpose of Evidence May be Stated. §§ 295, 296 
 
 Number v. Probative Force. — Neither is it improper for the 
 court to instruct the jury that " this preponderance is not neces- 
 sarily determined by the number of witnesses testifying on either 
 side," where the judge refrains from telling them wherein the 
 preponderance in the particular ease consists. 4 An instruction that 
 the weight of evidence is not necessarily on the side of a fact as to 
 which the greater number of witnesses have testified, or on which 
 the greater amount of evidence is produced, but is with that evi- 
 dence which convinces the jury most strongly of its truthfulness; 
 that "preponderance of evidence" means the weight of evidence; 
 that the evidence given on any fact which convinces most strongly 
 of its truthfulness is of the greater weight, irrespective of the num- 
 ber of witnesses or the amount of evidence on the other side, is not 
 objectionable. 8 
 
 § 295. (Comment on Facts; American Majority; When 
 Comment is Permitted; Customary Cautions); Written and 
 Oral Evidence. — A presiding judge may properly call the attention 
 of the jury to the relative probative value of written and oral evi- 
 dence. 1 He may show them the greater permanence, probably in- 
 creased deliberativeness, the conventional aspect of the document 
 as compared with the slippery tenure of memory. Much must de- 
 pend, however, on the circumstances of each particular case. The 
 court, for example, may in its discretion tell the jury that they are 
 not bound to believe the testimony of a witness because it is con- 
 tained in a deposition any more than they would if he testified 
 from the witness stand. 2 
 
 § 296. (Comment on Facts; American Majority; When 
 Comment is Permitted); Hypotheses of Fact. — The jury may 
 properly be informed for what purpose evidence is received. 1 
 
 4. Kozlowski v. City of Chicago, Walker, 79 Conn. 348, 65 Atl. 132 
 113 111. App. 513 (1904) ; Hammond, (1906). 
 
 etc., Electric Ry. Co. v. Antonia, (Ind. *• McClure v. Lenz, (Ind. App. 
 
 App. 1908, 83 N. E. 766. See W. 1907 > 80 N. E. 988. 
 H. Stubblngs Co. v. World's Colum- Elements of damage.-An instruc- 
 ,. t, ... „ <H „ T „ . tion which simply advises the iury 
 
 bian Exposition Co., 110 111. App. ... , 1 . , ., , 
 
 aB to the elements to be considered 
 
 „ T , in determining the preponderance of 
 
 5. Indianapolis St. Ey. Co. «. the evidence) and ^ enumerati 
 
 Schomberg, (Ind. App. 1904) 71 N. suoh elements, directs them to deter- 
 
 ■p 2^7 
 
 mine the same from all the evidence, 
 1. Lee i\ Williams, 30 Pa. Super. f ac t g , an d circumstances shown on the 
 Ct. 349, 357 (1906). trial, was proper. Miller v. John, 
 
 3. Johnson County Sav. Bank v. 208 111. 173, 70 N. E. 27 (1901). 
 
 Vol. I. 25 
 
296 
 
 Couet and Juey; Juet. 
 
 386 
 
 In the same way, it is reasonable administration when objections 
 to testimony are being persistently made for trial judge to in- 
 form counsel what he considers is or is not proper testimony on an 
 issue. 2 The effect is to expedite the trial, to eliminate an element 
 of friction and, in general, to simplify the situation. 
 
 In much the same way, the court may properly place before the 
 jury the issue upon which they are to pass formulated hypotheti- 
 eally in terms of fact. That is, he may charge that if they find 
 certain facts to exist, they are to find in one way ; if they find they 
 do not exist or that certain other facts do exist, they are to find 
 the other way. 3 This is always allowable where the conclusion is 
 the only rational one from the facts hypothetically assumed ; 4 for 
 
 2. D. H. Fleming & Son v. Pullen, 
 (Tex. Civ. App. 1906) 97 S. W. 109. 
 
 3. Alabama. — Birmingham By., 
 Light & Power Co. v. Butledge, 39 
 So. 338 (1904). 
 
 Arkansas. — St. Louis, I. M. & S. 
 R. Co. v. Price, 104 S. W. 157 (1907) ; 
 Eureka Stone Co. v. Knight, 100 S. 
 W. 87S (1907). 
 
 Illinois. — Pronskevitch v. Chicago 
 & A. Ey. Co., 232 111. 136, 83 N. E. 
 545 (1908). 
 
 Indiana. — Indianapolis Traction & 
 Terminal Co. v. Miller, 40 Ind. App. 
 403, 82 N. E. 113 (1907); Indian- 
 apolis St. Ey. Co. v. Pearnaught, 40 
 Ind. App. 333, 82 N. E. 102 (1907); 
 Baltimore & O. S. E. Co. v. Kleespies, 
 78 N. E. 252 (1906). 
 
 Iowa. — Christy l). Des Moines City 
 Ey. Co., 102 N. W. 194 (1905). 
 
 Kansas. — Haines v. Goodlander, 84 
 Pac. 986 (1906). 
 
 Kentucky. — Carmical v. Carmical, 
 32 Ky. Law Eep. 171, 104 S. W. 1037 
 (1907); Fidelity & Casualty Co. of 
 New York v. Southern Ey. News Co., 
 101 S. W. 900, 31 Ky. L. Eep. 55 
 (1907); Craft r. Barron, 28 Ky. L. 
 Eep. 98, 88 S. W. 1099 (1905). 
 
 Michigan. — Harker V. Detroit 
 United Ey., 150 Mich. 697, 114 N. W. 
 657, 14 Detroit Leg. N. 870 (1908). 
 
 Missouri. — Flaherty v. St. Louis 
 Transit Co., 207 Mo. 318, 106 S. W. 
 
 15 (1907); Carp v. Queen Ins. Co., 
 203 Mo. 295, 101 S. W. 78 (1907) ; 
 Abbitt v. St. Louis Transit Co., 106 
 Mo. App. 640, 81 S. W. 484 (1904). 
 
 South Carolina. — Mitchell v. Cleve- 
 land, 76 S. C. 432, 57 S. E. 33 
 (1907) ; Sentell v. Southern Ey., 70 
 S. C. 183, 49 S. E. 215 (1904). 
 
 Texas. — Paris & G. N. Ey. Co. v. 
 Calvin, 103 S. W. 428 (1907) 
 [affirmed in (Sup. 1908) 106 S. W. 
 879]. 
 
 Wisconsin.— Banderob v. Wiscon- 
 sin Cent. Ey. Co., 133 Wis. 249, 113 
 N. W. 738 (1907). The proper prov- 
 ince of an instruction is to submit 
 questions of fact, and not propositions 
 of law. Barton v. City of Odessa, 109 
 Mo. App. 76, 82 S. W. 1119 (1904). 
 A charge stating the legal conclusions 
 which would result from the establish- 
 ment of certain facts is not subject 
 to objection as a charge on the evi- 
 dence. Kean v. Landrum, 72 S. C. 
 556, 52 S. E. 421 (1905) 
 
 4. Hot Springs St. Ey. Co t\ Hil- 
 dreth, 82 S. W. 245 (1904). The 
 court should never assume an issue 
 proven, unless the evidence is so con- 
 clusive one way that the minds of 
 reasonable men could reach but one 
 conclusion as to the result. Security 
 Mut. Life Ins. Co. v. Calvert, (Tex. 
 Civ. App. 1907) 100 S. W. 1033 [re- 
 versed in 105 S. W. 320]. 
 
387 Illustrations of Law by Admitted Facts. §§ 2-97, 298 
 
 as the necessity of correct reasoning is a legal requirement, 5 such 
 a ruling is really one of law. This course of stating alternative 
 propositions of fact with the correlated logical or legal results is 
 not objectionable, if the judge fails to indicate in any way to the 
 jury what facts, simple or complex, he thinks they ought to find. 
 A party has a right to have his theory of the case as made out by 
 his proofs submitted to the j ury under suitable instructions. 6 But 
 the judge is not at liberty to single out a particular isolated fact 
 or set of facts, and direct the jury to determine the issue in ac- 
 cordance with their findings as to these. 7 Nor, in general, should 
 he give undue prominence to any particular aspect of the case. 8 
 Especially, is a judge forbidden to assume that the jury find a 
 fact, and then state to them what the proper inference from it 
 would be. 
 
 § 297. (Comment on Facts; American Majority; When 
 Comment is Permitted) ; Illustrations of Pact. — A judge, more- 
 over, may properly make such use of illustrations of fact as will 
 enable him to state clearly and intelligibly the rules of law which 
 he has occasion to announce to the jury. 1 It is not error for a trial 
 court, in its instruction to a jury, to state so much of the ad- 
 mitted facts as may be necessary to illustrate and apply the law 
 to the case on trial. 2 
 
 § 298. (Comment on Facts; American Majority; When 
 Comment is Permitted); Meaning of Terms. — In like manner, 
 
 5. Infra, §§ 385 et seq. New York. — Wagner v. Metropoli- 
 
 6. Lansing v. Weasel, (Neb. 1903) tan St. Ry. Co., 176 N. Y. 610, 68 N. 
 97 N. W. 815; El Paso Electric Ky. E. 1125 (1903). 
 
 Co. v. Ruckman, (Tex. Civ. App. Texas. — International & G. N. R. 
 
 1908) 107 S. W. 1158. Co. v. Jackson, 90 S. W. 918 (1905). 
 
 7. Arkansas. — McDonough v. Wil- Wisconsin. — Northen Supply Co. v. 
 liams, 92 S. W. 783 (1905). Waugard, 100 N. W. 1066 (1904). 
 
 Georgia. — Wrightsville & T. R. Co. 8. Galveston, etc., Ry. Co. v. Wallis, 
 
 V. Lattimore, 118 Ga. 581, 45 S. E. (Tex. Civ. App. 1907) 104 S. W. 418. 
 
 453 (1903). 9. Central of Georgia Ry. Co. v. 
 
 Illinois. — Jones & Adams Co. v. McNab, (Ala. 1907) 43 So. 222; At- 
 
 George, 227 111. 64, 81 N. E. 4 (1907) lanta & B. A. L. Ry. v. McManus, 1 
 
 [reversing 125 III. App. 503 (1906)]. Ga. App. 302, 58 S. E. 258 (1907). 
 
 Maryland. — Calvert Bank v. J. 1. Feddeck v. St. Louis Car Co., 
 
 Katz & Co., 61 Atl. 411 (1905). 125 Mo. App. 24, 102 S. W. 675 
 
 Missouri. — Morrell v. Lawrence, (1907) ; Stangair v. Roads, (Wash. 
 
 203 Mo. 363, 101 S. W. 571 (1907) ; 1907) 91 Pac. 1. 
 
 Page v. Roberts, Johnson & Rand 2. Williams v. Alaska Commercial 
 
 Bhoe Co., 78 S. W. 52 (1903). Co., 2 Alaska 43 (1903). 
 
§§ 299, 300 Court and Just; Juby. 388 
 
 the judge may, without transgressing this rule against comment 
 to the jury on matter of fact, explain to them the meaning of 
 scientific, technical or legal terms. 1 Should, it appear, however, 
 that the term is one which implies the application of reason as a 
 rule of law to particular facts, the judge will not be justified in 
 making the application of the rule of law to the facts of the case 
 under the guise of merely making a definition. In a case proper 
 for submission to a jury, it is reversible error for the court to in- 
 struct them as to what constitutes negligence in terms of the 
 facts of that particular case. 2 No necessity, however, exists that 
 the judge, unless specially requested to do so, should explain the 
 meaning of ordinary words, terms or phrases. 3 
 
 § 299. (Comment on Facts; American Majority; When 
 Comment is Permitted) ; Misrepresentation or Mistake Corrected. 
 — Where counsel, 1 or any other person during the course of a 
 trial misrepresents the evidence, the judge may properly correct 
 him. 
 
 § 300. Subordination of Judge to Jury The American tendency 
 
 to subordinate the power and prestige of the judge to the suprem- 
 acy of the jury, by clothing them with power to apply the law 
 to the facts, without comment by the court as to the facts; and to 
 exercise other powers of judicial administration, seems of ex- 
 tremely doubtful value to the cause of jurisprudence. Were all 
 other difficulties in making profitable use of the jury in adminis- 
 tering the law as well as in ascertaining the constituent facts 
 removed, the very bulk of the tribunal from which concerted, pur- 
 poseful and yet unanimous action is expected and required, might 
 well cause hesitation. But still more serious considerations sug- 
 gest themselves in such a connection. Among these, are (1) The 
 fact that the mental operations of a jury are largely guided by 
 emotion while those of the judge are dominated by reason; (2) 
 That while the jury have special experience of life in general, 
 the judge has a valuable technical knowledge of the psychology 
 
 1. Union Traction Co. V. Bick, 6. E. 644 (1904) ( " preponderance of 
 
 (Ind. App. 1907) 81 N. E. 617 ("car evidence;" "ordinary care") ; Harper 
 
 plant"). v. Fidler, (Mo. App. 1904) 78 S. W. 
 
 S. Chicago B. & Q. R. Co. t>. Ap- 1034 ("agent"), 
 
 pell, 108 111. App. 516 (1903). 1. State v. Lane, (Or. 1906) 84 
 
 8. Georgia Southern & F. Ry. Co. Pac. 804. 
 v. Young Inv. Co., 119 Ga. 513, 46 
 
389 Judicial Interest in Litigation. § 301 
 
 of the courtroom which would materially assist the correction of 
 the jury's action; and, in view of the judge's right to set aside 
 a verdict if, in his opinion, unreasonable or against the weight of 
 the evidence, helpful also in procuring a speedy termination of 
 litigation; (3) That the jury, as a general rule, adopt the per- 
 sonal interests of litigation, as the basis of their action, while the 
 judge represents the higher and more valuable interests of society 
 in the efficient, correct and speedy attainment of justice through 
 the administration of law. 
 
 § 301. (Subordination oi Judge to Jury); (1) Emotion 
 versus Reason — To the juror, as to the party, a particular case 
 in court is a special experience which he naturally considers in 
 and by itself, disassociated from other cases, even when of a simi- 
 lar nature and from litigation in general. He recognizes that he 
 is part of a perfectly casual tribunal. He may never have sat in 
 judgment on a case before. As he very well knows, he may never 
 sit on another. The judge and the lawyers are, as he at once 
 observes, using a language of their own, unintelligible to him. 
 They are influenced by considerations with which he is unfamiliar. 
 He has no time in which to learn these things^ It is not surpris- 
 ing, therefore, that he should be attracted by Ibe human interests 
 before him which he does understand and which, on one side or 
 the other arouse his sympathy. To him each case is a little block 
 of human life, disassociated in his mind from any other. 1 This 
 presents a problem, more or less intricate, which he is appointed 
 to help solve, according to his idea of what constitutes " a fair 
 thing under the circumstances." To the properly-minded judge, 
 and, 'therefore, to most judges, this same case has come before 
 him for trial, because he is the particular member of society to 
 whom ha3 been committed the protection of the general interest 
 of the state in the attainment of a speedy, just and impartial trial. 
 He recognizes that it is for the attainment of this end that the com- 
 munity has established the expensive machinery of the judicial 
 proceedings over which he presides, to which he gives direction, 
 
 1. "There they have to Bit in the relevant and what is irrelevant, but 
 
 box supposed to know by intuition susceptible in the highest degree to 
 
 that which has cost trained lawyers a what appeals to their imagination 
 
 lifetime to acquire, the faculty of and generally blown, about by every 
 
 sifting evidence, of dealing with com- wind of sentiment." 20 Jurid. Rev. 
 
 plicated points of law, of discerning p. 135. 
 what i9 false and what true, what is 
 
§ 301 Court and Jury ; Jury. 390 
 
 and upon which he, to a certain extent, exercises control. As a 
 lawyer and judge, he has grown familiar with the vital importance 
 of the certain and orderly administration of the judicial office; 
 he knows the traditions of a continuous tribunal. To him, there- 
 fore, the case has definite relations, legal and social. It exhibits 
 itself as part of a system of jurisprudence and controlled by a 
 number of legal provisions of which, for the purposes of the trial, 
 he is the exponent. 
 
 It follows that the juror and the judge are prepared to exercise, 
 and will probably employ throughout the trial, in predominance, 
 different faculties of the mind. The juryman, in his everyday 
 life, largely determines his action by his emotions, sympathies or 
 prejudices. In connection with any case on which he sits, unless he 
 is overruled and guided, he will be very apt to emulate the parties 
 by giving reins to his feelings — his hatred of corporations, his 
 instinct to relieve physical suffering without personal expense, 
 the desire to aid female beauty in distress. If the case be a crimi- 
 nal one, e. g., for murder, he must guard himself lest his action 
 should be determined, not by the evidence as to the killing or by 
 the arguments of the state's attorney regarding the social danger 
 involved in the lawless righting of wrongs, real or fancied, by the 
 taking of human life; but by considering whether, after all, the 
 deceased was not a pretty bad man, and it is just as well for society 
 to be rid of him; whether, since hanging the accused will not 
 bring the deceased back to life, even were it desirable, it is really 
 worth while, under the circumstances, to make that very interest- 
 ing young woman who is so loyal to her husband a widow, and 
 make fatherless those pretty children, with the fair hair and blue 
 eyes. The judge's attitude is that of organized society. He is 
 seeking to use his reason. He has probably found by experience, 
 that when a painful duty is to be done the promptings of the heart 
 rather confuse than supplement the work of the brain. His train- 
 ing has familiarized him with the arts of advocacy by which it is 
 hoped the emotional nature of the juror may be so worked upon, 
 either through the public press or by more direct personal appeal, 
 as to swerve him from the path pointed out by reason. The judge 
 represents the domination of intellect above the play of emotion. 
 He has an appetency for truth, and the carefully geared and 
 grooved intelligence which enables him to detect it. He possesses 
 a discriminating taste between fact and rhetoric. His ear is alert 
 
391 Psychology of the Court Eoom. § 302 
 
 to detect the difference in the ring of probative gold and irrelevant 
 brass. 
 
 § 302. (Subordination of Judge to Jury); (2) General 
 versus Technical Experience. — This necessary predominance of 
 the element of emotion in the jury's action renders it of the most 
 crucial importance that the calm reasoning employed by the court 
 should be used as a modifying, steadying and guiding force. Yet 
 this is precisely what the present tendency most earnestly seeks 
 to prevent. It is not denied that the jury, fresh from the com- 
 munity, are, in the ascertaining of facts, able to bring a valuable 
 element of common sense and practical experience of life to the 
 joint deliberations of a tribunal which, without it, must run dan- 
 ger of adopting purely technical view points. 1 The judge may not 
 have the standards and facts of common experience which it is in 
 the power and province of the jury to contribute. But to assist 
 the latter in the exercise of the reasoning faculty to the evidence 
 as modified by these facts and standards, the judge has also a most 
 valuable element to supply. That the average " man on the 
 street," as the phrase goes, should be able, by the unaided light 
 of nature, to apply logical or legal reasoning to a complicated set 
 of controverted facts, and do it in unison with eleven others, under 
 the unwonted and confusing conditions of a trial in court, is not 
 shown to be uniformly feasible. A well-read and observant judge 
 of experience will have, almost of necessity, a mind stored with 
 illuminating analogies in dealing with particular situations of 
 fact which cannot fail to prove helpful to any jury in its search 
 for truth. Situations are apt to recur. The judge knows what 
 other judges have said, what previous juries have done. If he has 
 observed carefully, a presiding justice experienced in practical 
 litigation is no mean psychologist — especially of morbid mental 
 or emotional pathology. A very varied current of human life has 
 passed before him over the witness stand. Devoid of any interest 
 except that truth may prevail, what reason exists, in the average 
 case, for believing that to permit the judge to comment on the 
 evidence before the jury would affect the search for truth in any 
 other manner than to render material assistance toward the de- 
 sired end? In what aspect of the matter is it really preferable 
 
 1. For some suggestions as to a of their experience without the dang- 
 suitable limitation of the function of bts incident to emotionalism, see 
 the jury by which to gain the benefit supra, §§ 9'5 et seq. 
 
§ oO;) Coukt and Jury; Jury. 392 
 
 to compel the judge to sit passively by and see the jury misled 
 by sophisticated argumentation, which he could have exposed in 
 a word or two, and thus compel him to set aside the tainted! 
 verdict ? 
 
 § 303. (Subordination of Judge to Jury); (3) Personal 
 versus Social Interests in Litigation. — Above all, it is to be ob- 
 served that grave dangers to important social interests are clearly 
 involved in any attempt to subordinate the function and office of 
 the judge by extending and exalting those of the jury. All liti- 
 gation presents a double aspect, the personal and the social. In 
 each case there are the two elements of the individual and the 
 community. These are, as it were, respectively the litigious and 
 the social aspects of any case. 
 
 The objects which these two aspects of litigation propose to 
 themselves for attainment are as diverse as are the characteristic 
 features of these elements themselves. The objective of the parties 
 is success. Each desires that the litigation should end in his own 
 favor. The interest of society is that right should prevail, that 
 justice should be done, that the litigation should end right. Almost 
 equally earnest is its wish that general respect for the orderly 
 administration of law be increased in the community by the popu- 
 lar recognition that justice has prevailed, and the confidence of 
 society in the administration of justice strengthened to a propor- 
 tionate extent. The litigant often cares little for the ulterior 
 social consequences of the outcome of his suit. The immediate 
 results to himself stand so much nearer his vision as entirely to 
 obscure them. Immediate success by the not over scrupulous 
 employment of every advantage of delay, suppression or conceal- 
 ment which the rules of the game place in his hand seems to him 
 not only justified but imperative. From the social standpoint, 
 every miscarriage of justice which these devices make possible, 
 every skillful evasion of the decrees of society as expressed in its 
 laws, is a serious injury — in that it tends to shake general trust 
 in the possibility of obtaining speedy and impartial justice through 
 judicial administration; and points to the necessity for self-help, 
 individualistic or by mob violence. All this, indeed, is nothing 
 to the average litigant whose personal fortunes bound his vision. 
 Anything further, he feels, is the concern of society. If advan- 
 tages have been given him he Avill use them. His business is to 
 win that case, to beat his antagonist, to get revenge, money, im- 
 
393 American Hatred of Eoyal Judges. § 304 
 
 munity from punishment. Law is war and all is fair that is not 
 forbidden. To put the same thing in a slightly different form, 
 the litigant regards the case as something personal, peculiar, iso- 
 lated and for the gratification of emotion. Society looks at the 
 same case as part of its general effort at doing a conventionalized 
 form of justice under settled and dependable rules of law; not as 
 a matter for emotion, but for the application of experience and 
 reason rather than of force or cunning, to the determination of 
 disputes arising between its citizens. 
 
 Little doubt should exist as to which of these positions is ethi- 
 cally superior or the more generally beneficial. _ It is the special 
 danger of subordinating the judge to the jury that the jury are 
 apt to adopt the position of the litigant ; while it is the character- 
 istic and appropriate duty of the judge to keep steadily in, view 
 the interests of society. 
 
 § 304. (Subordination of Judge to Jury) ; Reasons far Inver- 
 sion — The gain enuring to the cause of public justice from per- 
 mitting a trained mind to exert its natural influence over un- 
 trained thinkers is so clear; the wisdom of giving some adequate 
 power of guidance to one in whose keeping are the social interests 
 involved in the creditable administration of justice over those to 
 whom litigation presents itself mainly, if not solely, in its per- 
 sonal aspect, is apparently so obvious, that such an inversion of 
 the normal relations between judge and jury as these existed at 
 common law, invites some scrutiny of the reasoning upon which 
 the change made by a majority of American jurisdictions has been 
 based. Historically, the reason is political. Three hundred years 
 ago, more or less, certain of our ancestors, then subjects of the 
 realm of England, were in heart and purpose — frequently by 
 overt act — political rebels against the English government as 
 then constituted. That rebellion in its ultimate issue was com- 
 pletely successful and the social aspirations upon which it was 
 based are generally approved, having been in accordance with the 
 " rights of man." In its effort to detect and punish these rebels 
 against its authority, the government of England relied upon its 
 judges — representing the law as it then stood. Under that law 
 the property, the liberty and even the life of these political malcon- 
 tents was in many instances forfeited to the offended crown. A not 
 unnatural distrust and hatred accentuated by fear, arose in the 
 minds of the anti-government party as against these judges. They 
 
§ 305 Court and Jury; Jury. 394 
 
 were felt to be enemies of freedom, representatives of tyranny; 
 friends of those who sought to control the liberties and take away 
 the rights of their fellow-men. 
 
 On the other hand, these opponents of government always antici- 
 pated and usually received great comfort, assistance and consola- 
 tion in any legal emergency from the jury. Juries were 
 their friends. It would almost be permissible to say that they 
 were themselves the jury, for they were the popular party. 
 These recalcitrants furnished the body of citizens from which 
 juries were drawn. It taxed in vain the ingenuity of crown 
 lawyers to devise- a method of drawing a panel which should in- 
 clude no member of the party of freedom, no one who sympathized 
 with its principles or admired the fortitude of its adherents. The 
 jury came, therefore, to represent in the popular mind the cause 
 of liberty. The judge was the visible embodiment of tyranny 
 and privilege seeking to carry out their mandates. Small wonder, 
 then, that the interference of that judge and his supervision of the 
 jury were resented and opposed in a temper and with a warmth 
 of feeling by no means calculated to reach the wisest conclusions 
 in the matter of judicial administration. While this temper re- 
 mained, little of calm deliberation was to be expected. 
 
 § 305. (Subordination of Judge to Jury; Reasons tor In- 
 version); Later Developments — In England herself, the situa- 
 tion did not remain a settled one. The fever was allayed by much 
 blood-letting in her civil war, between Roundhead and Cavalier. 
 On the final expulsion of the Stuarts, the liberties of the subject 
 were established on a basis the solidity of which was entirely in- 
 dependent of any administrative relation between the court and 
 the jury. Thai received attention later; for in England legal re- 
 form followed that in politics. Abuses were remedied, anachro- 
 nisms lopped off. Sound sense devised a flexible, easily intelli- 
 gible judicial system, conferring on or retaining in the trial 
 judge, large powers, limiting appeals only to matters of substance 
 and securing to the community the benefit of the jury's practical 
 and the judge's technical experience. It leaves the jury free to act 
 in their appropriate field under the guidance of a judge firmly 
 holding their emotionalism in check and pointing out the safer 
 and surer paths dictated by experience. It is a system which, 
 while not above just criticism, is giving England the benefit of 
 speedy, impartial and, in most cases, accurate justice. 
 
39'5 A Three-Hundked-Yeak-Old Impulse. § 305 
 
 In America, on the contrary, popular feeling engendered under 
 the Tudors and Stuarts regarding the position of the jury in trials 
 at law has shown a tendency not only to continue but to intensify. 
 The American colonists, especially those of New England, were 
 flung off, as it were, on a tangent and at a high rate of velocity 
 from the body of English political life, while these feelings of 
 antipathy to judges were at their very bitterest and blackest. 
 Cherishing these sentiments, and smarting under the sting of re; 
 ligious persecution in which crown judges had played an im- 
 portant part, hatred and distrust of the judiciary were wrought 
 into the very fabric of the governments which such men founded. 
 The isolation of these English colonies made their institutional 
 development chiefly from within; and inside were only these 
 unabated and unappeased feelings irresistibly forcing into a suc- 
 cessful revolt against the old authority of the Mother country. 
 Without much consideration, as a part of the traditional wisdom 
 of the fathers, exaltation of the jury as the palladium of liberty 
 was embodied and enforced by state constitutions and statutes. 
 With almost parrot-like fidelity, each new state, as it came into 
 existence, embodied the same principle of jurisprudence ; exalt the 
 jury, subordinate the judge. 
 
 This sacramental value of the jury's intervention in judicial 
 administration is perhaps our chief judicial heritage from the tur- 
 moil of English politics prior to 1688. But it did not stand alone 
 then; nor does it do so now. Certain other procedural rules, all 
 survivors of this period, all resting on the same basis, all tending, 
 therefore, to curb the power of the state to deal effectually with 
 those in opposition to it — then its citizens rebellious for greater 
 freedom, now its criminal classes of all kinds — were transplanted 
 to America at the same time and are regarded with much the same 
 feelings of general unthinking veneration, as something of ancient 
 wisdom mysteriously valuable. Among these are: The exclusion 
 of confessions not shown to be voluntary, 1 the privilege against 
 self crimination, 2 the right not to be placed twice in jeopardy and 
 the like. 
 
 Little, if any, impediment of public opinion has developed dur- 
 ing most of this period the friction against which might diminish 
 the strength and force of such three-hundred-year-old impulse and 
 bring it to a state of rest. The basic value of this apotheosis of 
 the juridical worth of the uncontrolled judgment of twelve men 
 
 1. Infra, §§ 1472 et seq. 2. Infra, §§ 1472 et seq. 
 
§ 306 Coubt and Jury ; Jury. 396 
 
 chosen by lot from the community at large, giving a verdict for 
 which they assign no reasons and falling back into the body 
 of the community without responsibility for their conduct has 
 been accepted. It has been received as axiomatically true, one 
 of the propositions on which profitable argument was impossible. 
 While little has occurred to check the growth of this sentiment, 
 other independent causes have, on the contrary, conduced to give 
 vitality to it. The steady enjoyment of political liberty by the 
 American citizen has naturally, for example, made popular the 
 enlargement of any judicial function associated in the public mind 
 with the cause of freedom. The constant expansion, moreover, of 
 the population by immigration of citizens from other countries 
 where oppression or punishment came to them by way of judges, 
 has not lessened in certain quarters the feeling of apprehension 
 from which the popular attitude took its rise. 
 
 Yet the time is certain to arrive when the jurisprudence of Amer- 
 ica will stop long enough to take a full look over its shoulder for 
 the purpose of determining whether the danger from which it is 
 so persistently running away is a real one or a memory to which 
 no present reality corresponds; to decide calmly whether a judge 
 elected under universal suffrage by a popular vote at short intervals 
 presents the same danger to popular liberty that was threatened 
 by Mr. Justice Buller or the Court of High Commission; and 
 whether society has not a vital interest under, above and beyond 
 the interest of the litigants themselves that law should be speedily 
 and justly administered. When that time comes, it may not be 
 found difficult in any quarter to realize that the power of the 
 state to deal with its internal enemies is of value to society even 
 when framed and administered in accordance with the aims and 
 purposes of these inharmonious citizens of seventeenth century 
 England ; that curbing the aspirations of men for a wider freedom 
 to live and serve God according to the dictates of their consciences 
 is quite a different matter from exerting an effective restraint 
 on those who are seeking by force or fraud to defy the laws of a 
 perfectly free people ; and that a system entirely congenial to truth 
 and justice under the first set of circumstances may be absolutely 
 opposed to the interests of society in the second. 
 
 § 306. Granting of New Trials — A significant comment on the 
 efficiency of the present jury system as commonly established in 
 America is that it settles little, as a finality. In every case fit 
 
397 Veto Powek of Judge. § 306 
 
 for judicial determination, there is a central point, or pivot, on 
 which the case turns. To find it, consider it, adjudge as to it, is 
 the work of an intelligent tribunal. The composite emotionalism 
 of a many-minded jury is not exceptionally adapted to reach and 
 hold to this point. Even where council perceive this issue, cun- 
 ning may imagine that its interest lies in calling attention to 
 something else. Quite frequently, however, the crucial point, the 
 crux of the case, is not recognized. To discover the pivot of a case 
 and utilize it, is a work, primarily, of a trained and conscientious 
 intelligence. The success with which, as a whole, American jury 
 trials reach this result may be gauged by the number of instances 
 in which the adjudicated case must be retried. Applying this test, 
 the results are not gratifying whether as determined by the action 
 of an appellate court in ordering a new trial or of the trial judge 
 in doing so. Probably it would be hard to devise a method of 
 trying cases which should be less satisfactory in ending litigation 
 than to try a case all through before a judge and a jury, to restrain 
 the judge from expressing any opinion on the effect of the evi- 
 dence and then, when the parties have spent their money and the 
 court has used the public time and money, and the jury have reached 
 a conclusion, to permit and indeed require the judge to order it all 
 done over again, unless and until the jury, who do not know the 
 judge's opinion and cannot by law find it out. shall succeed in 
 reaching a decision in accordance with that opinion. Yet this is 
 practically what happens. However great the confidence of the 
 public may be in jury trials, it never has extended so far as to 
 make their work final, except in case of a verdict of not guilty in 
 a criminal prosecution. 1 The judge is able to make his views 
 effective through this veto power while he is deprived of oppor- 
 tunity to warn the jury against what he feels is likely to mislead 
 them. He is equally impotent to bring to their attention con- 
 siderations which he feels are essential to their ability to do 
 justice. Not being able to warn them of the existence of these 
 considerations, a very natural inference is that they were disre- 
 garded. So feeling, the easy course is to set asidrc the verdict. 
 Could the judge have spoken, the same verdict might have stood. 2 
 
 1. See valuable article by William author desires to express his obliga- 
 
 Hamill Cowles, Esq., of Topeka, Kans. tion in this connection. 
 in the " Green Bag " for June, 1907, 2. " The frequency of our new trials 
 
 entitled " Has trial by jury in civil is not at all a common law phenom- 
 
 actions been abolished? " to whom the enon and it is not a system upon 
 
§ 307 
 
 Court and Juey ; Jury. 
 
 398 
 
 § 307. (Granting of New Trials); Verdicts Against Reason 
 
 Normally and .properly, the presiding judge should set aside a 
 verdict rendered in a trial before him where he finds that the jury 
 have failed to exercise the reasoning faculty, where their verdict 
 cannot be defended as the act of rational men. Since the substan- 
 tive law has prescribed that reason should be exercised in the ascer- 
 tainment of facts and the application of the rules of law to them — 
 as in all other use of the judicial powers of the court — such a 
 ruling is, in reality, one on a matter of law. It is an exercise of 
 administrative power similar to that of awarding a nonsuit or 
 ordering a verdict on the ground that the jury could not reason- 
 ably, i. e., legally, act in any other way than as he has ordered. 
 In such a case, i. e., where the verdict is contrary to reason, the 
 court, therefore, as matter of law 1 is bound to set aside the 
 verdict. 2 Such is also the rule in England. 3 
 
 which trial by jury can be defended. 
 The whole theory of the jury trial 
 rests upon the proposition that re- 
 centi facto the witnesses, are called, 
 give their evidence, the jury see the 
 witnesses, hear their story and then 
 pass upon the facts." Report of 
 Special Committee of American Bar 
 Association to Meeting of 1909. 34 
 Reports Am. Bar. Assoc, p. 582. 
 
 1. Connecticut. — Birdseye's Appeal, 
 77 Conn. 623 (1905). 
 
 District of Columbia. — Stewart V. 
 Elliott, 2 Mackey 307 (1883). 
 
 Illinois. — Simmons v. R. R. Co., 
 110 111. 340 (1884). 
 
 Kansas. — Backus v. Clark, 1 Kan. 
 303 (1863). 
 
 United States.— Met. R. R. Co. v. 
 Moore, 121 U. S. 558 (1887). 
 
 England. — Hodges v. Ancrum, 11 
 Exch. 218 (1855). 
 
 2. Arkansas.— St. L. S. W. Ry. Co. 
 v. Byrne, 73 Ark. 377 (1904). 
 
 California. — Amsiby v. Dickhouse, 
 4 Cal. 102 (1854). 
 
 Connecticut. — Bishop v. Perkins, 
 19 Conn. 300 (1848). 
 
 Delaware. — Burton v. R. R. Co., 4 
 Harr. 252 (1844). 
 
 District of Columbia. — Stewart v. 
 Elliott, 2 Mackey 307 (1883). 
 
 Georgia. — Spurlock v. West, 80 Ga. 
 306 (1887). 
 
 Illinois. — Chicago City By. Co. i". 
 McClain, 211 111. 589 (1904). 
 
 Iowa. — Muldowney v. R. R. Co., 32 
 Iowa 178 (1871). 
 
 Kansas. — R. R. Co. v. Matthews, 58 
 Kan. 447 (189T). 
 
 Maine. — Griswold v. Lambert, 89 
 Me. 534 (1897). 
 
 Massachusetts. — Cunningham v. 
 Magoun, 18 Pick. 13 (1836). 
 
 Minnesota. — Hicks v. Stone, 13 
 Minn. 434 (1868). 
 
 Missouri. — Kansas, etc., Ry. Co. v. 
 Dawley, 50 Mo. App. 489 (1892). 
 
 New York. — Layman v. Anderson, 
 4 App. Div. (N. Y.) 126 (1896). 
 
 Ohio. — McCa trick v. Wason, 4 Ohio 
 St. 566 (1855). 
 
 Pennsylvania. — Campbell's Lessee 
 v. Sproat, 1 Yeates 327 (1794). 
 
 Texas.— Gibson v. Hill, 23 Tex. 77 
 (1859). 
 
 Virginia. — Morien v. N., etc., Co., 
 102 Va. 622 (1904). 
 
 United States. — Pringle v. Guild, 
 119 Fed. 962 (1903); Pleasants v. 
 Fant, 22 Wall, 116 122 (1874). 
 
 3. Carstairs v. Stein, 4 M. & S. 192 
 (1815); R. v. Poole, Lee's Cas. t. 
 Hardwicke, 23 (1734). The court 
 
399 Verdicts Against Weight of Evidence. § 30S 
 
 § 308. (Granting of New Trials); Verdicts Contrary to the 
 ^Weight of Evidence. — The legal right and practise of the courts, 
 however, in setting aside verdicts is by no means limited to cases 
 where the jury's decision is found to be an irrational one. For it 
 will be noted that this conceded power of the presiding judge to 
 set aside the verdict of a jury and award a new trial is the more 
 wide sweeping in its effect in that it is not confined, as it well 
 might be, in point of principle, to the extreme case where the ver- 
 dict is indefensible in point of reason; i. e., as matter of law. 
 Trial courts have been sustained in going further and setting aside 
 verdicts as against the weight of the evidence, 1 because the testi- 
 mony and other proofs, while they might justify, in point of rea- 
 son, the verdict of the jury, would, in the opinion of the presiding 
 judge, with greater reason, have warranted the opposite conclusion. 
 In granting a motion for a new trial based upon the ground that 
 the verdict is " against the evidence and the weight of the evi- 
 dence " the judge acts on his own view of what the verdict ought 
 to have been, 2 and will endeavor to avoid giving effect to any 
 decision which amounts to a failure on the part of the jury, as he 
 views it, to award substantial justice to the parties. 3 This process 
 may be repeated until some jury renders a verdict in which the 
 trial judge feels himself able to concur.* For while the presiding 
 
 probably passes on the precise ques- 488 (1902) ; Capital Traction Co. v. 
 
 Won that the jury have passed upon. Hof, 174 TJ. S. 1 (1899). 
 
 Dublin, etc., Ey. Co. v. Slattery, 3 ~,i 2. Green v. Soule, 145 Cal. 96 
 
 App. Cas. 1155 (1878). (1904); Coal, etc., Co. v. Stoop, 56 
 
 1. This power not being conferred Kan. 426 (1896); Ulman v. Clark, 
 
 by the common law as prescribed in 100 Fed. 183 (1900). "The maxim at 
 
 the Seventh Amendment to the Consti- present adopted [is] this, that (in all. 
 
 tution of the United States is denied cases of moment) where justice is not 
 
 to the federal courts of appeal. Met- done upon one trial, the injured party 
 
 ropolitan B. E. Co. p. Moore, 121 U. S. ia entitled to another." 1 Black. 
 
 558, 573 (1887). But see, to the Comm. 387. 
 
 effect that this power of the judge to 3. Dewey v. E. E. Co., 31 Iowa 373 
 
 set aside a verdict because against the (1871). 
 
 weight of the evidence was part of the 4. Iowa. — Slocum v. Knosby, 80 
 
 common law procedure, dating as far Iowa 368 (1890). 
 
 back as Lord Mansfield, Felton v. Massachusetts. — Clark v. Jenkins, 
 
 Spiro, 47 U. S. App. 402 (1897). See 162 Mass. 397 (1894). 
 
 also, as sustaining the right of the Michigan. — Hyde v. Haak, 132 
 
 court to adopt this course, as part of Mich. 364 (1903). 
 
 the common law, Ingraham v. Weid- Minnesota. — Van Doren v. Wright, 
 
 ler, 139 Cal. 588 (1903); McDonald 65 Minn. 80 (1896). 
 
 V. Met. St. Ey. Co., 167 N. Y. 66 Missouri.— Haven V. E. E. Co., 155 
 
 (1901) ; Bird v. Bradburn, 131 N. C. Mo. 216 (1899). 
 
308 
 
 Couet axd Jl'ey; Jury. 
 
 400 
 
 justice, in this conception of his duty, may well hesitate to disturb 
 a verdict based on a doubtful question of fact, the right and pro- 
 priety of intervening to remedy wrong action by the jury taken 
 against a clear preponderance of evidence is well settled. 5 
 
 A judge may, indeed, be justified in allowing a verdict to stand 
 though he himself would not have reached it on the evidence; 6 
 
 United States. — Milliken v. Ross, 
 9 Fed. 855 (1881). 
 
 England. — Foster r. Steele, 3 Bing. 
 N. C. 892 (1837). 
 
 5. Alabama. — Lee v. DeBardele- 
 ben C. & I. Co., 103 Ala. 628 (1893). 
 
 California. — ■ Schnittger v. Rose, 
 139 Cal. 656 (1903). 
 
 Connecticut. — Birdseye's Appeal, 
 77 Conn. 623 (1905). 
 
 Georgia. — MeCullough v. By. Co., 
 97 Ga. 373 (1895). 
 
 Illinois. — Wetherell r. R. R. Co., 
 104 111. App. 357 (1902). 
 
 Indiana. — Rarick v. Ulmer, 144 
 Ind. 25 (1895). 
 
 Iowa. — Werthman v. R. R. Co., 128 
 Iowa 135 (1905). 
 
 Kansas. — Buoy v. Milling Co., 68 
 Kan. 443 (1904). 
 
 Kentucky. — Hurt r. R. R. Co., 116 
 Ky. (App.) 545 (1903). 
 
 Massachusetts. — Reeve v. Dennett, 
 137 Mass. 315 (1884). 
 
 Michigan. — Hyde v. Haak, 132 
 Mich. 364 (1903). 
 
 Minnesota. — McKenzie v. Banks, 
 103 N. W. 497 (1905). 
 
 Missouri.— Levenhart v. Ry. Co., 
 190 Mo. 342 (1905). 
 
 Montana. — Murray v. Heinze, 17 
 Mont. 353 (1895). 
 
 Nebraska. — Sang v. Beers, 20 Nebr. 
 365 (1886). 
 
 Nevada. — Treadway v. Wilder, 9 
 Nev. 67 (1873). 
 
 New Hampshire. — Wendell v. Saf- 
 ford, 12 N. H. 171 (1841). 
 
 New Jersey. — Dickerson v. Payne, 
 66 K. J. L. 35 (1901). 
 
 New York. — McDonald v. Met. St. 
 Ry. Co., 167 N. Y. 66 (1901). 
 
 North Carolina. — McCord V. R. R. 
 Co., 134 N. C. 53 (1903). 
 
 North Dakota. — Ross v. Robertson, 
 12 N. D. 27 (1903). 
 
 Ohio. — Dean v. Bang, 22 Ohio St. 
 118 (1871). 
 
 Oklahoma. — Yarnell v. Kilgore, 15 
 Okla. 591 (1905). 
 
 Pennsylvania. — Dinan v. Supreme 
 Council, etc., 213 Pa. St. 489 (1906). 
 
 South Carolina. — Robert Buist Co. 
 v. Lancaster Mere. Co., 73 S. C. 48 
 (1905). 
 
 South Dakota. — Rochford v. Al- 
 baugh, 16 S. D. 628 (1903). 
 
 Tennessee. — Spoke & Handle Co. v. 
 Thomas, 114 Tenn. 458 (1904). 
 
 Utah. — White v. Ry. Co., 8 Utah 56 
 (1892). 
 
 Virginia. — Brugh v. Shanks, 5 
 Leigh 598 (1833). 
 
 Washington. — Clark v. Gt. North. 
 Ry. Co., 39 Am. & Eng. Annot. Cas. 
 860 ( 1905 ) ; Welever v. Advance 
 Shingle Co., 34 Wash. 331 (1904). 
 
 West Virginia. — Distilling Co. v. 
 Bauer, 56 W. Va. 249 (1904). 
 
 Wisconsin. — Collins v. Janesville, 
 117 Wis. 415 (1903). 
 
 United States. — Met. R. R. Co. v. 
 Moore, 121 U. S. 558 (1887); Felton 
 V. Spiro, 47 U. S. App. 402 (1897). 
 
 England. — Dublin, etc., Ry. Co. v. 
 Slattery, 3 App. Cas. 1155 (1878) ; 
 Davies v. Roper, 33 Eng. L. & Eq. 
 511 (1856); Wood v. Gunston, Style 
 466 (1655). 
 
 6. Connecticut. — Daley r. R. R. Co., 
 26 Conn. 591 (1858). 
 
 Kansas.— R. R. Co. v. Matthews, 58 
 Kan. 447 (1S97). 
 
 Massachusetts.— Reeve v. Dennett, 
 137 Mass. 315 (1884). 
 
 Michigan.— Rohde v. Biggs, 108 
 Mich. 446 (1896). 
 
401 
 
 Rational Verdicts Should Stand. 
 
 § 309 
 
 and the same rule may be applied in an appellate court to the 
 action of the trial judge. 7 It would seem, on principle, that if the 
 verdict is a reasonable one, it would be his duty to allow the 
 result to stand, though he himself would have reached a different 
 conclusion. But it is, as has been seen, quite fully settled in many 
 jurisdictions, that the presiding judge may set aside a rational 
 verdict of a jury, if, in his opinion, it should be contrary to the 
 weight of the evidence, — as well as allow it to stand, the occasions 
 when he will and when he will not order a new trial being left, 
 apparently, to his own administrative selection. This may be 
 defined as trial by jury with a nullification power on the part of 
 the court. 8 
 
 § 309. (Granting of New Trials); Judge not an Appellate 
 Tribunal.— The court, while imposing upon the jury the observ- 
 ance of the rules of sound reasoning, 1 does not act as an appellate 
 tribunal as to what inferences should properly be drawn by them 
 from the evidence. If the jury have drawn an induction or 
 deduction which is logically tenable, their action should be allowed 
 
 New Hampshire. — > Wendell v. Saf- 
 ford, 12 N. H. 171 (1841). 
 
 New Jersey. — Dickerson v. Payne, 
 66 N. J. L. 35 (1901). 
 
 New York. — Fleming v. Smith, 44 
 Barb. 554 (1865). 
 
 North Carolina. — MoCord v. R. R. 
 Co., 134 N. C. 53 (1903). 
 
 Ohio. — French v. Millard, 2 Ohio 
 St. 53 (1853). 
 
 United States. — Davcy v. Aetna L. 
 I. Co., 20 Fed. 494 (1884). 
 
 7. " It is the constant practice ot 
 the courts to refuse to disturb an 
 order granting a new trial even where 
 it would have done the same thing 
 had a new trial been denied." Ruff- 
 ner v. Hill, 31 W. Va. 428 (1888). 
 
 8. A mere conflict in the testimony 
 does not excuse him from the obliga- 
 tion of acting. 
 
 California. — Curtiss v. Starr, 85 
 Cal. 376 (1890). 
 
 Georgia. — Thompson v. Warren, 
 118 Ga. 644 (1903). 
 
 Illinois. — C. & A. R. R. Co. V. 
 Klaybolt, 112 111. App. 406 (1903). 
 
 Vol. I. 26 
 
 Iowa. — Tathwell v. City, 122 Iowa 
 50 (1903). 
 
 Kansas. — Coal & Mining Co. v. 
 Stoop, 56 Kan. 426 (1896) ; Kansas 
 City, etc., R. R. Co. v. Ryan, 49 Kan. 
 1 (1892). 
 
 Missouri. — Herndon v. Lewis, 175 
 Mo. 116 (1903). 
 
 Nevada. — Treadway v. Wilder, 9 
 Nev. 67 (1873). 
 
 New York. — McDonald v. Walter, 
 40 N. Y. 551 (1869). 
 
 Oklahoma. — Linderman t>. Nolan, 
 16 Okla. 352 (1905) ; Yarnell v. Kil- 
 gore, 15 Okla. 591 (1905). 
 
 Pennsylvania. — Dinan v. Supreme 
 Council, etc., 213 Pa. St. 489 (1906). 
 
 Virginia. — Brugh v. Shanks, 5 
 Leigh 598 (1833). 
 
 'Washington. — Clark v. Ry. Co., 37 
 Wash. 537 (1905). 
 
 West Virginia. — Miller v. Insur- 
 ance Co., 12 W. Va. 116 (1877). 
 
 United States. — Felton v. Spiro, 78 
 Fed. 576 (1897). 
 
 1. Infra, §§ 385 et seq. 
 
309 
 
 Couet asd Jury; Jury. 
 
 402 
 
 to stand, 2 although the judge himself could have reached a different 
 conclusion. 3 It is only when a rule of law has been ignored 
 or wrongly applied that the action of the jury should be set aside. 
 Among these rules of law, as has been so often made the subject of 
 insistance, is that which requires that the jury should fairly ex- 
 ercise the reasoning faculty upon the facts before them. It is not 
 alone in dealing with the bearing of evidence upon the issue that the 
 law thus requires the use of reason. As has been happily said,* 
 " to the hungry furnace of the reasoning faculty, the law of evi- 
 dence is but a stoker." The requirement is a pervasive «ne, in- 
 sisted upon by all charged with the administration of judicial 
 practice at every turn, not only as a standard for their own con- 
 duct, but to be enforced upon all others over whose acts they have 
 supervision or responsibility. 6 
 
 2. " If reasonable men might find 
 the verdict which has been found I 
 think no court has jurisdiction to dis- 
 turb a decision of fact which the law 
 has confided to juries, not to judges. 
 ... If their finding is absolutely- 
 unreasonable, a court may consider 
 that that shows that they have not 
 really performed the judicial duty 
 cast upon them; but the principle 
 must be that the judgment upon the 
 facts is to be the judgment of the 
 jury and not the judgment of any 
 other tribunal." Metropolitan Ry. 
 Co., Wright L. R. 11 App. Cas. 152, 
 per Lord Halsbury (1886). 
 
 3. Stackus !'. Ry. Co., 79 N. Y. 464 
 (1880) ; Stevenson v. U. S., 162 U. S. 
 313 (1896). 
 
 4. Thayer, Prelim. Treat. 271. 
 
 5. The fact that the use of reason 
 is one required by law, and so is to 
 be enforced by the presiding judge 
 while its exercise to a particular 
 effect is a question of fact for the 
 jury and quite within their province 
 seems well brought out in an opinion 
 rendered in the supreme court for the 
 District of Columbia. " By a loose 
 use of language, it may be said that 
 a verdict ' contrary to the evidence,' 
 or ' against the weight of evidence,' 
 was rendered upon ' insufficient evi- 
 
 dence; ' and, on the other hand, that 
 a verdict upon insufficient evidence is 
 one contrary to or against the weight 
 of evidence. But we are dealing with, 
 legal expressions in their technical 
 meaning; and it is familiar to all 
 lawyers that evidence offered to a 
 jury in a cause has a twofold suf- 
 ficiency, i. e., sufficiency in law and 
 sufficiency in fact; that of its suf- 
 ficiency in law the court is the ex- 
 elusive judge; its sufficiency in fact 
 is a question exclusively for the jury. 
 The court, in considering the legal 
 sufficiency of the evidence to sustain 
 the case of a suitor, or to establish 
 any particular fact essential to his 
 recovery, must examine the proof 
 with respect to its quality and quan- 
 tity; and this determination by the 
 court is a question of law. And if 
 the court can see that the proof 
 offered is of such a character and 
 volume that it might well satisfy a 
 rational mind of the truth of the 
 position it is introduced to maintain, 
 then it is declared to be legally suf- 
 ficient for the purpose; and it must 
 be submitted to the jury, who are the 
 exclusive judges of its sufficiency 
 in fact, whether others may differ 
 from them in their conclusions or 
 not." Stewart v. Elliott, 2 Mackey 
 
403 A Marked Confusion in Legal Theory. §§ 310, 311 
 
 § 310. (Granting of New Trials); Action of Appellate Courts. 
 
 — Trial judges have been sustained and even encouraged * by 
 appellate tribunals in setting aside verdicts distasteful to them 
 because contrary to what they regarded as. the weight of the evi- 
 dence, even where the legal right of thus setting aside a verdict 
 is limited to the ground of the insufficiency of the evidence to 
 sustain it ; — a provision which, on its face, would seem to 
 apply only when the jury could not reasonably do as they have 
 done. In an appellate court the question of the propriety of the 
 trial judge's action commonly assumes not the form of asking 
 whether the verdict of the jury can be sustained, in point of rea- 
 son, which was the question presented to the trial judge; but takes 
 the form of asking; Can the action of the trial judge be sustained 
 in point of reason ? 2 This seems entirely correct, as a matter of 
 principle. The question is, in reality, one of law. 3 The appellate 
 court, not having heard the evidence or seen the witnesses, will not 
 reverse the action of the trial judge if there is evidence on which 
 it can reasonably be sustained.* It is felt that reason has not been 
 exercised by him if the weight of the evidence is " clearly and pal- 
 pably " against his action and in favor of that of the jury. 5 
 
 § 311. (Granting of New Trials; Action of Appellate 
 Courts); Palpable Confusion — The effort to reconcile these antago- 
 nistic conceptions, that of a jury whose finding is conclusive as 
 to matters of fact, and to whose wisdom a very marked deference 
 is continually paid, 1 with an autocratic power of the judge to set 
 the results of this wisdom aside, practically at his option, aa the 
 only condition which will make trial by jury even " tolerable," 
 
 307, 315 (1883); Griffith v. Diffen- 4. Ruffner v. Hill, 31 W. Va. 428 
 
 derfer, 50 Mary. 466 (1878); Halpin (1888). 
 
 v. Third Avenue R. Co., 40 N". Y. 5. Georgia. — Cleckley v. Beall, 37 
 
 Super. Ct. (8 Jones & Spencer) 181 Ga. 607 (1868). 
 
 (1875); McDonald v. Walter, 40 N. Iowa. — Moran v. Harris, 63 Iowa 
 
 Y. 551 (1869); Algeo v. Duncan-, 39 390 (1884). 
 
 N. Y. 313, 316-, (1868); Metropoli- Kansas. — Anthony v. Eddy, 5 Kan. 
 
 tan R. Co. v. Moore, 121 U. S. 558, 129 (1869). 
 
 567 (1886); Randall v. Baltimore & Minnesota. — Hicks v. Stone, 13 
 
 Ohio R., 109 U. S. 478 (1883). Minn. 434 (1868). 
 
 1. Clark v. Ry. Co., 37 Wash. 537 Missouri. — Bank v. Wood, 124 Mo. 
 (1905). 72 (1894). 
 
 2. Bishop v. Perkins, 19 Conn. 300 New York. — Kummer v. R. R. Co., 
 (1848) ; Capital and Counties Bank 21 N. Y. Suppl. 941 (1893). 
 
 v. Henty, 7 App. Cas. 776 (1882). 1. Capital Traction Co. v. Hof, 174 
 
 3. Infra, § 394. U. S. 13 (1899). 
 
§ 311 Coubt and Jury; Juky. 404 
 
 naturally leads to some conflict in statement on the part of the 
 courts. 2 Certain tribunals state the scientific rule, of permit- 
 ting a rational verdict to stand, with great precision. 3 On the 
 other hand, the position of an arbiter as to where the preponder- 
 ance of the evidence rests has been authoritatively assigned to the 
 trial judge ; 4 in other words, where two courses, both rational, 
 are open to the jury, it is the right of the court to compel them by 
 vetoing the other, to adopt the one which he, rather than they, 
 may happen to prefer. 
 
 This confusion can mean nothing else than that, however solic- 
 itous the legislatures or constitutional conventions may have been 
 that the action of the jury should be unfettered by the judge, there 
 are practical social dangers involved in giving the rights of the 
 parties and the interests of society into the .uncontrolled power of 
 a casual, emotional, many-headed body which, in fact, absolutely 
 prohibit sensible men, having a responsibility for the results of 
 litigation, 6 from conceding such a right. With this make-weight of 
 judicial common sense, it will not be necessary to proceed to the 
 extreme length humorously suggested in an early Illinois case. 6 
 " If a verdict is to be overthrown because it does not entirely cor- 
 respond with the judgment of the court, we had better abolish the 
 trial by jury altogether, or at least require the judge to tell the 
 
 2. E. R. Co. v. Ryan, 49 Kan. 1 powers and duties. Our statute pro- 
 (1892); Williams v. Townsend, 15 vides that a new trial may be granted, 
 Kan. 563 (1875); Agnew V. Adams, among other grounds, for insufficiency 
 26 S. C. 105 (1886). of the evidence to justify the verdict, 
 
 3. " It is the province of the court, and this power must be exercised by 
 either before or after the verdict, to the trial courts, if at all. These 
 decide whether the plaintiff has given courts should take care not to invade 
 evidence sufficient to support or jus- the legitimate province of the jury, 
 tify a verdict in his favor. Not but if, after giving full consideration 
 whether on all the evidence the pre- to the testimony in the light of the 
 ponderating weight is in his favor — verdict, the trial judge is still satis- 
 that is the business of the jury — but fled that the verdict is against the 
 conceding to all the evidence offered weight of the evidence, and that sub- 
 the greatest probative force, which stantial justice has not been done be- 
 according to the law of evidence it tween the parties, it is his duty to set 
 is fairly entitled to, is it sufficient to the verdict aside." Clark v. Ry. Co., 
 justify a verdict? If it does not, then 37 Wash. 537 (1905). 
 
 it is the duty of the court, after a 5. Bishop v. Busse, 69 111. 403 
 
 verdict to set it aside and grant a (1873); McDonald v. Walter, 40 N. 
 
 new trial." Pleasants v. Fant, 23 Y. 551 (1869). 
 
 Wall. 116, 122 (1874). 6. Kincaid v. Turner, 7 111. 618 
 
 4. "The trial court labored under (1845). 
 an entire misapprehension as to its 
 
405 
 
 The Ounce oe Pkeventiox. 
 
 § 311 
 
 jury precisely and distinctly what his opinion of the case is, and 
 require them to find accordingly, and thus save the expense of a 
 second trial." 
 
 This constant setting aside of the work of the jury is undoubt- 
 edly rendered necessary by existing conditions and, however dis- 
 tasteful to those who have won, in what they would treat as the 
 game of litigation, is, on the whole, in the public interest, as has 
 early 7 and often 8 been observed by the courts. 
 
 But the inevitable question arises; — If it is in the public in- 
 terest that the court should supervise and correct the verdict of the 
 jury, why should we be certain that a supervisory function on the 
 part of the judge over the action of the jury at the preliminary 
 stages leading up to the verdict is a public danger ? If a judge may 
 with perfect propriety set aside a verdict because, in his opinion, 
 the jury failed to give due consideration to an aspect of the case 
 which perhaps counsel have intentionally or ignorantly concealed 
 
 7. Wood v. Gunston, Style 466 
 (1655) ; Earl of Mount Edgecombe v. 
 Symons, 1 Price 278 (1815). "It is 
 frequent in our books for the court to 
 take notice of miscarriages of juries, 
 and to grant new trials upon them, 
 and it is for the people's benefit that 
 it should be so, for a jury may some- 
 times by indirect dealings be moved to 
 side with one party, and not to be in- 
 different betwixt them, but it cannot 
 be so intended of the court, wherefore 
 let there be a new trial at the next 
 term." Wood v. Gunston, Style 466 
 (1655). 
 
 8. Spears v. Smith, 7 Ga. 436 
 (1849) ; Cunningham v. Magoun, 18 
 Pick. 13 (1836); England v. Burt, 4 
 Humph. (Tenn.) 399 (1843). "The 
 district court cannot shirk their 
 responsibility by saying that the jury 
 are the exclusive judges of all ques- 
 tions of fact. For, while this is true 
 as long as the jury have the case 
 under their consideration, yet, when 
 the jury have rendered their verdict 
 — then the judge himself becomes the 
 exclusive judge of all questions of 
 fact." Williams v. Townsend, 15 
 Kans. 563 (1875). To render such a 
 mode of trial safe and tolerable, there 
 
 must exist a power somewhere to re- 
 examine verdicts with some freedom, 
 and when it is manifest that juries 
 have been warped from the direct line 
 of their duty, by mistake, prejudice, 
 or even by an honest desire to reach 
 the supposed equity contrary to the 
 law of the case, it will be the duty of 
 the court to set the verdict aside." 
 Cunningham v. Magoun, 18 Pick. 
 
 (Mass.) 13 (1836). " While the gen- 
 eral rule should be preserved, it would 
 not be safe to assert the uncontrollable 
 supremacy of the jury. Both in Eng- 
 land and in this country, therefore, 
 the court has always exercised the 
 power of reviewing the evidence on a 
 case made for the purpose, and of 
 granting a new trial where, upon a 
 cool and deliberate examination, the 
 ends of justice seemed to require it." 
 McDonald v. Walter, 40 N. Y. 551 
 
 (1869). "The facts of a case and 
 the force and effect of testimony to 
 support said alleged facts belong ex- 
 clusively to the jury under the consti- 
 tution, subject to no control — ex- 
 cept the circuit judge, whose judg- 
 ment is final." Agnew v. Adams, 26 
 S. C. 105 (1886). 
 
§ 312 Cotjet and Jury; Jury. 406 
 
 from them, what good reason exists why the expense and trouble 
 of another trial could not have been avoided by the suggestion of 
 the judge while yet there was time? In other words, if the 
 " pound of cure " is so essential to the public good, how does it 
 happen that the "ounce of prevention" is so greatly to be 
 dreaded ? 
 
 In criminal cases, the interests of society in the enforcement of 
 criminal penalties suffer in a marked degree from this absence of 
 control or effective suggestion by the court. The jury, indeed, are 
 equally able to acquit where they have been advised to convict; 
 and to convict where they have been advised to acquit. 9 But only 
 when they have attempted to exercise undue severity by a convic- 
 tion does the court have the power to set aside the verdict. The 
 more frequent miscarriage of justice by the interposition of ill- 
 judged emotionalism between crime and its deserts is without 
 remedy under the present system ; — though right to direct a ver- 
 dict of guilty has also been claimed and exercised. 10 Permitting a 
 more active and authoritative intervention by the presiding judge, 
 might, at least, be a palliative of the mischief so created. The 
 danger apprehended in ante-Commonwealth times in England, lest 
 innocent persons should be punished, is a rather remote one. The 
 question whether, under our present system, it is possible to pun- 
 ish, with satisfactory speed and accuracy, a guilty person whose 
 means enable him to employ all possible expedience for blocking 
 the machinery of justice is, on the contrary, a question of imme- 
 diate and pressing public interest. 
 
 § 312. (Granting of New Trials; Action of Appellate 
 Courts); Technical Errors as to Evidence The same duty of en- 
 forcing the rules of correct reasoning which presses upon the trial 
 judge in his administrative relation to the jury 1 rests upon all 
 revising or appellate tribunals in passing upon the action of trial 
 judges or inferior courts. Sound reasoning is the legal standard 
 of proper conduct, whether in a court of any relative position or 
 outside, in the world of affairs. The need for it is, in reality, a 
 requirement of law. 2 That a verdict will not be disturbed where 
 sound reason has been exercised, trulh ascertained, and substantial 
 
 9. People v. Knutte, 111 Cal. 453 1. Infra, §§ 385 et seq. 
 (1896). 2. Infra, § 394. 
 
 10. U. S. v. Taylor, 11 Fed. 470 
 (1882). 
 
407 English Rule as to Harmless Ekeok. §§ 313, 314 
 
 justice done, is the rule of administration adopted in England. In 
 the United States the more technical rule is frequently observed 
 that error in law, departure from precedent, being shown, a ver- 
 dict will be set aside and a new trial granted; — regardless of 
 whether substantial justice has or has not been done. If the game 
 has not been correctly played, the fact that it turned out as it 
 should is not material. It must be played over. 
 
 § 313. (Granting of New Trials; Action ot Appellate 
 Courts; Technical Errors as to Evidence); Substantive Law. — 
 
 Wherever, under the confusion and blending of the rules of sub- 
 stantive law with those of procedure or practice to which reference 
 is elsewhere made 1 a ruling of a trial court, though apparently 
 one as to a question of evidence, really involves a decision as to 
 substantive law, a more technical rule may properly be applied 
 to the action of the trial judge. Wherever the admissibility of a 
 fact is conditioned, not upon its logical effect to prove a given 
 fact, but upon whether the ultimate factum probandum which it 
 is offered as tending to prove is, as matter of law, constituent of 
 the right or liability asserted in the action, obviously the court is 
 dealing with a question of substantive law, however disguised by 
 the phraseology in which it is stated. The reasoning regarding it 
 is legal 2 rather than logical; and a ruling as to the admission of 
 the evidence is clearly as to matter of law. It is practically a rul- 
 ing as to what constitute the elements of the right or liability as- 
 serted, and would fall under the operation of the rules of practice 
 or administration adopted in that jurisdiction for dealing with 
 legal reasoning; — not under that applied to questions simply re- 
 Jating to matters of evidence. 
 
 In discussing the administration of appellate courts in dealing 
 with technical error as to evidence, acts of the trial judge which 
 amount to rulings on substantive law are, therefore, to be dis- 
 tinguished and excluded. 
 
 § 314. (Granting of New Trials; Action of Appellate 
 Courts; Technical Errors as to Evidence); English Eule; 
 Harmless Error. — Where it appears that substantial justice has 
 been done, or, as the phrase goes, the [trial] judge " is satisfied 
 with the verdict," no reversal will be had, on account either of the 
 erroneous admission or rejection of evidence ; — especially where it 
 
 1. Supra, § 267. 2. Supra, § 63. 
 
§§ 315, 316 Couet and Jdky; Juey. 408 
 
 appears that adding or subtracting the evidence in question would 
 not alter, or should not alter, the result. 
 
 § 315. (Granting of New Trials; Action of Appellate 
 Courts; Technical Errors as to Evidence; English Rule); 
 
 Admissions — Thus, a new trial will not be granted in England 
 on account of the admission of objectionable testimony where un- 
 exceptional evidence to the same effect, sufficient to sustain it, 1 
 has been given. As was reported in B, v. Ball, 2 " Whether the 
 judges on a case reserved would hold a conviction wrong on the 
 ground that some evidence had been improperly received, when 
 other evidence had been properly admitted that was of itself suffi- 
 cient to support the conviction, the judges seemed to think must 
 depend on the nature of the case and the weight of the evidence. 
 If the case were clearly made out by proper evidence, in such a 
 way as to leave no doubt of the guilt of the prisoner in the mind 
 of any reasonable man, they thought that as there could not be a 
 new trial in felony, such a conviction ought not to be set aside 
 because some other evidence had been given which ought not to 
 have been received. But if the case without such improper evi- 
 dence were not clearly made out, and the improper evidence might 
 be supposed to have had an effect on the minds of the jury, it 
 would be otherwise." In like manner, an improper admission of 
 cumulative evidence, as where, to quote Lord chief justice Mans- 
 field, 3 " there be sufficient without it to authorize the finding of 
 the jury," no new trial will be awarded. 4 
 
 § 316. (Granting of New Trials; Action of Appellate 
 Courts; Technical Errors as to Evidence; English Rule); 
 
 Exclusions. — In a similar way, where an English appellate court 
 feels that a correct result has been reached, reason has been exer- 
 cised and justice done, no new trial will be granted on account of 
 a rejection of evidence, however competent in itself, which, under 
 the exercise of sound reasoning, would not have altered the result. 1 
 
 1. R. v. Treble, R. & R. 164 (1810). 1. "If the evidence had been ad- 
 " The judges did not think themselves mitted, it could have made no differ- 
 bound to stop the course of justice." ence, at least it ought not to have 
 Tinkler's Case, R. & R. 133 (1781). made any in the verdict." R. v. Teal, 
 
 2. R. & R. 133 (1907). 11 East 311 (1809) per Lord Ellen- 
 
 3. Horford v. Wilson, 1 Taunt. 12, borough, C. J. 
 14 (1807). 
 
 4. Doe v. Tyler, 6 Bing. 561 (1830) 
 (account). 
 
409 Technical Rule of Exchequeb. §§ 317, 318 
 
 A fortiori, in a civil case, the proponent of evidence which has 
 been rejected in a trial court must, in order to secure a new trial 
 on that account, affirmatively show at least a probability that the 
 result would have been otherwise had the evidence been received 
 and, indeed, that it ought to have been different. Simply to show 
 an improper rejection will not, as chief justice Abbott said, 2 " be 
 sufficient, for it must be further shown and substantiated that, if 
 they [facts rejected] had been received, they would have led to 
 a probable conclusion in favor of the offering party." 
 
 § 317. (Granting of New Trials; Action of Appellate 
 Courts; Technical Errors as to Evidence; English Rule); 
 
 Equity Causes — In dealing with issues directed out of chancery 
 for trial at law, the same rule was originally adopted in England 
 by the equity judges in passing upon the admissions and exclusions 
 of evidence. " If, upon the whole," said Lord Eldon, 1 " he [the 
 chancellor] is satisfied that justice has been done, though he may 
 think that some evidence was improperly rejected at law, he is at 
 liberty to refuse a new trial." 2 
 
 § 318. (Granting of New Trials; Action of Appellate 
 Courts; Technical Errors as to Evidence; English Rule); 
 
 A More Technical Rule — A rule as to the granting of new trials 
 for errors in regard to the admission of evidence was for a time 
 adopted in England. Under the lead of the hair-splitting techni- 
 cality-loving court of exchequer in the days of Baron Parke, the 
 work of the jury no longer stood if the court could see that sub- 
 stantial justice had been done and reason exercised. A new trial 
 was to be awarded if the error discovered by the appellate court 
 could possibly have influenced the effectual action of the jury, al- 
 though the court was entirely unable to see how this could properly 
 be done. 1 The right of a litigant to mislead the jury in a way 
 
 2. Tyrwhitt v. Wynne, 2 B. & Aid. ance of another trial." Lorton v. 
 554, 559 (1819). Kingston, 5 CI. & F. 269, 340 (1838) 
 
 1. Pemberton v. Pemberton, 11 Ves. per L. C. Cottenham. 
 
 50, 52 (1805). 1. Rutzen v. Farr, 4 A. & E. 53 
 
 2. Barker v. Ray, 2 Russ. 76 (1835). "The losing party has a 
 (1826) ; Bullen V. Michel, 4 Dow 297, right to a new trial." Wright v. 
 319, 330 (1816). "The true consid- Tatham, 7 A. & E. 313, 330 (1837), 
 eration always is whether upon the per Denman, C. J. 
 
 whole there appears to be such a case For an early anticipation of the 
 
 as enables the judge in equity satis- more technical rule see EdwardB v. 
 
 factorily to administer the equities Evans, 3 East 451, 455 (1803). 
 between the parties without the assist- 
 
§ 319 Couet and Juky; Juey. 410 
 
 which might give him a verdict was entitled, it was thought, to 
 the protection of the court. Even the more technical ruling in 
 England did not, however, go so far as to protect the right to have 
 a game at which he could not possibly win played correctly. A 
 new trial will not be granted in favor of a party where, were the 
 evidence improperly rejected admitted, or vice versa, a verdict in 
 his favor " would have been clearly and manifestly against the 
 weight of evidence and certainly set aside upon application to the 
 court as an improper verdict." 2 In the same way, the court will 
 decline to set aside a verdict where the fact which the rejected 
 evidence was offered to prove is admitted, 3 not disputed, or suffi- 
 ciently proved by other evidence. 4 The result of all this is thus 
 stated by chief justice Coleridge : 5 " Until the passing of the 
 judicature acts, the rule was that if any bit of evidence not legally 
 admissible, which might have affected the verdict, had gone to the 
 jury, the party against whom it was given was entitled to a new 
 trial." 
 
 § 319. (Granting of New Trials; Action oi Appellate 
 Courts; Technical Errors as to Evidence; English Rule); 
 
 "Under the Judicature Act — The correct administrative principle 
 for dealing, in an appellate court, with the improper admissions or 
 rejections of evidence is that formulated by Mr. Justice Stephen 
 in the Indian Evidence Act of 1872 * — " The improper admission 
 or rejection of evidence shall not be ground of itself for a new 
 trial or reversal of any decision in any case, if it shall appear to 
 the court before which such objection is raised that, independently 
 of the evidence objected to and admitted, there was sufficient evi- 
 dence to justify the decision, or that, if the rejected evidence had 
 been received, it ought not to have varied the decision." This was 
 endorsed by the judges of England under the judicature act of 
 1875. A rule of court, passed by the supreme court of judi- 
 
 2. Crease v. Barrett, C. M. & E. the party offering it would be clearly 
 919, 932 ( 1835 ) . "No evidence was against the weight of evidence, or if 
 improperly rejected but such as was without the evidence received there 
 immaterial and if admitted would not be enough to warrant the verdict." 
 have prevented a nonsuit." Doe v. Hughes v. Hughes, 15 M. & W. 701 
 Langfield, 16 M. & W. 497, 515 (1846), per Alderson, B. 
 
 (1847), per Parker B. 4. Crease V. Barrett, 1 C, M. & R. 
 
 3. Crease v. Barrett, 1 C, M. & It. 919, 939 (1835). 
 
 919, 939 (1835). "The court Will 8. R. v. Gibson, L. R. 18 Q. B. D. 
 
 not grant a new trial if with the 537, 540 (1887). 
 
 evidence rejected a verdict given for 1. Indian Evidence Act, § 167. 
 
411 Technical Rule oe American Majority. § 320 
 
 cature in England under the provisions of the judicature act, 2 pro- 
 vides as follows: "A new trial shall not be granted on the ground 
 of misdirection or of the improper admission or rejection of evi- 
 dence . . . unless in the opinion of the court to which the 
 application is made some substantial wrong or miscarriage has 
 been thereby occasioned on the trial." This practice, it will be 
 observed, brings the administration on this point back to the old 
 position 3 from which it was dislodged by the adoption of the more 
 technical, or as Professor Wigmore 4 happily terms it, the " ex- 
 chequer rule." B 
 
 England has seen no cause to be dissatisfied with the practical 
 operation of its present rule on this subject in giving speedy and 
 complete justice. After commenting upon the remarkable and 
 alarming extent to which reversals attain under the American 
 rule, 6 when compared with the total number of trials, 46 per 
 cent, of all verdicts being reversed, 60 per cent, of these new trials 
 being based upon alleged errors in procedural matters, Mr. Justice 
 Amidon, in a very helpful address, 7 proceeds to say : " For the 
 purpose of comparison, and of seeing whether this condition is a 
 necessary evil, I have examined the law reports of England for the 
 period extending from 1890 to 1900, and I find that of all the 
 causes that were brought under review on appeal in that country, 
 new trials were granted in less than three and one-half per cent." 
 
 The courts of Canada, 8 New Brunswick, 9 Nova Scotia 10 and 
 British Columbia 11 have adopted similar rules with regard to the 
 granting of new trials. 
 
 § 320. (Granting ot New Trials; Action of Appellate 
 Courts; Technical Errors as to Evidence) ; American Majority. 
 
 — In a majority of the American jurisdictions the more technical 
 
 2. 1875, Judicature Act, 1883, Suppl. 150, 152 (1895); Can. Crim. 
 
 [Rules of the Supreme Court, Order 39, Code, 1892, § 746. 
 
 rule 6. 9. N. Brunsw. St. 1894, c. 8, § 47; 
 
 2. Supra, §§ 314 et seq. Doe v. Gilbert, 22 N. Brunsw. 576, 
 
 4. Wigmore, Evid., § 21. 587 (1883) ; Wilmot v. Vanwart, 17 
 
 5. Pearce v. Lansdowne, 69 L. T. N. Brunsw. 456, 462 (1877); Key v. 
 Rep. 316 (1893). Thomson, 1 Han. N. Brunsw. 295, 2 
 
 6. Infra, §§ 320 et seq. Han. N. Brunsw. 224, 228 (1867). 
 
 7. Address of Amidon, T>. J., Dist. 10. Nova Scotia Rules of Court 
 N. Dak., before Minnesota State Bar 1900, Ord. 37, R. 6. 
 
 Association, N. Y. Outlook, July, 11. R. v. Woods, 5 Brit. Col. 585, 
 
 1906 at p. 601. 590 (1897). 
 
 8. Merritt v. Hepenstal, 25 Can. 
 
§ 321 Court axd Jury; Jury. 412 
 
 rule adopted by the English court of exchequer, 1 to the effect that 
 every improper ruling regarding the admissibility of evidence 
 should be ground for a new trial, was at once adopted and steadily 
 maintained. 2 These courts, however, have out-Heroded Herod, as 
 it were, by throwing away many of the safe-guards against social 
 injury which even the exchequer rule retained. The majority 
 practice is enforced even where the social interests involved are 
 fully protected by a just verdict, where reason has been used, and 
 even where the court recognizes the fact that the ruling on evidence 
 should not reasonably have altered the issue of the trial. 3 
 
 § 321. (Granting of New Trials; Action ol Appellate 
 Courts; Technical Errors as to Evidence; American Major- 
 ity); Federal Courts. — The early rule announced by the Supreme 
 Court of the United States in dealing with the granting of new 
 trials for technical error of the trial court in the admission or 
 rejection of evidence was entirely unexceptionable; — ■ endorsing, 
 as it did, the sound rule, that the use of reason by lower courts is 
 the standard of requirement to be imposed by an appellate tribu- 
 nal. " In such cases," says Judge Story, 1 " the whole evidence is 
 examined with minute care, and the inferences which a jury might 
 properly draw from it are adopted by the court itself ; if therefore 
 upon the whole case justice has been done between the parties, and 
 the verdict is substantially right, no new trial will be granted, 
 although there may have been some mistakes committed at the 
 trial." In later years, however, few, if any, courts have applied 
 the erroneous rule of administration adopted in this matter by 
 state tribunals with greater relentlessness and indifference to social 
 consequences than the Supreme Court of the United States. 2 
 
 1. Supra, § 318. not think that the books would have 
 
 2. Louisville & N. R. Co. v. Miller, proved any fact of the least value in 
 109 Ala. 500, 19 So. 989 (1896); the case had they been properly ad- 
 Louisville & N. R. Co. v. Malone, 109 mitted, yet the party presenting them 
 Ala. 509, 20 So. 33 (1896) ; State v. would scarcely be permitted to escape 
 Faulkner, 75 So. W. 116 (1903) ; the consequence of an erroneous rul- 
 Carpenter v. Lingenfelter, 42 Neb. ing on that ground." Masters v. 
 728, 60 N. W. 1022 (1894) (material Marsh, 19 Neb. 467, 27 N. W. 438 
 contradiction); Cutler v. Skeels, 69 (1886), per Cobb, J. 
 
 Vt. 154, 37 Atl. 228 (1897) (im- 1. M'Lanahan v. Ins. Co., 1 Pet. 
 
 proper remark of counsel on his argu- 170, 183 (1828). 
 
 ment). 2. Carver v. V. S., 160 U. S. 553, 
 
 3. Murphy v. Backer, 67 Minn. 510, 16 Suppl. 388 (1896) (reversed 164 
 70 N. W. 799 (1897) (contradiction U. S. 694, 17 Suppl. 228); Allen v. 
 on immaterial point). "While I do U. S. (1893) (reversed 150 U. S. 
 
413 Society's Handicap in Criminal Cases. § 322 
 
 § 322. (Granting of New Trials; Action of Appellate 
 Courts; Technical Errors as to Evidence; American Major- 
 ity) ; Criminal Cases — If the action of American courts of last 
 resort in dealing with rulings on evidence deemed improper is 
 devoid of scientific justification, still more impressive is their 
 practice in criminal matters. The rule is carried so far that even 
 where the error is clearly immaterial, having had, as the court 
 admit, " no reference whatever to the guilt or innocence of the 
 defendant ;" 1 or where the verdict was warranted by the other evi- 
 dence, 2 a reversal is granted, or, as the significant phrase is, 
 " worked." Many courts which are prepared to ignore the effect 
 of technical error in cases where substantial justice has been done, 
 shrink from maintaining a criminal conviction where any error, 
 however technical, has been committed in admitting or excluding 
 evidence. The implied term in the reasoning, of course, is that a 
 person accused of crime has a right to circumvent justice if he 
 may do so legally — a proposition apparently contrary to every 
 principle of sound judicial administration and fraught with ob- 
 vious and very grave social dangers. It has proved easy to over- 
 look the fact that indulgence to the guilty may be, and often is, 
 inhuman cruelty to the innocent. Setting aside a just verdict on 
 a technicality 3 is a clemency extended, it will be observed, not to 
 the person accused of crime — for which there might, indeed, be 
 a pseudo justification; but to one shown guilty of the crime 
 charged. Society is placed in the anomalous position of waging 
 war with its enemies, while imposing a heavy handicap upon it- 
 self. If a sympathetic jury brings in an unjust verdict of acquit- 
 tal induced by error of any kind, in law or fact, the verdict stands. 
 If a just verdict is rendered upon a technical error regarding evi- 
 
 551), (reversed again 157 U. S. 675), sounder view. Motes V. U. S., 178 U. 
 
 (affirmed 164 U. S. 627, 17 Suppl. S. 458, 20 Suppl. 993 (1899). 
 
 154) (1896) ; Starr v. U. S. (1894), 1. People v. Bell, 53 Cal. 119 
 
 153 U. S. 614 (1894), 164 U. S. 627, (1878) (contradicting proof that a 
 
 17 Suppl. 223 (1897); Brown v. U. murderer's victim was habitually pro- 
 
 S., 150 U. S. 93, 159 U. S. 100, 164 fane). 
 
 U. S. 221. 2. State v. Jefferson, 125 N. C. 712, 
 
 "It is elementary that the admis- 34 S. E. 648 (1899). 
 
 sion of illegal evidence over objection S. It is the administrative objec- 
 
 necessitates a reversal." Waldron v. tion to a technicality, not that it is 
 
 Waldron, 156 TJ. S. 380, 15 Suppl. not legal, but that it has no substan- 
 
 383 (1894). tial merits. The case presented here, 
 
 The United States Supreme Court is therefore, almost typical, 
 shows a later tendency to adopt the 
 
§ 322 Couet and Jury; Jury. 414 
 
 deuce, the verdict will be set aside. Such a state of affairs adds, 
 of course, to the interest and professional profit of playing the 
 game of litigation. Socially, however, criminals themselves could 
 scarcely frame a rule more beneficial to their class or more in 
 harmony with its purposes. 4 
 
 The Right of Legally Outwitting. — This implied right of the 
 criminal to outwit the law, by any legal expedient, is widely recog- 
 nized by the American courts. A certain majesty doth hedge the 
 criminal. A typical statement of this view is that of Judge 
 Miller of Louisiana : 5 " The admission of illegal evidence in a 
 civil case is comparatively unimportant. . . . But in a criminal 
 case . . . it is for the jury to convict, and it is presumed to 
 act on all the evidence submitted. . . . It is the right of the 
 accused to be tried on legal evidence alone. . . . The conviction 
 must be by legal evidence only." Perhaps the oddest feature of 
 this administrative situation is, however, the sense of compulsion, 
 constraint, even of quasi automatism which the judges show; 
 — as if it were entirely beyond their power to protect society by 
 declining to reverse a just verdict on technical grounds. " Upon 
 the whole," says Sewall, J., in an early Massachusetts case, 6 " al- 
 though the other facts appearing in this case leave very little doubt 
 of the justice of the verdict, yet as the competency of the evidence 
 excepted to is not supported by any of the authorities we have ex- 
 amined, we think the verdict must be set aside." 7 " Some of the 
 evidence objected to," says Morton, J., for the supreme judicial 
 court of Massachusetts, 8 "was not only clearly irrelevant, but 
 might have prejudiced the jury against the plaintiff. We there- 
 fore find ourselves constrained to grant a new trial. We regret 
 that we find it necessary to do this; because the action involves 
 
 4. " The administration of the crim- has seldom been seen in civilized na- 
 
 inal law has nearly broken down in tions." Address of Amidon, D. J., 
 
 America under the application of this Dist. N. Dak., before Minnesota State 
 
 rule. After an experience of one hun- Bar Association, N. Y. Outlook, July, 
 
 dred and twenty-five years, we have 1906 at p. 604. 
 
 not that swiftness and certainty of 5. State r. Callahan, 47 La. Ann. 
 
 legal action, that respect for law, 497, 15 So. 50 (1895). 
 
 which ought to characterize a civil- 6. Bartlet r. Delprat, 4 Mass. 708, 
 
 ized people; on the contrary, this (1808). 
 
 principle has brought inefficiency in 7. Com. v. White, 163 Mass. 403, 38 
 
 legal administration, a pestilence of N. E. 707 (1894). 
 
 refinements and new trials, and such 8. Ellis v. Short, 81 Pick. 148, 144 
 
 a reign of disregard for law among (1838). 
 both high and low, rich and poor, as 
 
415 Erroneous Use of the Term " Presumption." § 323 
 
 no principle of law, is attended with an expense disproportionate 
 to its importance, has been fully and elaborately tried, and been 
 brought to a result, which was entirely satisfactory and which 
 there is very little reason to suppose will be changed on another 
 trial", by the exclusion of the evidence which was improperly ad- 
 mitted." 9 
 
 Clearly such technicality is merely a recrudescence of the old 
 formalism in another phase. The game must be played with every 
 rule observed; no stitch may be dropped; no act omitted; a false 
 step is fatal. A trial is, as it were, a sacramental incantation to 
 law where no word may be added, none substracted, none mis- 
 placed. Else the spell fails, all is naught. 
 
 The reason frequently assigned for this reversal of judgments 
 for technical error is that under some undefined rule of law or 
 logic the error is not in reality technical; — because, as is said, 
 prejudice will be presumed from error in passing upon questions 
 of evidence. 
 
 § 323. (Granting of New Trials; Action of Appellate 
 Courts; Technical Errors as to Evidence; American Major' 
 Ity); A Purely Voluntary Situation — Yet it seems clear that this 
 sense of legal compulsion on the action of the court, forcing it as 
 by vis major, to reverse a verdict for technical error in dealing 
 with evidence, whatever the justice and propriety of the verdict, 1 
 or however improbable it may be that the action of the trial court 
 could have affected the result, is purely imaginary. More than 
 this, it arises from a palpable confusion between the presumption 
 of law and the assumption 2 of administration. Judges speak of a 
 " presumption " of prejudice from an erroneous admission or re- 
 jection of evidence. The term " presumption " connotes the idea 
 of logic enforced by procedural law ; — that, by a rule of law an 
 inference of fact is given a prima facie effect in the absence of 
 
 9. " The refusal of the court to per- 1. " It may be shown by the most 
 mit the witness to answer the ques- irrefragible proof that the defendant 
 tion deprived the accused of a clear is guilty of the offence charged 
 legal right. How far his defence may against him ; but this does not justify 
 have been prejudiced by it, we can the violation of well settled rules of 
 not say. It is sufficient to know that evidence in order to secure his con- 
 it was his right to have the question viction." Schaser v. State, 36 Wis. 
 answered by the witness, and that it 434 (1874), per Cole, J. 
 was relied on as material to his 2. Infra, §§ 1184 et seq. 
 defence." Pigg v. State, 43 Tex. 112 
 (1875), per Devine, J. 
 
§ 323 Couet and Jury; Jttey. 416 
 
 evidence to the contrary. In point of fact, neither law nor logic, 
 legal or logical reasoning, 3 are in the least involved in this so-called 
 presumption of prejudice from error. There is no " presump- 
 tion," properly speaking ; at most there is hut a pure " assump- 
 tion " of administration. 4 With the observation of this fact; the 
 entire theory of the " rule " falls. As a matter of administration, 
 which is based on and tested by reason alone, 5 the assumption is 
 entirely indefensible. A court of justice cannot within the bounds 
 of reason, so administer legal rules as to recognize and protect 
 the right to commit injustice. Viewed from the standpoint of 
 administration, the desired end is already attained, the verdict is 
 a just one. Should the court consent to set it aside, one of four 
 things may happen: (1) One of the parties in a civil or either 
 the prosecution or defense in a criminal proceeding, may find that 
 the expense or delay is too ruinous to continue and the litigation 
 on this account, may stop; (2) the second jury may disagree, or 
 one of the parties may decease; (3) the jury may return the same 
 verdict; (4) they may return an opposite one. In all but the 
 third (3) event — where the jury return the same verdict — an 
 injustice has been done. In that case justice has been sold to the 
 litigant who has been right from the beginning at a greatly en- 
 hanced price. In no case is there a gain to the cause of legal ad- 
 ministration ; in all, there has been a loss. Such an assumption 
 precisely reverses all the recognized general canons of administra- 
 tion. This function of the judge exists primarily for the attain- 
 ment of justice. 6 This confessedly sets aside a just result. More- 
 over, this assumption, of prejudice from error, is in precise re- 
 versal of all other administrative assumptions. These, as is more 
 fully considered elsewhere, 7 are in favor of regularity, propriety 
 of official conduct, that persons charged with a duty have correctly 
 and conscientiously discharged it. This assumption alone is in 
 favor of irregularity, improper conduct, neglect of duty ; i. e., that 
 if the jury had received the evidence as the appellate court thinks 
 it should have gone to them, they would have returned an unjust 
 verdict. The reversal is only explainable on the theory that the 
 appellate court (a) contemplates the possibility of the jury's doing 
 this, and (b) regards the appellant's right to persuade them, if 
 
 3. Supra, § 63. 6. Infra, § 172. 
 
 4. Infra, § 1083. 7. Infra, §§ 1193 et seq. 
 
 5. Supra, § 716. 
 
417 Sturdy Technicality of Appellate Courts. § 324 
 
 possible, to do so, as a valuable legal right, the deprivation of 
 which constitutes " prejudice." 
 
 § 324. (Granting of New Trials; Action of Appellate 
 Courts; Technical Errors as to Evidence; American Major- 
 ity); Futile legislation. — Even the legislature has found itself 
 impotent to control the insistence of the appellate judges upon 
 reversals for technical error in matters of evidence. So deep- 
 rooted is the feeling that a new trial should follow any slip, how- 
 ever slight, in this connection, that statutes providing a sounder 
 rule have been customarily disregarded by the courts. 
 * New York. — Thus, for example, a New York statute provides 1 
 that a verdict shall be set aside only where " the verdict against 
 the prisoner was against the weight of evidence or against law, or 
 that justice requires a new trial." This proved entirely inopera- 
 tive 2 to affect the paramount influence of technicality. New York 
 law on the subject was in this condition when the legislature of 
 that state, in its code of criminal procedure 3 made a provision in 
 which the correct principle of administration was excellently 
 stated. Appellate courts were ordered to " give judgment without 
 regard to technical errors or defects, or to exceptions which do 
 not affect the substantial rights of the parties." This rule was 
 unambiguous and was at first correctly interpreted.* A few years 
 later, however, formalism suddenly again leaped into the saddle. 
 In spite of the plain language of the statute, the. New York court 
 of appeals, in 1897, said, 5 referring to the statute, 6 "neither that 
 rule nor the statute affects the well-established principle that the 
 rejection of competent and material evidence, which is harmful 
 to the defendant and excepted to, presents an error requiring a 
 reversal. Such a ruling affects a ' substantial right,' even though 
 the appellate court, with the rejected evidence before it, would still 
 come to the same conclusion reached by the jury; the defendant 
 
 1. N. Y. St. 1855, c. 337. accused has had a fair trial upon 
 
 2. Stokes v. People, 53 N. Y. 174 his accusation, and if this court is 
 (1873) (cumulative evidence) ; Can- satisfied that the conviction is- suf- 
 cemi v. People, 16 N. Y. 507 (1858), ficiently supported by competent evl- 
 ( character evidence). dence, that conviction shall stand. 
 
 3. N. Y. C. Cr. P. 1881, § 542. People v. Hoch, 150 N. Y. 299, 301, 
 
 4. People r, Conroy, 153 N. Y. 174, 44 N. E. 976 (1896), per Gray, J. 
 185, 47 N. E. 258 (1897) ; People v. 5. People V. Strait, 154 N. Y. 165, 
 Burgess, 153 N. Y. 561, 47 N. E. 889 47 N. E. 1090 (1897). 
 
 (1897). "The spirit of this legis- 6. C. Cr. P., § 543. 
 
 lation as is its letter, is that if the 
 
 Vol. I. 27 
 
§ 324 Court and Juet; Jury. 418 
 
 has the right to insist that material and legal evidence offered by 
 him shall be received, and submitted to the jury." Such continues 
 to be the law with occasional leanings in the right direction. 7 
 
 New Jersey. — In New Jersey the history of legislative efforts 
 in this matter has been much the same as it has been in New York. 
 The legislature of New Jersey seems to have had a commendable 
 desire to curb the propensity of its judges for reversals on techni- 
 cal grounds. In 1894 an act 8 was passed which permitted appel- 
 late courts to reverse verdicts only when " manifest wrong or in- 
 jury " had been committed. Under this, the court has deemed it 
 " manifest wrong or injury" where, on an indictment for murder, 
 and in order to show a motive for the homicide, the prosecution 
 was permitted to prove that deceased, who was an inmate of de- 
 fendant's household, had $800. The objection to the evidence 
 was that it was given in contradiction of a statement by the 
 defendant's mother, as a witness on his behalf, to the effect that 
 deceased had showed no money and only earned $1 per week ; that, 
 as this was not strictly contradiction of the statement of the wit- 
 ness, that the mother was made the government's witness because 
 the strict limits of cross-examination had been exceeded by elicit- 
 ing evidence which was part of the government's case. On this, 
 the judge delivering the opinion of the court said : " For that rea- 
 son alone, the judgment, in my opinion, should be reversed and a 
 new trial granted." 9 The legislature thereupon passed a second 
 act 10 to the effect that " no judgment shall be reversed . . . 
 for any error except such as shall or may have prejudiced the de- 
 fendant in maintaining his defense upon the merits." 
 
 The change, however, can be made. — This is shown by the 
 courts of the commonwealth of Kentucky. In its code of criminal 
 procedure the legislature of Kentucky enacted the following satis- 
 factory provision, 11 that " a judgment of conviction shall be re- 
 versed for any error of law to the defendant's prejudice appearing 
 on the record." In 1880, 12 the provision was amended, in the 
 same direction, by adding at the end thereof the words: "Wher- 
 ever, upon the consideration of the whole case, the court is satis- 
 fied that the substantial rights of the defendant have been preju- 
 
 7. People v. Conklin, 175 N. Y. 333, 10. St. 1898, c. 237, § 136. 
 67 N. E. 624 (1903). 11. Ky. Cr. C. 1877, § 340. 
 
 8. N. J. St. 1894, c. 163. 12. St. 1880, March 4. 
 
 9. Kohl v. State, 59 N. J. L. 445, 
 37 Atl. 73 (1897). 
 
419 Eeasoning fok the " Exchequer Kule." § 325 
 
 diced thereby." A very rational interpretation has been given to 
 these statutes. In a case where the trial court erroneously 
 declined to permit the defendant to be present at a view, the ap- 
 pellate court, in refusing to reverse, say : 13 " If all the evidence 
 tbat the jury could have received on the view . . . had been 
 excluded, it is clear that the verdict must have been ' guilty of 
 murder' ; under such circumstances, we are authorized in saying 
 that the record affirmatively shows that the error complained of 
 was not ' prejudicial ' to the defendant." 
 
 § 325. (Granting of New Trials; Action of Appellate 
 Courts; Technical Errors as to Evidence; American Major- 
 ity); Basis of Majority Rule — A rule of administration as that 
 which sets aside a just verdict by reason of a technical error in 
 the admission or rejection of evidence, savors so strongly of medi- 
 eval formalism, the social consequences in congestion of judicial 
 business, delay and denial of justice, increase of expense 1 and other 
 evils which are directly attributable to its adoption, have been so 
 widespread and deplorable, 2 as to warrant some scrutiny of the 
 juridical value of the reasoning upon which it is based. As it 
 arose in the versatile and technicality-loving mind of Baron Parke, 
 it seems proper that the reasoning be stated in his words. " It is 
 obvious," said that learned judge, 3 " that if it [the sound prin- 
 ciple of administration previously announced by the common 
 pleas and other courts, and since reinstated by the rules adopted 
 under the judicature act of 1875] were acted upon to that extent, 
 the court would in a degree assume the province of the jury; and 
 
 13. Rutherford v. Com., 78 Ky. 639, country. It was further found that 
 
 643 (1880). in sixty per cent, of these cases the 
 
 1. " There is no scourge in the appeal turned upon questions of 
 hands of the strong against the weak pleading and practice. I myself have 
 like the scourge of new trials. It recently looked into this subject with 
 can wear out the strength and en- respect to seven representative states 
 durance of the weak, and it has been of the union, for the period extending 
 used for that purpose." Address of from 1895 to 1900, and find that the 
 Amidon, D. J., Dist. N. Dak., before conditions reported to the Bar As- 
 Minnesota State Bar Association, sociation have not improved, but, on 
 N. Y. Outlook, July, 1906 at p. 604. the contrary, have in some respects 
 
 2. " In 1887 a committee of the £rown worse." Address of Amidon, 
 American Bar Association reported D. J., Dist. N. Dak., before Minnesota 
 to that body, after a careful investi- State Bar Association, N. Y. Outlook, 
 gation of the subject, that new trials July, 1906 at p. 601. 
 
 were granted in forty-six per cent, of 3. Crease v. Barrett, I. C. M. & R. 
 
 all causes that were brought under 919, 933 (1835). 
 review in appellate courts in this 
 
§ 325 Court and Jury; Jury. 420 
 
 besides, its frequent application would cause the rules of evidence 
 to be less carefully considered." It must be confessed that there 
 is a rather conspicuous vagueness about this language. It is rather 
 unfortunate that it seemed so " obvious " to the court of exchequer ; 
 for it is, on the surface, difficult to see how an appellate court 
 could possibly " assume the province of the jury " to any greater 
 degree or in any more obnoxious way than by setting aside a just 
 verdict upon a technical ground; nor has it proved quite clear 
 precisely to what end, with any gain to legal administration, the 
 more careful consideration of the rules of evidence which are de- 
 signed for the ascertainment of truth, should be cultivated, if the 
 truth, when ascertained, is to be disregarded. Be this as it may, 
 such is the reasoning, on which the majority practice in the United 
 States, has at all times been based. (1) It involves the province 
 of the jury to allow a just verdict to stand if technical error has 
 been committed in admitting or rejecting evidence; (2) not to do 
 this violates the right of a party to have his case legally tried, and, 
 if the law is disregarded, endless mischief will follow. 
 
 Province of the Jury. — Learned courts, other than the ex- 
 chequer under the guidance of Baron Parke, 4 have experienced a 
 fear lest declining to disturb a just verdict because of a technical 
 error regarding the admission of evidence might be deemed to 
 invade the province of the jury. " The English courts," declare 
 the supreme judical court of Massachusetts, 8 " and those of some 
 of our sister states exercise a much broader discretion in relation 
 to the granting of new trials than we do. Their practice is to 
 refuse new trials for the improper admission or rejection of evi- 
 dence, whenever, in their opinion, such erroneous admission or 
 rejection of evidence, whether material or immaterial, ought not to 
 have affected the verdict, or substantial justice has been done. This 
 seems to us to trench upon the province of the jury. How can the 
 court know how much influence each particular piece of evidence 
 had upon the minds of the jury, or that the illegal evidence was not 
 the weight, however small it may be, which turned the balance, 
 and that without it the opposite scale would not have preponder- 
 ated ? To sustain a verdict, under such circumstances, may be to 
 make a decision contrary to the convictions, which the legal evi- 
 dence would have produced upon the minds of the jury." It would 
 
 4. Supra, § 318. 
 
 5. Ellis v. Short. 21 Pick. 142, 144 
 (1838), Morton, J. 
 
421 An Unusual Assumption of Misconduct. § 325 
 
 seem that there must be something here more than appears on the 
 surface. Judges are not, in other connections, reduced to the 
 necessity of conjecturing as to what the jury would or would not 
 have done, when the record discloses the entire evidence in the 
 case. The court will employ its own reasoning faculty. This in- 
 dividual judges are also doing in the exercise of a continuous func- 
 tion. Where a demurrer is filed to evidence 8 a trial judge will 
 dispose of it as a question of law, and the appellate court will treat 
 it in the same way. Where the judge is asked to rule that there 
 is no evidence on which a jury may properly find a certain fact, 
 he does not hesitate to rule on the matter. Should a trial judge 
 feel that the verdict of a jury is contrary to law, i. e., not justified 
 by reason, 7 or even when it is against the fact, i. e., contrary to the 
 weight of evidence, he does not hesitate to set it aside, and is sus- 
 tained by appellate courts in so doing. Presiding judges and ap- 
 pellate courts have always exercised this supervisory jurisdiction 
 over the action of the jury. 8 If, to set aside an unjust verdict is 
 not to invade the province of the jury, on what principle of admin- 
 istration is it that the judge feels himself unable to abstain from 
 intervening to upset a just one? On what argument is it shown 
 that it is perfectly proper, in an administrative point of view, to 
 weigh every particle of the evidence for the purpose of setting 
 aside a verdict, and, at the same time, impossible to estimate the 
 probative force of the particular piece of evidence improperly ad- 
 mitted or excluded, for the purpose of seeing that it is not neces- 
 sary to nullify the verdict? 
 
 Apparently, when the facts appear on the record, no necessity 
 exists for making administrative assumptions.; — here, as fre- 
 quently, spoken of as " presumptions." But if assumption be 
 needed, why should the court assume that the evidence in question 
 would be used by the jury improperly? Why should it assume 
 that if the evidence rejected had been admitted the jury would 
 improperly have disturbed and altered a verdict conceded to be 
 just; or, would if the evidence erroneously admitted had been 
 rejected, have rendered any different verdict? It is the precise 
 object of judicial assumptions to import into a case an element of 
 regularity — proper and orderly performance of duty. 9 Why 
 should the court, in this connection alone, assume that the jury 
 would have acted wrongly — have neglected to do their duty ? It 
 
 6. Supra, § 139. 8. Thayer, Prelim. Treat., 202, 253. 
 
 !T. Supra, § 307. 9. Infra, §§ 1193 et seq. 
 
§ 325 Couet and Juey; JtTKY. 422 
 
 would seem fairly to be said that if this assumption were sound, 
 the reversal would amount, practically, to substituting a wrong 
 verdict for a right one by action of the court itself. 10 
 
 Fair Trial Alone Secured. — In the same confused way, it seems 
 to be assumed that the sacred right of trial by jury is vindicated 
 by upsetting their work, even when just, if technical error has 
 been committed. But the constitutional right applies only to the 
 trial by jury as it existed at common law. American states did 
 not invent this mode of trial; their founders merely took the in- 
 stitution with them. It seems, therefore, pertinent to observe that 
 England, the home of the jury, finds no difficulty in recon- 
 ciling the right to sustain a just verdict against technical 
 error with preservation of the institution itself. Neither at 
 common law nor under the judicature acts has a party been 
 regarded as entitled to anything more than a fair trial be- 
 fore a jury, with all the incidental and accidental slips in 
 the matter of strict legal precision. If the verdict reaches a 
 just and reasonable conclusion, the matter at common law was 
 regarded as at an end. Commenting on this claim that a party 
 has a right to insist that the jury shall receive absolutely unim- 
 peachable testimony and all the legal evidence that he may have 
 offered, Judge Amidon very forcibly inquires : " Is there any 
 provision in any constitution that you know anything about that 
 secures to a man the right of several trials by jury? Is there 
 any provision in any constitution that you know anything about 
 that secures to any citizen an absolutely infallible trial by jury? 
 Trial by jury with us means just what it means in England — 
 that a party shall have a right to have controverted questions of 
 fact passed upon in the trial court by a jury. It does not hamper 
 the power of the appellate court here any more than it does 
 
 10. The distinction taken by the dence or to determine how they should 
 
 supreme judicial court of Massachu- ultimately decide upon matters of 
 
 setts seems scarcely valuable. Judge fact." Ellis v. Short, 21 Pick. 142, 
 
 Morton says: "It is the province of 144 (1838). A case involves one of 
 
 the court to guard the decisions of the two possible issues. The proper one 
 
 jury from the influence of foreign or has already been reached. Setting it 
 
 irrelevant matter and preconceived aside, does not, indeed, direct the 
 
 opinions and prejudices; and this im- jury how they shall decide; but 
 
 poses upon it the duty, on proper oc- neither does allowing the verdict to 
 
 casions, of giving to the jury an op- stand do so. So far as reversal 
 
 portunity to revise its decisions; but operates, it merely affords the jury 
 
 never authorizes it to weigh the evi- an opportunity to decide wrongly. 
 
423 A EighteouS Peotest feom the Bench. § 326 
 
 there." u The speaker's conclusion seems warranted : " The Eng- 
 lish have had the good sense to keep trial by jury on earth as 
 an instrument for doing justice between man and man here in 
 this world; whereas, we in America have worked it up into the 
 thin air of presumption and metaphysics." 12 
 
 § 326. (Granting of New Trials; Action of Appellate 
 Courts; Technical Errors as to Evidence; American Major- 
 ity); Technical Inerrancy Required — The impressive feeling of 
 the American appellate courts that they must reverse if error, 
 however far from the substantial merits, has occurred, has been 
 elsewhere noticed. 1 It all apparently proceeds on the theory that 
 certain rules of law must be followed, regardless of consequences. 
 It involves a requirement of absolute inerrancy on the part of a 
 trial judge. He must, at the peril of justice, comply absolutely 
 with every technical requirement of the law of evidence — work- 
 ing out, in the hurry and other embarrassments of a nisi prius 
 trial, a result to which the greater calm and leisure of an appellate 
 court will not enable them to find any possible exception. When 
 the number of administrative problems, accentuated by the desire 
 of counsel to " get error into the record," is considered, the un- 
 fairness of this to a trial judge is obvious. A practically impos- 
 sible standard is erected. Penalty, reversal. Result, delay and 
 expense to litigants ; disrespect for law. 
 
 The subordinate position of the trial judge to which this demand 
 of literal inerrancy in rulings consigns him has been resented by 
 some courts. Thus, e. g., on a criminal case, where the defendant's 
 counsel objected to the phrase " incriminating circumstances " in 
 connection with the evidence against his client, 2 the supreme court 
 of Nebraska fitly observes : " It never was the intention of the law 
 that the district judges of the state should abdicate their reason 
 because a man was on trial charged with the commission of a 
 crime; nor does the law of the land place the district judges 1 in a 
 strait-jacket in criminal trials, nor make of them mere machines 
 to repeat certain general propositions of law in their instruc- 
 
 11. Address of Amidon, D. J., Dist. Association, N. Y. Outlook, July 1906 
 N. Dak., before Minnesota State Bar at p. 603. 
 
 Association, N. Y. Outlook, July, 1906 1. Supra, §§ 322 nn. 6 et seq. 
 
 at p. 603. 2. Davis v. State, 51 Nebr. 301, 70 
 
 12. Address of Amidon, D. J., Dist. N. W. 984 (1897). 
 N. Dak., before Minnesota State Bar 
 
§ 326 Court and Jury; Jury. 421 
 
 tions.'' 3 Xor does grave social danger fail to lurk behind this gross 
 perversion of the dignified position of a presiding judge. As has 
 elsewhere been intimated, 4 judicial power and responsibility for 
 results, opportunity for the doing of duty and the enhancement 
 of reputation in the rendering of a high grade of social service, 
 are needed to attract to the bench those best calculated to advance 
 the cause of jurisprudence. Whatever minimizes this attraction 
 to judicial service tends to degrade the standards of legal adminis- 
 tration. The idea that a strong-handed, clear-headed, resolute 
 judge is a social menace — that he may, in some occult way, im- 
 pair the liberty of the citizen, might have had some justification 
 of fact from the view point of a defendant, before Lord Jeffries, 
 Chief Justice Eyre or Mr. Justice Buller. At present, the need 
 for virile magistrates is urgent. In present American systems of 
 jurisprudence, " the danger rather to be dreaded is making the 
 judges men of straw, and thus stripping the courts of popular 
 reverence, and annihilating the popular estimate of the power and • 
 sanctity of the law." 5 The view of the proper function of a judge, 
 expressed by Baron Smith on the trial of Mr. Justice Johnson, 6 is 
 quite as applicable to the United States as to England. " There 
 may, indeed," said the learned Baron, " be a tame and creeping 
 and tradesmanlike mode of administering the law conceived; but 
 it is not one which meets my ideas of the duties or station of a 
 judge. Laws are but means ; and though it be not our province to 
 legislate but to interpret, yet we should not forget or fail to fur- 
 ther the end and object of those laws which we are called upon to 
 construe, namely, the preservation of public morals, the promo- 
 tion of social order, and the establishment of good government, of 
 our liberties, and of the constitution." 
 
 Rule not Anomalous. — The rule of administration which " pre- 
 sumes " or, more properly, assumes, prejudice from technical error, 
 while widely at variance from sound principles of administration, 
 must not be regarded as anomalous in the system of which it forms 
 a part. The very distinguished judges who established and are, 
 at present, administering appeals under such a rule of presump- 
 tion, or assumption, are entirely consistent with many analogies 
 
 3. Davis v. State, 51 Nebr. 301, 70 6. Johnson's Trial, 39 How. St. Tr. 
 N. W. 984 (1897). 853 (1805). 
 
 4. Supra, § 95. 
 
 5. Cook v. State, 11 Ga. 53, 57 
 (1853), per Nisbet, J. 
 
425 A Striking Historical Anomaly. § 32(6 
 
 in American jurisprudence, most often seen in criminal cases. 
 These, however dissimilar in certain respects from each other, 
 present the common feature of causing the reversal even of just 
 verdicts on account of some technical legal right of one or other 
 of the parties. The American judge is familiar -with the idea 
 that correct results are not entitled to his approval, unless no false 
 procedural step shall have been taken in reaching them. In other 
 words, the litigant has a right not only to justice but to the observ- 
 ance of certain safeguards or guarantees placed, for his protection, 
 in the procedure of trials. No correctness in result will excuse 
 the nonobservance of these safeguards. The cause of justice has 
 not, indeed, been prejudiced; but the individual has. If the em- 
 phasis of the court's interest be placed upon the individual rather 
 than on society a reversal naturally ensues. It is formalism, 
 technicality, sanctification of the means rather than of the ends 
 of litigation. Yet in preferring the interests of the individual 
 4o those of society courts are occupying precisely the attitude which 
 the men who founded the American commonwealth occupied to 
 the government of the Tudors and Stuarts. Organized society, 
 as then controlled, was represented by royal judges, anxious to 
 vindicate the laws as they then stood. The separate rights of the 
 individual were represented by the party of democracy — then, 
 for higher social ends, occupying the position of rebels against 
 authority. Justice, conventionalized by laws of political and 
 religious oppression, as matters then stood, was precisely what 
 these men did not want. Confessedly guilty, their hope of escape 
 lay in obstructing the efforts of government to get at the truth. 
 Truth was nothing which could assist them. By a curious histori- 
 cal coincidence,' these men, often of the highest religious principles, 
 occupied the same mental position and made practically the same 
 claims which were urged in favor of the criminal classes of Eng- 
 land, then brutalized by the bloodiest penal code which ever dis- 
 graced 7 a Teutonic people. Insistence upon strictest legal proof, 
 
 7. " To go back to the beginning of not till he oe dead, for he must be cut 
 
 the century is to go back, so far as down alive, then his bowels must be 
 
 the Criminal Law is concerned, to an taken out and burnt before his face, 
 
 age of barbarism. Look at the punish- then his head must be severed from 
 
 ments which were inflicted on con- his body, and his body divided into 
 
 victed prisoners. The sentence on a four quarters, and these must be at 
 
 traitor was that he must be drawn on the king's disposal." Century of Law 
 
 a hurdle from the gaol to the place Reform (Macmillan & Co., 1901), p. 
 
 of execution, and when he came there 43. 
 he must be hanged by the neck, but 
 
§ 326 Coukt and Jury; Juet. 426 
 
 clinging to what a sympathetic jury might see fit to regard as the 
 "rights of Englishmen," and properly resent when invaded; such 
 was the reliance, in sixteenth and seventeenth century England, 
 alike of the Dissenter, the Roundhead, or the Poacher. A con- 
 fession, however rationally trustworthy, or shown to be true by 
 facts discovered in connection with it, could not be used against 
 the accused if made to one in authority. 8 If such a confession 
 were used, and a verdict obtained, it must, though obviously cor- 
 rect, nevertheless, be set aside. The accused was guilty, no doubt ; 
 but it had not been legally shown to be so. Again; no one could 
 be required to furnish evidence against himself. Obviously, he 
 might be telling the truth; but the truth was to be rejected if 
 obtained in this way. Transparently just though the verdict might 
 be, clear as it might appear that, if the court did its duty, no 
 change in result would occur, even where the same facts obtained 
 from the accused were satisfactorily proved by other witnesses, 
 the verdict must be reversed. 9 Similar causes have assigned a 
 unique importance to the right of confrontation, double jeopardy 
 and the like, and, above all, to the fundamental right of trial by 
 jury itself. 10 The feeling has so far extended through the entire 
 field of procedure as to give sacramental importance to the rules 
 of evidence and probably is the basis of Baron Parke's solicitude 
 for their observance; — in much the same way that Blackstone 
 regarded the jury as the palladium of English liberty. It was 
 glorifying and sanctifying the means for attaining justice, while 
 sacrificing justice itself. It was an apotheosis of technicality, 
 i. e., of formalism. But, when viewed from a historical stand- 
 point, it can scarcely be said to be unintelligible. 
 
 A Disastrous Consequence. — When democracy in America 
 assumed the functions and responsibilities of government, the 
 limitations which, in a position of rebellion against authority, 
 it had sought to impose upon the right of the state to punish its 
 offenders, returned to plague it. Involved as these limitations were 
 claimed to be with the most sacred and fundamental rights of the 
 citizen, democracy has long clung to them and, without great con- 
 sideration, as of something having once for all been settled, has 
 extended rather than checked their scope and application. Changes 
 in social conditions or in the character and objects of those who 
 
 8. Infra, §§ 1472 et. seq. 10. Supra, §§ 411 et seq. 
 
 9. Infra, § 322. 
 
427 Minority Peotests Against Technicality. § 327 
 
 are in opposition to the decrees of society are not, in all quarters, 
 fully noticed. The result is a general breakdown in the effect- 
 iveness of criminal procedure to deal with crime, general lawless- 
 ness and popular contempt for the work of the courts. Happily 
 England, where democracy is not without an enormous influence 
 in government, has wisely escaped much of this. 11 In America, 
 justice steadily awarding injustice rather than sacrifice a jot or 
 tittle of the legal formality by which it is hampering itself is by 
 no means an impressive spectacle. 
 
 § 327. (Granting of New Trials; Action of Appellate 
 Courts; Technical Errors as to Evidence) ; American Minority. 
 — In a minority of the American jurisdictions the rule, originally 
 adopted and finally established in England, that the improper ad- 
 mission or rejection of evidence would not be permitted to set aside 
 a verdict which did substantial justice, has been employed. Many 
 valiant protests against the majority rule have been registered by 
 dissenting judges, whose opinions normally carry weight. 1 
 
 A correct administrative ruling is thus stated in a minority 
 opinion in Mississippi f " The practical inquiry is the true 
 inquiry and the practical inquiry must always be . . . that 
 [if] substantial justice has been done, and the right result has 
 been reached on competent testimony under the law applicable to 
 
 11. "During the last seventy-five fingers and toes cut off as mementoes 
 
 years nowhere in the British Empire of the event, and the torch then ap- 
 
 has a man been snatched from the plied by women in his execution — 
 
 custody of the law and sacrificed to suppose that had occurred in the 
 
 mob violence. That, gentleman, is to Philippine Islands, what would we 
 
 me the sublimest legal fact of the have said about the fitness of the 
 
 past seventy-five years. Nowhere in Filipinos for self-government? I say 
 
 the British Empire, including South that our administration of the crim- 
 
 Africa, Australia, and British Amer- inal law has 'broken down. It is an 
 
 ica, has a single human life been unworkable machine." Address of 
 
 snatched from the custody of the law Amidon, D. J., Dist. K". Dak., before 
 
 and sacrificed to mob violence. That Minnesota State Bar Association, 
 
 is respect for law organized into N. Y. Outlook, July, 1906 at p. 604. 
 
 human character. Let me place be- 1. People v. Stanley, 47 Oal. 113, 
 
 fore you our own experience. Suppose 119, (1874), per Wallace, J.; People 
 
 what has repeatedly happened in v. Koerner, 154 N. Y. 355, 48 N. E. 
 
 some of the oldest states of this 730 (1897), per Haight, J.; State v. 
 
 Union, when a man under arrest, Musgrave, 43 W. Va. 672, 28 S. E. 813 
 
 charged with crime, has been snatched (1897), per Brannon, J. 
 
 from the custody of the law, taken 2. Lipscomb v. State, 75 Miss. 559 
 
 to a public place, tied to a post, 23 So. 210, 228 (1898). 
 acid poured in his ears and eyes, his 
 
§ 327 Court a^ t d Jury; Jury. 428 
 
 the case, and no other reasonable verdict could be rendered than 
 the one which was rendered, a reversal should not follow. The 
 administration of justice is a practical thing. It should be admin- 
 istered in a practical way, so as, while not denying to any defend- 
 ant any substantial right to which he is entitled by the law of the 
 land, to protect society from violators of the law, and to secure 
 the punishment of guilty men properly convicted." Against the 
 conception that there exists some constraining rule of law or prin- 
 ciple of administration in the grip of which a court is forced to 
 act ; or that by a definite and inevitable automatic action, a 
 technical error in dealing with evidence " works," proprio vigore, 
 a reversal, strenuous voices have been raised in remonstrance. 
 " It must thus be clear beyond all cavil," says Judge Whitfield, 
 in dissenting, 3 " that this appellate tribunal is not a helpless 
 prisoner, bound in the fetters of some supposed hard and fast rule 
 requiring it to reverse cases where, first, erroneous instructions 
 have been given ; or, second, proper instructions have been refused ; 
 or third, competent testimony has been excluded; or, fourth, in- 
 competent testimony admitted; or, fifth, improper argument has 
 been allowed ; or, sixth, the trial court has erred in its rulings on 
 the pleadings, on the ground, merely, that such action of the court, 
 of the one kind or the other, constitutes error in law merely. 
 Every one of these propositions is laid down as settled law. . . . 
 With all deference, it seems to me that my brethren have clearly 
 confounded the primary function of the jury to pass on the evi- 
 dence and find the defendant guilty, if satisfied beyond a reason- 
 able doubt, and the power which this appellate tribunal exercises 
 in reviewing that finding of the jury. When the court so reviews 
 the finding of a jury in a criminal case, and reverses, as it 
 repeatedly has done, on the sole ground that the evidence wa9 mani- 
 festly insufficient to warrant the verdict of guilty, or affirm the 
 jury's finding of guilt when that verdict is clearly right on the 
 law applicable to the case and the competent testimony in the 
 case, as it has also repeatedly done, this court is not usurping 
 the jury's primary function, and passing originally upon the 
 guilt or innocence of the defendant, but is manifestly exercising 
 its undoubted appellate power of reviewing and upholding or vacat- 
 ing the finding of the jury, as the case made may demand, in 
 
 3. Lipscomb v. State, 75 Miss. 559,23 So. 310, 228 (1898), per Whit- 
 field, J. 
 
42 'J Mixokitv View Adopted ix Equity Cases. §§ 328, 32& 
 
 accordance with settled rules of law governing appellate juris- 
 diction." 
 
 § 328. (Granting of New Trials; Action of Appellate 
 Courts; Technical Errors as to Evidence; American Minor- 
 ity); Prejudice from Error — In these jurisdictions, the so-called 
 " presumption " of prejudice from error does not obtain. When 
 the verdict is <a just one, these courts naturally fail to see either 
 (1) why there should be any need of presumption in the matter; 
 or, (2) why, if presumption is to be indulged at all it should be 
 assumed or presumed that a party is prejudiced by a just verdict. 
 
 (1) If the record shows all the facts, the reasonableness of the 
 decision is a matter of law. 1 It is this question of law which is 
 the appropriate duty of the appellate court to resolve. The ver- 
 dict reached being the correct one, reason clearly has been used 
 and the verdict should stand. 2 Where the facts thus appear, it 
 would seem that the necessity for assumption or presumption as 
 to what should be taken to be the case in the absence of evidence, 
 does not arise. 
 
 But (2) conceding that assumption or presumption is proper, 
 why should it be concluded that the excepting party has been 
 prejudiced? Of what right has a party against whom a just ver- 
 dict has been rendered been deprived by a ruling on evidence 
 which should not, under the rules of reason, have affected the 
 result? The only conceivable right of any value is the chance of 
 tiring out his opponent by delay, reaping a benefit from his death 
 or that of his witnesses, or of inducing a jury to give him a 
 verdict to which he is not justly entitled. The minority of Amer- 
 ican jurisdictions do not regard these as suitable objects for judi- 
 cial administration. The end which administration proposes to 
 itself is the attainment of justice; it does not place as its object 
 the use of particular means in attaining it. It follows that where 
 the end reached is correct, it will not be thrown away merely 
 because of some criticism as to the means. 
 
 § 329. (Granting of New Trials; Action of Appellate 
 Courts; Technical Errors as to Evidence; American Minor- 
 ity); Equity Practice — In general, where a court of equity has 
 
 1. Supra, § 394. reversed because some incompetent 
 
 2. " The judgment was manifestly testimony was admitted." Gardner 
 for the right party; and where such v. R. Co., 135 Mo. 90, 36 S. W. 214 
 is the case, the judgment will not be (1S96). 
 
§ 330 Court and Jury; Jury. 430 
 
 sent an issue for trial by jury to a court of law, the chancery judge 
 will not order a new trial simply because of improper admissions 
 or rejections of evidence where he feels that the result reached is, 
 on the whole, correct and such as to enable him to administer the 
 equities before him. 1 
 
 § 330. (Granting of New Trials; Action of Appellate 
 Courts; Technical Errors as to Evidence; American Minor- 
 ity); Criminal Cases — In certain American jurisdictions, while 
 the so-called " presumption " of prejudice from error is still 
 spoken of as a rule of law rather than as an assumption of adminis- 
 tration, the irrationality of the administration does not, as in 
 many of the states holding the majority rule, 1 extend so far as 
 to apply to cases where the record itself demonstrates the falsity 
 of the assumption; i. e., where the record shows that there has, 
 in point of fact, been no prejudice. Where the verdict is not 
 only a just one but it also affirmatively appears that no harm has 
 been done by it to the guilty person f e. g., where absolutely con- 
 clusive and entirely unobjectionable evidence establishes the point 
 on which the illegal evidence was admitted; 3 or where, assuming 
 the fact which the rejected evidence tended to establish, to have 
 been proved, it could not have availed the defendant, these courts 
 will allow the verdict to stand. It would seem as if the impulse 
 of sympathy for criminality as it suffered undeT the undue 
 severity of the English penal code of the early days, prior to the 
 reforms of the nineteenth century, might with propriety be 
 deemed to have spent its force and attained its purpose. Because 
 
 1. Dowie v. Driscoll, 203 111. 480, the error furnishes no ground for re- 
 
 68 N. E. 56 (1903). versal." People v. Fernandez, 35 N. 
 
 1. Supra, § 320. Y. 49, 59 (1866), per Porter, J. 
 
 2. Y\*here the ruling " could not 3. " In such a ease as this, where 
 properly have changed the result, then the prisoner's guilt is very manifest 
 he [defendant] was not aggrieved by I think it would exhibit un- 
 the ruling." State v. Beaudet, 53 necessary squearnishness to say he has 
 Conn. 536, 539, 4 Atl. 237 (1885). not been legally convicted on abund- 
 " The reception of illegal evidence is ant evidence." State r. Ford, 3 
 presumptively injurious to the party Strobh. 528 (1839), per Earle, J. 
 objecting to its admission ; but where " The courts will not set aside a ver- 
 the presumption is repelled, and it diet on account of the admission of 
 clearly appears, on examination of the evidence which ought to have been 
 whole record, beyond the possibility rejected, provided there be sufficient 
 of rational doubt, that the result without it to authorize the finding." 
 would have been the same, if the MeCleskey v. Lead'better, 1 Ga. 551, 
 objectionable proof had been rejected, 556 (1846). 
 
431 The Problem op American- Jurisprudence § 330 
 
 men were hanged for grand larceny or patriots under the Stuarts 
 suffered by means of the law of criminal libel furnishes, appar- 
 ently but slight reason why the state should exhaust its treasury 
 or its judges their ingenuity to save hardened, brutalized crimi- 
 nals from their just deserts. 4 
 
 It may fairly be said that however great may have been the 
 influence of the overstrained technicality of appellate courts in 
 dealing with questions of evidence, in promoting the escape of 
 criminals and the spread of contempt for law, that the most 
 pungent critics of the present system, are to be found among the 
 judges themselves. "We have," says the supreme court of 
 Georgia, 5 " no sympathy with that sickly sentimentality that 
 springs into action whenever a criminal is at length about to suffer 
 for crime. It may be a sign of a tender heart, but it is also a 
 sign of one not under proper regulation. Society demands that 
 crime shall be punished and criminals warned, and the false 
 humanity that starts and shudders when the axe of justice is 
 ready to strike is a dangerous element for the peace of society. 
 We have had too much of this mercy. It is not true mercy. It 
 only looks to the criminal, but we must insist upon mercy to 
 society, upon justice to the poor woman whose blood cries out 
 against her murderers. That criminals go unpunished is a 
 disgrace to our civilization; and we have reaped the fruits 
 of it in the frequency with which bloody deeds occur." As 
 was succinctly declared by Judge Freeman, 6 the day has 
 gone by " when it is possible to punish an innocent man ; 
 we are now struggling with the problem whether it is any 
 
 4. As Dean Wigmore intimates, The trial can be so protracted and 
 
 Wigmore, Ev., § 21, affixing the pen- enmeshed in such a complication of 
 
 alty of death for larceny was no more pleading and evidence as to result — 
 
 monstrous in England of the Georges not in every case, oh, no, but in the 
 
 than it is, at the present time, to majority of cases — in error which, 
 
 attach the penalty of a new trial to under this pernicious doctrine of pre- 
 
 every technical violation of the law sumed prejudice, will nullify a con- 
 
 of evidence. " I know we convict men viction." Address of Ami don, D. J., 
 
 and send them to the penitentiary; Dist. N. Dak., before Minnesota State 
 
 but I state it here as a fair state- Bar Association, N. Y. Outlook, July, 
 
 ment of the administration of the 1906 at p. 605. 
 
 criminal law in America that if a 5. Eberhart V. State, 47 Ga. 598, 
 man has the means to employ able 610 ( 1873 ) , per McCoy, J. 
 counsel, so as to make a fight, as we 6. Roper v. Territory, 7 N. Mex. 
 say, in the great majority of cases 272, 33 Pac. 1014 (1893), per Free- 
 he can escape punishment for crime. man, J. 
 
I 331 Couet and Jury; Juey. 432 
 
 longer possible to punish the guilty." The extent to which 
 the venerated Constitution of the United States is used as the 
 last resort of desperate criminals to escape the just conse- 
 quences of their acts would be farcical if it were not so serious. 
 One of the most striking aspects of the entire situation is the 
 seriousness with which the Supreme Court of the United States 
 treats such appeals. " I do not understand," says Judge Cooley, 7 
 " that the constitution is an instrument to play fast and loose with 
 in criminal cases, any more than in any other; or that it is the 
 business of courts to be astute in the discovery of technical diffi- 
 culties in the punishment of parties for their criminal conduct." 
 
 § 331. Taking Jury's Opinion — The judge, in discharging his 
 own duty, may take the opinion of the jury ; giving it such weight 
 as he deems proper. He may, in like manner, ask their view as to 
 the meaning of a document. 1 Where a trial by jury is not a con- 
 stitutional or statutory right, but the court seeks the aid of the jury 
 in determining questions of fact, it may adopt, modify or disre- 
 gard their findings. 2 This convenient practice has the sanction of 
 statute in certain jurisdictions. 3 The judge may, however, prefer 
 the shorter procedure of leaving the entire question to the jury 
 under appropriate instructions as to what rule of law they should 
 apply in the event of their contingent findings of fact. 4 
 
 On glancing hack from the closing sections of the present chap- 
 ter to those with which it opens, a feeling akin to mortification 
 may well come to the student of juridical institutions noticing how 
 much of the technicality and formalism of the twelfth century has 
 persisted into the twentieth. It may well appear to such an ob- 
 server that, while the precise manifestation of this judicial de- 
 pendence upon a pre-existing formulary or rule in open contra- 
 vention of substantial justice or even of logical reasoning, may 
 have changed, with the passing centuries, the essential vigor of 
 the feeling itself continues without material abatement. He 
 might perhaps suggest, in support of such a view, that although 
 
 7. People V. Murray, 52 Mich. 291 3. Willeford v. Bell, (Cal. 1897) 
 
 (1883). 49 Pac. 66, 7; Maler v. Lillebridge, 
 
 1. Stewart v. Merchant, etc., Ins. (Mich. 1897) 70 N. W. 1038. 
 
 Co., 16 L. R. B. D. 619, 627, 34 4. Hawes v. Forster, 1 M. & B. 
 
 W. R. 208, 210 (1885). 368 (1834). 
 
 2. Kelly r. Home Sav. Bank, 92 
 N. Y. Suppl. 578, 103 App. Div. 141 
 (1905). 
 
433 Jueidical Growth of Eight Centuries. § 33] 
 
 it is no longer customary to subject alleged witches to the ordeal 
 by water, 5 the most characteristic anomaly of the English law of 
 evidence, that excluding hearsay 6 however probative and essen- 
 tial to the case of the proponent it may be, is still in large measure 
 defended and maintained upon the ground that the declarant has 
 failed to comply with an ancient form of ordeal ; — that by oath. 7 
 It may, moreover, not escape his attention that while the ordeal 
 by battle 8 itself has been long abandoned, the ethics of the typical 
 modern trial are even now substantially those of war, everything 
 being permitted which is not preventable under the rules; and 
 the result of the proceedings determined by the ordeal of the 
 mental, financial and even physical endurance of the respective 
 parties. He may even be impressed by the fact that though 
 ancestor worship does not at the present time extend so far as to 
 follow the customs of the tribe in doing the same thing over again 
 regardless of modifying considerations, the fact that our ancestors 
 of the sixteenth and seventeenth centuries at a particular period 
 of their political evolution found it convenient to turn the insti- 
 tution of the jury from an administrative instrumentality for 
 ascertaining the truth as to disputed issues of fact into a cord by 
 which to tie the hands of those charged with the administration 
 of law, still continues to confer upon the jury a sanctity and im- 
 putation of wisdom which daily experience might well have long 
 ago disproved. Probably, it would, in part at least, answer the 
 objections of such a critic to point out to him that much of the 
 rational and ethical growth of the past eight hundred years lies 
 just beneath the surface of judicial administration, and is to be 
 best discerned not so much in the procedural rules which con- 
 stitute, as it were, the framework of the law of evidence, as in 
 the canons or principles of judicial administration which form 
 the motive power and guiding spirit of this branch of the law. 
 To these, it now seems appropriate to give our attention. 
 
 5. Supra, § 269k. 7. Supra, § 269b. 
 
 6. Infra, § 2702. 8. Supra, § 269n. 
 
 Vol. I. 28 
 
A. Peotect Substantive Eights. 
 CHAPTER VI. 
 
 PRINCIPLES OF ADMINISTRATION^ PROTECT SUBSTANTIVE RIGHTS. 
 
 Principles of administration, 332. 
 A. protection of substantive rights, 333. 
 (1) Bight to prove one's case, 334. 
 a necessary principle, 335. 
 subdivisions of the right, 336. 
 counsel as witnesses, 337. 
 facts to be proved, 338. 
 (a) right to use secondary evidence, 339. 
 illustrative instances, 340. 
 documents, 341. 
 constituent documents, 342. 
 deeds, 343. 
 
 negotiable instruments, 344. 
 public papers, 345. 
 wills, 346. 
 probative documents, 347. 
 
 illustrative instances, 348. 
 (o) means of communication, 349. 
 
 substituted modes of communication, 350. 
 interpreters, 351. 
 
 qualifications, 352. 
 details of interpretation, 353. 
 foreign, 354. 
 e?ea/ mutes, 355. 
 defective speech, 356. 
 '(c) scope o/ ngrTii, 357. 
 
 limited to proof of res gestw, 358. 
 (d) order o/ stages, 359. 
 
 nc^tf /o open cmd cZose, 360. 
 acior 7ia$ right, 361. 
 plaintiff as actor, 362. 
 defendant as actor, 363. 
 code and common law pleadings, 364. 
 
 admission must cover a prima facie case, 365. 
 proceedings in rem, 366. 
 [434] 
 
435 Synopsis. 
 
 variations in order of evidence, 367. 
 administrative considerations, 368. 
 evidence in chief, 369. 
 
 considerations influencing judge's action, 370. 
 practical administration, 371. 
 actor, 372. 
 non-actor, 373. 
 (e) order of topics, 374. 
 
 conditional relevancy, 375. 
 hearing apparent, 375. 
 bearing not apparent, 376. 
 
 (2) Right to test adversary's case, 377. 
 (a) cross-examination, 378. 
 
 (&) rebuttal, 379. 
 odor, 380. 
 
 we o/ " expert," 381. 
 anticipatory rebuttal, 382. 
 non-actor, 383. 
 subsequent rebuttal, 384. 
 
 (3) Right to the use of reason, 385. 
 
 should prevent jury from being misled, 386. 
 
 guessing not permitted, 387. 
 
 striking out prejudicial evidence, 388. 
 
 withdrawal of jury, 389. 
 
 preventing irrational verdicts, 390. 
 
 directing verdicts, 391. 
 
 relation to grant of a new trial, 392. 
 
 relation to motion in arrest of judgment, 393. 
 
 a matter of law, 394. 
 
 general rules, 395. 
 
 scintilla of evidence not sufficient, 396. 
 
 motion equivalent to a demurrer to evidence, 397. 
 
 direction against the actor, 398. 
 
 direction in favor of actor, 399. 
 
 fo'me for making motion, 400. 
 direction on opening, 401. 
 
 parfo/ moving may be required to rest, 402. 
 
 nominal or actual verdicts, 403. 
 
 effect of waiver, 404. 
 
A. Peotect Substantive Eights. 436 
 
 action of appellate courts, 405. 
 
 effect of rulings on evidence, 406. 
 judge sitting as a jury, 407. 
 (4) Right to judgment of court or jury, 408. 
 performance of function by judge, 409. 
 waiver, 410. 
 general right to jury trial, 411. 
 
 witnesses not permitted to reason, 411. 
 a strongly entrenched right, 412. 
 Federal constitution, 413. 
 
 consular courts, 414. 
 
 criminal cases, 415. 
 
 " jury '' defined, 416. 
 
 removed causes, 417. 
 
 special proceedings, 418. 
 state constitutions, 419. 
 
 " hitherto used and enjoyed," 420. 
 scope at common law, 421. 
 
 civil actions, 422. 
 
 compulsory references, 423. 
 
 judicial powers reserved, 424. 
 statutory construction, 425. 
 
 criminal cases, 426. 
 
 waiver forbidden, 427. 
 
 suits for penalties, 428. 
 incidental hearings, 429. 
 motions, 430. 
 
 proceedings subsequent to verdict, 431. 
 special proceedings, 432. 
 statutory proceedings, 433. 
 n'grW mws£ be claimed before a court, 434. 
 bankruptcy courts, 435. 
 courts martial, 436. 
 divorce courts, 437. 
 equity tribunals, 438. 
 
 code pleading, 439. 
 
 general rule, 440. 
 
 various modifications of rule, 441. 
 
 isswes ow£ o/ chancery, 442. 
 inferior courts, 443. 
 
437 Compromising Conflicting Canons. § 332 
 
 probate courts, 444. 
 
 trials by judge without jury, 445. 
 
 common law, 445. 
 under codes and statutes, 446. 
 who may claim right, 447. 
 
 status of municipalities, 448. 
 option of the legislature, 449. 
 reasonable limitations permitted, 450. 
 demand, 450. 
 time of application, 451. 
 minor criminal offenses, 452. 
 number of jurors, 453. 
 payment of jury fees, 454. 
 restricted appeals, 455. 
 unreasonable limitations unconstitutional, 456, 
 waiver and estoppel, 457. 
 (5) Right to confrontation, 458. 
 limitations on the right, 459. 
 reasons for the limitations, 460. 
 no new rule of evidence, 461. 
 waiver, 462. 
 
 § 332. Principles of Administration. — The exercise by judges 
 of the broad and somewhat ill-defined powers of administration 
 connected with the judicial office is necessarily governed rather 
 by principles than by rules. These principles in turn are naturally 
 somewhat indeterminate, eluding complete and definite statement. 
 They grow out of and are guided by the accurate judicial instinct, 
 the appreciation of highly intellectual skilled observers as to 
 what should be the ultimate results of litigation. While general 
 similarity, on broad lines, may be traced through the decisions, 
 the elasticity characteristic of a principle as distinguished from a 
 rule is distinctly observable, and makes the action of a particular 
 judge, in view of his individual characteristics, the " personal 
 equation," a matter of some uncertainty. But the difficulty lies 
 deeper than differences in temperament or training. It is increased 
 by the consideration that it seldom chances that well-balanced ad- 
 ministrative action is obtained by implicitly following the dictate 
 of any one principle. More often, it is reached by a judicious 
 compromise between conflicting canons. The rights of one liti- 
 
§ 332 A. Protect Substantive Eights. 438 
 
 gant are constantly conditioned by those of his opponent, the claims 
 of justice are incessantly offset by the insistence of rules of mu- 
 nicipal law, substantive or procedural; the wish to reach abstract 
 truth is checked by the absolute necessity of finishing cases within 
 a reasonable time, and so on. It is not, therefore, to be regarded 
 as surprising that the approved principles of administration should 
 at times conflict with each other in such a manner as to make their 
 application to the facts of a particular case difficult of adjustment; 
 that equally competent and conscientious judges well may 
 differ as to what should be done. More than this, it is precisely 
 the varying facts of the individual case, not reducible to or con- 
 trolled by a rule, which it is the essential characteristic of the 
 doing of justice to observe; and administration, seeking to attain 
 justice, deals with these constantly changing combinations of 
 facts. 1 In general, however, it may be said that the court in exer- 
 cising its administrative functions seeks to attain certain definite 
 objects ; — partly those to which the litigants are entitled, as a mat- 
 ter of substantive right ; partly those which more nearly fall within 
 the province of procedure, practice or administration. The judge 
 will regard it as his primary duty to protect the fundamental 
 rights of the parties in matter of substantive or procedural law ; — 
 seeing to it that, so far as possible, the parties severally receive the 
 advantages and privileges to which the law, in either form, entitles 
 them. He will not only formulate and announce or apply the cor- 
 rect rule of law affecting directly the right or liability involved 
 in the inquiry, but will, as part of the legal as distinguished from 
 the social element of his duty, seek to protect by his administrative 
 powers the rights secured to the party by the law of the land. 
 These can only be assured to litigants by discretionary rulings 
 suitably moulding the course of the trial, i. e., by the use of his 
 administrative function. 
 
 But the court is not concerned merely with the interests of the 
 parties. When these fundamental rights of the litigants are pro- 
 vided for, a wider scope is given to the court's discretion in con- 
 nection with the effort to further the interests of justice, both as 
 between the immediate parties to the particular case and in the 
 still broader aspect as affecting the community at large. As 
 between the parties, the interests of justice makes certain demands ; 
 — that the litigants should be held to the exercise of good faith, 
 
 1. Supra, § 172. 
 
439 Substantive oe Pbocedtjral Eights. § 333 
 
 •that they should be protected, so far as possible, against surprise 
 and unfair treatment. The general interests of society further 
 require that the court, so far as consistent with the rights of the 
 immediate parties, should expedite trials ; establish, as the result 
 of repeated judicial proceedings, probable inferences of fact in 
 the form of presumptions; harden, under proper circumstances, 
 these inferences of fact into rules of law. 
 
 Conveniently epitomized, these broad canons of judicial admin* 
 istratdon may be said to be four : 
 
 A. Protection of Substantive Eights. 
 
 B. Furtherance of Justice. 
 
 C. Expediting Trials. 
 
 D. Perfecting Substantive Law. 
 
 The operation of these canons of administration may conven- 
 iently be considered in this order. 
 
 § 333. (Principles of Administration); A. Protection of Sub- 
 stantive Bights. — The primary principle of judicial administra- 
 tion regarding the admission of evidence is to preserve during 
 the course of the trial the fundamental rights of the parties. This 
 principle is justly deemed paramount to all others. Its observ- 
 ance is at all times distinct and prominent in a well-balanced 
 judicial consciousness; and, in case other administrative prin- 
 ciples or rules of expediency may chance to conflict, they must 
 yield to the claim of considerations of this higher grade of legal 
 importance. In other words, so far as the sovereign has conferred 
 a right, or in any way established a rule, it must control the mere 
 wrbitrium boni judicis. These fundamental rights of a party so 
 far as they relate to matters of procedure, as distinguished from 
 substantive law, in reality are merely branches of a single right — 
 that of having a full and impartial trial according to due course 
 of law. 
 
 It will be expedient, however, to consider the right as separable. 
 A party may claim to be entitled to insist (1) that he be given a 
 reasonable opportunity to prove his case or establish his defense; 
 (2) that he be accorded fair, reasonable opportunity to test the 
 affirmative case relied on by his opponent; (3) that both branches 
 of the tribunal shall employ, in the discharge of their respective 
 functions, processes of correct reasoning; (4) that he be granted 
 a trial by judge or jury, or both, according to the established 
 
§ 334 A. Protect Substantive Rights. 440 
 
 course of legal proceedings ; — each branch of a mixed tribunal 
 discharging the duty of judging imposed upon it by law; (5) that 
 he be allowed to confront the witnesses against him. 
 
 § 334. (1) Eight to Prove One's Case — The substantive law se- 
 cures to every litigant a fair opportunity to prove, in the best 
 method at his command, and at a designated time, the substance 
 of his contention. In other words, the party seeking the assist- 
 ance of the court should be enabled to lay hiis case before the 
 appropriate tribunal ; — while it is equally the right of his adver- 
 sary to unfold the substantial part of his defense at an appro- 
 priate time before the same tribunal. To this end, as to the object 
 of the entire proceedings, all rules of administration regarding 
 the admission of evidence are subservient ; — even the claims of 
 natural or abstract justice being conventionalized or restrained by 
 the right of the litigant to prove his case according to law. Though 
 paramount, this administrative principle is qualified and condi- 
 tioned in operation by the urgency of other valid canons of admin- 
 istration ; — for example, the right of the other litigant to the 
 use by all parts of the tribunal of the reasoning faculty. The court 
 is neither required nor at liberty to receive evidence which can 
 by no method of reasoning, either alone or in connection with 
 other facts, justify judicial action in accordance with it. The 
 opposing party is thus entitled to the use of reason; but, within 
 the limits prescribed by it, the proponent has a right to prove his 
 affirmative case. 1 In other words, any evidence whatever must 
 be legally and logically probative, it must be such that reason can 
 act pursuant to it, when fully developed and associated with the 
 other facts offered. Subject, however, to this requirement of rele- 
 vancy, the right of a litigant to prove the substance of his case 
 overrides all minor considerations of administration; and funda- 
 mentally controls the judge, so far as he has freedom of action, 
 in deciding how he shall apply the rules of evidence, or to which of 
 them shall be accorded the greater influence in any given case. 
 However many or minute may be the details offered, whatever, 
 within the lines of relevancy, the range of remoteness in the evi- 
 dence, howsoever great the danger of raising collateral issues, if 
 the right of the party to prove the substance of his case requires 
 that the facts be received they must be admitted. 2 Even evidence 
 
 1. Infra, § 385. ciple which forbids delay, tediousness, 
 
 2. " There is no rule and no prin- and complication, pure and simple, 
 
441 Withdrawal of Counsel Upon Testifying. §§ 3'35-3>37 
 
 liable to mislead, embitter the tribunal against one of the parties 
 or cause any other undesirable incidental result will be received if 
 doing so is reasonably essential to the right of a party to prove 
 the facts on which he relies. 
 
 § 335. f [1] Right to Prove One's Case); A Necessary Prin- 
 ciple. — The case actually made by the proponent in support of his 
 contention may not be sufficient to carry conviction to the mind 
 of the tribunal. But if the facts have reasonable weight, i. e., 
 present such a degree of probative force that a jury could, with- 
 out stultification as reasonable men, adopt it as the basis of their 
 action, and it is not shown to be within the power of the litigant 
 to produce a stronger case, it is the administrative duty of the 
 court to receive and weigh the facts as he presents them. So long 
 as this condition of logical incompleteness is the misfortune rather 
 than the fault of the party, he is not debarred from the privilege 
 of having the tribunal pass on his evidence. Any other principle 
 of administration in this connection would entrust to the court the 
 power of preventing a party from offering to the jury a case 
 which the judge did not consider the jury should adopt as the 
 basis of affirmative action. 
 
 § 336. f [1] Right to Prove One's Case); Subdivisions of 
 the Eight. — The right of a party to a reasonable opportunity of 
 proving his case 1 implies the right to have it tried in such a man- 
 ner as to enable him to present his contention with reasonable 
 fullness. The right may be considered, (a) as it applies to the 
 matter as to which proof may be offered ; (b) the means by which 
 these matters are established; (c) as to the scope of the right; 
 (d) the order of the stages at which it should be enforced; (e) the 
 order of topics at each stage. 
 
 § 337. f [1] Right to Prove One's Case); Counsel as Wit- 
 nesses. — The right of a party to prove his case may fairly require 
 that his counsel be permitted to testify. If so, this will be al- 
 lowed. 1 The court may impose conditions, e. g., that the counsel 
 withdraw from the case. 
 
 and always: what is forbidden is un- 1. Supra, § 334. 
 
 necessary complication, delay, and 1. Greenfield v. Kaplan, 52 Misc. 
 
 tediousness." Thayer, Prelim." Treat., (N. Y.) 132, 101 N. Y. Suppl. 567 
 
 p. 517. (1906). 
 
§§ 338, 339 A. Peotect Substantive Rights. 442 
 
 § 338. ( [1] Right to Prove One's Case); Facts to Be Proved. 
 
 — The right seems limited to proof of the res gestce facts 
 especially such of them as are constituent. 1 Little question can 
 well arise as to the administration of this principle so far as the 
 res gestw are to be established by direct evidence. The testimony of 
 an eyewitness to the occurrence of certain res gestae scarcely leaves 
 ground for an objection. As has been rather infelicitously said 
 such facts are relevant per se. When, however, the attempt is 
 made to reproduce the res gestw by indirect proof, evidence of an 
 inferior grade of probative force may be all that is within the 
 ability of a litigant to produce. A percipient witness may be 
 dead, and original document have been destroyed, an observer be 
 unable to state facts seen by him except by means of an inference. 
 Good faith to the tribunal, and fair play to his adversary require 
 that original observers, original documents, facts rather than rea- 
 soning should be presented to the court. 2 But if a necessity for 
 using secondary evidence is shown, the principle of administration 
 now under consideration permits the use of evidence of that grade ; 
 
 — although possessing less probative force. 
 
 § 339. f [1] Right to Prove One's Case); (a) Eight to Use 
 Secondary Evidence. — This, by far the most important in practi- 
 cal effect, of all aspects of the principle permitting proof of a 
 party's case, is the permissive, indulgent portion of the " best evi- 
 dence rule " which qualifies and conditions the mandatory section 
 of that rule — also enforced as an administrative principle. 1 The 
 principle of administration under consideration 2 is thus seen to be 
 intimately involved with the familiar " Best Evidence Rule." 
 As commonly stated, the " rule " contains these two dis- 
 tinct, though connected propositions: (1) the best evidence which 
 the nature of the case permits must always be presented; 3 (2) 
 when the best evidence of which the case is susceptible is pre- 
 sented it will be admitted. 4 The second half is the principle of 
 administration under consideration. With the exception of the 
 " hearsay rule " in certain of its applications," this principle of 
 administration appears to command general assent. 
 
 1. Supra, § 47. 4. " The best proof that the nature 
 
 2. Infra, §§ 1791 et seq. of the thing will afford is only re- 
 
 1. Infra, § 464. quired." Ford v. Hopkins, 1 Salk. 
 
 2. Supra, § 334. 283 (1701), per Holt, C. J. 
 
 3. Infra, § 464. 5. Infra, §§ 2574 et seq. 
 
443 Illustrations of Secondary Evidence. § 340 
 
 § 340. ( [1] Right to Prove One's Case; [a] Right to Use 
 Secondary Evidence); Illustrative Instances. — It will thus be 
 seen that the principle of administration which, in case of neces- 
 sity, admits secondary proof of facts where the primary evidence 
 is unavailable is, in substance, a necessary qualification upon the 
 rule requiring primary evidence, 1 which may be conveniently re- 
 stated, in the converse form, in terms of the present principle. 
 
 1. "Where the primary direct evidence of a given fact is unavail- 
 able to a litigant, he will be permitted, if suitable necessity for 
 doing so exists, to prove his case by circumstantial evidence. 2 
 If a witness who has complete knowledge of a constituent or pro- 
 bative fact can be produced he must be offered as a witness. 3 This 
 is the requirement of good faith. Should the witness not be pro- 
 curable, and his evidence cannot be obtained, the same facts, if 
 necessary to the proponent's case, may be proved by circumstantial 
 evidence or by the direct evidence of less credible witnesses. 
 
 2. Where the primary evidence of the percipient witness 
 cannot be procured by a litigant, he will, under certain con- 
 ditions, be allowed, if such a course is necessary to proof of his 
 case, to establish the extrajudicial statements made by the observer 
 with regard to it, as reported to the court. It is in accordance with 
 this principle that exceptions to the hearsay rule, such as pedigree, 
 dying declarations, etc., are received and the matter will be con- 
 sidered more fully in that connection. 
 
 3. Where a document is shown to have been lost, destroyed or 
 otherwise rendered unavailable, so that primary evidence of its 
 contents cannot be had, the party to whose case some evidence of 
 such contents is necessary may introduce secondary evidence as to 
 them. For some observations and illustrations of the application 
 of this principle, in what is perhaps its most important and in- 
 variable aspect, 4 reference may be had to the more complete treat- 
 ment of the subject at another place. 
 
 4. Where, for any reason, the primary original physical phe- 
 nomena observed by a witness cannot be placed. by him before the 
 jury; or where the latter have not the knowledge requisite to 
 enable them to coordinate such physical phenomena into a reason- 
 
 1. Infra, § 464. 3. Infra, § 466. 
 
 2. Circumstantial evidence is re- 4. See Proof of Contents of 
 ceived where direct evidence is un- Documents. 
 
 attainable. Com. v. Gray, 129 Mass. 
 474 (1880). 
 
§ 340 A. Peotect Substantive Eights. -±4i 
 
 able act of judgment, a litigant may be permitted to place the 
 secondary evidence of the inference, conclusion or judgment of an 
 ordinary or skilled observer or of an expert before the jury as a 
 secondary means of stating the phenomena from which such in- 
 ference, conclusion or judgment is drawn. 
 
 This is the principle underlying the reception of " opinion " 
 evidence and will be more fully considered in that connection. 5 
 
 To put the same matter in another form, the demand made by 
 good faith, that a party should present to the tribunal the most 
 cogent evidence within his control, is necessarily satisfied by proof 
 that the evidence actually offered is the best which the party is 
 practically able to obtain. Under such circumstances, no objection 
 other than lack of relevancy exists to receiving and weighing less 
 probative modes of proof, even though it should affirmatively 
 appear that a superior grade of evidence is actually in existence. 
 Reasonable diligence in endeavoring to secure the primary evi- 
 dence is all that is demanded ; and what is thus reasonable depends 
 on the facts of each individual case. The test is still one of good 
 faith. The judge, in every instance, will ask himself: Is the 
 party holding back the evidence which would show that the facts 
 actually presented by him are false or misleading? The inferi- 
 ority in grade or probative force of the evidence actually sub- 
 mitted when compared with more conclusive proof, may be due to 
 a difference in some one or more of several particulars. The point 
 of differentiation may be in permanence or certainty of form, 
 as where oral evidence is offered of a fact which is also shown by 
 a writing; or where a description is offered of something which 
 may be produced in court. The inferiority may arise from a dif- 
 ference in closeness of connection with the factum probandum in 
 point of time ; as where occurrences or other facts long passed are 
 tendered while similar facts of more recent date are neglected. 
 The ground of objection may be in remoteness of distance — as 
 where sales in a foreign market are offered as evidence of value, 
 while similar transactions in local markets are ignored. Nor is 
 this all. The essential point of inferiority may lie in a less close, 
 logical or causal connection between the fact to be proved and the 
 fact offered, the factum probandum and the factum prolans. An 
 instance of this difficulty is presented where it is sought to prove 
 a fact, not by the testimony of the person who saw it,, but by the 
 
 5. Infra, §§ 1791 et seq. 
 
445 Secondary Proof of Constituent Writings. §§ 341, 342 
 
 report to a tribunal as to what the observer had told the witness he 
 had seen or heard. In all instances, except the last, the party is 
 required merely to do the best he reasonably can. In the last case, 
 that of a so-called " hearsay " statement, an anomalous rule of 
 procedure excludes the report altogether, except under certain 
 somewhat arbitrarily chosen sets of circumstances constituting 
 " exceptions " to the main rule. 6 
 
 § 341. ( [1] Right to Prove One's Case; [a] Right to Use 
 Secondary Evidence); Documents — Loss, destruction, inability 
 to find, or other sufficient reason for failing to produce an original 
 document having first been satisfactorily established, 1 the party's 
 right to prove his cause 2 authorizes or requires, as the case may 
 be, that he be permitted to prove its contents by parol evidence. 
 The clearness and precision of the evidence required, in this con- 
 nection, to overcome the inertia of the court, 3 will be considered 
 elsewhere. 4 We are at present concerned with the extension of 
 the evidence — how far the proof must cover the entire document. 
 
 The requirements in this particular, as it would be natural to 
 expect, will be found somewhat to vary, according as the docu- 
 ment in question is, or is not, a constituent fact. 
 
 § 342. ( [1] Right to Prove One's Case; [a] Right to Use 
 
 Secondary Evidence) ; Constituent Documents Verbal precision 
 
 is not required, 1 as a demand to that effect would be subversive of 
 
 6. Infra, §§ 2762 et seq. witnesses who had read the paper, 
 
 1. See Docttmentaby Evidence. understood its object, and can state 
 
 2. Supra, § 334. it with precision." Posten v. Ras- 
 
 3. Cleavland v. Burton, 11 Vt. 138 sette, 5 Cal. 467, 469 (1855), per 
 (1839) (bond; "clear, satisfactory Heydenfeldt, J. In a Florida case, 
 and conclusive") ; Tayloe v. Riggs, 1 the following ruling of the trial judge 
 Pet. 591, 600 (1828) (" satisfactor- was approved; "The proof must be 
 ily"); U. S. v. Britton, Mason clear and convincing, not only that 
 464, 468 (1822) ("pointedly and such a deed existed, but that it was 
 clearly " ) . The proof must be " such a valid deed, that it had all of the 
 as to secure as far as possible, the essential parts which a deed should 
 safety designed to be given by the have, such as the name of the grantor, 
 written evidence.'' Shorter v. Shep- the granting clause, the land con- 
 pard, 33 Ala. 648, 653, (1859). veyed, the consideration for which 
 
 4. See Documentaby Evidence. conveyance was made, words of per- 
 1. "In the case of lost instruments petuity, as we call it — that is, that 
 
 where no copy has been preserved, it the grant should be to some one an/1 
 
 is not to be expected that witnesses the heirs, in this instance that it 
 
 can recite its contents, word for should have been to W. D. J. Collins 
 
 word; — it is sufficient if intelligent and his heirs, and that it should 
 
§ 342 
 
 A. Pkoteot Substantive Rights. 
 
 446 
 
 have been signed by the parties who 
 conveyed the land, in this instance 
 by Mints; that it should have been 
 sealed by a scroll or scrawl or some 
 other seal; that it should have been 
 signed in the presence of witnesses.'' 
 Cross v. Aby, (Fla. 1908) 45 So. 820, 
 823, per Shackleford, C. J., citing, 
 
 Alabama. — Elyton Land Co. v. Den- 
 ney, 108 Ala. 553, 18 So. 561 (1896). 
 
 Florida. — Campbell v. Skinner Mfg. 
 Co., 53 Fla. 632, 43 So. 874 (1907) ; 
 Edwards v. Rives, 35 Fla. 89, 17 So. 
 416 (1895) ; Fries v. Griffin, 35 Fla. 
 212, 17 So. 66 (1895). 
 
 Kentucky. — Madeira's Heirs v. Hop- 
 kins, 12 B. Mon. 595 (1851). 
 
 Montana. — Capell r. Fagan, 30 
 Mont. 507, 77 Pac. 55 (1904). 
 
 New York. — Metcalf v. Van Ben- 
 thuysen, 3 N. Y. 424 (1850). 
 
 North Carolina. — Loftin v. Loftin, 
 96 N. C. 94, 1 S. E. 837 (1887). 
 
 North Dakota. — Garland v. Foster 
 County State Bank, 11 N. D. 374, 
 92 N. W. 452 (1903). 
 
 Tennessee. — Tisdale v. Tisdale, 2 
 Sneed 596, 64 Am. Dec. 775 (18-55). 
 
 In proving the contents of a lost 
 instrument, it is sufficient to show 
 who executed it and to whom it was 
 executed, the time of execution, the 
 consideration and the property con- 
 veyed, or the subject-matter of the 
 contract. Harrell v. Enterprise Sav. 
 Bank, 183 111. 538. 56 N. E. 63 (1900). 
 " The fourth principle of evidence is 
 that pursuant to the policy of the law 
 ' in choosing probabilities it is wise 
 to take the best that offers,' and con- 
 sistently with the recognition of the 
 cogency of proof of habit and custom 
 in case of lost or destroyed instru- 
 ments, the common law recognizes 
 proof of use of a definite and conven- 
 tional form as sufficiently full. In 
 Perry v. Burton, 111 111. 138, 140 
 (1884), Schoefield, C. J., said: 'A 
 witness testifying to the contents of 
 a lost deed is not to be expected to 
 be able to repeat it verbatim from 
 memory. Indeed, if he were to do so, 
 that circumstance would, in itself, be 
 
 so suspicious as to call for explana- 
 tion. All that parties, in such cases, 
 can be expected to remember, is, that 
 they made a deed, to whom, and about 
 what time, for what consideration, 
 whether warranty or quitclaim, and 
 for what property. To require more 
 would, in most instances, practically 
 amount to an exclusion of oral evi- 
 dence in the case of & lost or de- 
 stroyed deed.' " Rogers v. Clark Iron 
 Co., 104 Minn. 198, 214 (1908). To 
 the same effect see Kenniff v. Caul- 
 field, 140 Cal. 34, 73 Pac. 803 (1903) ; 
 Shove v. Wiley, 35 Mass. 558, 564 
 (1836); Snyder v. Wertz, 5 Whart. 
 162 (1839); McCreary v. Reliance, 
 16 Tex. Civ. App. 45, 41 S. W. 485 
 (1897); Crain v. Huntington, 81 
 Tex. 614, 17 S. W. 242 (1890). And 
 see also, Miller v. Texas & P. Ry. Co., 
 132 U. S. 662, 10 Sup. 'Ct. 206, 214, 
 33 L. ed. 487 (1889), per Bradley, J.; 
 Minneapolis Times Co. v. Nimocks, 53 
 Minn. 384, 55 BT. W. 546 (1893) ; 
 Philbrook v. Smith, 40 Minn. 100, 41 
 N. W. 545 (1889). A high standard 
 of proof will be required. Stevens v. 
 Fitzpatrick, 218 Mo. 708, 118 S. W. 
 51 (1909). This is especially true 
 where a motive for failing to produce 
 the original may reasonably be in- 
 ferred. Smith f. Lurty, 108 Va. 799, 
 62 S. E. 789 (1908). 
 
 If the consideration of a deed be 
 stated in it the parol evidence of con- 
 tents must include proof of that fact, 
 as it is a material part of the deed. 
 Capell v. Fagan, (Mont. 1904) 77 
 Pac. 55. 
 
 Due and proper execution must be 
 affirmatively proved. A reasonable 
 latitude, neither assenting to vague- 
 ness on the one hand, nor imposing 
 strictness with which it is impossible 
 to comply on the other, is observable 
 in this connection; — as in cases in- 
 volving the requirements for proof of 
 contents of lost or otherwise unavail- 
 able instruments. 
 
 Alabama. — Shorter v. Sheppard, 33 
 Ala. 648 (1859). 
 
447 Secondary Proof of Constituent Writings. § 342 
 
 the indulgence itself. 2 In case a document is constituent 3 i. e., is 
 one of those which in themselves constitute or create legal results, 
 wills, etc., proof of contents by parol testimony must be, upon 
 natural grounds of public policy, particularly comprehensive and 
 exact. 
 
 Colorado. — McDonald v. Thompson, 
 16 Colo. 13, 26 Pac. 146 (1891). 
 
 Illinois. — Hawley v. Hawley, 187 
 111. 351, 58 N. E. 332 (1900) ; Harrell 
 v. Enterprise Saij. Bank, 183 111. 538, 
 56 N. E. 63 (1900). 
 
 Indiana. — Templln v. Krahn, 3 Ind. 
 373 (1852). 
 
 Iowa. — Otten v. Laffler, 17 Iowa 
 576 (1864). 
 
 Kentucky. — Hogg v. Combs, 29 Ky. 
 L. Rep. 559, 93 S. W. 670 (1906). 
 
 Louisiana. — Segond v. Roach, 4 La. 
 Ann. 54 (1849). 
 
 Maryland. — Yingling v. Kohlhass, 
 18 Md. 148 (1861). 
 
 Michigan. — Holmes v. Deppart, 122 
 Mich. 275, 80 N. W. 1094 (1899). 
 
 Minnesota. — Lloyd v. Simons, 105 
 N. W. 902 (1906); Towle v. Sherer, 
 70 Minn. 312, 73 N. W. 180 (1897). 
 
 Missouri. — Dollarhide v. Parks, 92 
 Mo. 178, 5 S. W. 3 (1887). 
 
 Montana. — Capell v. Fagan, 77 Pac. 
 55 (1904). 
 
 Nebraska. — Hill v. Bub, 34 Neb. 
 524, 52 N. W. 375 (1892). 
 
 New Jersey. — Wells v. Flitcraft, 
 (Ch. 1899) 43 Atl. 659; Irving v. 
 Campbell, 56 N* Y. Super. Ct. 284, 
 4 N. Y. Suppl. 103 (1888). 
 
 Oregon. — Teller v. Brower, 14 Or. 
 405, 14 Pac. 209 (1886). 
 
 South Carolina. — Belton v. Briggs, 
 4 Desauss Eq. 465 (1814) ; Anderson 
 v. Eobson, 1 Brev. 263 (1803). 
 
 Texas. — Simpson Bank v. Smith, 
 (Tex. Civ. App. 1908) 114 S. W. 445 
 (deed) ; Rushing v. Lanier, (Tex. Civ. 
 App. 1908) 111 S. W. 1089; Gray- 
 son v. Lofland, 21 Tex. Civ. App. 503, 
 52 S. W. 121 (1899). 
 
 Vermont. — Colchester v. Culver, 29 
 Vt. Ill (1856). 
 
 Virginia. — Barley v. Byrd, 95 Va. 
 316, 28 S. E. 329 (1897). 
 
 Wisconsin. — Matteson v. Hartmann, 
 91 Wis. 465, 65 N. W. 58 (1895). 
 
 Where proof of execution which 
 complies with this standard cannot be 
 furnished, the evidence as to the lost 
 instrument will be rejected. 
 
 Arkansas. — 'Hooper v. Chism, 13 
 Ark. 496 (1853). 
 
 Colorado. — Duncan v. Last Chance 
 Ditch Co., 7 Colo. App. 34, 42 Pae. 
 171 (1895). 
 
 Kentucky. — Calvert v. Nichols, 8 
 B. Mon. 264 (1847) ; Arnold v. Voor- 
 hies, 4 J. J. Marsh. 507 (1830). 
 
 Louisiana. — Anderson v. Cox, 6 La. 
 Ann. 9 (1851). 
 
 Michigan. — Hutchins v. Murphy, 
 146 Mich. 621, 110 N. W. 52, 13 De- 
 troit Leg. N. 901 (1906) ; Seymour 
 v. Canfield, 122 Mich. 212, 80 N. W. 
 1096 (1899). 
 
 Mississippi. — Stovall v. Judah, 74 
 Miss. 747, 21 So. 614 (1896). 
 
 Missouri. — Hendricks v. Whitecot- 
 ton, 60 Mo. App. 671 (1894); Owen 
 V. Crum, 20 Mo. App. 121 (1886). 
 
 New York. — Reimer v. Muller, 47 
 N. Y. Super. Ct. 226 (1881). 
 
 North Carolina. — Townsend v. 
 Moss, 58 N. C. 145 (1859). 
 
 Ohio. — Burridge v. Geauga Bank, 
 Wright 688 (1834). 
 
 Oregon. — Nessley v. Ladd, 29 Or. 
 354, 45 Pac. 904 (1896). 
 
 Pennsylvania. — Burr v. Kase, 168 
 Pa. St. 81, 31 Atl. 954 (1895); 
 Rousher v. Hamm, 3 Brewst. 233 
 (1870). 
 
 Texas. — Overand v. Menczer, 83 
 Tex. 122, 18 S. W. 301 (1892). 
 
 Virginia. — Barley v. Byrd, 95 Va. 
 316, 28 S. E. 329 (1897). 
 
 2. Perry v. Burton, 111 111. 138 
 (1884) (deed). 
 
 3. Supra, § 47. 
 
§342 
 
 A. Peotect Substantive Eights. 
 
 448 
 
 Only the substance of the contents of the instrument will be 
 required; but this requirement covers all its material provisions. 4 
 Every part of the instrument which would essentially qualify its 
 effect in any particular which is germane to the inquiry then pend- 
 ing, must be proved with clearness and precision. The inter- 
 dependence and correlation of the various parts of a constituent 
 document make it, as a rule, difficult to omit or misstate any por- 
 tion of such a writing without modifying it as a whole. Unless, 
 therefore, practically the entire instrument can be stated, the court 
 cannot well be sure that the true purport of even the part of im- 
 mediate interest is before it. The formality and brevity of some 
 constituent documents occasionally make such completeness 
 possible. 
 
 Illustrative Instances. — What parts of any specific document 
 may properly be deemed a material one and what degree of pre- 
 cision in recollection and statement as to the contents of these 
 material parts will, in case of any given class of constituent instru- 
 ments or other documents, be sufficient to overcome the inertia? of 
 
 4. Clark v. Houghton, 12 Gray 
 (Mass.) 44 (1858); Edwards v. Nbyes, 
 65 N. Y. 126 (1875) ; Burr v. Kase, 
 168 Pa. 81, 31 Atl. 954 (1895) ; U. S. 
 V. Macomb, 5 McLean 286, 298 
 (1851) ; Tayloe v. Riggs, 1 Pet. 591, 
 000 (1828). 
 
 5. While the evidence as to amount, 
 terms, and identity must be clear, 
 specific, and satisfactory in an action 
 on the instrument, it is sufficient to 
 prove the contents in substance. 
 
 District of Columbia. — Kelley v. 
 Divver, 6 Maokey 440 (1888). 
 
 Florida. — Fries v. Griffin, 35 Fla. 
 212, 17 So. 66 (1895). 
 
 Illinois. — Bennett v. Waller, 23 111. 
 97 (1859); Osborne V. Rich, 53 111. 
 App. 661 (1894). 
 
 Iowa. — McDonald v. Jackson, 56 
 Iowa 643, 10 N. W. 223 (1881). 
 
 Maine. — Perkins V. Cushman, 44 
 Me. 484 (1858). 
 
 Missouri. — Dollnrhide v. Parks, 92 
 Mo. 178, 5 S. W. 3 (1887). 
 
 Michigan. — Holmes v. Deppert, 122 
 Mich. 275, 80 N. W. 1094 (1899). 
 
 Minnesota. — Lloyd v. Simons, 97 
 Minn. 315, 105 N. W. 902 (1905). 
 
 Montana. — Capell v. Fagan, 77 
 Pac. 55 (1904). 
 
 New York. — Moffat v. Moffat, 10 
 Bosw. 468 (1863); Metcalf r. Van 
 Benthuysen, 3 N. Y. 424 (1850). 
 
 North Carolina. — Tuttle v. Rainey, 
 98 N. C. 513, 4 S. E. 475 (1887) ; 
 Loftin r. Loftin, 96 N. C. 94, 1 S. E. 
 837 (1887) ; Deans v. Dortch, 40 
 N. C. 331 (1848). 
 
 Pennsylvania. — Emig v. Diehl, 76 
 Pa. St. 359 (1874) ; Slone v. Thomas, 
 12 Pa. St. 209 (1849). 
 
 Tennessee. — McCarty v. Kyle, 4 
 Coldw. 348 (1867) ; Johnson v. Mc- 
 Kamey, (Ch. App. 1899) 63 S. W. 
 221. 
 
 Virginia. — Thomas v. Kibble, 24 
 S. E. 241 (1896). 
 
 West Virginia. — Board v. Callihan, 
 33 W. Va. 209, 10 S. E. 382 (1889). 
 
 United States. — Burdick v. Peter- 
 son, 72 Fed. 864 (1896). 
 
 6. Infra, § 993. 
 
449 
 
 Secondaby Evidence Pboof of Conteacts. § 342 
 
 the court, is essentially part of the substantive law relating to 
 particular instruments — contracts, deeds, wills, etc. In broad 
 outline, however, the manner in which oral evidence of the con- 
 tents of special documents is dealt with by the court may well 
 illustrate the practical application of the canon of administration 
 under consideration. 
 
 Bills of Sale. — The contents of a bill of sale must be proved to 
 a reasonable certainty by clear and satisfactory evidence as to all 
 material parts. 7 
 
 Contracts. — A contract originally reduced to writing may be a 
 constituent document. Its contents should be proved with fullness 
 and precision. 8 
 
 7. Hooper v. Chism, 13 Ark. 496, 
 501 (1853) ; Brown v. Hicks, 1 Ark. 
 233, 243 (1838). 
 
 8. Shouler v. Bonander, 80 Mich. 
 531, 535, 45 N. W. 487 (1890) (agree- 
 ment) ; Ross v. Williamson, 14 Ont. 
 184 (1887) (agreement). 
 
 Records. — Where a record has be- 
 come lost or destroyed its substance 
 at least, must be proved with sub- 
 stantial accuracy. Bromberg v. Peo- 
 ple, 136 111. App. 602 (1907). See 
 also Lowrance v. Richardson, (Okl. 
 1909) 100 Pac. 529. 
 
 Proof of the effect of a lost record 
 is not, however, sufficient in this con- 
 nection. A witness cannot substitute 
 his " understanding " of what was the 
 issue in a given case in which a lost 
 judgment was entered for a narrative 
 of the issues shown by the pleadings. 
 Robbins v. Hubbard, (Tex. Civ. App. 
 1908) 108 S. W. 773. 
 
 Absence of record. — The best evi- 
 dence of the existence or nonexistence 
 of entries in public records is the 
 Tecords themselves; and when, be- 
 cause of the voluminous character of 
 the records, oral evidence is admis- 
 sible to show the absence of a record 
 or an entry, that fact should be given 
 by the legal custodian after showing 
 a diligent search. Sykes v. Beck, 
 
 Vol. I. 29 
 
 (N. D. 1903) 96 N. W. 844. In gen- 
 eral, the certificate of the custodian 
 of a public document that certain 
 facts do or do not appear on the files 
 of his office is inadmissible. See 
 Documentary Evidence. Thus, for 
 example, the written statements of 
 the register of the United States Land 
 Office and the State Land Commis- 
 sioner to the effect that the records 
 in their respective offices show that 
 certain entries were made are inad- 
 missible to prove such entries; and 
 the proper evidence of such matters, 
 in the absence of the originals, are 
 duly authenticated copies. Kelley v. 
 Laconia Levee Dist., (Ark. 1905) 85 
 S. W. 249. 
 
 Courts have inherent power to sup- 
 ply their lost or defaced records. 
 Montgomery ft. Viers, (Ky. 1908) 114 
 S. W. 251. A statute conferring such 
 power is, therefore, merely declaratory 
 of the existing law. Alabama City, 
 G. & A. Ry. Co. v. Ventress, (111. 
 1906) 42 So. 1017. 
 
 An appellate court will not, as a 
 rule, reverse the action of a trial 
 judge in regard to accepting sub- 
 stituted proof of the contents of a 
 record. People v. Garnett, (Cal. 
 App. 1908) 98 Pac. 247. 
 
343 
 
 A. Protect Substantive Eights. 
 
 45Q 
 
 § 343. ( [1] Right to Prove One's Case; [a] Right to Use 
 Secondary Evidence; Constituent Documents); Deeds. — 
 
 In case of a deed, in the language of an early Indiana decision, 1 
 " The property conveyed, 2 the estate created, 3 the conditions an- 
 nexed,* the signing, 5 sealing 6 and delivery, are required to be 
 proved with reasonable certainty by witnesses who can testify 
 clearly to its tenor and contents." 7 Proof will be required of the 
 
 1. Thompson v. Thompson, 9 Ind. 
 323, 333 (1857). 
 
 2. The courses of the description 
 are not essential. Jackson v. M'Vey, 
 18 John. (N. Y.) 330, 333 (1820). 
 
 3. A lease, or surrender stand in 
 the same position in relation to proof 
 of contents. Doe v. Jack, 1 All. N. 
 Br. 476 (1849). 
 
 4. " It should be made satisfactorily 
 to appear what were the substantial 
 conditions and covenants." Rector v. 
 Rector, 8 111. 105, 122 (1846). 
 
 5. Elyton Land Co. v. Denny, 108 
 Ala. 553, 561, 18 So. 561 (1895) ; 
 Neely v. Carter, 96 6a. 197, 23 S. E. 
 313 (1895). 
 
 6. Seals.— For some consideration as 
 to how far a record copy should show 
 the existence of a seal upon an original 
 instrument requiring a seal for its 
 validity, see 
 
 California. — Smith v. Dall, 15 Cal. 
 510 (1859). 
 
 Illinois. — Pease v. Sanderson, 188 
 111. 597, 59 N. E. 425 (1900). 
 
 Iowa. — Switzer v. Knapp, 10 Iowa 
 72, 75 (1859). 
 
 Kentucky. — Hedden v. Overton, 4 
 Bibb 406 (1816). 
 
 Michigan. — Starkweather V. Martin, 
 28 Mich. 471 (1874). 
 
 North Carolina. — Strain v. Fitz- 
 gerald, 128 N. C. 396, 38 S. E. 929 
 (1901). 
 
 Tennessee. — State v. Cooper, 53 S. 
 W. 391 (1899). 
 
 Virginia. — Virginia Coal & I. Co. v. 
 Keystone C. & I. Co., 45 S. E. 291 
 (1903) (land patent); Reusens v. 
 Lawson, 91 Va. 226, 21 S. E. 347 
 (1895). 
 
 Vermont. — Williams v. Bass, 22 Vt. 
 352 (1850). 
 
 Wisconsin. — Peters v. Reichenbach, 
 114 Wis. 209, 90 N. W. 184 (1902). 
 
 7. Alabama. — Laster v. Blackwell, 
 128 Ala. 143, 30 So. 663 (1900); 
 Potts v. Coleman, 86 Ala. 94, 100, 5 
 So. 780 (1888). 
 
 California. — Kenniff v. Caulfield, 
 140 Cal. 34, 73 Pac. 803 (1903). 
 
 Florida. — Edwards v. Rives, 35 Fla. 
 89, 17 So. 416 (1895). 
 
 Georgia. — Roe & McDowell v. Doe 
 & Irwin, 32 Ga. 39, 50 (1861). 
 
 Illinois. — King v. Worthington, 73 
 111. 161, 163 (1874). 
 
 Indiana. — Wiggins v. Holley, 11 
 Ind. 2 (1858). 
 
 Iowa. — Ross v. Loomis, 64 Iowa 
 437, 20 N. W. 749 (1884). 
 
 Minnesota. — Wakefield v. Day, 41 
 Minn. 344, 3^7, 43 N. W. 71 (1889). 
 
 Mississippi. — Jelks v. Barrett, 52 
 Miss. 315, 321 (1876). 
 
 Ohio. — Gillmore v. Fitzgerald, 26 
 Ohio St. 171, 174 (1875). The wit- 
 ness should be able to recollect whether 
 a deed is a warranty or a quit claim. 
 Perry v. Burton, 111 111. 138 (1884). 
 But the mere fact that a given in- 
 strument is a warranty deed is not 
 a sufficient statement of its " sub- 
 stance." Jackson v. Benson, 54 Iowa 
 665, 7 N. W. 88 (1880). 
 
 A statement that the document in 
 question was " similar " to one pro- 
 duced is not stating its substance, 
 within the rule. South Chicago B. Co. 
 V. Taylor, 205 111. 132, 68 N. E. 732 
 (1903). 
 
451 
 
 Peoving Contents of Negotiable Paper, 
 
 344 
 
 substance 8 of all material portions of the deed. 9 The logical or 
 even the legal 10 effect of the instrument may be deemed, under 
 special circumstances, 11 a compliance with the rule. This evidence 
 has, however, been declined, and the " sense of the deed," 12 that 
 certain instruments " vested title " in a given person, 13 or similar 
 language, 14 stating the effect or operation of the instrument in 
 question has been rejected; even where the statement is an admis- 
 sion by a party. 18 The same rules apply to bonds, 16 releases, or 
 other instruments under seal affecting interests in real estate. 
 
 § 344. ( [1] Right to Prove One's Case; [a] Right to Use 
 Secondary Evidence; Constituent Documents) ; Negotiable In- 
 struments. — Negotiable instruments 1 and other commercial special- 
 ties must be proved with great particularity, as, in respect practi- 
 cally to all parts of the paper, a close approach to verbal precision 
 is permitted by the nature of the document. 2 
 
 8. Anniston C. L. Co. v. Edmond- 
 son, 127 Ala. 445, 30 So. 61 (1900) ; 
 Doe v. Stiles, 1 Kerr N. Br. 338, 346 
 
 (1841); Metealf v. Van Benthuysen, 
 3 N. Y. 424, 428 (1850) ("operative 
 parts" required). 
 
 The date of a deed is not deemed, 
 except under special circumstances, a 
 material part of it. Perry v. Burton, 
 111 111. 138 (1884) ("about what 
 time" is sufficient); Thompson v. 
 Thompson, 9 Ind 323 333 (1857). 
 
 9. Harrell v. Enterprise Sav. Bank, 
 183 111. 538, 56 N. E. 63 (1899) 
 (that land had been "conveyed" suf- 
 ficient). 
 
 10. Admissions. — If an admission 
 may establish the contents of a docu- 
 ment, it would seem proper that such 
 a statement should be equally compe- 
 tent to prove its effect. Britehard v. 
 Bagshawe, 11 C. B. 459, 463 (1851) ; 
 Infra, § 1378. 
 
 Record abstracts of title. — An in- 
 stance of this indulgence is furnished 
 where the public registry record of a 
 deed is an abstract and not a copy 
 of its contents. Suitable explanation 
 being made of the absence of the 
 original deed, the registry abstract 
 has been received as evidence of the 
 contents of the original instrument. 
 Smith v. Lindsey, 89 Mo. 76, 80, 1 S. 
 W. 88 (1886); Garrigues v. Harris, 
 
 16 Pa. St. 344, 352 (1851) ; Bird V. 
 Smith, 3 McC. 300 (1825). Other 
 courts have rejected the abstract when 
 tendered for this purpose. New Jer- 
 sey R. & T. Co. v. Suydam, 17 N. J. 
 L. 25, 59 (1839) (mortgage). 
 
 11. Holmes v. Deppert, 122 Mich. 
 275, 80 N. W. 1094 (1899). 
 
 12. Shifflet v, Morelle, 68 Tex. 382, 
 387 (1887). 
 
 13. Booge v. Parsons, 2 Vt. 456, 
 459 (1830) ("deeded"). 
 
 14. Shorter v. Sheppard, 33 Ala. 
 648-, 658 (1859) (that A had "recon- 
 veyed" rejected). 
 
 15., Rhode v. McLean, 101 111. 467, 
 471 (1882) (bond) ; Kello v. Maget, 1 
 Dev. & B. 414, 424 (1835) ; Boyd v. 
 Com., 36 Pa. 355, 359 (1860) (docket 
 entry of receipt of a trustee's bond ad- 
 mitted ) . 
 
 16. For authorities relating to the 
 admissibility of record or copy of 
 record, of deed, to prove deed under 
 which party offering its claims, see 
 19 L. R. A. (N. S.) 438. 
 
 1. Bond v. Whitfield, 32 Ga. 215, 
 217 (1861) (bill of exchange) ; State 
 v. Peterson, 129 N. C. 556, 40 S. E. 
 9 (1901). 
 
 2. But see Bell v. Young, 3 Grant 
 (Pa.) 175 (1854) (amount of a note; 
 about $80; above $70 received). 
 
§§ 345, 346 A. Protect Substantive Eights. 452 
 
 § 345. ( [1] Right to Prove One's Case; [a] Right to Use 
 Secondary Evidence; Constituent Documents) ; Public Papers. 
 
 — Public records do not require for proof of contents by parol 
 any other or different rule than is applied to private instruments. 
 The substance of the contents of public documents, 1 in all material 
 particulars, 2 must be proved when the original is lost, destroyed or 
 is for some other reason, practically unavailable. Verbatim testi- 
 mony is not necessary. 3 
 
 § 346. ( [1] Right to Prove One's Case; [a] Right to Use 
 Secondary Evidence; Constituent Documents); Wills The 
 
 maximum of strictness in requirement as to proof of contents is 
 made in the case of wills. That the contents of a lost will may, 
 in a proper case, be established by parol is beyond question. 1 The 
 rule that the substance of all material portions of the instrument 
 must be proved is equally applicable in the case of wills as in that 
 of other constituent instruments. A peculiarity of this class of 
 documents is that the complexity of provision is frequently so 
 great and the interdependence of the several parts is so intimate 
 that practically all parts of a will are " material," within the mean- 
 ing of the rule. To demand, indeed, that the entire intention of 
 the testator be presented to the court before effect can be given to 
 any of it, would be in reality a requirement of verbal precision 
 and defeat the object of the rule. 2 As said by Chief Justice Cock- 
 burn, 8 " where the court can see its way to the essentially sub- 
 stantial dispositions made in a will, ... it should give effect 
 to them, although possibly some of the intentions of the testator 
 may not be carried into effect." 4 The difficulty in the mind of 
 
 1. Sturtevant v. Robinson, 18 Pick. usually drawn up in accordance with 
 (Mass.) 175, 179 (1836) (writ) ; a statute and usually follows a form 
 Cunningham v. R. Co., 61 Mo. 33, 36 devised for that kind of instrument." 
 (1875). Mandeville v. Reynolds, 68 N". Y. 528, 
 
 2. In case of familiar and formal 533 1877 (Judgment roll showing 
 documents, a mere abstract may suf- judgment docket verified by the clerk 
 flee. Browning V. Flanagin, 22 N. J. as substantially correct). 
 
 L. 567, 571 (1849) (writ). So where, 3. Com. v. Roark, 8 Cush. (Mass.) 
 
 as in case of an execution, the "con- 210, 213 (1851). 
 
 tents were prescribed either by statute 1. Sugden v. St. Leonards, L. R., 1 
 
 or by the practice of the courts" even P. D. 154 (1876). 
 
 less extended proof may suffice. Le- 2. Anderson v. Irwin, 101 111. 411, 
 
 land v. Cameron, 31 N. Y. 115, 120 414 (1882). 
 
 (1865) (attorneys entry of issuance). 3. Sugden v. St. Leonards, L. R. 1 
 
 In general, this practice would prop- P. D. 154 (1876). 
 
 erly be applicable in all cases " where 4. " The substance of the different 
 
 the lost paper is of a kind which is devises, as to the property or interest 
 
453 
 
 Caee Kequibed in Proof of Lost Wills. 
 
 § 346 
 
 the court is how to know until satisfied that practically the entire 
 will is reproduced that the court is in possession of a complete in- 
 tention as to anything whatever. For, as was said in Delaware: 
 " Proving part only of the contents of a will which is lost or de- 
 stroyed, is not sufficient to establish -it, even as to the part so 
 proved, unless it satisfactorily appears that there is nothing in the 
 preceding or subsequent part of the will which would qualify, 
 change, or in any way alter the particular devise proved ; for with- 
 out knowing the certainty of the will and the language used by 
 the testator, it would be impossible to determine what estate would 
 pass under it." 5 Under these conditions, the right of a party to 
 produce the best evidence in his power to establish his rights is 
 harmonized with the interests of public policy for the maintenance 
 of the rules regulating the disposition of property after death by 
 a careful and conservative exercise of the administrative powers 
 of the court. In general, the judge will give effect to a will upon 
 finding that he has before him the substance of its material pro- 
 visions. 6 It may even be sufficient to prove part of a lost will. 7 
 
 devised, and to whom devised," are 
 sufficient facts to warrant the court in 
 acting. Allison's Dev. t'. Allison's 
 Heirs, 7 Dana 90, 95 (1838). 
 
 5. Butler v. Butler, 5 Harp. (S. C.) 
 178 (1849). 
 
 6. Alabama. — Skeggs v. Horton, 82 
 Ala. 352, 357, 2 So. 110 (1886). 
 
 California. — Camp's Estate, 134 
 Cal. 233, 66 Pac. 227 (1901). 
 
 Connecticut. — Johnson's Will, 40 
 Conn. 587, 589 (1874). 
 
 Delaware. — Butler v. Butler, 5 Har. 
 178 (1849). 
 
 Illinois. — Anderson v. Irwin, 101 
 111. 411, 415 (1882). 
 
 Indiana. — Jones v. Casler, 139 Ind. 
 382, 384, 38 N. E. 812 (1894). 
 
 Kentucky. — Steele v. Price, 5 B. 
 Mon. 58, 65 (1844) ; Allison's Dev. v. 
 Allison's Heirs, 7 Dana 90, 95 (1838). 
 
 Massachusetts. — Davis v. Sigour- 
 ney, 8 Mete. 487 (1844). 
 
 Missouri. — Dickey v. Malechi, 6 
 Mo. 177, 184 (1839). 
 
 Nebraska. — Williams V. Miles, 94 
 N. W. 705 (1903). 
 
 New Jersey. — Coddington v. Jenner, 
 
 57 N. J. Eq. 528, 41 Atl. 874 (1898) ; 
 Wyckoff v. Wyekoff, 16 N. J. Eq. 401, 
 405 (1863). 
 
 New York. — Grant v. Grant, 1 
 Sandf. Ch. 235, 243 (1844) ("sub- 
 stantial contents ") . 
 
 Tennessee. — MoNeeley v. Pearson, 
 42 S. W. 165 (1897). 
 
 Vermont. — Dudley v. Wardner, 41 
 Vt. 59 (1868). 
 
 Virginia. — Thomas V. Bibble, 24 S. 
 E. 241 (1896). 
 
 England. — Harris v. Knight, L. R. 
 15 P. D. 170, 179 (1890); Sugden v. 
 St. Leonards, L. R. 1 P. D. 154 
 (1876) ; Foster v. Foster, 1 Add. 462, 
 465 (1823). 
 
 Canada. — >McLeod's Estate, 23 N. 
 S. 154, 162 (1890) (codicil). "What 
 is required is the substance of its ma- 
 terial provisions." Tarbell v. Forbes, 
 177 Mass. 238, 58 N. E. 873 (1900). 
 
 A nuncupative will is necessarily 
 established in the same manner. Le- 
 mann v. Bonsall, 1 Add. 389, 390 
 (1823). 
 
 7. Jackson v. Jackson, 4 Mo. 210. 
 (1835). 
 
§§ 347, 348 A. Peotect Substantive Eights. 454 
 
 The due execution of the instrument, with the formalities required 
 by law, is, it need scarcely be said, a necessary fact to be estab- 
 lished by the oral evidence. 8 Some consideration as to the degree 
 of persuasion required to overcome the inertia of the court is to be 
 found elsewhere. 9 
 
 § 347. ( [1] Right to Prove One's Case; [a] Right to Use 
 Secondary Evidence) ; Probative Documents. — The contents of 
 other than constituent documents may be shown by any appropri- 
 ate evidence, 1 including tbat of a witness who can testify directly 
 from memory or from a recollection suitably refreshed by the use 
 of appropriate memoranda, 2 including the use, as part of the testi- 
 mony of the witness of a memorandum which revives no present 
 recollection but which the maker swears to have been accurate 
 ivhen made. 
 
 In case of documents other than constituent, the element of in- 
 terdependence of parts characteristic of formal writings is re- 
 duced or disappears entirely. It may happen, however, that little 
 may be presented by the original document to which the memory 
 readily attaches itself and the witness may be unable to remember 
 more than a limited portion, even in substance, or even, unable to 
 do so much, must limit himself merely to the effect which the 
 writing produced on his mind. 
 
 Consideration as to what intention of evidence is properly re- 
 quired in proving the contents of lost documents, i. e., what pre- 
 cision, clearness and fullness of statement is called for on the part 
 of a satisfactory witness, in order to overcome the inertia of the 
 court, will be given in another place. 3 
 
 § 348. C [1] Right to Prove One's Case; [a] Right to Use 
 Secondary Evidence; Probative Documents); Illustrative In- 
 stances. — With letters, 1 books of account, 2 and other non-constitu- 
 
 8. Monteflore v. Monteflore, 2 Add. Part of a letter not shown to cover 
 Eccl. 354 (1824). completely all that was contained 
 
 9. Infra, § 1009. in it relating to the point for 
 
 1. Hardy's Trial, 24 How. St. Tr. which it is introduced, will be re- 
 681 (1794). jected. Bank v. Brown, Dudley 62, 65 
 
 2. See Documentary Evidence. (1831). 
 
 See also, Hardy's Trial, 24 How. St. 2. Mayson v. Beazley, 27 Miss. 106 
 
 Tr. 681 (1794). (1854) (abstract sufficient). 
 
 3. Infra, § 1010. The right to use a summary or ab- 
 1. Case v. Lyman, 66 111. 229, 233 stract of voluminous accounts or cal- 
 
 (1872) ; Strange v. Crowley, 91 Mo. culations is treated elsewhere. Infra, 
 287, 294, 2 S. W. 421 (1886) ; Poague § 2709. 
 V. Spriggs, 21 Gratt. 220, 231 (1871). 
 
455 Secondary Pboof of Probative Documents. § 348 
 
 ent documents, 3 verbal precision is less requisite than in case of 
 constituent documents; 4 — though, of course, highly desirable, 
 where it may be had. The substance 5 of any portions relevant to 
 the inquiry will, 6 as a rule, be deemed sufficient. 7 
 
 3. Camden v. Belgrade, 78 Me. 204, 
 3 Atl. 652 (1886) (marriage certifi- 
 cate) ; Wilkerson v. Allen, 67 Mo. 502, 
 510 (1878) (advertisement). 
 
 4. Tobin v. Shaw, 45 Me. 331, 349 
 (1858) (letter; "So far as she recol- 
 lected," sufficient) . 
 
 Some real recollection, however, is 
 requisite. — A witness who "thought 
 he might perhaps state " the contents 
 of a letter was held to have been prop- 
 erly rejected. Graham v. Chrystal, 2 
 Abb. App. C. 263 (1865). 
 
 5. Camden v. Belgrade, 78 Me. 204, 
 3 Atl. 652 (1886). 
 
 6. People v. McKinney, 49 Mich. 
 334, 336, 13 N. W. 619 (1882) ; Sizer 
 V. Burt, 4 Den. 426, 429 (1847) (mem- 
 orandum of claim ) . It is necessary 
 only that a witness should be able to 
 state the substance of lost or destroyed 
 letters. Verbal accuracy is not es- 
 sential. Campbell v. State, 123 Ga. 
 533, 51 S. E. 644 (1905). The sub- 
 stance of unavailable letters alone 
 need be proved. Brier v. Davis, 
 (Iowa 1903) 96 N. W. 983. To re- 
 fuse a reasonable opportunity of prov- 
 ing the contents of a lost document 
 is error. Drake v. Holbrook, 78 S. W. 
 158, 25 Ky. L. Rep. 1489 (1904) 
 (schedule of corporation assets). A 
 
 witness must have personal knowledge. 
 Hearsay is not sufficient. Bourquin 
 v. Northwestern E. Co., 79 S. C. 217, 
 60 S. E. 521 (1908). 
 
 Ancient facts. — "The same reason- 
 ing which permits ancient documents, 
 shown to be probably genuine, to 
 prove themselves (see, for example, 
 Everley v. Stoner, 2 Yeates [Pa.] 122 
 [1796]) justifies the admission of evi- 
 dence concerning old transactions gen- 
 erally and concerning the existence 
 and contents of old and lost originals 
 by the best proof practically obtain- 
 able, and to leave the weight of such 
 
 testimony to be determined by the 
 triers of fact.'' Rogers v. Clark Iron 
 Co., 104 Minn. 198, 213 (1908). 
 While proof of contents or the sub- 
 stance of the contents of the opera- 
 tive part of lost instruments in re- 
 establishment proceedings, should be 
 clear and satisfactory, the principles 
 of evidence should not be applied with 
 technical nicety, as after the lapse of 
 many years primary evidence or strict 
 proof could not well be obtained. 
 Campbell v. Skinner Mfg. Co., (Fla. 
 1907) 43 So. 874. The document used 
 in proof of ancient facts must, how- 
 ever, have been one valid prima facie 
 for its ostensible purpose. A news- 
 paper, for example, may be authenti- 
 cated under the rule of the admission 
 of ancient documents, and may be evi- 
 dence for some purposes, as, for in- 
 stance, to show prices current, the 
 state of the market, the arrival and 
 departure of vessels, etc., but its 
 statements cannot be regarded as 
 proof of the illegal acts of French 
 privateers. The rule respecting the 
 admissibility of ancient writings em- 
 braces no instrument not valid upon 
 its face. The Juno, 41 Ct. CI. 106 
 (1906). 
 
 " Proof of business habit or custom 
 is properly received in corroboration 
 of the defective memory of a witness 
 with respect to a missing instrument. 
 There can be no doubt of the pro- 
 bative value of such evidence." Rog- 
 ers v. Clark Iron Co., 104 Minn. 198, 
 213 (1908). And see, to the same 
 effect: 
 
 Minnesota. — Walker v. Barron, 6 
 Minn. 353, 508, 512, (1861); Ma- 
 thias v. O'Neill, 94 Mo. 527, 6 S. W. 
 253 (1888). 
 
 Nebraska. — Gate City v. Post, 55 
 Neb. 742, 76 N. W. 471 (1898). 
 
§349 
 
 A. Protect Substantive Eights. 
 
 456 
 
 Letters as Contracts. — Where letters are relied on to establish, 
 a contract, the same particularity of proof in regard to essential 
 parts is required as in case of more formal instruments designed 
 for that purpose. 8 The effect of a letter is to be distinguished from 
 its substance. That a witness should be permitted to state the 
 effect of the document would be, in certain cases, to substitute his 
 conclusion for that of the jury in point of law, 9 or fact; — which 
 will not be permitted. 10 
 
 § 349. ( [1] Right to Prove One's Case); (b) Means of Com- 
 munication. — The regular and satisfactory means of communica- 
 tion between the witness and the tribunal is that the witness 
 should address the judge or jury in the oral language to which 
 they are accustomed and which they understand. It is usual and 
 best adapted to the attainment of justice that documents should 
 present to the tribunal the mental attitude, the subjective state, 
 
 New Hampshire. — State v. Man- 
 chester, 52 N. H. 528, 532 (1873). 
 
 New York. — Beakes v. Da Cunha, 
 326 N. Y. 293, 27 N. E. 251 (1890) ; 
 Morrow v. Ostrander, 13 Hun 219 
 (1878). 
 
 For example, in connection with 
 proof of the fact of giving notice of 
 the protest of a negotiable instrument 
 and as to the contents of such notice, 
 the business habits of the notary may 
 be proved. 
 
 Maine. — Union Bank v. Stone, 50 
 Me. 595, 79 Am. Dec. 631 (1862). 
 
 New Jersey. — Den v. Downman, 13 
 N. J. L. 142 (1832). 
 
 New York. — Miller v. Hackley, 5 
 Johns. 375, 4 Am. Dec. 372 (1810). 
 
 Pennsylvania. — Eureka v. Robinson, 
 56 Pa. St. 264, 94 Am. Dec. 65 (1867). 
 
 United States. — Nieholls v. Webb, 
 8 Wheat. 326, 5 L. ed. 628 (1823). 
 
 Standard forms. — The use of cer- 
 tain standard forms of conveyancing 
 may assist to giva adequate proof of 
 the contents of a lost document of a 
 specified class. Rogers v. Clark Iron 
 Co., 104 Minn. 198 (1908) ; Haworth 
 v. Haworth, 123 Mo. App. 303, 100 
 S. W. 531 (1907) (deed of adoption). 
 The rule is frequently applied to 
 
 deeds. Kenniff v. Caulfield, 140 Cal. 
 34, 73 Pac. 803 (1903) (deed of grant, 
 bargain and sale ) . Thus, where a 
 lost deed is shown to have been exe- 
 cuted, it will be presumed, in the ab- 
 sence of evidence to the contrary, that 
 the deed was sufficient to convey the 
 land, and that all formalities neces- 
 sary to make it effectual for that 
 purpose, including the acknowledg- 
 ment thereof by a married woman, 
 were observed. Laird v. Murray, 
 (Tex. Civ. App. 1908) 111 S. W. 780 
 (deed). But see South Chicago 
 Brewing Co. v. Taylor, 205 111. 132, 
 68 N. E. 732 (1903). The existence 
 of provisions not usual in the form 
 of instrument employed must be af- 
 firmatively shown. Laird v. Murray, 
 (Tex. Civ. App. 1908) 111 S. W. 780 
 (vendor's lien). 
 
 7. See, however, Coxe v. England, 
 65 Pa. 212, 223 (1870) (letter). 
 
 8. Elwell r. Walker, 52 Iowa 256, 
 261, 3 N. W. 64 (1879) (antenuptial 
 agreement). 
 
 9. Baltimore ». War, 77 Md. 593, 
 603, 27 Atl. 85 (1893) (that a letter 
 was an " order ") . 
 
 10. Infra, § 2363. 
 
457 Substituted Modes of Thought-Conveyance. § 350 
 
 of the declarant, in the written language to which the tribunal, 
 counsel and witnesses are accustomed. Wherever oral testimony 
 or documents in the vernacular can be placed before the tribunal, 
 justice and good faith will regard them as primary and insist upon 
 their being so placed. But should a witness not understand the 
 vernacular, should he be a deaf mute, were it to prove that an 
 important document, constituent or probative, is in a foreign 
 tongue, the present right permits a party to insist upon offering 
 interpreters, translations or any other reasonable substituted means 
 of communication of thought between the witness or declarant and 
 the court. 
 
 The subdivisions of the operation of the present rule may, there- 
 fore, be said to include (a) the right, if necessary, to offer sec- 
 ondary evidence and (b) a claim to use, so far as reasonably 
 required, substituted means of communication between the sources 
 of judicial evidence and the court. The branch of the right to 
 prove one's case which (a) permits a party, in the event of estab- 
 lishing the existence of a suitable necessity for so doing, to intro- 
 duce secondary evidence of facts on which he relies, has now been 
 considered, in the immediately preceding sections. 1 It remains 
 to examine briefly the (b) aspect of the right; — that of employ- 
 ing substituted means of communication between the witness and 
 the court. 
 
 § 350. ( [1] Right to Prove One's Case; [b] Means of Com- 
 munication); Substituted Modes of Communication. — The party 
 may not only present such a case as he can; he may present it 
 through the best means within his power. If an essential witness 
 speaks a language other than that of the jury the proponent may 
 offer an interpreter. 1 Should a relevant document be in a foreign 
 language he may submit, together with the original, a translation. 2 
 Should it happen that a witness, being a mute, is found to be 
 incapable of using speech as a vehicle for his thought or so defect- 
 ive in vocal power as to be inaudible, or unintelligible to the jury, 
 the party. may present some intermediary capable of transposing 
 the manifestations of the witness' thought into the ordinary mode 
 of thought conveyance. 8 
 
 1. §§ 339-348 inc. 2. Infra, § 354. 
 
 1. Infra, § 351. 3. Interpreters, see Infra, § 351. 
 
§351 
 
 A. Pbotect Substantive Eights. 
 
 458 
 
 § 351. ( [1] Right to Prove One's Case; [b] Means of Com* 
 
 munication) ; Interpreters. — The use of substituted methods for 
 the communication of thought between a witness and the tribunal 
 will be permitted when such a course is reasonably necessary to 
 preserve the substantial rights of the parties. 1 Whether such 
 necessity has been shown by the proponent of the method sug- 
 gested, is determined by the administrative function of the pre- 
 siding justice. 2 The similar question whether he is sufficiently 
 
 1. Alabama. — Horn v. State, 98 
 Ala. 23, 13 So. 329 (1893). 
 
 California. — People v. Young, 108 
 Cal. 8, 41 Pac. 781 (1895) ; People V. 
 Ah Wee, 48 Cal. 236 (1874). 
 
 Illinois. — Chicago, etc., Ry. Co. v. 
 Shenk, 131 111. 283, 23 N. E. 436 
 (1890). 
 
 Iowa. — State v. Severson, 78 Iowa 
 653, 43 N. W. 533 (1889). 
 
 Massachusetts. — Norberg's Case, 4 
 Mass. 81 (1808). 
 
 New York. — People v. McGee, 1 
 Den. (N. Y.) 19 (1845). 
 
 England. — Reg. r. Entrehman, C. & 
 M. 248, 41 E. C. L. 139 (1842). "Every 
 expedient should be favorably re- 
 garded, and that most favorably, the 
 tendency of which gives the strongest 
 promise of an intelligible transmission 
 of the evidence to the jury through 
 a medium capable, unbiased, faith- 
 ful." Kuktman v. Brown, 4 Rich. L. 
 (S. C.) 479, 485 (1851). 
 
 2. Alabama. — Horn v. State, 98 
 Ala. 23, 13 So. 329 (1893). 
 
 California,. — People v. Young, 108 
 Cal. 8, 41 Pae. 281 (1895). See also 
 People v. Morine, 138 Cal. 626, 73 
 Pac. 166 (1903). 
 
 Illinois. — Kozlowski v. City of Chi- 
 cago, 113 111. App. 513 (1904). 
 
 Indiana. — Skaggs v. State, 108 Ind. 
 53 (1886). 
 
 Ioxca. — State v. Severson, 78 Iowa 
 653, 43 N. W. 533 (1889). 
 
 New York. — People v. McGee, 1 
 Denio (N. Y.) 19 (1845). 
 
 England. — R. v. Burke, 8 Cox Cr. 
 44-64 passim (1858). 
 
 The efficiency of cross-examination 
 as a test of truth is greatly reduced 
 
 by the use of an interpreter. R. v. 
 Burke, 8 Cox Cr. 44, 47 (1858), where 
 the court calls attention to the spec- 
 tacle of a witness " gaining time to 
 consider his answers while the inter- 
 preter is going through the useless 
 task of interpreting the question 
 which the witness already under- 
 stands." 
 
 More than one interpreter may be 
 appointed to bring the evidence of a 
 single witness to the knowledge of the 
 jury. Skaggs v. State, 108 Ind. 53, 8 
 N. E. 695 (1886). 
 
 Interpreters before grand jury. — An 
 interpreter is regarded as a witness 
 and as such may be called by the 
 grand jury and sworn by the fore- 
 man without special appointment by 
 the court. State v. Firmatura, 121 
 La. 676, 46 So. 691 (1908). Where 
 witnesses before a grand jury do not 
 speak the language of the jury, the 
 court may appoint an interpreter for 
 the purpose. Fletcher i\ Com., 29 Ky. 
 L. Rep. 955, 96 S. W. 855 (1906). 
 Cr. Code Prac, § 110, providing that 
 no person except the attorney for the 
 commonwealth and the witness under 
 examination shall be present while the 
 grand jury are examining a charge, 
 and no person whatever while they are 
 deliberating or voting on a charge, 
 does not prohibit the admission of an 
 interpreter before the grand jury for 
 the examination of witnesses, whose 
 evidence could not be otherwise made 
 intelligible to the grand jury. Lyon 
 r. Com., 29 Ky. L. Rep. 1020, 96 
 S. W. 857 (1906). See also People 
 r. Lem Deo, 132 Cal. 199, 64 Pac. 
 265 (1901). 
 
459 
 
 Testing Qualifications of Inteepeeteb. § 352 
 
 qualified by knowledge of the language involved 3 is also for the 
 presiding judge ; but where only one person understands the wit- 
 ness' method of communication he should receive the appoint- 
 ment. 4 The power to appoint interpreters is frequently conferred 
 in express terms by statute, 8 though such an act is merely de- 
 claratory of the existence of a common law administrative power 
 of the judge. 6 Unless this administrative power is unreasonably 
 exercised, the result will not be revised by an appellate court. 7 
 
 § 352. ( [1] Right to Prove One's Case; [b] Means of Com- 
 munication; Interpreters) ; Qualifications. — The interpreter is 
 subject to cross-examination as to his qualifications, 1 and, unless 
 
 3. California. — People v. Morine, 
 138 Cal. 626, 72 Pac. 166 (1903) ; 
 People v. Young, 108 Cal. 8, 41 Pac. 
 281 (1895). 
 
 Georgia. — City Fire Ins. Co. v. Car- 
 rugi, 41 Ga. 660, 665, 672 (1871). 
 
 Indiana. — Skaggs v. State, 108 Ind. 
 57, BE E. 695 (1886). 
 
 Iowa. — State v. Severson, 78 Iowa 
 653, 43 N. W. 533 (1889). 
 
 England. — R. v. Burke, 8 Cox Cr. 
 44-64 passim (1858). 
 
 4. People v. McGee, 1 Denio (N. Y.) 
 19 (1845). 
 
 Use by the court. — While interpret- 
 ers are, in many cases, employed to 
 bring the evidence of a witness or the 
 declarations of a document to the at- 
 tention of the jury a judge may prop- 
 erly make use of them for any ad- 
 ministrative purpose deemed by him 
 appropriate. Thus, a witness may 
 translate to the court plaintiff's book 
 of account kept in Chinese. Yick Wo 
 v. Underbill, (Cayl. App. 1907) 90 
 Pac. 967. 
 
 5. California Code C. P. § 1884 
 ( " any person a resident of the proper 
 county" may be selected) ; People v. 
 Morine, 138 Cal. 626, 72 Pac. 166 
 (1903) ; People v. Young, 108 Cal. 8, 
 41 Pac. 281 (1895) ; Schall v. Eisner, 
 58 Ga. 190 (1877); Rev. Stat. (Ind.) 
 1897, § 508 ; Skaggs v. State, 108 Ind. 
 57, 8 N. E. 695 (1886) (the number of 
 interpreters is discretionary with the 
 court) ; Com. v. Sanson, 67 Pa. St. 
 
 322 (1871) ; Rev. Civ. Stats. (Texas) 
 1895, § 7285; Livar v. State, 26 Tex. 
 App. 115 (1888). 
 
 6. Schall v. Eisner, 58 Ga. 190 
 ( 1877 ) ; Livar v. State, 26 Tex. App. 
 115 (1888). See also, to the same 
 effect, Nioum v. Com., 33 Ky. L. Rep. 
 62, 108 S. W. 945 (1908). The con- 
 sent of the opposite party is not 
 necessary. Mennella v. Metropolitan 
 St. Ry. Co., 86 N. Y. Suppl. 930, 43 
 Misc. 5 (1904). 
 
 7. Kozlowski v. City of Chicago, 113 
 111. App. 513 (1904). See also Broz- 
 ozowski v. National Box Co., 104 111. 
 App. 338 (1902). Refusal to order 
 an interpreter is an exercise of ad- 
 ministrative power within this rule. 
 Kozlowski v. City of Chicago, 113 111. 
 App. 513 (1904). A finding as to 
 the qualifications of an expert and as 
 to the character of the testimony 
 which will satisfy the judge's mind 
 on the point has even been held to be 
 conclusive. Fennen v. State, 24 Ohio 
 Cir. Ct. R. 583 (1903). 
 
 1. When the former testimony of a 
 witness who testifies through an in- 
 terpreter is offered in evidence the 
 original evidence, the absence of which 
 should be accounted for, is that of 
 both witnesses. Not only therefore 
 should the absence of the first witness 
 be satisfactorily explained by proof of 
 death or unavoidable detention (Infra, 
 § 1629), but the interpreter must be 
 called upon to repeat the evidence of 
 
352 
 
 A. Pbotect Substantive Eights. 
 
 460 
 
 found to be disqualified, in the court's opinion, by reason of 
 relationship to the parties 2 or other bias, 3 the office may be dis- 
 charged by any competent witness. 4 
 
 The interpreter must however understand 5 or have a fair 
 
 the absent witness, or he must be 
 shown to be deceased or otherwise un- 
 available as =■ witness without fault of 
 the proponent. Failure to do so ex- 
 cludes the evidence. People v. Sierp. 
 116 Cal. 249, 48 Pac. 88 (1897) ; Peo- 
 ple v. Ah Yute, 56 Cal. 120 (1880) ; 
 People v. Lee Fat, 54 Cal. 527 (1880). 
 But see People v. John, 137 Cal. 220, 
 89 Pac. 1063 (1902); Schearer v. 
 Harber, 36 Ind. 536 ( 1871 ) ; In re 
 Wiltsey's Will, (Iowa) 98 N. W. 294 
 (1904); State v. Epstein, (R.I. 1903) 
 55 Atl. 204; State v. Terline, 23 R. I. 
 530, 51 Atl. 24 (1902). See also 17 
 L. R. A. 813, note. 
 
 2. State v. Thompson, 14 Wash. 285, 
 44 Pac. 553 (1896) ; Barber, etc., Co. 
 V. Odasz, 57 U. S. App. 129, 85 Fed. 
 754 (1898). 
 
 3. State v. Thompson, 14 Wash. 285, 
 44 Pac. 533 (1896). 
 
 A witness in the cause is not ren- 
 derer incompetent by that fact. Peo- 
 ple v. Ramirez, 56 Cal. 533, 38 Am. 
 R. 73 (1880) ; Chicago, etc., R. Co. v. 
 Shenk, 131 111. 283, 23 N. E. 436 
 (1890). 
 
 Friendship between the interpreter 
 and a party is not necessarily a dis- 
 qualification. State v. Burns, (Iowa) 
 78 N. W. 681 (1899) ; Swift v. Apple- 
 bone, 23 Mich. 252 (1871) (infant's 
 next friend). Where prosecuting wit- 
 ness was deaf and dumb, the court 
 did not abuse its discretion in permit- 
 ting a professor at a state deaf and 
 dumb institute to act as interpreter 
 on the ground that he was biased in 
 her favor because she had been a 
 pupil at the institute. State v. Smith, 
 203 Mo. 695, 102 S. W. 526 (1907). 
 Though the prosecuting attorney had 
 been interested in the prosecution of 
 defendant for abducting a female, 
 such fact did not render it error for 
 
 the court to allow him to act as in- 
 terpreter for witnesses who spoke in 
 Spanish, there being nothing to indi- 
 cate a lack of fairness or impartiality 
 on his part. Tores v. State, (Tex. 
 Cr. App. 1901) 63 S. W. 880. 
 
 4. Iowa. — State v. Burns, 78 X. W. 
 681 (1899) (friend). 
 
 South Carolina. — State v. Weldon, 
 39 S. C. 318, 17 S. E. 688 (1893). 
 
 Texas. — Jacobs v. State, 42 Tex. Cr. 
 353, 59 S. W. 1111 (1900) (seques- 
 trated witness). 
 
 Utah.— People v. Thiede, 11 Utah 
 241, 39 Pac. 837 (1895) (juror). 
 
 Washington. — State v. Thompson, 
 14 Wash. 285, 44 Pac. 533 (1896) 
 (witness). 
 
 Waiver. — While the determination 
 of the sufficiency of the interpreter's 
 qualifications is a matter of adminis- 
 tration, a presiding judge may well 
 assume, where no objection to an in- 
 terpreter is made, that any claim of 
 his lack of qualification is waived. 
 Nioum v. Com., 33 Ky. L. Rep. 63, 
 108 S. W. 945 (1908). 
 
 5. Alabama. — Central, etc., Ry. Co. 
 V. Joseph, 125 Ala. 313, 28 So. 35 
 (1899). 
 
 California. — People v. Wong Ah 
 Bang, 65 Cal. 305 (1884) ; People v. 
 Ah Wee, 48 Cal. 236 (1874) ; People 
 v. Gelabert, 39 Cal. 664 (1870). 
 
 Georgia. — Schall v. Eisner, 58 Ga. 
 190 (1877). 
 
 Illinois. — Chicago, etc., Ry. Co. v. 
 Shenk, 131 111. 283, 23 N. E. 436 
 (1890). 
 
 New York. — People v. Constantino, 
 153 N. Y. 24, 47 N. E. 37 (1897). 
 
 South Carolina. — Kuhtman v. 
 Brown, 4 Rich. L. 479 (1851). 
 
 Texas. — Kuhlmann v. Thedlinka, 29 
 Tex. 392 (1867). 
 
461 
 
 AuiiiNisTEATivE Details oe Intebpeetation. § 353 
 
 knowledge 6 of both languages as spoken; but it is not necessary 
 that he should be able to read English as written. 7 
 
 § 353. ( [1] Right to Prove One's Case; [b] Means of Com- 
 munication; Interpreters); Details of Interpretation. — The in- 
 terpreter acts under the sanction of an oath properly to perform 
 his duty 1 truly to interpret between the court and jury and the 
 witness. 2 Unless a suitable oath is administered to the inter- 
 preter the evidence should be rejected. 3 The probative effect of 
 the evidence as interpreted, involving necessarily an estimate as 
 to the accuracy and general value of the interpretation, is deter- 
 mined by the jury;* and a party is accordingly at liberty to 
 impeach the translator's correctness. 5 While the manner of taking 
 evidence through an interpreter is largely a question of adminis- 
 tration, it is fairly clear that it is, as a rule, the duty of the 
 interpreter to repeat each statement of the witness 6 and not, ex- 
 cept so far as incidental to the work of translation, to undertake 
 
 6. Skaggs v. State, 108 Ind. 53, 8 
 N. E. 695 (1886)'. The witness need 
 not be one exceptionally well skilled 
 to act as an interpreter. Skaggs v. 
 State, 108 Ind. 53, 8 N. E. 695 
 (1886). 
 
 7. Central, etc., Ry. Co. v. Joseph, 
 125 Ala. 313, 28 So. 35 (1899). 
 
 1. Skaggs v. State, 108 Ind. 57, 8 
 N. E. 695 (1886) ; Amory v. Fellowes, 
 5 Mass. 219, 225 (1809); People v. 
 Dowdigan, 67 Mich. 95 (1887) ; R. v. 
 Douglas, 13 Q. B. 42, 59 (1846). One 
 who while testifying as a witness 
 translates a foreign document need 
 not be sworn as an interpreter. Kuhl- 
 man v. Medlinka, 29 Tex. 385 (1867). 
 
 Translations by a witness of state- 
 ments made to him in a foreign lan- 
 guage, with which he is acquainted, in 
 like manner need be under no oath 
 additional to that ordinarily adminis- 
 tered to a witness. People v. Ah. 
 Wee, 48 Cal. 236 (1874); Com. v. 
 Kepper, 114 Mass. 278 (1873). 
 
 2. California. — People v. Wong Ah 
 Bang, 65 Cal. 305, 3 West Coast Rep. 
 58 (1884) ; People v. Ah Yute, 56 Cal. 
 119 (1880). 
 
 Georgia. — Conner v. State, 25 Ga. 
 515, 71 Am. Dec. 184 (1858). 
 
 Massachusetts. — Amory v. Fellowes, 
 5 Mass. 219, 226 ( 1809 ) ; Norberg'a 
 Case, 4 Mass. 81 ( 1808 ) . 
 
 Michigan. — People v. Dowdigan, 67 
 Mich. 95, 38 N. W. 920 (1887). 
 
 New York. — Vandervoort v. Smith, 
 3 Caines (N. Y.) 155 (1804). 
 
 South Carolina. — ■ State v. Weldon, 
 39 S. C. 318, 17 S. E. 688 (1893). 
 
 3. Amory v. Fellowes, 5 Mass. 219, 
 225 (1809) (deposition). The inter- 
 preter must be sworn for the purposes 
 of the particular trial. It is not suffi- 
 cient that he should appear to be a 
 public functionary acting under the 
 sanction of his oath of office. Amory 
 v. Fellowes, 5 Mass. 219, 226 (1809). 
 
 4. Schnier v. People, 23 111. 17 
 (1859) ; Skaggs v. State, 108 Ind. 53, 
 57, 8 N. E. 695 (1886) ; U. S. v. Gil- 
 bert, 2 Sumn. (U. S.) 19 (1834). 
 
 5. Schnier v. People, 23 111. 17 
 (1859) ; Skaggs v. State, 108 Ind. 53, 
 8 N. E. 695 (1886) ; Skaggs v. State, 
 108 Ind. 53 (1886) ; Ulrich v. People, 
 39 Mich. 245 (1878), United States v. 
 Gibert, 2 Sumn. (U. S.) 19 (1834). 
 
 6. People v. Wong Ah Bang, 65 Cal. 
 305, 3 West Coast Rep. 58 (1884). 
 
§354 
 
 A. Peotect Substantive Eights. 
 
 462 
 
 to give its effect. He may adopt the suggestions of a third person 
 as to what would be the proper translation of a word or phrase. 7 
 
 § 354. ( [1] Right to Prove One's Case; [b] Means of Com- 
 
 munication; Interpreters) ; Foreign Where a witness does not 
 
 understand or speak 1 English or speaks a language unintelligible 
 to a portion at least of the jury, 2 the court, if satisfied that a 
 bona fide forensic necessity exists, 3 will appoint an interpreter, 4 
 either of his own selection or as recommended by a party, to 
 repeat, in his own language, the oath to the witness as dictated 
 to him by the person administering it. 5 It will then be the duty 
 of the interpreter to translate the evidence whatever may be the 
 manner in which the witness shall give it. 6 Where a document is 
 in a language unknown to the jury a translation in the vernacular 
 may be submitted in connection with it ; 7 but it is not apparently 
 necessary that the translation by a witness of statements made to 
 
 7. U. S. v. Gilbert, 2 Sumn. (U. S.) 
 19 (1834). 
 
 1. "Any language is heard in court 
 where a foreign witness must be used 
 there, and what is the office that the 
 law performs? It requires that 
 means shall be furnished by the actor 
 on the occasion, or in some manner 
 provided, to convert the testimony, 
 clothed and adduced in a foreign 
 tongue, into that which the jury, who 
 are to estimate it comprehend." Kuhl- 
 man v. Brown, 4 Rich. L. (S. C.) 479, 
 485 (1851). 
 
 2. Coningmark's Trial, 9 How. St. 
 Tr. 1, 37 (1682) (witness speaking 
 English and French may translate his 
 own evidence). 
 
 3. Infra, § 1809. 
 
 4. California. — People v. Ah Wee, 
 48 Cal. 236 (1874). 
 
 Indiana. — Skaggs v. State, 108 Ind. 
 53, 8 N. E. 696 (1886). 
 
 Illinois. — Chicago, etc., Ey. Co. v. 
 Shenk, 131 111. 283, 23 N. E. 436 
 (1890) 
 
 Iowa. — State v. Severson, 78 Iowa 
 653, 43 N. W. 533 (1889). 
 
 Ohio. — Houpt v. Houpt, Wright 
 156 (1832). 
 
 England. — E. v. Burke, 8 Cox Cr. 
 44-64 possim. (1858). 
 
 5. Norberg's Case, 4 Mass. 81 
 (1808). 
 
 6. Com. v. Storti, 177 Mass. 339, 58 
 N. E. 1021 (1901) (confession). 
 
 How far translated statements in. 
 pais when testified to by the inter- 
 preter, bind the original declarant 
 is a question in the law of agency. 
 Com.v.Vose, 157 Mass. 393, 32 X. E. 
 385 (1892) ; Caniberlin V. Palmer Co., 
 10 Allen (Mass.) 539 (1865); Die- 
 ner v. Diener, 5 Misc. 483 (1856) ; 
 Fabrigas t'. Mostyn, 20 How. St. Tr. 
 123 (1773). The conversation, how- 
 ever, may be testified to by any one 
 who heard it, though for part of it he 
 is forced to assume the accuracy of a 
 translation ; — that circumstance af- 
 fecting merely the weight of the evi- 
 dence. Com. v. Vose, 157 Mass. 393 
 (1892) ; Camberlin v. Palmer Co., 10 
 Allen (Mass.) 539 (1865); Fabrigas 
 v. Mostyn, 20 How. St. Tr. 123 
 (1773). 
 
 7. Yick Wo v. Underhill, (Cal. App. 
 1907) 90 Pac. 967 (Chinese account). 
 
 In taking a deposition an inter- 
 preter is not, it would seem, needed 
 where the commissioners understand 
 both languages. City Fire Ins. Co. 
 V. Carrugi, 41 Ga. 660, 665, 672 
 (1871). 
 
463 Cause of Physical Impairment Immaterial. §§ 355, 356 
 
 him in the foreign tongue should be accompanied by an enumera- 
 tion of the words which he is translating. 8 
 
 § 355. ( [1] Right to Prove One's Case; [b] Means of Com= 
 munication; Interpreters) ; Deaf Mutes, etc. — The witness may 
 understand English and still be unable, by reason of some organic 
 imperfection, to express himself in words. He may, for example, 
 be a deaf mute; and, as such, confined to the use of signs. The 
 necessity for it being shown, the signs he makes must be trans- 
 lated into language by an interpreter 1 skilled in the code of signs 
 employed by the witness. 2 
 
 § 356. ( [1] Right to Prove One's Case; [b] Means of Com= 
 
 munication; Interpreters); Defective Speech Eea son makes no 
 
 distinction nor is any made by the rule between cases of defective 
 speech where the difficulty, while organic, is merely temporary, 
 e. g., where it has been caused by physical violence, 1 and those 
 where the trouble is of a more permanent nature. In either case, 
 
 8. Com. v. Kepper, 114 Mass. S78 
 (1873). 
 
 1. Connecticut. — State v. De Wolf, 
 8 Conn. 93 (1830). 
 
 Illinois. — People v. Weston, 336 111. 
 104, 86 N. E. 188 (1908). 
 
 Indiana. — Skaggs v. State, 108 Ind. 
 53, 8 N. E. 695 (1886), A second 
 interpreter may be another deaf mute. 
 Skaggs v. State; 108 Ind. 57, 8N.E. 
 695 (1886). 
 
 Iowa. — State v. Burns, 78 N. W. 
 681 (1899). 
 
 Massachusetts. — Com. v. Hill, 14 
 Mass. 207 (1817). 
 
 South Carolina. — State v. Wcldon, 
 39 S. C. 318, 17 S. E. 688 (1893). 
 
 England. — Ruston's Case, 1 Leach, 
 C. C. 408 (1786). 
 
 The defendant in a criminal pro- 
 ceeding, being deaf and dumb, may 
 be tried on an indictment read to him 
 by signs through an interpreter. Com. 
 v. Hill, 14 Mass. 208 (1817). 
 
 On voir dire, to ascertain whether a 
 deaf mute's testimony could be ob- 
 tained through an interpreter, neither 
 she nor her interpreter need be sworn. 
 People v. Weston, 236 111. 104, 86 
 N. E. 188 (1908). 
 
 %. Connecticut. — State v. De Wolf, 
 8 Conn 98 (1830). 
 
 Indiana. — Snyder v. Nations, 5 
 Blackf. 295 (1840). 
 
 Massachusetts. — Com. v. Hill, 14 
 Mass. 207 (1817). 
 
 Missouri. — State v. Howard, 118 
 Mo. 127, 144, 24 S. W. 41 (1893). 
 
 New York. — Cowley v. People, 83 
 N. Y. 464 (1881) ; People v. McGee, 1 
 Denio 21 (1845). 
 
 England. — Morrison v. Lennard, 3 
 C. & P. 127 (1827). 
 
 Express authority has been con- 
 ferred by Statute.— Canada (Stat. 
 1893, eh. 31). 
 
 Writing by a deaf-mute has been 
 suggested as a preferable substitute 
 for signs. Morrison v. Leonard, 3 
 C. & P. 127 (1827). But the better 
 reasoning seems to be with the cases 
 which deny such a modification of the 
 usual rule. State v. De Wolf, 8 Conn. 
 98 (1830) ; State V. Howard, 118 Mo. 
 127, 144, 24 S. W. 41 (1893). 
 
 1. Roberson v. State (Tex. Cr. 
 1899) 49 S. W. 398. 
 
§ 357 A. Protect Substantive Eights. 464 
 
 the court may appoint some suitable person to repeat the evidence 
 of the witness. 2 So special skill is, however, in such cases 
 required on the part of the interpreter. The same rule applies 
 where a witness is of tender years, 3 suffers bashfulness or other 
 bodily infirmity.* The evidence of the witness though in the 
 vernacular and fully delivered is not spoken so loudly as to be 
 audible. 
 
 § 357. ( [1] Right to Prove One's Case); (c) Scope of Bight. 
 
 ■ — ■ The scope of a party's case, which is protected by the 
 administrative principle under consideration, is such as will cover 
 the proof of all facts as to which at any stage of the case he has 
 the burden of evidence. 1 In other words, it extends to proof of 
 every fact which he needs or on which he relies to establish his 
 claim or defense. It is the positive, affirmative evidence on which 
 he rests his position ; — as distinguished from evidence testing or 
 rebutting the affirmative case against him, the right of intro- 
 ducing which is elsewhere considered. 
 
 Evidence in Chief or in Rebuttal. — The difference between 
 these two classes of facts, those covered by the scope of the 
 first and those covered by that of the second of the party's 
 legal rights in a judicial trial is obvious. The first set of 
 facts is, as it were, placed originally by the actor in the 
 scale to establish a prima facie case 2 or by the non-actor, 3 
 to make an equilibrium in a civil, or a reasonable doubt 
 in a criminal one, as the case may be, by means of a defense. 
 The second set of facts are those adduced at a later stage of the 
 trial by these respective litigants, in order to maintain their 
 contentions by offsetting any unfavorable inferences arising from 
 facts first introduced by the adversary at the last preceding stage. 
 The actor seeks to keep good the prima facie case after the desired 
 balance of the scales to that effect has been disturbed by the non- 
 
 2. Connor v. State, 25 Ga. 515, 75 must not be confounded with the pre- 
 Am. Dec. 184 (1858). ponderance of evidence, the establish- 
 
 3. Lord Mohun'a Trial, 12 How. St. ment of which usually rests upon the 
 Tr. 950 (1692). plaintiff." United States v. Denver, 
 
 4. Connor V. State, 25 Ga. 515 etc., R. Co., 191 U. S. 84, 92, 24 
 (1858) ; Earl of Wintowns Caae, 15 Supp. Ct. 33, 35, 36 (1903). 
 
 How. St. Tr. 804, 861 (1716). 2. Infra, § 992. 
 
 1. Infra, §§ 967 et seq. 3. Actor in this treatise will be used 
 
 "This burden, however, which [in a as designating the party having the 
 
 criminal case] was simply to meet the burden of proof ; non-actor, or reus, 
 
 prima facie case of the government, as indicating his opponent. 
 
465 Right Limited to Feoof of Ebs Gestae. § 358 
 
 actor in placing evidence in his own scale, or otherwise taking 
 probative force from the prima facie case established by the actor. 
 The non-actor, in turn, endeavors to meet the logical effect of 
 the fresh facts now first adduced by the actor. In connection 
 with the stages of a trial, this division in the scope of a party's 
 case is called the difference between evidence in chief and that 
 in rebuttal. The original case of either party is covered by his 
 evidence in chief. The evidence which antagonizes that produced 
 by his opponent, is evidence in rebuttal. The right to introduce 
 evidence in chief is the first of the substantive legal rights of a 
 party which it is the administrative duty of the court to protect. 4 
 The right to test the evidence in chief of the opponent, by cross- 
 examination or otherwise and to rebut the inferences arising from 
 it, has been assigned as the second of such rights. 8 These are 
 logical divisions, the necessity for which is inherent in the nature 
 of things — usual features of any contest decided by the use of rea- 
 son. It is in no way peculiar to the rules of practice in connection 
 with litigation that each party, in presenting his case, should be 
 entitled to offer evidence in chief and evidence in rebuttal. 
 
 § 358. C[l] Right to Prove One's Case; [c] Scope ot 
 Right); limited to Proof of Res Gestae — The right to insist upon 
 presenting to a tribunal the best evidence within the proponent's 
 power is subject to a procedural qualification of great import- 
 ance. The right does not apply equally to all branches of a 
 party's case. His claim is confined to proof of the res gestoe, 1 
 or more properly to such facts found inferentially or in specie 
 among the res gestoe as are constituent. 2 Where direct proof of 
 the res gestae is unattainable, he may, as of right, establish pro- 
 bative facts, 3 from which, as circumstantial evidence, the exist- 
 
 4. Supra, §§ 332 et seq. found within its bounds of time, 
 
 5. Infra, §§ 377 et seq. space or causation. These may be 
 1. Res gestae facts being of all de- dealt with by the court in accordance 
 
 grees of probative force, the trial with their respective grades of pro- 
 judge may decline to receive proof di- bative effect. What the court cannot 
 rect or circumstantial, of such of reasonably or legally do is to decline 
 them as are of a secondary grade of to permit a party to prove, as best he 
 relevancy to the disputed proposition can, within the lines of reason, the 
 and, a fortiori, such as are entirely material facts in the res gestce, i. e., 
 irrelevant. Being a segregated part those which are constituent of the 
 of the world's happenings, facts of all right or liability involved, 
 grades of evidentiary bearing or facts 2. Supra, § 47. 
 of no bearing whatever, may be 3. Supra, § 51. 
 
 Vol. I. 30 
 
§ 358 A. Peotect Substantive Eights. 466 
 
 ence of the res gestae or constituent facts may be inferred. The 
 necessity in seeking to ascertain truth of relying rather upon 
 judicial administration than upon rules of substantive law or pro- 
 cedure, to which reference is elsewhere made, 4 is strikingly 
 illustrated by the bewildering variety of circumstances under 
 which it is necessary to apply the general principle under con- 
 sideration. 
 
 The ultimate possible relations of any fact are infinite in num- 
 ber. For the practical purposes of a trial lines or pea-haps more 
 properly, circles ot logical relevancy must be drawn upon the 
 proposition in issue as a quasi center. The circles are two; and 
 precisely where each circle shall be drawn is necessarily deter- 
 mined by an exercise of administrative power. 5 When these circles 
 are formed, within tht first will lie the facts which must be con- 
 sidered ; within the second are properly placed facts which may be 
 investigated. Beyond lie irrelevant facts, which should not be 
 investigated. The first circle includes res gestce or constituent 
 facts. The second embraces those which are relevant but not con- 
 stituent. They are the subsidiary facts, i. e., those which corrob- 
 orate or impeach the probative tendency of the constituent facts, 
 which assist the reasoning faculty if the constituent facts fail to 
 point to a definite inference or such deliberative facts 6 as tend 
 to determine the probative weight to be accorded to various por- 
 tions of the evidence. 7 Outside the second circle, are the irrele- 
 vant, nonprobative facts. Of the two, the inner circle is at once 
 the more important for the purposes of the case, and the line 
 which defines it by far the more difficult to draw. 8 
 
 4. Supra, § 174. has no right to insist upon their ad- 
 
 5. As inevitably occurs in attempt- mission. 
 
 ing to classify things which merge 8. To draw such a line in any par- 
 into each other by imperceptible ticular instance is therefore a matter 
 gradations, it is, in many cases, diffi- of delicacy and difficulty. It is, how- 
 cult to draw either circle with abso- ever, in practice, constantly being 
 lute precision and entire uniformity done. How wide, in point of time, 
 of action. Even upon substantially space, causation or logical sequence 
 similar sets of facts such uniformity Bhall be this inner circle in any par- 
 cannot reasonably be expected. ticular case depends on the nature of 
 
 6. Supra, § 52. the right or liability asserted. The 
 
 7. Should the party have produced, res gestae may cover a shorter or a 
 or bo. shown to be able to produce, facts, longer time. In one case they may 
 more primary in their nature, the less embrace a wide territory; in another, 
 conclusive facts take their place a very limited territorial area consti- 
 within the second circle and the party tutes the entire field of investigation. 
 
467 Limitations on Eight to Prove Case. § 358 
 
 The function of administration in dealing with these circles 
 will be found to vary somewhat, in appearance at least, according 
 to whether (1) this inner circle of facts can be established by 
 direct evidence or whether (2) it is incumbent upon the proponent 
 to seek to reproduce the facts of the inner circle by indirect or cir- 
 cumstantial evidence. 
 
 (1) Where the party has direct evidence as to the inner circle 
 of facts, within it will lie in specie or inferentially the facts which 
 tend directly to establish the truth or falsity of a proposition in 
 issue. Here enclosed are the constituent facts necessary to estab- 
 lish the right or liability asserted. To proof of constituent facts 
 within this circle, the attribute of right attaches. In other words, 
 it is not discretionary with a judge whether he will or will not per- 
 mit parties to offer evidence of constituent facts. A litigant has a 
 right to insist upon proving such a fact, and it is the fundamental 
 administrative duty of the court to secure to him the benefit of it. 
 
 (2) Should direct proof of the res gestce or constituent facts 
 be unavailable — as where a crime has been secretly committed 
 — the facts of the inner circle cannot be in themselves placed 
 before the tribunal. All that a litigant — or in a criminal case, 
 the prosecuting officers — can do is to seek to establish probative 
 facts from which the existence and nature of the res gestce or con- 
 stituent facts can be inferred. Where this state of affairs is pre- 
 sented, the right to resort to facts within the second circle is 
 conferred by the substantive law and will be protected by the 
 administrative principle now under examination. 
 
 In other words, the right of a party is to prove the res gesto? 
 or constituent facts ; by direct proof if and so far as in his power ; 
 by probative facts so far as he is forced to resort to these. 
 
 The right to prove the res gestae facts does not mean that the 
 litigant is legally at liberty to prove his case as he sees fit, regard- 
 
 The efficient cause may be reached im- many circumstances; — ■ each of but 
 mediately in the chain of events or it but slight logical cogency, and opera- 
 may require to be traced for some dis- ting by a series of more or less prob- 
 tance along its course. One conten- able inferences. But in any investi- 
 tion may be supported by a few facts gation the res gestae facts are those 
 from the existence of which its own nearest in time, space, causation or 
 correctness necessarily follows by an logical sequence to the proposition in 
 immediate mental process. Another issue; and among these res gestae are 
 presents no similar feature; but on the constituent facts, out of which, if 
 the contrary, must be established, if at all, the right or liability arises, 
 at all, by force of a combination of 
 
§ 359 A. Protect Substantive Rights. 468 
 
 less of the views of the justice presiding at the trial. All that 
 is to be understood is that the suitor must be afforded a fair op- 
 portunity of proving in some way every fact essential to his cause, 
 i. e., every constituent fact. 9 If a party, for example, has pro- 
 duced evidence which, if believed, would establish a particular 
 fact, he cannot insist, as of right, upon producing additional wit- 
 nesses to the same effect or to present additional facts in support 
 of it. Evidence of this class is cumulative 10 or merely consistent ; n 
 and, so far as the right to present a case is concerned, within the 
 judge's discretion. 
 
 It will be observed that while the court thus regards preserva- 
 tion of the fundamental rights of the parties, the first of the ob- 
 jects which it seeks to attain in drawing the first of these circles, 
 its drawing of the second and use of the facts so enclosed is guided 
 by the wider object of reaching substantial justice between the 
 parties and protecting the interests of the community at large, 
 which is the second object which the principles of administration 
 seek to reach. 12 
 
 The broad extension of meaning given in America to the term 
 res gestae, to which reference is elsewhere made, 13 may have taken 
 its origin, in part at least, from the assumption that as a party 
 under the present administrative principle has a right to prove the 
 res gestae facts, all the facts which he might prove as of right are 
 facts in the res gestae. 
 
 § 359. f[l] Right to Prove One's Case); (d) Order of Stages. 
 
 ■ — The order in which evidence may be introduced is within 
 the administrative power of the presiding judge. 1 His action 
 must be reasonable, in view of all the circumstances of the case, 
 including the existence of any rule of practice on the observance 
 of which the parties may have relied, the reasons upoD which 
 such a rule of practice has been founded, the action of other 
 judges on similar states of fact and the like. If the action is 
 reasonable it will be sustained, though each judge of an appellate 
 court would himself have acted otherwise under the same state of 
 facts. 
 
 9. Supra, § 47. Crosby, (Fla. 1907) 43 So. 318; Rich- 
 
 10. Infra, § 1777. bourg v. Rose, (Fla, 1907) 44 So. 69; 
 
 11. Infra, § 1753. Blickley v. Luce, 148 Mich. 233, 111 
 
 12. Infra, §§ 463 et seq. N. W. 752, 14 Detroit Leg. N. 121 
 
 13. Infra, § 2583. (1907). 
 1. Atlantic Coast Line R. Co. v. 
 
469 Eight of Actob to Open and Close. §§ 360, 361 
 
 § 360. C [1] Right to Prove One's Case; [d] Order of 
 Stages) ; Bight to Optn and Close. — At each stage of a judicial 
 trial, by a fairly uniform practice, the parties alternate ; — the liti- 
 gant who has the right to open and close preceding at each stage 
 and being immediately followed by his opponent. This continues 
 until neither party has further relevant facts to present for con- 
 sideration. The allotment of the right to open and close — both 
 at the stage of argument or that of introducing evidence — is 
 purely a matter of practice. But, like other matters of practice, 
 it is properly subject to the administrative power of the court. 1 
 The exercise of this power will not be disturbed so long as it has 
 been reasonably exercised and until actual prejudice is shown 
 from unreasonable conduct. 2 
 
 Plamtiff Has Bight. — In certain jurisdictions as, Alabama, 3 
 California, 4 Maryland, 5 and Massachusetts 6 the rule of practice, 
 except so far as modified by statute, is that the plaintiff invariably 
 opens and closes, regardless of the state of the pleadings. 
 
 § 361. ( [1] Right to Prove One's Case; [d] Order of 
 
 Stages; Right to Open and Close); Actor Has Eight With 
 
 these infrequent exceptions, however, the rules of practice <award 
 the right, from obvious considerations of fairness, to the party 
 having the burden of proof. 1 The burden of establishing the 
 truth of the proposition under investigation being on him, he is 
 in a position to ask that whatever advantage there may be in pre- 
 senting the case in its first, fresh aspect to the unwearied minds 
 of the tribunal, or of having the last word, involving the op- 
 portunity of hearing all his opponent has said, should be granted 
 to him. 2 
 
 1. Com. v. Culver, 126 Mass. 464 (Md. 10, 25 (1848. See also Ying- 
 (1879). In this way alone may ling v. Hesson, 16 Md. 112, 121 
 novel situations be handled by the (1860). 
 
 judge : e. g., where as is claimed, the 6. Dorr V. Tremont Bank, 128 Mass. 
 
 closing argument sets up a cause of 349 (1880). See also Bradley v. 
 
 action not previously discussed. Clark, 1 Cush. (Mass.) 293 (1848). 
 
 Schmitt v. Northern Pac. By. Co., 1. Infra, §§ 930 et seq. 
 
 (Wis. 1904) ) 98 N. W. 202. 2. Georgia. — Eansone V. Christian, 
 
 2. Breiner v. Nugent, (Iowa 1907) 56 Ga. 351 (1876). 
 
 Ill N. W. 446. IlHnoia. — Semler Milling Co. v. 
 
 3. Chamberlain v. Gaillard, 26 Ala. Fyffe, 127 111. App. 514 (1906). 
 
 504 (1855). Indiana. — Kahm v. Deig, 121 Ind. 
 
 4. Benham v. Eowe, 2 Cal. 387, 56 283, 23 N. E. 141 (1889). 
 
 Am. Dec. 342 (1852). Iowa. — Swafford v. Whipple, 3 
 
 5. Townsend v. Townsend, 7 Gill Greene 261, 54 Am. Dec. 498 (1851). 
 
§ 362 
 
 A. Protect Substantive Eights. 
 
 470 
 
 The right may be waived, and a waiver of the right to open im- 
 plies the waiver of the right to close where the other party omits 
 argument. 3 Who is actor is a question which, under the com- 
 mon law system, would be decided upon an inspection of the plead- 
 ings. 4 
 
 § 362. ( [1] Right to Prove One's Case; [d] Order of 
 
 Stages; Right to Open and Ctose); Plaintiff as Actor 
 
 Should the plaintiff have the burden of proof on any issue, 1 in- 
 
 Kansas. — Perkins V. Ermel, 2 Kan. 
 325 (1864). 
 
 Kentucky. — Wright's Adm'r v. 
 Northwestern, etc., Ins. Co., 91 Ky. 
 208, 15 S. W. 242 (1891). 
 
 Maine. — Johnson v. Josephs, 75 
 Me. 544" (1884). 
 
 Nebraska. — Cortelyou v. Hiatt, 36 
 Nebr. 584, 54 N. W. 964 ( 1893 ) . See 
 also Osborne v. Kline, 18 Nebr. 344, 
 25 N. W. 360 (1885) ; Boyce V. Lake, 
 17 S. C. 481 (1882) ; Dille v. Lovell, 
 37 Ohio St. 415 (1881); Lexington, 
 etc., Ins. Co. v. Paver, 16 Ohio 324, 
 330 (1847). 
 
 Damages. — The rule is the same on 
 hearings when the issue of liability is 
 eliminated and all that the plaintiff 
 is required to do is to prove his dam- 
 ages. 
 
 Arkansas. — St. Louis, etc., R. Co. 
 v. Taylor, 20 S. W. 1083 (1893). 
 
 Indiana. — Baltimore, etc., R. Co. V. 
 McWhinney, 36 Ind. 436 (1871). 
 
 Maine. — Johnson V. Josephs, 75 
 Me. 544 (1884). 
 
 New York. — Tallmadge v. Press 
 Pub. Co., 14 N. Y. S. 331 (1891). 
 
 Wisconsin. — Wausau Boom Co. v. 
 Ehinbar, 75 Wis. 133, 43 N. W. 739 
 (1889). 
 
 England. — Mercer v. Whall, 5 Ad. 
 & El. (N. S.) 447 (1845). 
 
 It is otherwise where the damages 
 are liquidated. Huntington 1'. Conkey, 
 33 Barb. (N. Y.) 218, 228 (1860). 
 See also Harvey v. Ellithorpe, 26 111. 
 418 (1861); Blackledge v. Pine, 28 
 Ind. 466 (1867) ; Ehvell v. Chamlber- 
 lin, 31 N. Y. 611 (1864) ; Hudson v. 
 Wetherington, 79 N. C. 3 (1878). 
 
 3. St. Louis & S. F. R. Co. v. 
 Johnson, (Kan. 1906) 86 Pac. 156. 
 
 4. Beale-Doyle Dry Goods Co. v. 
 Barton, 80 Ark. 326, 97 S. W. 58 
 (1906). 
 
 1. Alabama. — Tennessee Coal, etc., 
 Co. v. Hamilton, 100 Ala. 252, 14 So. 
 167, 46 Am. St. Rep. 48, 54 (1893). 
 
 Arkansas.-*- Mine La Motte Lead, 
 etc., Co. v. Consolidated, etc., Coal 
 Co., 85 Ark. 123, 107 S. W. 174 
 ( 1907 ) ; Bertrand v. Taylor, 32 Ark. 
 470 (1877). 
 
 California. — Watkins v. Glas, ( Cal. 
 App. 1907) 89 Pac. 840; Mendocino 
 County v. Peters, (Cal. App. 1905) 
 82 Pac. 1122. 
 
 Colorado. — Macdermid v. Watkins, 
 (Colo. 1907) 92 Pac. 701; Mastin v. 
 Bartholomew, (Colo. 1907) 92 Pac. 
 682. 
 
 Georgia. — Taylor v. Chambers, 2 
 Ga. App. 178, 58 S. E. 369 (1907) ; 
 Crankshaw v. Schweizer Mfg. Co., 1 
 Ga. App. 362, 58 S. E. 222 (1907) ; 
 Boston Mercantile Co. v. Ould-Carter 
 Co., 123 Ga. 458, 51 S. E. 466 (1905). 
 
 Indiana. — Union Cent. Life Ins. 
 Co. v. Loughmiller, (Ind. App. 1903) 
 69 N. E. 264; Bowen v. Spears, 20 
 Ind. 146 (1863). See also Jackson. 
 V. Pittsford, 8 Blackf. 194 (1846). 
 
 Kentucky. — Louisville, H. & St. L. 
 R. Co. v. Milby, 31 Ky. Law Rep. 
 1197, 104 S. W. 785 (1907); Louis- 
 ville & E. Ry. Co. v. Mann, 31 Ky. 
 Law Rep. 986, 104 S. W. 362 (1907) ; 
 Frankfort & Versailles Traction Co. 
 v. Marshall, 98 S. W. 1035, 30 Ky. 
 Law Rep. 431 (1907); Doerhoefer v. 
 
471 
 
 Defendant as Actoe Opens and Closes. 
 
 § 363 
 
 eluding that of damages, 2 or if, there being several defendants, 
 he is found to have the burden of proof as to any of them, 3 he will 
 be accorded, as a rule, the right to open and close the entire case. 4 
 
 § 363. ( [1] Right to Prove One's Case; [d] Order of 
 Stages; Right to Open and Close); Defendant as Actor. — 
 
 A defendant's confession, in order to confer on him the privileges 
 of the actor to open and close must as in other cases, 1 be full and 
 complete as to the existence of sufficient constituent or component 
 facts to constitute a prima facie case in the plaintiff. A partial 
 confession is not sufficient. 2 Nor is this right lost because the 
 plaintiff fails to introduce any evidence on his own behalf. 3 At 
 common law, unless 1 defendant by his pleadings admits plaintiff's 
 cause of action and relies on affirmative defenses, he is not en- 
 titled to open and reply. 4 Where the defendant is actor, he will 
 receive, as a rule, the right to open and close. 5 Where defendant 
 
 Shewmaker, 97 S. W. 7, 29 Ky. Law 
 Rep. 1193 (1906). 
 
 New York. — 'Hollander v. Farber, 
 52 Misc. 507, 102 N. Y. Suppl. 506 
 (1907) ; Cilley v. Preferred Ace. Ins. 
 Co., 187 N. Y. 517, 79 N. E. 1102 
 (1907) [affirming 109 N. Y. App. 
 Div. 394, 96 N. Y. Suppl. 282 
 (1905)] ; Cilley v. Preferred Ace. Ins. 
 Co., 96 N. Y. Suppl. 282, 109 App. 
 Div. 394 (1905). 
 
 North Carolina. — Johnson, etc. V. 
 Maxwell, 87 N. C. 18 (1882). 
 
 Ohio. — Montgomery ». Swindler, 32 
 Ohio St. 224, 226, 2 Best Ev. 637, 
 Starkie Ev. 382 (1877). 
 
 Texas. — Guerguin v. Boone, (Tex. 
 Civ. App. 1903) 77 S. W. 630. 
 
 England. — Jackson v. Hesketh, 2 
 Stark. 454 (1819). 
 
 2. Geringer v. Novak, 117 HI. App. 
 160 (1904). 
 
 3. Clodfelter v. Hulett, 92 Ind. 426 
 (1883). See also Sodousky v. Mc- 
 Gee, 4 J. J. Marsh. (Ky.) 267 (1830). 
 
 4. A co-defendant who pleads af- 
 firmatively has, however, been granted 
 the same right as if he were sole 
 defendant. Sodousky v. McGee, 4 J. 
 J. Marsh. (Ky.) 267 (1830). 
 
 1. Infra, § 365. 
 
 2. Nelson County v. Bardstown & 
 
 Lk Turnpike Road Co., 100 S. W. 
 1181, 30 Ky. L. Rep. 1254 (1907); 
 Southern By. Co. v. Smith, 102 St W. 
 232, 31 Ky. L. Rep. 243 (1907). 
 
 3. Dickey v. Smith, 127 Ga. 645, 
 56 S. E. 756 (1907). 
 
 4. Leesville Mfg. Co. v. Morgan 
 Wood & Iron Works, 75 S. C. 342, 
 55 S. E. 768 (1906). 
 
 5. Arkansas. — Roberts v. Padgett, 
 101 S. W. 753 (1907). 
 
 Georgia. — Atlanta Suburban Land 
 Corp. v. Austin, 122 Ga. 374, 50 S. 
 E. 124 (1905). 
 
 Illinois. — Gibson v. Reiselt, 123 111. 
 App. 52 (1905). 
 
 Iowa. — 'Shaffer Bros. v. Warren, 
 (Iowa 1905) 102 N. W. 497. 
 
 Kentucky. — Rich v. Bailey, 97 S. 
 W. 747, 30 Ky. L. Rep. 155 (1906) ; 
 Mattingly v. Shortell, 27 Ky. L. Rep. 
 426, 85 S. W. 215 (1905); Ashland 
 & C. St. Ry. Co. v. Hoffman, 26 Ky. 
 L. Rep. 778, 82 S. W. 566 (1904). 
 
 Missouri. — Absher v. Franklin, 121 
 Mo. App. 29, 97 S. W. 1002 (1906). 
 
 New York. — Cilley v. Preferred Aec. 
 Ins. Co., 187 N. Y. 517, 79 N. E. 
 1102 (1907) [affirming 109 N. Y. App. 
 Div. 394, 96 N. Y. Suppl. 282 
 (1905)]; Fischer v. Frohne, 51 Misc. 
 
§ 364 A. Protect Substantive Eights. 472 
 
 as actor opens the ease, and the plaintiff introduces no evidence, 
 the right to close may properly be refused. 6 
 
 § 364. ( [1] Right to Prove One's Case; [d] Order of 
 Stages; Right to Open and Close); Code and Common Law 
 Pleading. — The groping, tentative manner of dealing with mat- 
 ters of this kind which statutory or code substitutes for common 
 law pleading have put in place of the precision of the earlier sys- 
 tem 1 is illustrated by the rulings as to the right to open and close. 
 These follow, in reality, the rules of the common law relating to 
 the burden of proof ; — into the phraseology of which such rulings 
 can generally be transposed. Under common law pleading, when 
 a defendant, by not denying, admitted all the material allegations 
 of the plaintiff's declaration, the burden of proof was assumed by 
 the defendant. 2 There being, under statutory regulation, no con- 
 structive admission by failure to deny, an express admission may 
 be made, in substitution, either in the answer or at the stage of 
 evidence, i. e., at the trial. The rule takes on the following form : 
 The defendant may acquire the right to open and close by ad- 
 mitting all the material 3 allegations of the plaintiff's complaint 4 
 
 (N. Y.) 578, 100 N. Y. Suppl. 1016 Massachusetts. — Page v. Osgood, 2 
 
 (1906). Gray (Mass.) 260 (1854). 
 
 South Carolina. — Early v. Early, 75 South Carolina. — McConnell t\.Kit- 
 
 S. C. 15, 54 S. E. 827 (1906). chens, 20 S. C. 430, 47 Am, Rep. 845 
 
 Texas. — Berry v. Joiner, (Tex. Civ. (1883). 
 App. 1907) 101 S. W. 289; Texas.— Sanders V. Bridges, 67 
 Stone v. Pettus, (Tex. Civ. App. 1907) Tex. 93 (1886). That is, it must be 
 103 S. W. 413; Bell v. Fox, (Tex. such as, at common law, would trans- 
 Civ. App. 1904) 84 S. W. 384. fer the burden of proof. 
 
 6. Cable Co. v. Parantha, 118 Ga. 4. Fairbanks v. Irwin, 15 Colo. 366 
 
 913, 45 S. E. 787 (1903). (1890); Jackson v. Delaplaine, 6 
 
 1. Infra, § 942. Hous. (Del.) 358 (1880) ; Osgood v. 
 
 2. Infra, § 946. Grosellose, 159 111. 511, 42 N. E. 886 
 
 3. List v. Kortepeter, 26 Ind. 27 (1896). See also: 
 
 ( 1866 ) ; Murray v. New York, etc., Illinois. — Chicago, etc., R. Co. v. 
 
 Co., 85 N. Y. 236 (1881). Bryan, 90 111. 126 (1878). 
 
 The admission must be sufficiently Indiana. — Lindley v. Sullivan, 133 
 
 sweeping to relieve the plaintiff from Ind. 588, 32 N. E. 738 (1892). 
 
 the necessity of introducing saxy evi- Nehraska. — Suiter v. Park Natl, 
 
 dence. Bank, 35 Nebr. 372, 53 N. W. 205 
 
 Georgia. — Seymour v. Bailey, 76 (1892). 
 
 Ga. 338 (1886). ~Ne%c Hampshire. — Kendall v. 
 
 Indiana.— Bahm v. Deig, 121 Ind. Brownaon, 47 N. H. 186 (1866). 
 
 283 (1889). New York. — Huntington v. Conkey, 
 
 Iowa. — Goodpaster v. Voris, 8 Iowa 33 Barb. 218 (1860). See also Con- 
 
 334, 74 Am. Dec. 313 (1859). selyea V. Swift, 103 N. Y. 604 (1886); 
 
473 Gode and Common Law Pleading. § 3'64 
 
 and assigning an affirmative defense. 5 Probably the same right 
 accrues to him by making the same admissions at the trial. 6 
 
 Again, the rule of pleading at common law that the plaintiff 
 might in his replication confess and avoid the defendant's affirma- 
 tive pleading in confession and avoidance 7 and thereby assume, 
 if met by a traverse, the burden of proof, may be paraphrased 
 into a statement that, in order to prevent the defendant from ac- 
 quiring by his admissions the right to open and close, the plaintiff 
 may in his reply or perhaps by verbal admissions at the trial 
 concede the existence of the affirmative facts relied upon by the 
 defendant in his answer, 8 and so retain the right to open and close. 
 
 The distinction behveen burden of proof and burden of evi- 
 dence, elsewhere more fully stated, 9 is not preserved with the 
 clearness which would be desirable. The fundamental reason for 
 this is that the plaintiff's pleading states constituent facts 10 rather 
 than component facts 11 or propositions of fact. The confusion 
 due to such failure to bear in mind this distinction, may be illus- 
 trated by an instance selected almost at random. Under a certain 
 statute of New Mexico providing that the right to open and close 
 belongs to the party against whom judgment would be rendered if 
 no evidence were introduced, the admission of facts by defendant 
 during the trial does not, it was said, shift the burden of 
 proof. 12 Under a more scientific system of pleading, the an- 
 
 Stronach v. Bledsoe, 85 N. C. 473 7. Infra, § 945. 
 
 (1881) ; Martin v. Suber, (S. C. 1893) 8. Arkansas. — Mann v. Scott, 32 
 
 18 S. E. 125; Burckhalter v. Coward, Ark. 593, 596 (1877). 
 
 16 S. C. 435 (1881); Fuller v. Worth, Illinois.— Edwards v. Hushing, 31 
 
 91 Wis. 406, 64 N. W. 995 (1895); 111. App. 223 (1888). 
 
 Home Benefit Ass'n v. Sargent, 142 Iowa. — Viele v. Germania Ins. Co., 
 
 U. S. 691, 12 Sup. Ct. 332 (1891). 26 Iowa 9, 96 Am. Dec. 83 (1868). 
 
 5. An argumentative denial though Mississippi. — Thornton v. West 
 affirmative in form, is not sufficient. Feliciana R. Co., 29 Miss. 143 (1855). 
 There must be an explicit admission. North Carolina. — Love v. Dicker- 
 Bobbins v. Spencer, 121 Ind. 594, 22 son, 85 N. C. 5 (1881). 
 
 N. E. 660 (1889). See also Turner Pennsylvania. — Richards v. Nixon, 
 
 V. Cool, 23 Ind. 56 (1864); Bradley 20 Pa. St. 19 (1852). 
 
 v. Clark, 1 Cush. (Mass.) 293 (1848). United States.— Hall v. Weare, 92 
 
 6. Campbell v. Roberts, 66 <Ga. 733 U. S. 728, 738 (1875). 
 
 (1881) ; City of Aurora v. Cobb, 21 9. Infra, §§ 930 et seq., 967 et seq. 
 
 Ind. 493 ( 1863 ) . But compare Wig- 10. Supra, § 47. 
 
 glesworth v. Atkins, 5 Cush. (Mass.) 11. Supra, § 45. 
 
 212 (1849) ; Lake Ontario Nat. Bank 12. Palatine Ins. Co., Limited, of 
 
 v. Judson, 122 N. Y. 278, 25 N. E. Manchester, England v. Santa Fe 
 
 367 (1890). See contra, Lake On- Mercantile Co., (N. Mex. 1905) 82 
 
 tario Nat. Bank v. Judson, 122 N. Y. Pac. 363. 
 278, 25 N. E. 367 (1890). 
 
§ 365 A. Peotect Substantive Eights. 474 
 
 nouncement might well be simplified into a statement of the well 
 established rule that the burden of proof does not shift according 
 to the position of the burden of evidence. 13 In much the same 
 way, a court may hold that the burden of proof is not ascertained 
 until the evidence has all been introduced. 1 * Such a ruling would 
 be unintelligible except in view of the confusion between burden 
 of proof and burden of evidence. The court is quite consistent 
 in holding that issues on which there is no evidence and issues 
 on which it is uncontradicted are not to be considered in deter- 
 mining who has the burden of proof. 15 
 
 Certain lingerings of the common law distinctions between 
 burden of proof and burden of evidence appear occasionally. For 
 example, it has been held that an admission, to confer on a defend- 
 ant the right to open and close, should appear on his pleadings 
 and not in his evidence. 16 
 
 § 365. C [1] Right to Prove One's Case; [d] Order of 
 Stages; Right to Open and Close; Code and Common Law 
 Pleading); Admissions Must Cover Prima Facie Case. — Under 
 such circumstances, the defendant instead of confessing and avoid- 
 ing, as at common law, the allegations of the declaration is re- 
 quired, in order to become actor to admit certain constituent 
 facts. In other words, as is commonly said, to entitle defendant 
 to the right to open and close, he must in his pleadings before 
 plaintiff begins to introduce testimony admit enough to make out 
 a prima facie case for the latter. 1 A partial admission, i. e., a 
 concession of the truth of certain constituent facts is not sufficient. 2 
 Oral admissions by defendant are not operative to entitle him to 
 open and close, but admissions for that purpose must be made in 
 his pleadings. 3 In other words, where defendant desires to admit 
 
 13. Infra, § 938. Barnes, (Ind. 1904) 69 N, E. 454; 
 
 14. Shaffer v. Dea Moines Coal & Cilley v. Preferred Ace. Ins. Co., 96 
 Hay Co., (Iowa 1904) 98 N. W. 111. N. Y. Suppl. 288, 109 App. Div. 394 
 
 15. Shaffer v. Dea Moines Coal & (1905). 
 
 Hay Co., (Iowa 1904) 98 N. W. 111. 2. E. Van Winkle Gin & Machine 
 
 16. Du Bignon v. Wright, 122 Ga. Works v. Pittman, 2 Ga. App. 246, 
 263, 50 S. E. 65 (1905). 58 S. E. 379 (1907) ; Farmer v. Nor- 
 
 1. Mitchem v. Allen & Barrow, 128 ton, (Iowa 1905) 105 N. W. 371; 
 
 Ga. 407, 57 S. E. 721 (1907) ; Crank- Southern Ry. Co. v. Steele, 29 Ky. 
 
 shaw V. Schweizer Mfg. Co., 1 Ga. L. Bep. 690, 94 S. W. 653 (1906). 
 
 App. 363, 58 S. E. 222 (1907); E. 3. E. Van Winkle Gin & Machine 
 
 Van Winkle Gin & Machine Works Works r. Pittman, 2 Ga. App. 246, 
 
 V. Pittman, 2 Ga. App. 246, 58 S. E. 58 S. E. 379 (1907). 
 379 (1907) ; Long & Allstatter Co. v. 
 
475 Obdee of Peoof a Question of Discbetion. §§ 366, 367 
 
 plaintiff's cause of action and secure the right to open and close by 
 setting u,p an affirmative defense, he must make his admissions 
 clear and comprehensive, leaving nothing, no matter how incon- 
 sequential, to be proved by plaintiff in order to establish a prima 
 facie case.* For example, where a plaintiff charges gross negli- 
 gence, a defendant cannot acquire a right to open and close by 
 admitting simple negligence. 5 
 
 § 366. ( [1] Right to Prove One's Case; [d] Order of 
 Stages; Right to Open and Close); Proceedings in Bern. — 
 
 On proceedings m rem he who concedes that his adversary is en- 
 titled to succeed unless he can show that he is himself entitled to 
 do so, has the right of an actor. Where, in a claim case, the claim- 
 ant admits that the plaintiff has a prima facie case, he will be 
 deemed to have acquired the right to open and close. 1 On a will 
 contest where the contestant admits the execution of the will he 
 has been said to assume the burden of proof. 2 It is doubtful, 
 however, whether this result is good administration. If it be 
 found that the evidence at the end of the hearing is in equilibria- 
 the will should properly fail. The sounder rule, therefore, is to 
 the effect that the executor or other proponent of a will is actor 
 throughout the hearing. Where all claimants stand on equal de- 
 grees of remoteness from responsibility for the issue, i. e., where 
 eaoh is simply for himself to the exclusion of all others, the allot- 
 ment of the order of argument is purely a matter of administra- 
 tion. 3 
 
 § 367. ( [1] Right to Prove One's Case; [d] Order of 
 Stages); Variations in Order of Evidence — If he think proper, a 
 presiding judge may receive a relevant fact at any time prior to 
 final judgment j 1 — provided that when evidence is offered at a 
 
 4. Cilley v. Preferred Ace. Ins. Co., 2. In re Wharton's Will, (Iowa 
 187 N. Y. 517, 79 N. E. 1102 (1907) 1906) 109 N. W. 493. 
 
 [affirming 109 N. Y. App. Div. 394, 3. Sorensen v. Sorensen, (Neb. 
 
 96 N. Y. Suppl. 282 (1905)]; Cilley 1904) 98 N. W. 837. 
 
 v. Preferred Ace. Ins. Co., 96 N. Y. 1. Western Union Tel. Co. v. Bow- 
 
 Suppl. 282, 109 App. Div. 394 man, (Ala. 1904) 37 So. 493; Van 
 
 (1904). Camp v. City of Keokuk, (Iowa 1906) 
 
 5. Southern By. Co. in Kentucky 107 N. W. 933; Pharr v. Shadel, (La. 
 V. Steele, 28 Ky. L. Rep. 764, 90 S. 1905) 38 So. 914; Knapp v. Order 
 W. 548 (1906). of Pendo, 36 Wash. 601, 79 Pae. 209 
 
 1. Turner v. Elliott, 127 Ga. 338, (1905). Where evidence is relevant 
 56 S. E. 434 (1907). in support of plaintiff's claim, the 
 
§ 367 
 
 A. Peotect Substantive Eights. 
 
 476 
 
 stage at which alone it can be effective for the purpose for which it 
 is offered the discretion of the presiding judge does not extend to 
 declining to receive it until a later stage. The rule is not modi- 
 fied by the fact that the evidence is offered on a preliminary in- 
 quiry, as with regard to the voluntary nature of a confession. 2 
 In other words, the order of evidence is a matter of administrative 
 control ; it is, as is usually said, " within the court's discretion." 3 
 So long as the action of the trial court is reasonable, it will stand.* 
 A judge may in any case reject tenders of evidence for the non- 
 actor made before the actor has rested his case. 5 For example, 
 a judge is not required, on an objection that a deed is a forgery, 
 to try that issue at that particular stage. He may admit the evi- 
 dence and hear the other party in his proper order. On the 
 other hand, where a quick settlement may be reached by 
 allowing a party to interpolate a piece of evidence, the 
 
 court in its discretion may admit it 
 as direct evidence of the cause of 
 action, or on cross-examination of de- 
 fendant, or in rebuttal. Moody v. 
 Peirano, (Cal. App. 1907) 88 Pac. 
 380. 
 
 2. Com. v. Culver, 126 Mass. 464 
 (1879). It is even more clear that 
 power to control the order of evidence 
 does not authorize the judge to ex- 
 clude it where material, e. g., when 
 offered in reply to testimony pre- 
 viously received. Com. v. Culver, 186 
 Mass. 464 (1879). 
 
 3. Alabama. — Armour Packing Co. 
 of Louisiana v. Vietch- Young Produce 
 Co., (Ala. 1903) 39 So. 680. 
 
 Colorado. — San Miguel Consol. 
 Gold Min. Co. v. Bonner, 33 Colo. 207, 
 79 Pac. 1025 (1905); Sheridan v. 
 Patterson, (Colo. 1905) 82 Pac. 539. 
 
 Iowa. — Alquist v. Eagle Ironworks, 
 (Iowa 1904) 101 N. W. 520; Fitoh 
 v. Mason City & C. L. Traction Co., 
 (Iowa 1904) 100 N. W. 618. 
 
 Kansas. — McBride V . Steinweden, 
 72 Kan. 508, 83 Pac. 822 (1906). 
 
 Massachusetts. — Burnside v. Town 
 of Everett, 186 Mass. 4, 71 N. E. 82 
 (1904). 
 
 Minnesota. — Campbell v. Railway 
 Transfer Co., 95 Minn. 375, 104 N. 
 W. 547 (1905). 
 
 THew Jersey. — Foley v. Brunswick 
 Traction Co., (Supp. 1903) 55 Atl. 
 803. 
 
 New York. — Johnston v. Mutual 
 Reserve Fund Life Ins. Co., 87 N. Y. 
 Suppl. 438, 43 Misc. Rep. 251 (1904). 
 
 Pennsylvania. — Baldi v. Metropoli- 
 tan Life Ins. Co., 30 Pa. Super. Ct. 
 213 (1906) ; Duncansville Building & 
 Loan Ass'n v. Ginter, 24 Pa. Super. 
 Ct. 42 (1903). 
 
 Rhode Island. — Spink v. New York, 
 N. H. & H. Ry. Co., 26 R. I. 115, 58 
 Atl. 499 (1904). 
 
 Texas. — Dreeben v. First Nat. 
 Bank, (Tex. Civ. App. 1906) 93 S. 
 W. 510; Gulf, C. & S. F. Ry. Co. v. 
 Matthews, (Tex. Civ. App. 1905) 89 
 S. W. 983. 
 
 4. McBride V. Steinweden, 72 Kan. 
 508, 83 Pac. 822 (1906). 
 
 5. Bowen v. White, 26 R. I. 69, 58 
 Atl. 252 (1904). 
 
 6. Ming v. Olster, 195 Mo. 460, 92 
 S. W. 398 (1906). 
 
 There are limits to what may be 
 deemed reasonable. The examination 
 of a witness for the defense before 
 the plaintiff has opened his case 
 should not be allowed except by con- 
 sent. Conant V. Jonea, 120 Ga. 568, 
 48 S. E. 234 (1904). 
 
477 Right of Pkoof is Substantial, Not Fobmal. § 367 
 
 " short-cut " may reasonably be allowed. 7 The right to prove 
 one's case rather assures a litigant of the benefit of appro- 
 priate stages in proof as established by law than guaranties 
 that they shall not be varied against him or shall be modi- 
 fied in his favor. 8 A litigant is entitled to insist upon the 
 right to present his case fully, to test that of his adversary with 
 reasonable completeness, and to put in a reply to all new matter, 
 in rebuttal. These rights are substantial. The court must secure 
 to him due consideration for his contention. His claim must go 
 to the tribunal with proper relative weight as compared to the 
 contention of his adversary. But this right is to the substance 
 rather than to the form; the age of formal precision is over. 9 
 Though the party who presents evidence at an appropriate stage, 
 whether in chief or in rebuttal 10 will, as a rule be heard at that 
 particular stage, in the absence of special considerations, no rule 
 of procedure, other than that requiring the use of reason, fetters 
 the administrative power of the court to order otherwise. 
 
 The litigant is not entitled to insist that his right to prove his 
 case should be preserved to him at any particular time in any 
 special way; — even though the time which he desires is the regu- 
 lar time, and the way he seeks to have adopted is the one usual in 
 such cases. The observance of the regular practice is not a right 
 of the party. If a reasonably adequate substitute is provided, he 
 has received no prejudice. 11 In some way, at some time during 
 the course of every trial, suitable opportunity for presenting his 
 case must be accorded. Whatever things are reasonably necessary 
 to enable the litigant to prove his case, will, within the confines 
 of the trial, be secured to him. The rules of the contest in which 
 the parties are engaged require that he should have them. 
 
 7. Patten v. Fox, 179 Mo. 525, 78 Missouri.— Glenn v. Stewart, 167 
 S. W. 804 (1904). Mo. 584, 67 S. W. 237 (1903). 
 
 8. Law v. Merrills, 6 Wend. (N. Montana. — Anaconda C. M. Co. v. 
 Y.) 268, 281 (1830); Alexander V. Heinze, 27 Mont. 161, 69 Pac. 909 
 Byron, 2 John. Cas. (TST. Y.) 318, (1902). 
 
 319 (1801). Philadelphia & T. E. England. — Briggs v. Ainsworth, 2 
 
 Co. *. Stimpson, 14 Pet. (U. S.) 448, Mo. & Rob. 168 (1838). 
 
 463 (1840). The rule applies to deliberate facts. 
 
 9. Goss v. Turner, 21 Vt. 437, 439 Ankersmit v. Tuch, 114 N. Y. 54, 20 
 (1849). N. E. 819 (1889) (contradiction). 
 
 10. California. — Wade v. Thayer, 11. Hathaway v. Hemingway, 20 
 40 Cal. 578, 584 (1871). Conn. 191, 195 (1850). 
 
 Iowa. — Farmers & M. Bank v. 
 Young, 36 Iowa 45, 46 (1872). 
 
§§ 368, 369 A. Pkotect Substantive Eights. 478 
 
 § 368. ( [1] Right to Prove One's Case; [d] Order of 
 Stages; Variations in Order of Evidence) ; Administrative Con- 
 siderations. — In all cases of variation, good reasons must be fur- 
 nished. 1 No concession will be given to evidence which is imma- 
 terial, 2 or simply cumulative. 3 Among administrative reasons is 
 that of expediting trials. 4 In judging of the reasonableness of the- 
 action of the trial judge, the existence of certain regular stages 
 approved in practice is a consideration of much importance. Vari- 
 ations require explanation, i. e., the assignment of an adminis- 
 trative reason. On the other hand, the preservation of the estab- 
 lished order requires no defense or explanation. No special ex- 
 cuse is required, for example, for declining to allow the nonactoi\ 
 reus, to interpolate his defense in the midst of the actor's original 
 case. 8 However justified, in itself considered, an order varying 
 the order of evidence may be, the judge may decline to concede 
 it, if incidental administrative evils are likely to result. Thus, 
 for example, a party will not be permitted to introduce certain 
 evidence, where the result would be to open up a wide field of 
 inquiry, or go all over old ground, 6 involving a consumption of 
 time without compensating administrative results. 
 
 § 369. ( [1] Right to Prove One's Case; [d] Order of 
 Stages; Variations in Order of Evidence) ; Evidence in Chief. — 
 
 A party on his original case may introduce evidence appropriate 
 only to rebuttal. 1 On the other hand, the actor may supplement 
 his evidence in chief at that stage, 2 especially where, as in assess- 
 
 1. Cincinnati, N. 0. & T. Ry. Co. 729 (1908) ; Southern Ry. Co. v. 
 V. Cox, (Tenn. 1906) 143 Fed. 110; Clay, 130 Ga. 563, 61 S. E. 226 
 Wilkie v. Richmond Traction Co., (1908). 
 
 (Va. 1906) 54 S. E. 43. 5. Yazoo & M. V. R. Co. V. Grant, 
 
 2. Potsdam Electric Light & Power (Miss. 1905) 38 So. 502. 
 
 Co. v. Village of Potsdam, 99 N. Y. 6. Union Ry. Co. V. Hunton, 114 
 
 Suppl. 551, 112 App. Div. 810 (1906); Tenn. 609, 88 S. W. 182 (1905). 
 
 Gulf, C. & S. F. Ry. Co. v. Matthews, 1. In a personal injury suit, the 
 
 (Tex. Civ. App. 1905) 89 S. W. 983. introduction of evidence in chief to 
 
 3. In re Walker's Estate, (Cal. anticipate an affirmative defense that 
 1905) 82 Pac. 770. plaintiff is simulating is proper, and, 
 
 4. Miller v. Springfield Wagon Co., though it may more properly be in- 
 (Ind. Terr. 1905) 89 S. W. 1011; troduced in rebuttal, the order of 
 Bartlett & Kling v. Illinois Surety proof rests largely within the dis- 
 Co., (Iowa 1909) 119 N. W. 729. cretion of the trial court. Stephens 
 See also 'Cutter-Tower Co. r. Cle- v. Elliott, 36 Mont. 92, 92 Pae. 45 
 ments, 5 Ga. App. 291, 63 S. E. 58 (1907). See Witnesses. 
 
 (1908); Leake v. J. R. King Dry 2. Wolfort v. Hochbaum, (Ark. 
 
 Goods Co., 5 Ga. App. 102, 62 S. E. 190'9 f 117 S. W. 525; Blair V. State, 
 
479 
 
 Evidence Admitted after Case is Closed. 
 
 369 
 
 ment cases against a municipality, 3 the original case is a broad 
 one, and until the evidence in reply is introduced, it cannot accu- 
 rately be known what item the respondent intends to attack ; * 
 or where, as in case of sanity, the burden of evidence in the origi- 
 nal case is sustained as to a particular fact by a presumption 5 or 
 assumption 8 of law. Either party may be permitted to do this 
 not only after his case has been stated by him to be closed, 7 and 
 
 69 Ark. 558, 64 S. W. 948 (1901) ; 
 Hathaway r. Hemingway, 20 Conn. 
 191, 195 (1850); Pease v. Magill, 
 (N. D. 1908) 115 N. W. 260; Clin- 
 ton v. McKenzie, 5 Strobh. 36, 42 
 (1850); Scott v. Swan, (S. D. 1908) 
 114 N. W. 1005. See also Davis v. 
 State, (Fla. 1902) 32 So. 822; Mil- 
 ler v. State, (Tex. Cr. App. 1906) 
 91 S. W. 582. 
 
 Deliberative facts. — The court will 
 experience reluctance to open a closed 
 case for the purpose of receiving 
 proof of facts merely deliberative in 
 their nature. For example, reopen- 
 ing for purposes of impeachment may 
 reasonably be refused. Barclay v. 
 Com., 25 Ky. Law Rep. 463, 76 S. 
 W. 4 (1903). 
 
 3. Chytraus v. Chicago, 160 111. 18, 
 43 N. E. 335 (1896). See also Mc- 
 Cullough v. State, (Miss. 1900) 28 
 South 946; Hamilton v. State, (Tex. 
 Cr. App. 1900) 58 S. W. 93; Schtss- 
 ler v. State, (Wis. 1904) 99 N. W. 
 593; Alexis v. U. S., 129 Fed. 60, 63 
 C. C. A. 502 (1904). 
 
 4. Dispatch of business by the elimi- 
 nation of cumulative evidence would 
 be assisted by an administrative 
 canon permitting the actor to produce 
 merely a prima facie case by his evi- 
 dence in chief reserving the balance 
 for the stage of rebuttal. Such was 
 formerly the practice in Vermont. 
 Stevens v. Dudley, 56 Vt. 156, 164 
 (1883). 
 
 5. Infra, § 1055. 
 
 6. Infra, § 1082. 
 
 7. Alabama. — Chandler Bros. v. 
 Higgins, 47 South 28 \ (1908). 
 
 California. — Abbey H. Ass'n v. Wil- 
 lard, 48 Cal. 614 (1874). See also 
 
 Loewenthal v. Coonan, 135 Cal. 381, 
 67 Pac. 324 (1902) [judgment modi- 
 fied, 67 Pac. 1033]; Loewenthal v. 
 Coonan, (Cal. 1902) 68 Pac. 303; 
 Douglass 14 Willard, 129 Cal. 38, 61 
 Pac. 572 (1900). 
 
 Florida. — Ferrell v. State, 34 So. 
 220 (1903). 
 
 Georgia. — Penn v. Georgia, S. & 
 F. Ry. Co., 129 Ga. 856, 60 S. E. 172 
 (1908) ; Miller v. Springfield Wagon, 
 Co., (Ind. Terr. 1905) 89 S. W. 1011; 
 Bartlett & Kling v. Illinois Surety 
 Co., (Iowa 1909) 119 N. W. 729. 
 See also Cutter-Tower Co. v. Cle- 
 ments., 5 Ga. App. 291, 36 S. E. 58 
 (1908); Leake v. 3. R. King Dry 
 Goods Co., 5 Ga. App. 105, 62 S. E. 
 729 (1908); Southern Ry. Co. v. 
 Clay, 130 Ga. 563, 61 S. E. 226 
 (1908). 
 
 Illinois. — Consolidated Coal Co. v. 
 Jones & Adams Co., 120 111. App. 
 139 (1905) ; Burgener v. Lippold, 128 
 111. App. 590 (1906); Hartrick v. 
 Hawes, 202 111. 334, 67 N. E. 13 
 (1903) [affirming judgment, 103 111. 
 App. 433 (1902)]; Chicago City Ry. 
 Co. v. Carroll, 102 III. App. 202 
 (1902). 
 
 Indiana. — Williams V. Allen, 40 
 Ind. 295, 297 (1872). 
 
 Iowa. — Cathcart v. Rogers, 115 la. 
 30, 87 N. W. 738 (1901). 
 
 Kansas. — Hill v. Miller, 50 Kan. 
 659, 662 (1893). See also State v. 
 Brechbill, (Kan. App. 1900) 62 Pac. 
 251. 
 
 Kentucky. — Louisville Ry. Co. v. 
 Williams, 33 Ky. Law. Rep. 168, 109 
 6. W. 874 (1908); Western Union 
 Tel. Co. v. Parsons, 24 Ky. Law Rep. 
 2008, 72 S. W. 800 (1903). 
 
§ 369 
 
 A. Protect Substantive Rights. 
 
 480 
 
 Louisiana. — State v. Sims, 106 La. 
 453, 31 So. 71 (1901). See also 
 State v. Robertson, 111 La. 35, 35 So. 
 375 (1903). 
 
 Massachusetts. — Cushing v. dish- 
 ing, 180 Mass. 150, 61 N. E. 814 
 (1901). 
 
 Missouri. — Mary v. State, 5 Mo. 
 71, 80 (1837). See also Doyle v. St. 
 Louis Transit 'Co., 124 Mo. App. 504, 
 101 S. W. 598 (1907); State v. 
 Thornhill; 177 Mo. 691, 76 S. W. 948 
 (1903) (clothing). 
 
 Nebraska. — Union Pac. R. Co. v. 
 Edmondson, (Neb. 1906) 110 N. W. 
 650. See also Union Pac. R. Co. v. 
 Edmondson, (Neb. 1906) 110 N. W. 
 650. 
 
 Neio Jersey. — Vogei v. North Jer- 
 sey St. Ry. Co., (Supp. f903) 54 Atl. 
 563. 
 
 Nevada. — State v. Murphy, 9 Nev. 
 394, 397 (1874). 
 
 New Hampshire. — Stone v. Bos- 
 cawen Mills, 71 N. H. 288, 52 Atl. 
 119 (1902). 
 
 New York. — Shepard v. Potter, 4 
 Hill 202 (1842). 
 
 North Carolina. — Olive v. Olive, 95 
 N. C. 485, 486 (1886). 
 
 Oregon. — State v. Isenhart, 32 Or. 
 569, 52 Pac. 569 (1898). 
 
 Pennsylvania. — Com. v. Biddle, 200 
 Pa. 640, 50 Atl. 262 (1901). See also 
 McCoy v. Niblick, 221 Pa. 123, 70 
 Atl. 577 (1908). 
 
 Rhode Island. — Hopkinton v. Waite, 
 6 R. I. 374, 380 (1860). 
 
 South Carolina. — Davis v. Collins, 
 69 S. C. 460, 48 S. E. 469 (1904); 
 State. V. Derrick, 44 S. C. 344, 22 
 S. E. 338 (1895) ; Browning V. Huff, 
 2 Bail. 174, 179 (1831). 
 
 South Dakota. — 'Citizens' Bank v. 
 Shaw, 84 N. W. 779 (1900). 
 
 Texas.— St. Louis, I. M. '& S. Ry. 
 Co. v. Cassidy Southwestern Commis- 
 sion Co., (Civ. App. 1908) 107 S. W. 
 628; Dodson t\ State, (Tex. Cr. App. 
 1902) 70 S. W. 969; Office v. Beneke, 
 (Tex. Civ. App. 1899) 53 S. W. 98 
 (deed). 
 
 Vermont. — State v. Hopkins, 56 Vt. 
 250, 262 (1883). 
 
 Washington. — State v. Constan- 
 tine, 86 Pac. 384 (1906); Knapp v. 
 Order of Pernio, 36 Wash. 601 
 (1905). 
 
 Wisconsin. — Humphrey v. State, 78 
 Wis. 570, 572, 74 N. W. 836 (1891). 
 See also Murphy v. Herold Co., 137 
 Wis. 609, 119 N. W. 294 (1909) ; 
 Maywetl v. Town of Wellington, 138 
 Wis. 607, 120 N. W. 505 (1909). 
 
 United States. — Omaha Bridge 
 Cases, 10 U. S. App. 98, 191, 2 C. 
 C. A. 174, 51 Fed. 309 (1892). 
 
 England. — Middleton v. Barned, 4 
 Exch. 241, 243 (1849). 
 
 A judge sitting without a jury may 
 make the same order. Burgener v. 
 Lippold, 128 111. App. 590 (1906). 
 
 In the interest of justice, the court 
 may reopen the case for further 
 evidence. 
 
 Florida. — Anthony v. State, 32 
 So. 818 (1902). 
 
 Louisiana. — BHarr V. Sbadel, 38 
 So. 914 (1905); State v. Boice, 114 
 La. 856, 38 So. 584 (1905). 
 
 Nebraska. — Blair v. State, 101 N. 
 W. 17 (1904). 
 
 New Jersey. — Foley v. Brunswick 
 Traction Co., (Supp. 1903) 55 Atl. 
 803. 
 
 Texas. — Griffey v. State, ( Cr. App. 
 1900) 56 S. W. 335. 
 
 The order being made in the inter- 
 est of justice may be so moulded by 
 the imposition of terms a9 to make 
 the aid afforded more sweeping and 
 complete. For example, a party so 
 indulged may be required to produce 
 also other illuminating evidence in 
 his power. Cole v. Gray, (Kan. 
 1905) 79 Pac. 654. Where the evi- 
 dence has come to the knowledge of 
 the offering party too late to present 
 it at an earlier stage, the practice 
 is to accept the testimony, if it be 
 deemed material. State r. Dunn, 179 
 Mo. 95, 77 S. W. 848 (1903). It 
 is within the discretion of the trial 
 court to reopen a cause after the 
 
481 Further Proof After Parties Have Eested. § 369 
 
 after both parties have rested their respective cases, 8 or one party 
 
 argument has commenced, and per- 
 mit the prosecution to introduce ad- 
 ditional evidence; and, unless there 
 has been a clear abuse of such dis- 
 cretion to the manifest prejudice of 
 the defendant, the appellate court 
 will not interfere. Harvey v. Terr., 
 (Okl. 1901) 65 Pac. 837. 
 
 Justice, on the contrary, may seem 
 to forbid any order for admitting 
 further testimibiiy. 
 
 Florida. — 'Bellamy v. State, 47 So. 
 868 (1908). 
 
 Kentucky. — Jackson v. Com., 23 
 Ky. L. Eep.. 1114, 64 a W. 729' 
 (1901); Abbott V. Com., 23 Ky. L. 
 Eep. 226, 63 S. W. 7T5 (1901). 
 
 Montana. — Schilling v. Curran, 76 
 Pac. 998 (1904). 
 
 Ohio. — Sitate 1\ Dugan, 1 Cleve. L. 
 Eep. 18, 4 Ohio Deb. 93 (1878). 
 
 Texas. — Greer v. Bringhurst, (Civ. 
 App. 1900) 56 S. W. 947. 
 
 Wyoming. — Keffer v. State, 73 
 Pac. 556 (1903). 
 
 8. Alabama. — Southern By. Co. v. 
 Wilson, 138 Ala. 510, 35 So. 561 
 (1903). 
 
 Colorado. — Loud v. Guyot, 30 Colo. 
 222, 70 Pac. 68S (1902). 
 
 Florida. — Volusia Gqunty Bank v. 
 Bigelow, 33 So. 704 (1903). 
 
 Georgia. — Watson v. Barnes, 125 
 Ga. 733, 54 S. E. 723 (1906). See 
 also Bridger v. Exchange Bank, 126 
 Ga. 821, 56 S. E. 97 (1906); Ford- 
 ham v. State, 125 Ga. 791, 54 S. E. 
 694 (1906); Duggan v. State, 116 
 Ga. 846, 43 S. E. 253 (1903). 
 
 Illinois. — People v. Cole, 227 111. 
 59, 81 N. E. 7 (1907); People V. 
 Wiemers, 225 111. 17, 80 N. E. 45 
 (1907) ; Hock V. Magarstadt, 124 111. 
 App. 140 (1906). 
 
 Indiana.— Todd v. Crail, 77 N. E. 
 402 (1906). See afeo Todd v. Crail, 
 (Ind. 1906) 77 N. E. 402. 
 
 Iowa. — State v. Leonard, 112 N. 
 W. 784 (1907) (burglar's tools). 
 
 Kansas. — State v. Moon, 80 Pac. 
 597 (1905). 
 
 Vol. I. 31 
 
 Louisiana. — State v. Sims, 106 La. 
 453, 31 So. 71 (1901). 
 
 Massachusetts. — Morena v. Winston, 
 80 N. E. 473 (1907). 
 
 Missouri. — Doyle v. St. Louis Tran- 
 sit Co., 124 Mo. App. 504, 101 S. W. 
 598 (1907). 
 
 New Jersey. — Willett v. Morse, 60 
 Atl. 362 (1905) ; Foley v. Brunswick 
 Traction Co., 55 Atl. 803 (1903). 
 
 New York. — Standard Supply & 
 Equipment Co. v. Merritt, 96 N. Y. 
 Suppl. 181, 48 Misc. 498 ( 1905 ) ; 
 Jarvis t>. New York House Wrecking 
 Co., 84 N. Y. Suppl. 191 (1903). 
 
 South Carolina. — Davis v. Collins, 
 69 S. C. 460, 48 S. E. 469 (1904) 
 (oversight of counsel) . 
 
 Texas. — St. Louis, etc., By. Co. v. 
 Cassidy Southwestern Commission 
 Co., (Civ. App. 1908) 107 S. W. 628; 
 St. Louis Southwestern By. Co. of 
 Texas v. Johnson, (Civ. App. 1906) 
 94 S. W. 102; Pittsburg Plate Glass 
 Co. v. Boquemore, (Civ. App. 1905) 
 88 S. W. 449. See also Pool v. Sbatej 
 (Tex. Cr. App. 1907) 103 S. W. 892; 
 Jones v. Wright, (Tex. Civ. App. 
 1906) 92 S. W. 1010; Gulf, C. & 
 S. F. By. Co. v. Matthews, (Tex. Civ. 
 App. 1905) 89 S. W. 983; Ham v. 
 State, (Tex. Cr. App. 1904) 78 S. W. 
 929; Harper v. Marion County, (Tex. 
 Civ. App. 103) 77 S. W. 1044. 
 
 Washington. — Bergman v. London 
 & L. Fire Ins. Co., 34 Wash. 398, 75 
 Pac. 989 (1904). 
 
 Wisconsin. — Howard v. Beldenville 
 Lumber Co., 108 N. W. 48 (1906). 
 See also Winn v. Itzel, (Wis. 1905) 
 103 N. W. 220; Kerslake v. Molnnia, 
 113 Wis. 659, 89 N„ W. 895 (1902). 
 
 United States. — > Alaska United 
 Gold Min. Co. v. Keating, 116 Fed. 
 561 (1902). 
 
 Terms may be imposed on the al- 
 lowance. For example, a party may 
 be required to introduce evidence in 
 addition to what he offers. Cole v. 
 Gray, (Kan. 1905) 79 Pac. 654. If 
 the party on whom terms are im- 
 
§ 369 
 
 A. PispTECT Substantive Eights. 
 
 482 
 
 has rested and the other declined to introduce any evidence. 9 Nor 
 is it even material that a motion for a verdict 10 or nonsuit has been 
 made, 11 or even allowed 12 or refused. 13 Nor have the limits of 
 the judge's power in this respect yet been reached. Although the 
 practice should be discouraged as a rule, 14 additional evidence may, 
 in the interests of justice, be received even after counsel have 
 concluded their arguments, 15 the case been taken under advise- 
 
 posed fails to comply with the order, 
 judgment may properly be entered 
 against him. Cole v. Gray, (Kan. 
 1905) 79 Pac. 654. A discharge of 
 the opponents' witnesses will be good 
 ground for refusing to reopen the 
 case. Bundrick v. State, 125 Ga. 753, 
 54 S. E. 683 (1906); Dunwoody v. 
 State, 118 Ga. 308, 45 S. E. 413 
 ( 1903 ) ; Jackson, v. State, 118 Ga. 
 780, 45 S. E. 604 (1903). A statute 
 conferring this power is merely di- 
 rectory. Western Union Tel. 'Co. v. 
 Roberts, (Tex. Civ. App. 1903) 78 S. 
 W. 522. 
 
 Equity proceedings. — The rule is 
 the same in equity causes. Winn v. 
 Itzel, (Wis. 1905) 103 N. W. 220. 
 
 9. Pocahontas Collieries Co. v. Wil- 
 liams, 105 Va. 708, 54 S. E. 868 
 (1906); Reiff V. Coulter, (Wash. 
 1907) 92 Pac. 436. 
 
 A stricter rule in criminal cases has 
 been suggested. Brown v. Giles, 1 
 C. & P. 118 (1823), by Park, J. 
 
 10. Bridger V, Exchange Bank, 126 
 Ga. 821, 56 S. E. 97 (1906); Cath- 
 cart v. Rogers, 115 Iowa 30, 87 N. W. 
 738 (1901). 
 
 11. Hill v. City of Glenwood, (Iowa 
 1904) 100 N. W. 522; Richardson 
 v. Agnew, (Wash. 1907) 89 Pac. 404. 
 See also Stone v. Boscawen Mills, 71 
 N. H. 288, 52 Atl. 119 (1902) ; Buck 
 v. City of McKeesport, 223 Pa. 211, 
 72 Atl. 514 (1909); Carmack V. 
 Drum, (Wash. 1902) 67 Pac. 808. 
 
 A demurrer to evidence stands/ in 
 the same position as a motion to di- 
 rect a verdict. Hill v. City of Glen- 
 wood, (Iowa 1904) 100 N. W. 522; 
 Goodrich v. Kansas City, C. & S. Ry. 
 
 Co., 152 Mo. 222, 53 S. W. 917 
 (1899); Kane v. Kane, 35 Wash. 
 517, 77 Pac. 842 (1904) (divorce pro- 
 ceedings). 
 
 12. Penn v. Georgia, S. & F. Ry. 
 Co., 129 Ga. 856, 60 S. E. 172 (1908) ; 
 Moore v. Central of Georgia Ry. Co., 
 1 Ga. App. 514, 58 S. E. 63 (1907) ; 
 Brooke V. Lowe, 122 Ga. 358, 50 S. 
 E. 146 (1905) ; Pitts v. Florida Cent. 
 & P. R. Co., (Ga. 1902) 42 S. E. 
 383; Browning v. Huff, 2 Bail. 174, 
 179 (1831). 
 
 A contrary ruling, refusing to hear 
 further evidence, may with equal pro- 
 priety be made. Central Nat. Bank 
 v. National Metropolitan Bank of 
 Washington, 31 App. D. C. 391 
 
 (1908). The judge is amply justi- 
 fied in refusing to reopen the case 
 at this stage. Currie v. Consolidated 
 Ry. Co., 81 Conn. 383, 71 Atl. 356 
 
 ( 1908 ) ; Stewart r. Mundy, 131 Ga. 
 586, 62 S. E. 986 (1908). 
 
 13. Dorr Cattle Co. v. Chicago & G. 
 W. Ry. Co., (Iowa 1905) 103 N. W. 
 1003; Anderton i'. Blais, 28 R. I. 78, 
 65 Atl. 602 (1906). It has been said 
 that such a motion will be allowed 
 almost as a matter of course. Rice 
 v. Ware & Harper, 3 Ga. App. 573, 
 60 S. E. 301 (1908). 
 
 14. Law v. Merrills, 6 Wend. (N. 
 Y.) 268, 281 (1830). 
 
 15. Alabama. — Dyer v. State, 88 
 Ala. 225, 229, 7 So. 267 (1889). See 
 also Western Union Tel. Co. v. Bow- 
 man, (Ala. 1904) 37 So. 493. 
 
 Georgia. — Jackson v. State, 45 S. 
 E. 604 (1903). 
 
 Florida. — Wilson v. Johnson, 41 
 So. 395 (1906). 
 
483 
 
 ■'' The Trial of a Case is Not a Mere Game." 
 
 36£ 
 
 Hawaii. — Herblay V. Norris, 8 
 Haw. 335, 336 (1892). 
 
 Illinois. — Bolen v. People, 184 111. 
 338, 56 N. E. 408 (1900). See also 
 Robinson v. Kirkwood, 91 111. App. 
 54 (1900). 
 
 Indiana. — Roush v. Roush, 154 Ind. 
 562, 55 N. E. 1017 (1900). 
 
 Iowa. — State v. Wright, 112 Iowa 
 436, 84 N. W. 541 (1900). See also 
 Dorr Cattle Co. v. Chicago & G. W. 
 Ry. Co., (Iowa 1905) 103 N. W. 
 1003. 
 
 Kentucky. — Hendron v. Robinson, 
 
 9 B. Monr. 503, 505 (1849). 
 Louisiana. — New Orleans v. Locke, 
 
 10 La. Ann. 730 (1855). 
 
 Maine. — State v. Martin, 89 Me. 
 117 (1896). 
 
 Missouri. — Freleigh v. State, 8 Mo. 
 606, 612 (1844). 
 
 Nebraska. — Tomer v. Densmore, 8 
 Neb. 384, 388 (1879). 
 
 North Carolina. — State v. Rash, 12 
 Ired. 382, 385 (1851) ; Parish v. Fite, 
 3 N. C. Law Repos. 238 (1811). 
 
 Pennsylvania. — Colclough v. Rho- 
 dus, 2 Rich. 76, 78 (1845) ; Duncan 
 V. McCullough, 4 S. & R. 480, 482 
 (1818). 
 
 Terns — Gulf, C. & S. F. Ry. Co. 
 V. Matthews, (Civ. App. 1905) 89 
 S. W. 983 ; Harper v. Marion County, 
 (Civ. App. 1903) 77 S. W. 1044; 
 Cotton v. Jones, 37 Tex. 34 (1872). 
 See also Mclntyre v. State, (Tex. Cr. 
 App. 1906) 94 S. W. 1048. 
 
 Spontaneous action of judge. — It 
 has been said that the trial court has 
 no power to reopen a case sua sponte 
 long after its full submission at a 
 previous term. Hagerle v. Beebe, 123 
 Iowa 620, 99 N. W. 303 (1904). 
 
 Vermont. — Buchanan v. Cook, 70 
 Vt. 168, 40 Atl. 102 (1897). See also 
 Howard v. Beldenville Lumber Co., 
 (Wis. 1906) 108 N. W. 48. 
 
 United States. — Cincinnati, N. O. 
 & T. Ry. Co. v. Cox, 143 Fed. 110 
 (1906). 
 
 England. — Walls v. Atcheson, 2 C. 
 & P. 268, 269 (1826). 
 
 Canada. — Doe v. Connoly, 3 All. 
 337 (1856). 
 
 A refusal to reopen at this stage 
 may be fully justified. Leake v. 
 J. R. King Dry Goods Co., 5 Ga. 
 App. 102, 62 S. E. 729 (1908) ; 
 Schwitters v. Springer, 236 111. 271, 
 86 N. E. 102 (1908) [judgment af- 
 firmed, Springer v. Schwitters, 137 
 111. App. 103 (1907)]. This is espe- 
 cially true where there is no evidence 
 that the belated witnesses had been 
 absent or ill, that there was any 
 surprise, accident or mistakes. Wil- 
 kie a Richmond Traction Co., (Va. 
 1906) 54 S. E. 43. In certain juris- 
 dictions the settled practice seems to 
 be to admit the evidence necessary 
 to avoid a non-suit unless some 
 special reason appears calling for a 
 different course. Thus, the appellate 
 court of Georgia say; — " While a 
 trial judge has some discretion in re- 
 fusing a request to reopen the case 
 to supply testimony adequate to 
 avoid a nonsuit, yet this discretion 
 should be liberally exercised in be- 
 half of allowing the whole case to 
 be presented. It is the usual course 
 to allow the additional evidence; 
 and, whenever the trial judge refuses 
 to allow it, some good reason should 
 appear for such exercise of his dis- 
 cretion. The trial of a case is not 
 a mere game for testing the skill and 
 vigilance of contesting lawyers, but 
 is an investigation instituted for the 
 purpose of ascertaining the truth." 
 Ellenberg v. Southern Ry. Co., 5 Ga. 
 App. 389, 391, 63 S. E. 240 (1908), 
 per Powell, J. See also Penn v. 
 Georgia, S. & F. Ry. Co., 129 Ga. 
 856, 60 S. E. 172 (1908); Rice 0. 
 Ware & Harper, 3 Ga. App. 573, 60 
 S. E. 301 ( 1908 ) ; Moore v. Central 
 of Georgia Ry. Co., 1 Ga. App. 514, 
 58 S. E. 63 (1907); Pittsburg Plate 
 Glass Co. v. Roquemore, (Tex. Civ. 
 App. 1905) 88 S. W. 449. The. 
 soundness of this general rule seems 
 unquestionable. Among reasons jus- 
 tifying a refusal to hear additional 
 
§ 369 
 
 A. Peotect Substantive Eights. 
 
 484 
 
 ment by the court, 16 or the judge has given his charge to the 
 jury. 17 Nor is even this the extent of administrative power. A 
 party may ask and be permitted to introduce new evidence even 
 after the jury have retired to deliberate as to their verdict; 18 and 
 in fact, it is said, at any time before they are discharged by order 
 of court; 19 — though at law, 20 as distinguished from equity, 21 no 
 
 evidence offered to avoid a non-suit 
 is the fact that the .other party 
 •would be subjected to undue preju- 
 dice, or that the plaintiff has given 
 evidence of an intention deliberately 
 to trifle with the court or to delay 
 the progress of the trial. Ellenberg 
 ■v. Southern Ey. Co., 5 Ga. App. 389, 
 63 S. E. 240 ( 1908 ) ; Wood v. Town 
 of Washington, (Wis. 1908) 115 N.- 
 W. 810. Still, it has been ruled that 
 ■where plaintiff withheld an important 
 ^witness until the defense closed, and 
 "then offered him on the main facts, 
 such action, though very bad prac- 
 tise, and capable of working great 
 injustice, was not, of itself, sufficient 
 to cause reversal. Southern Ry. Co. 
 *. Hays, 78 Miss. 319, 28 So. 939 
 (1900). 
 
 16. Gross v. Watts, 206 Mo. 373, 
 104 S. W. 30 (1907). It has been 
 said that the trial court has no 
 power to reopen a case sua sponte 
 long after its full submission at a 
 previous term. Hagerle v. Beebe, 123 
 Iowu 620, 99 N. W. 303 (1904). 
 The judge may properly reject evi- 
 dence then offered as being out of its 
 Tegular order. Michner v. Ford, 
 ((Kan. 1908) 98 Pao. 273. 
 
 17. Dyer r. State, 88 Ala. 225, 229, 
 1 So. 267 ( 1889 ) ; Braydon r. Goul- 
 zman, 1 T. B. Monr. 115 (1824). See 
 ^also Hughes v. State, 29 Ohio Cir. 
 Ct. E. 237 (1907). A refusal to 
 reopen the case may well be deemed 
 a reasonable exercise of judicial dis- 
 cretion. Lewis v. Helm, (Colo. 1907) 
 SO Pac. 97. 
 
 Judge sitting without a jury. — The 
 isame rule applies to a final argu- 
 ment before the court where a jury 
 
 has been waived. Lockett v. State, 
 (Tex. Cr. App. 1900) 55 S. W. 336. 
 Waiver. Declining an offer of time 
 in which to rebut the newly ad- 
 mitted evidence negatives the exist- 
 ence of prejudice from the receipt of 
 the testimony. Bolen r. People, 184 
 111. 338, 56 N. E. 408 (1900) ; Stew- 
 art v. Stewart, (Ind. App. 1902) 62 
 N. E. 1023; Jones v. State, (Tex. Cr. 
 App. 1906) 95 S. W. 1044. 
 
 18. Arkansas. — Bynum v. Brady, 
 100 S. W. 66 (1907): 
 
 Iowa. — McComb v. Ins. Co., 83 
 Iowa 247, 48 N. W. 1038 (1891). 
 
 ~NortK Carolina. — Parish v. Fite, 2 
 N. C. Law Repos. 238 (1811). 
 
 Tennessee. — Van Huss v. Eainbolt, 
 2 Coldw. 139, 141 (1865). 
 
 Vermont. — Meserve «?. Folsom, 62 
 Vt. 504, 505, 511, 20 Atl. 926 (1889). 
 
 Virginia. — Livingston v. Com., 7 
 Gratt. 658 (1851). 
 
 This may be done at the request of 
 the jury. Trials at Nisi Prius, 308 
 (1767); Hale's Pleas of the Crown, 
 II, 307. See also Strickland v. State, 
 115 Ga. 222, 41 S. E. 713 (1902). 
 
 19. " According to the course of 
 practice and common justice, before 
 them in their several Courts, upon 
 trial by jury, as long as the prisoner 
 is at the bar and the jury not sent 
 away, either side may give their evi- 
 dence and examine witnesses to dis- 
 cover truth." Answer of judges in 
 Lord Strafford's Trial, Lords' Jour- 
 nals, April 10, 1642. 
 
 20. Meadows r. Ins. Co., 67 Iowa 
 57, 24 N. W. 951 (1885). 
 
 21. Clavey v. Lord, 87 Cal. 413, 
 416, 419, 25 Pac. 493 (1891). 
 
485 The Highee Interests of Society. § 369 
 
 such permission would probably be accorded after the verdict 22 or 
 other final adjudication. 23 
 
 The principles are the same whether the evidence offered is by 
 a new witness 2 * or by the further examination of one who has 
 already testified. 26 
 
 Should the court admit the evidence out of course, the right of 
 the opponent to meet and test it is obvious. 26 
 
 Opening of Case for Limited Purpose. — This opening of a 
 case for the purpose of receiving new evidence is not of necessity 
 a general opening of the case for all purposes. Its effect may be 
 limited to furnishing an opportunity for introducing the specific 
 fact alleged. 27 
 
 Reason Required. — So long as this administrative power to 
 vary the order of evidence is exercised with reason, its exercise 
 will not be revised. 28 
 
 The higher interests of the furtherance of justice, 29 which it is 
 the appropriate function of the court to regard in the discharge 
 of its administrative functions, supervenes as soon as the legal 
 right of the party to a reasonable opportunity to present his case, 38 
 or test that of his opponent 31 has been met in the course of the 
 
 22. See, however, Bahnsen v. Hor- 26. Hendron v. Robinson, 9 B. 
 witz, 90 N. Y. Suppl. 428 (1905). Monr. 503, 505 (1849); Rucker V. 
 
 23. Commercial Bank v. Brinker- Eddings, 7 Mo. 115 (1841); Western 
 hoff, (Mo. App. 1905), 85 S. W. 121. Union Tel. Co. v. Roberts, (Tex. Civ. 
 Even in criminal cases, the same App. 1903) 78 S. W. 522; Bergman 
 privilege has been conceded. Freleigh v. London & L. Fire Ins. Co., 34 Wash. 
 v. State, 8 Mo. 606, 612 (1844). 398, 75 Pac. 989 (1904). 
 
 24. Rucker v. Eddings, 7 Mo. 115, 27. Ailing v. Weissman, 77 Conn. 
 118 (1841). 394, 59 Atl. 419 (1904); Bridger V. 
 
 25. Rucker v. Eddings, 7 Mo. 115, Exchange Bank, 126 Ga. 821, 56 S. 
 118 (1841). E. 97 (1906). The restriction orig- 
 
 The contrary has been held, to wit, inally imposed by the Court upon the 
 
 that the evidence of a new witness is testimony to be admitted may, in the 
 
 more readily received than that of judge's discretion, itself be removed 
 
 one already examined. " I can by subsequent order. Ailing v.. Weiss- 
 
 readily imagine cases where it would man, 77 Conn. 394, 59 Atl. 419 
 
 be proper to call a new witness or (1904). 
 
 adduce new testimony, after the cause 28. Hill v. City of Glenwood, (Iowa 
 
 had been summed up, and yet that 1904) 100 N. W. 522. 
 
 it would be very improper to allow 29. Infra, § 463. 
 
 a witness to be re-examined for the 30. Supra, §§ 334 et seq. 
 
 purpose of re-stating what he had 31. Supra, §§ 377 et seq. 
 previously said." Law v. Merrills, 6 
 Wend. 268, 281 (1830), per Senator 
 
 Beardsley. , v . 
 
369 
 
 A. Peotect Substantive Eights. 
 
 486 
 
 trial. The order of evidence, in this sense, is within the admin- 
 istrative power of the presiding judge. 32 
 
 32. Alabama. — Drum v. Harrison, 
 83 Ala. 384, 386, 3 So. 715 (1887). 
 
 Arkansas. — Blair v. State, 69 Ark. 
 558, 64 S. W. 948 (1901). See also 
 Modern Laundry v. Hochbaum, (Ark. 
 1909) 117 S. W. 525. 
 
 California. — People V. Hill, 116 
 Cal. 562, 48 Pac. 711 (1897) ; Gordon 
 v. Searing, 8 Cal. 49 (1857). See 
 also In re Dolbeer's Estate, (Cal. 
 1906) 86 Pac. 695. 
 
 Colorado. — DeRemer v. Parker, 19 
 Colo. 242, 245, 34 Pac. 980 (1893). 
 
 District of Columbia. — Throckmor- 
 ton v. Holt, 12 D. C. 552, 582, 584 
 (1898). See also Consaul v. Cum- 
 mings, 30 App. D. C. 540 (1908); 
 Barsfon Stove Co. v. Detroit Stove 
 Works, 31 App. D. C. 304 (1908). 
 
 Florida.— Jacksonville T. & K. W. 
 R. Co. v. Peninsular L. T. & M. Co., 
 27 Fla. 1, 157, 9 So. 661 (1891). 
 
 Georgia.' — Green v. State, 45 S. E. 
 990 ( 1903 ) ; Eberhart v. State, 47 
 Ga. 598, 607 ( 1873 ) . See also Hoxie 
 V. State, 114 Ga. 19, 39 S. E. 944 
 (1901). 
 
 Hawaii. — Mist v. Kawelo, 13 Haw. 
 302, 303 (1901). 
 
 Illinois. — Hartrioh V . Hawes, 202 
 111. 334, 67 N. E. 13 (1903); Board 
 v. Harley, 174 111. 412; 51 N. E. 754 
 (1898). See also Kingsley v. Kings- 
 ley, 130 111. App. 53 ( 1906 ) ; Hock l\ 
 Magerstadt, 124 111. App. 140 
 (1906) ; Mueller v. Rebhan, 94 111. 
 142, 150 (1879). 
 
 Indiana. — Ellison •». Branstrator, 
 153 Ind. 146, 54 N. E. 433 (1899); 
 Throgmorton v. Davis, 4 Blackf. 174, 
 175 (1836). 
 
 Iowa. — Kassing v. Walter, 65 N. 
 W. 832 (1896) ; Hess v. Wilcox, 58 
 Iowa 380, 383, 10 N. W. 847 (1882). 
 
 Kansas. — Wilson v. Hays' Ex'r, 
 109 Kan. 321, 58 S. W. 773 (1900); 
 Blake v. Powell, 26 Kan. 320, 327 
 (1881). 
 
 Louisiana. — Southern R. Co. v. Wil- 
 
 son, 138 Ala. 510, 35 So. 561 (1903). 
 See also Succession of Jones, 120 La. 
 986, 45 So. 965 (1908); Means V. 
 Eoss, 106 La. 175, 30 So. 300 (1901). 
 
 Massachusetts. — Lansky v. R. Co., 
 173 Mass. 20, 53 N. E. 128 (1899) ; 
 Robinson v. R. Co., 7 Gray 92, 96 
 (1856). See also Cushing v. Cush- 
 ing, 180 Mass. 150, 61 N. E. 814 
 (1901) (divorce proceedings). 
 
 Michigan. — Smith V. Bye, 116 Mich. 
 84, 74 N. W. 302 (1898); Maier v. 
 Benefit Ass'n, 107 Mich. 687, 65 N. 
 W. 553 (1895). 
 
 Mississippi. — King v. State, 74 
 Miss. 576, 21 So. 235 (1897). 
 
 Missouri. — Beyer v. Hermann, 173 
 Mo. 295, 73 S. W. 164 (1903); 
 State v. Jones, 64 Mo. 391, 397 
 (1877). 
 
 Nebraska. — Baer v. State, 59 Neb. 
 655, 81 N. W. 856 (1900); Basye v. 
 State, 45 Neb. 261, 63 N. W. 811 
 (1895). 
 
 Nevada. — Lamance v. Byrnes, 17 
 Nev. 197, 202, 30 Pac. 700 (1882). 
 
 New Mexico. — People v. Strait, 154 
 N. Mex. 165, 47 N. E. 1090 (1897). 
 
 New York. — People v. Koerner, 154 
 N. Y. 335, 48 N. E. 730 (1897). See 
 also Potsdam Electric Light & 
 Power Co. v. Village of Potsdam, 99 
 N. Y. Supp. 551, 112 App. Div. 810 
 (1906) ; Barson v. Mulligan, 79 N. Y. 
 Supp. 31, 77 App. Div. 192 (1902); 
 In re Wormser's Estate, 64 N. Y. 
 Suppl. 897, 51 App. Div. 441 (1900) 
 [Order modified, In re Wormser, 
 (Sur. 1899) 59 N. Y. S. 1088, 28 
 Misc, Rep. 608] (surrogate). 
 
 North Carolina. — State v. King, 84 
 N. C. 737, 741 (1881). 
 
 Ohio. — S'hahan v. Swan, 48 Ohio 
 25, 26 N. E. 222 (1891); Webb v. 
 State, 29 Ohio St. 351, 356 (1876). 
 
 Oklahoma. — Coohran n U. S., 76 
 Pae. 672 (1904) (for purposes of fur- 
 ther cross-examination ) . 
 
487 
 
 Policy of Vaeying Couese of Teial. 
 
 § 370 
 
 § 370. ( [1] Right to Prove One's Case; [d] Order of 
 Stages; Variations in Order of Evidence); Considerations Influ- 
 encing Judge's Action. — In exercising this discretion various con- 
 siderations may reasonably affect the court's action. It may fairly 
 be said, on the one hand, that less injustice will, as a rule, be done 
 by admitting evidence than by excluding it. There is an obvious 
 disregard of the duty of the court to expedite causes 1 and to fur- 
 ther justice 2 when a party is compelled either to climb once 
 more the long hill of litigation, or else, disheartened, abandon 'the 
 
 Oregon. — State v. Hunsaker, 16 Or. 
 497, 499, 19 Pac. 605 (1888). 
 
 Pennsylvania. — Acklin v. McCal- 
 mont Oil Co., 301 Pa. 257, 50 Atl. 955 
 (1902) ; Dosch v. Diem, 176 Pa. 603, 
 35 Atl. 207 (1896). 
 
 Rhode Island. — State v. Ballou, 20 
 E. I. 607, 40 Atl. 861 (1898). 
 
 South Carolina. — Ludden & Bates 
 S. M. H. v. Sumter, 47 S. C. 335, 25 
 S. E. 150 (1896). See also Virginia- 
 Carolina Oheimical Co. v. Kirven, 57 
 S. C. 445, 35 S. E. 745 (1900). 
 
 Tennessee. — Jones v. Galbraith, 59 
 S. W. 350 (1900). 
 
 Texas. — Burt v. State, 38 Tex. Cr. 
 397, 420, 40 S. W. 1000, 43 S. W. 344 
 (1897). See also Gulf, C. & S. F. 
 Ey. Co. v. Matthews, (Tex. Civ. App. 
 1905) 89 S. W. 983. 
 
 Utah.— State v. Webb, 18 Utah 
 441, 56 Pac. 159 (1899). 
 
 Vermont. — State v. Lawrence, 70 
 Vt. 524, 41 Atl. 1027 (1898) ; Goss v. 
 Turner, 21 Vt. 437, 439 (1849). 
 
 Virginia. — Eeed v. Com., 98 Va. 
 817, 36 S. E. 399 (1900). See also 
 Pocahontas Collieries Co. v. Williams, 
 105 Va. 708, 54 S. E. 868 (1906). 
 
 West Virginia. — State v. Williams, 
 49 W. Va. 220, 38 S. E. 495 (1901). 
 Wisconsin. — Stanhilber v. Graves, 
 97 Wis. 515, 73 N". W. 48 (1897). 
 See also Lauterhach v. Netzo, 111 
 Wis. 322, 87 N. W. 230 (1901). 
 
 United States. — Atchison T. & S. F. 
 R. Co. v. Phipps, 60 C. C. A. 314, 125 
 Fed. 478 (1903); Philadelphia & T. 
 R. Co. v. Stimpson, 14 Pet. 448, 463 
 (1840). 
 
 England. — E. v. Nicholson, 2 Lew. 
 Cr. C. 151 (1834). See also Walls 
 V. Atcheson, 2 C. & P. 268, 269 
 (1826). 
 
 Canada. — Devlin v. Crocker, 7 C. Q. 
 B. 398 (1850) ; Harvey v. E. Co., 3 
 Man. 266 (1885) ; Heavy V. Odell, 5 
 All. N. Br. 102 (1863). 
 
 It is entirely discretionary with 
 the trial court whether a witness, 
 after the evidence is closed, shall 
 be permitted to again occupy the 
 witness stand. Eoe v. Bank of Ver- 
 sailles, 167 Mo. 406, 67 S. W. 303 
 (1902). A considerajble delay in 
 making a, motion to reopen may 
 fairly be considered by the trial 
 judge in dealing with such an appli- 
 cation,. Houston's Adm'r v. Thomp- 
 son's Adm'r, 87 Mo. App. 63 (1901) 
 (two months). Unless the discretion 
 has been harshly exercised, an appel- 
 late court will not interfere. Hous- 
 ton's Adm'r v. Thompson's Adm'r, 87 
 Mo. App. 63 (1901). 
 
 The practice extends also to chan- 
 cery causes. Hamersly v. Lambert, 2 
 Johns. Ch. 432 (1817). 
 
 This inherent power of a court was 
 early held to be possessed 'by the fed- 
 eral courts of the United States. " We 
 think," says Judge Story, "that the 
 circuit courts possess this discretion in 
 as ample a manner as other judicial 
 tribunals." Philadelphia & T. E. Co. 
 v. Stimpson, 14 Pet. 448, 463 (1840). 
 
 1. Infra, §§ 544 et seq. 
 
 2. Infra, §§ 463 et seq. 
 
§ 370 A. Peotect Substantive Eights. 488 
 
 prosecution of a just claim when a few minutes' indulgence to- 
 human fallibility might end the matter at the time once for all.* 
 
 On the other hand, it may properly be considered that there 
 frequently arises hardship when evidence is offered against a party 
 who has dismissed his witnesses, the appropriate stage for using 
 them having passed. The judge may fairly regard the ulterior 
 effect of a ruling in encouraging laxity of practice and a con- 
 stant repetition, on the part of the bar, of the same request for 
 indulgence.* 
 
 Hie maximum of concession will be extended where the evi- 
 dence which the party asks to supply is of a formal nature, 5 or 
 where it has been assumed that it has been shown, that its exist- 
 ence is not controverted or that, as matter of law, it could not be 
 controverted ; 6 or where the evidence offered is already in the case 
 in another form. 7 This may be done up to the time when the jury 
 retire. 8 
 
 The minimum of administrative indulgence will be shown 
 where the course of the trial has developed a fatal weakness, un- 
 considered by the party now offering the evidence, and where the 
 latter 9 or other interested or friendly person is offered as a wit- 
 ness for the purpose of repairing the difficulty. 10 In a lesser 
 degree a party who preferred to allow his adversary to in- 
 troduce evidence which he might have himself offered at an ap- 
 propriate stage, will be exposed to the influence of the suggestion. 
 
 3. " The attainment of speedy ju9- the plaintiff did rely, and which 
 tice is one great object of a suit at she had omitted to prove from sup- 
 law; and it would be a bad way of posing that in point of law it could 
 attaining this end to say to a party not be questioned, surely she ought to 
 situated as the plaintiff was in the have been permitted to do so." 
 court below, ' Your case must fail, Browning v. Huff, 2 Bail. 174, 179 
 and you must begin de novo, because (1831). 
 
 you did not offer evidence 'before you 7. Kane v. Kane, 35 Wash. 517, 7T 
 
 closed which you can now obtain in Pac. 842 (1904). 
 
 a few moments.' " Browning v. Huff, 8. " Where mere formal proof has 
 
 2 Bail. 174, 179 (1831). been omitted, courts have allowed 
 
 4. Hathaway v. Hemingway, 20 witnesses to be called or documents 
 Conn. 191, 195 (1850) ; Braydon v. to be produced at any time before the- 
 Goulman, 1 T. B. Monr. 115, 118 jury retire, in order to supply it." 
 (1824). Rueker v. Eddings, 7 Mo. 115, 11* 
 
 5. Giles v. Powell, 2 C. & P. 259, (1841). 
 
 261 (1826). 9. Lewis V. Helm, (Colo. 1907) 90 
 
 6. "If the plaintiff could, without Pac. 97; Commercial Bank v. Brink- 
 delaying the court or the party, make erhoff, (Mo. App. 1905) 85 S. W. 121. 
 out a fact on which the proceedings 10. Law v. Merrills, 6 Wend. 268, 
 themselves informed the defendant 281 (1830). 
 
489 
 
 Unreasonable Action Reversed on Appeal. 
 
 371 
 
 that he has intentionally and voluntarily assumed a hazard from 
 the issue of which he expected personal advantage, and cannot 
 fairly complain if the chance goes against him. 11 
 
 The same feeling will be found to exist whenever the tempta- 
 tion to fabrication or perjury is fairly obvious. 12 
 
 Newly Discovered Evidence. — A judge may very reasonably 
 decline to reopen a case to hear alleged new evidence if he has 
 already substantially considered it. 13 
 
 § 371. ( [1] Right to Prove One's Case; [d] Order of 
 Stages; Variations in Order of Evidence) ; Practical Administra- 
 tion. — Between these limits of maximum and minimum in- 
 dulgence lies a great variety of conditions, which invite the 
 exercise of trained intelligence; and which, except in rare cases, 
 e. g., where reason has not been exercised, surprise has been 
 caused, 1 a party confronted with new evidence after he has 
 discharged his witnesses, 2 or some other injustice has been done,* 
 
 11. Schander v. Gray, (Cal. 1906) 
 86 Pae. 695. 
 
 12. Parish v. Fite, 2 N. C. Law 
 Rep. 238 ( 1811 ) ; Price v. Jenkins, 1 
 Nott & McC. 153 (1818) ; Duncan v. 
 McCullough, 4 S. & R. 480, 482 
 (1818) ; Johnson v. Clinton, A. M. & 
 0. 123 (1841) ; Rucker v. Eddings, 7 
 Mo. 115, 118 (1841); Law v. Mer- 
 rills, 6 Wend. 268, 281 (1830). 
 
 13. Emerson v. McDonnell, (Wis. 
 1906) 107 N. W. 1037. 
 
 1. Mueller v. Rebhan, 94 111. 143, 
 150 (1879); Browning v. Huff, 2 
 Bail. 174, 179 (1831). 
 
 2. Alexander v. Byron, 2 Johns. Cas. 
 318, 319 (1801) Price v. Jenkins, 1 
 Nott & MeC. 153 (1818) ; Clinton v. 
 MeKenzie, 5 Strobh. 36, 42 (1850). 
 
 3. Alabama. — Gayle v. Bishop, 14 
 Ala. 552 (1848). 
 
 California. — Foote v. Richmond, 42 
 Cal. 439, 442 (1871). 
 
 Colorado. — Brooke v. People, 23 
 Colo. 375, 48 Pae. 502 (1897). 
 
 Florida. — Ferrell v. State, 34 So. 
 220 (1903). 
 
 Georgia. — Ward v. State, 112 Ga. 
 75, 37 S. E. Ill (1900) ; Eberhart V. 
 State, 47 Ga. 598, 607 (1873). 
 
 Hawaii. — R. v. Heleliilii, 5 Haw. 
 16, 19 (1883). 
 
 Illinois. — Chicago City R. Co. v. 
 Carroll, 206 111. 318, 68 N. E. 1087 
 (1903). 
 
 Indiana. — MeNutt v. McNutt, 116 
 Ind. 545, 565, 19 N. E. 115 (1888). 
 
 Iowa. — Hartley S. Bank 1>. Mc- 
 Corkell, 91 Iowa 660, 665, 60 N. W. 
 197 (1894). 
 
 Kansas. — Rheinhart v. State, H 
 Kan. 318, 323 (1875). 
 
 Kentucky. — Froman v. Com., 42 S. 
 W. 728 (1897). 
 
 Louisiana. — State v. Robertson, 111 
 La. 35, 35 So. 375 (1903). 
 
 Missouri. — Joplin Waterworks Co. 
 V. Joplin, 177 Mo. 496, 76 S. W. 960 
 (1903). 
 
 Nevada. — Sweeney v. Hjul, 23 Nev. 
 409, 48 Pac. 1036 (1897). 
 
 New Tork. — Carradine v. Hotch- 
 kiss, 120 N. Y. 608, 613, 24 N. E. 
 1020 (1890). 
 
 North Carolina. — Sutton v. Walters, 
 118 N. C. 495, 24 S. E. 357 (1896). 
 
 Pennsylvania. — Richardson v. Stew- 
 art, 4 Binn. 198, 200 (1811). 
 
 South Carolina. — Clinton v. Me- 
 Kenzie, 5 Strobh. 36, 42 (1850). 
 
§371 
 
 A. Protect Substantive Eights. 
 
 490 
 
 should not be controlled in an appellate court.* Honest in- 
 advertence, necessitated, except in cases tried in a leisurely man- 
 ner between experienced practitioners, by the confusion of the 
 
 Utah. — State v. Webb, 18 Utah 
 441 (1899). 
 
 Virginia. — Bertha Zinc Co. v. Mar- 
 tin's Adm'r, 93 Va. 791, 22 S. E. 
 869 (1895). 
 
 West Virginia. — Perdue v. C. C. C. 
 Co., 40 W. Va. 372, 21 S. E. 870 
 (1895). 
 
 Wisconsin. — Blewett v. Gaynor, 77 
 Wis. 378, 393, 46 N. W. 547 (1890). 
 
 United States.— Hart v. U. S., 28 
 C. C. A. 612, 84 Fed. 799 (1898). 
 
 England. — George V. Radford, 3 C. 
 & P. 464 (1828). 
 
 Canada. — Wilkes v. Heaton, 17 U. 
 C. Q. B. 95 (1859). See also Rich- 
 ardson v. Stewart, 4 Binn. 198, 200 
 (1811); Braydon v. Gouldman, 1 T. 
 B. Monr. 115, 118 (1824). 
 
 Unless some injustice or denial of 
 right appear, it is evident that there 
 is no prejudice. — " No good end is to 
 be accomplished by reversing this case 
 and sending it back for a new trial 
 and for the admission of the same evi- 
 dence at a different stage of the trial." 
 Crane V. Ellis, 31 Iowa 510, 513 
 (1871) . " Even did we interfere, and 
 reverse the judgment for this cause, 
 how would the party complaining be 
 benefited by a new trial? Would not 
 the evidence, of the introduction of 
 which he complains, come out in an 
 unexceptionable manner on another 
 trial?" Brown v. Burrus, 8 Mo. 26, 
 30 (1843). 
 
 4. Iowa. — Crane v. Ellis, 31 Iowa 
 510, 512 (1871). 
 
 Missouri. — Brown r>. Burrus, 8 Mo. 
 26, 30 (1843) ; Rucker v. Eddings, 7 
 Mo. 115, 118 (1841). 
 
 ]\ T cw York. — Law v. Merrills, 6 
 Wend. 268, 281 (1830). 
 
 North Carolina. — Williams V. Av- 
 eritt, 3 Hawks 308 (1824). 
 
 Vermont. — Goss v. Turner, 21 Vt. 
 437, 439 (1849). 
 
 Plainly unreasonable action will, 
 however, be reversed. Thus, should 
 the entire contention of » party be 
 shut out from the jury by the Court's 
 action, prejudicial error has been 
 committed. Cathcart v. Rogers, 
 (Iowa 1901) 87 N. W. 738; Sun Ins. 
 Office v. Stegar, (Ky. 1900) 112 S. 
 W. 922; Moreland v. New Berger 
 Cotton Co., (Miss. 1909) 48 So. 187; 
 Lott v. Payne, (Miss. 1903) 33 So. 
 948 (ejectment) ; Marx v. Pennsyl- 
 vania Fire Ins. Co. of Philadel- 
 phia, 66 N. Y. Supp. 481, 32 Misc. 
 Rep. 637 (1900). In like man- 
 ner where important evidence has, 
 without fault of a party, but just 
 come to his knowledge, the ac- 
 tion of a trial judge in refusing to 
 allow him to produce it out of due 
 course may be reversed on appeal. 
 Etly v. Com., (Ky. 1908) 113 S. W. 
 896; Glenn v. Stewart, 167 Mo. 584, 
 67 S. W. 237 ( 1902 ) ; Elsworth v. 
 State, (Tex. Or. App. 1907) 104 S. 
 W. 903 (ink-spots). So, where the 
 previous course of the trial has been 
 such as to create a strong bias on 
 the part of a witness, it may be un- 
 reasonable to receive his evidence at 
 a later stage. People t\ Harper, 
 (Mich. 1906) 108 N. W. 689, 13 De- 
 troit Leg. N. 440. In general, where 
 an omission appears distinctly to 
 have been the fault of counsel, a. trial 
 judge will be loath to preclude tes- 
 timony upon the point, if a material 
 one. Lewandowski v. State, (Tex. 
 Cr. App. 1903) 72 S. W. 594. Where 
 a party has dismissed his witnesses 
 upon the assurance of the opposite 
 party that no further evidence will 
 be offered on a given subject, it may- 
 be error to permit such testimony 
 to be offered out of course. Hen. 
 drick v. State, (Tex. Cr. App. 1904) 
 83 S. W. 711. 
 
491 The Actoe's Evidence in Chief. § 372 
 
 trial, 5 appeals strongly for indulgence in this respect. 6 Surprise 
 at the evidence, produced by the other side, an unexpected posi- 
 tion taken or claim advanced by it, will usually, if genuine, be 
 deemed sufficient ground for receiving evidence out of its order. 
 A court may legitimately be guided somewhat by the character 
 of the parties, the reputation, skill and experience of their coun- 
 sel, as well as by the nature of the claim advanced. 7 If the new 
 evidence, in turn, constitutes a surprise, the possibility that ad- 
 mitting the evidence may result in an adjournment or continu- 
 ance may reasonably be considered by the court in passing upon 
 the question of its admission. 
 
 Any Reasonable Interpolation Will be Allowed. — The non- 
 actor (for example) may be permitted to introduce a witness dur- 
 ing the actor's evidence in chief. 8 
 
 § 372. ( [1] Right to Prove One's Case; [d] Order of 
 Stages); Evidence in Chief; Actor. — It will be convenient, there- 
 fore, to assume as universal that which is so general and say that 
 the party having the burden of proof — the actor, as he may be 
 shortly called — after making such an "opening" as is per- 
 mitted or deemed advisable, first presents his case to the jury. 
 
 5. Hathaway v. Hemingway, 20 reasonably have anticipated tbat he 
 Conn. 191, 195 (1850) ; Clinton v. would be called upon to meet, the 
 McKenzie, 5 Strobh. (S. C.) 36, 42 judge will, as a rule, experience less 
 (1850) ; Goss v. Turner, 21 Vt. 437, hesitancy in receiving the belated or 
 439 (1849). omitted testimony. Chesapeake & 0. 
 
 6. Dannelly v. Euss, 54 Fla. 285, Ry. Co. v. Dupee'a Adotn'r, 23 Ky. L. 
 45 So. 496 (1907); Eucker v. Ed- Eap. 2349, 67 S. W. 15 (1902). 
 dings, 7 Mo. 115, 118 (1841). The 7. Eucker v. Eddings, 7 Mo. 115 
 discretion is not an arbitrary one. ( 1841 ) . " That one shall be held to 
 Sun Ins. Office v. Stegar, (Ky. 1908) his announcement is in the main 
 112 S. W. 9'22. right. But to make such a rule so 
 
 Where the failure to introduce evi- rigid as to separate it from the other 
 dence at a proper stage was inten- rules as to order, and say that whilst 
 tional and intended to gain by trick- the judge may modify them as justice 
 ery an unfair advantage, the evidence and the public convenience may re- 
 will be rejected when offered. Eich- quire, he must be held to this with an 
 ardson V. Stewart, 4 Binn. 198, 200 iron grip, seems to us absurd." Eber- 
 (1811). Surprise and probable preju- hart v. State, 47 Ga. 598, 607 (1873). 
 dice caused to the other side may be 8. Huston v. Plato, 3 Colo. 402, 407 
 a reasonable ground for declining to (1877). Upon the close of the actor's 
 open a case. Atlas Engine Works v. opening address, the non-actor may 
 Woolford, 22 Pa. Super. Ct. 545 be permitted to offer evidence. 
 (1903). On the other hand, where Thomas v. Chicago, M. & St. P. Ey. 
 the evidence offered out of course is Co., (Iowa 1901) 86 N. W. 259. 
 only such as the other party might 
 
§ 373 A. Protect Substantive Rights. 492 
 
 He calls and examines his witnesses — the stages of whose ex- 
 amination present a matter for separate consideration 1 — submits 
 his documents, exhibits to the perception of the court, any article, 
 animate or inanimate, which is in any way relevant, and rests his 
 case. This is his evidence in chief. It should contain every fact 
 necessary to the establishment of a prima facie case, 2 i. e., as is 
 said elsewhere, 3 it covers the entire res gestae out of which the 
 right or liability claimed or asserted arises. 
 
 Should the actor fail to prove a prima facie case, the nonactor 
 is under no obligation to introduce any evidence whatever; and 
 his failure to do so will not complete and make a prima facie case 
 for the actor. 4 This proposition must, however, be carefully dis- 
 tinguished from the closely related but entirely distinct rule of 
 administration, to the effect that, in considering what shall be 
 deemed a prima facie case for the actor, his means of knowledge 
 and access to evidence may properly be considered by the presid- 
 ing judge. 5 In other words, the court, in ruling as to the exist- 
 ence of a prima facie case, i. e., as to when the burden of evi- 
 dence has shifted, may properly consider that if certain statements 
 or contentions of the actor are not true, the nonactor can and will 
 contradict and disprove, them. 
 
 § 373. ( [1] Right to Prove One's Case; [d] Order of 
 Stages; Evidence in Chief); Nonactor. — His adversary — the 
 nonactor, the reus — whose only burden in proof in civil cases is 
 the creation of an equilibrium or, in criminal cases, establishing 
 a reasonable doubt, 1 at the close of the actor's evidence in chief, 
 becomes entitled to an opportunity to present his case, by way of 
 defense. 2 Before doing so, a preliminary question should be re- 
 
 1. See Witnesses. 3. Supra, § 358. 
 
 2. Southern Ry. Co. v. Gullatt, 4. Southern Ey. Co. v. Gullatt, 
 (Ala. 1907) 43 So. 577; Mueller V. (Ala. 1907) 43 So. 577. See also Mc- 
 Rebhan, 94 111. 142, 150 (1879). See Duffee's Adm'x v. Boston &M. R. R., 
 also Hathaway v. Hemingway, 20 81 Vt. 52, 69 Atl. 124 (1908). 
 Conn. 191, 195 (1850). "The orderly 5. Infra, § 970. 
 
 course of proceeding requires that the 1. Infra, § 1174. 
 
 party whose business it is to go for- 2. The rights of co-defendants to 
 
 ward should bring out the strength be heard with respect to the conten- 
 
 of his proof in the first instance; but tions of each other are considered in 
 
 it is competent for the judge, accord- Grundy v. Janesville, 84 Wis. 574, 54 
 
 ing to the nature of the case, to N. W. 1085 (1893); R. v. Cooke, 1 
 
 allow a party who has closed his C. & P. 322 (1824). 
 case to introduce further evidence." 
 Cushing v. Billings, 2 Cush. 158, 159 
 (1848). 
 
4&3 Oedeb of Topics Commonly Left to Counsel. § 374 
 
 solved: Has the actor presented to the court a prima facie case? 
 In other words, has he produced such evidence in favor of his 
 contention that the jury, or judge, as the case may be, would be 
 justified as reasonable men in acting in accordance with it ? This 
 point is raised by a request for a ruling upon the basis that such 
 is not the case. The court may, upon suitable terms, rule as to 
 such a motion. If the result is adverse to the actor, that is the 
 end of the case. Otherwise, i. e., if the point is not raised or not 
 sustained, the nonactor proceeds. He " opens " his case to the 
 jury, calls his witnesses, who are examined at the same successive 
 stages as those of his opponent, 3 produces his documents, offers 
 for inspection such articles as may be deemed relevant; and, in 
 turn rests his case. This is his evidence in chief, his case in re- 
 ply. The nonactor's evidence in chief should contain proof of all 
 facts necessary to meet the claim of right or liability advanced 
 hy the actor.* 
 
 At this point it is open to the actor to ask for a ruling to the 
 effect that his original prima facie case has not been impaired and 
 that, consequently, there is nothing for the jury to try. He may, 
 in other words, ask the court to rule that the jury could not, as 
 reasonable men, find otherwise than in favor of his contention. 
 
 This is the extent of the right of the parties to present each his 
 original case — the first of his substantive legal rights which it is 
 the administrative duty of the court to secure to a litigant under 
 the canon A of judicial administration; — so far as relates to (d) 
 the order of stages at which it is to be exercised. It remains to 
 consider this right to prove one's case as related (e) to the order 
 in which the several topics covered by the res gestae or constituent 
 facts of that case may be presented to the court. 
 
 § 374. ( [1] Right to Prove One's Case); (e) Order of Topics. 
 
 — While it is not disputed that what is preliminary should pre- 
 cede in proof that which is subsequent in point of time, 1 or causa- 
 tion, counsel claim and customarily exercise the right to open 
 their cases to the jury in any order of topics which seems to them 
 effective for their purpose. In connection with the order of 
 topics, an administrative question is presented to the court which, 
 unless it should appear that the issue is likely to be befogged or 
 
 3. See Witnesses. 1. White v. Wilmington City Ry. 
 
 4. Hathaway v. Hemingway, 20 Co., (Del. Super. 1906) 63 Atl. 931. 
 Conn. 191, 195 (1850). 
 
§ 374 A. Peotect Substantive Eights. 494 
 
 the jury misled, will usually be exercised by leaving the matter 
 to the determination of the parties. This order is not com- 
 monly disturbed by the court, where the facts alleged are 
 relevant, unless as adopted it is obviously unfair or preju- 
 dicial. 2 Therefore, the order in which counsel may see fit 
 to offer evidence of the respective topics covered by their con- 
 tentions at any particular stage of the proof, is largely left to the 
 unhampered option of counsel. 3 They have the right to call wit- 
 nesses at the appropriate stage in proof of relevant topics in any 
 order they may see fit, in the absence of general or special regula- 
 tion — as that requiring a party who declines to go out with his 
 witnesses to testify before they do.* This right connotes liberty 
 of placing the topics in any order which he desires. The reverse is 
 equally true — that the right to vary the order of topics connotes 
 that of calling witnesses in any order which may seem judicious. 
 This is not only in accordance with the reasonable strategy in each 
 case, e. g., as where an effort to inspire courage in a hesitating 
 witness whose evidence is logically preliminary, is made by intro- 
 ducing in anticipation of his testimony, that of some more posi- 
 tive witness, is serviceable where, as frequently happens, practical 
 convenience requires a perversion of the logical order. A witness 
 whose testimony is introductory may not be in attendance. One 
 whose evidence would logically be subsequent may be anxious for 
 release from attendance. Again, it may be extremely convenient 
 to complete the entire examination of a witness at one time 
 though the topics covered by his testimony relate to very different 
 parts of the case. 5 For these, or other reasons, the court, even 
 over objection, may permit a witness called as part of the evi- 
 dence in chief to be examined as to matters really in rebuttal of 
 facts, proof of which is anticipated at a later stage. 6 On the other 
 hand, the presiding judge, when one of the actor's witnesses has 
 
 2. "It is certainly the privilege of 304, 38 S. W. 432 (1896) ; Clemens 
 a party to present his testimony in i\ State, 92 Tenn. 282, 288, 286, 21 
 the mode his judgment or fancy may S. W. 525 (1892). 
 
 dictate; and, if relevant, it cannot 5. The actor may, for example, be 
 
 be objected to, although it may be of permitted to prove facts in rebuttal 
 
 no avail without further proof." on cross-examination of one of the 
 
 Branch Bank v. Kinsey, 5 Ala. 9, 12 nonactor's witnesses. Banney v. E. 
 
 (1843). Co., 67 Vt. 594, 32 Atl. 810 (1893). 
 
 3. McDaneld v. Logi, 143 111. 487, 6. Mayer v. Brensinger, 180 111. 
 32 N. E. 423 (1892). 110, 54 N. E. 159 (1899). 
 
 4. Barkley v. Bradford, 100 Ky. 
 
495 Action "VYheke Relevancy is Conditional. § 375 
 
 failed to arrive on time, 7 or other sufficient cause appears to the 
 judge to exist, may require the nonactor to proceed with his evi- 
 dence in chief — the actor's unfinished case, in the meantime, 
 standing open. He may immediately read the balance of a 
 document, if fairness requires it, when the actor, in his evidence 
 in chief has placed in evidence the whole and read a part, 8 as he 
 may lawfully do. In other words, while counsel are permitted, 
 in general, to consider the topics within the scope of their appro- 
 priate stage, in any order deemed by them advisable, the general 
 administrative power of the court is adequate to prevent this right 
 being made a means of oppressing the opponent or otherwise gain- 
 ing an unfair advantage. The procedure is extremely flexible, 
 and very properly so. 9 If the discretion is not exercised contrary 
 to reason, the action of the trial judge will not be reversed in an 
 appellate court. 10 
 
 When the admisaibilty of evidence is dependent upon a pre- 
 liminary finding of fact by the court, as, for example, whether a 
 bill of exchange were properly stamped, 11 a letter offered in evi- 
 dence is the original, 12 or is genuine, 13 consideration of this nature 
 will necessarily precede inquiries as to the effect of the evidence; 
 a hearing, complete in itself, is instituted, and the opponent is 
 called upon to present his rebutting evidence, if any, at that time. 
 
 § 375. ( [1] Right to Prove One's Case; [e] Order of 
 
 Topics); Conditional Relevancy; Bearing Apparent The right 
 
 of counsel to present facts in any order of topics is, also subject 
 to the very important qualification that it should affirmatively 
 appear, or be made to appear, that the fact offered in any case is 
 relevant. Where the actual or potential relevancy is obvious, on 
 its face, the party as of right may introduce it ; — though it be not, 
 unless supplemented by other evidence sufficient to warrant a find- 
 ing in his favor. 1 But where the relevancy of the fact offered is 
 
 7. Townsend's Succession, 40 La. 11. Bartlett v. Smith, 11 M. & W. 
 Ann. 66, 73, 3 So. 488 (1888). 483 (1843). 
 
 8. Herring v. Skaggs, 73 Ala. 446, 12. Boyle v. Wiseman, 24 L. J. 
 453 (1883) (deposition). Exch. 284 (1855). 
 
 9. "We take it to be well settled 13. Cooper v. Dawson, 1 F. & F. 
 that the order in which witnesses 550 (1859). 
 
 shall be called is a matter of discre- 1. Alabama. — Adams v. Adams, 29 
 
 tion with the court." Cushing V. Ala. 433 (1856). 
 
 Billings, 2 dish. 158, 159 (1848). North Carolina. — Earnhardt V. Cle- 
 
 10. Cushing v. Billings, 2 Cush. ment, 49 S. E. 49 (1904). 
 (Mass.) 158, 159 (1848). 
 
§ 375 A. Peotect Substantive Eights. 496 
 
 dependent upon proof of other facts, a somewhat different situa- 
 tion is presented, though the logical bearing is obvious. 
 
 The court is custodian of the time of the tribunal. In dis- 
 charge of its administrative function to expedite trials, 2 it is quite 
 justified in insisting that time be not fruitlessly consumed. If 
 evidence is offered which will be of no consequence unless another 
 fact be also shown to have existed, ample warrant is furnished 
 for requiring some satisfactory assurance, before admitting the 
 fact offered, that evidence will at some time be furnished as to 
 the existence of the conditioning fact. 3 For example, it is ob- 
 viously useless to examine the conduct of one accused of crime 
 unless in some way it shall be made to appear that there is a 
 corpus delieti with which to connect him. So, it is useless for 
 the court to listen to proof of the declarations of an alleged agent 
 unless some proof of agency is to be produced during the trial. 
 The court will not wisely receive evidence of the declarations of 
 alleged conspirators unless some prima facie proof of a conspiracy 
 is to be, at some time, furnished.* In other words, if proof of 
 two facts is essential to the relevancy of either, the court may 
 well insist upon knowing that both are to be shown before he ad- 
 mits proof as to either of them. 5 Still, the party evidently can 
 prove only one of these facts at a time, 6 and cannot reasonably 
 be required to prove all his facts, even those inseparably connected, 
 
 Oregon. — Jones v. Peterson, 44 Or. " If it would be relevant, when taken 
 
 161, 74 Pac. 661 (1903). in connection with other facts, it 
 
 Utah. — English v. Openshaw, 78 ought to be proposed in connection 
 
 Pac. 476 (1904). with those facts, and an offer to follow 
 
 Vermont. — F. R. Patch Mfg. Co. v. the evidence proposed, with proof of 
 
 Protection Lodge No. 215, Interna- those facts at the proper times. But 
 
 tional Ass'n of Machinists, 60 Atl. 74 the court is not bound to spend its 
 
 (1905). time in an inquiry, which from the 
 
 Administrative assumptions. — Evi- showing of the party can produce no 
 
 dence which is prima facie relevant, results." Weidler v. Farmers' Bank, 
 
 though in itself insufficient, may be 11 S. & R. (Pa.) 134, 140 (1824). 
 
 admitted when offered, since the 4. Loder v. Jayne, (Pa. 1906) 142 
 
 court is not bound to assume that Fed. 1010; Wright i: Stewart, (Mo. 
 
 the party will not, before closing, 1904) 130 Fed. 905. 
 
 offer other evidence in connection 5. Rogers v. Brent, 10 111. 573, 587 
 
 with it. Adams v. Adams, 29 Ala. (1849); Sloan" r. Sloan, (Or. 1904) 
 
 433 (1856). 78 Pac. 893. 
 
 2. Infra, § 544. 6. Palmer c McCafferty, 15 Cal. 
 
 3. Bashore v. Mooney, (Cal. App. 334, 335 (1860); Rogers v. Brent, 10 
 1906) 87 Pac. 553; Kenniff v. Caul- 111. 573, 587 (1849). 
 
 field, 140 Cal. 34, 73 Pac. 803 (1903). 
 
497 
 
 Compelling Pbematube Disclosuee. 
 
 § 376 
 
 by a single witness. 7 He may, in general, present either fact he 
 chooses first ; and, if the fact so selected has an apparently logical 
 bearing upon the truth of some proposition in issue, 8 if connected 
 with it later in an appropriate manner, 9 the evidence is compe- 
 tent; 10 — though standing alone it is irrelevant. 
 
 § 376. ( [1] Right to Prove One's Case; [e] Order of 
 Topics; Conditional Relevancy); Searing not Apparent 
 
 Where the actual or potential relevancy of the statement or other 
 fact offered is not apparent, the court may well ask the assurance 
 of counsel as to proof of connecting facts, and, if the information 
 is not satisfactory, may require immediate proof of the connecting 
 facts as a condition for admitting the statement originally offered. 1 
 "Undoubtedly, the judge may rest content with the knowledge 
 which he has that counsel would not trifle with the court's time 
 and so avoid the possible inequity of compelling him to disclose 
 the use which he intends to make of the facts he is proving. 2 
 
 7. Rogers v. Brent, 10 111. 573, 587 
 <1849), 
 
 8. " It would be no less absurd than 
 inconvenient, when proof is offered in 
 its proper order, of one necessary fact, 
 to require the party to go on and 
 offer to prove at the same time all the 
 other necessary facts to make out the 
 «ase. Such a practice would embar- 
 rass the administration of justice, 
 and prove detrimental to the rights of 
 parties." Rogers v. Brent, 10 111. 573, 
 588 (1849). 
 
 9. " The proposal of the evidence 
 must contain in itself, by reference to 
 something that has preceded it, or 
 that is to follow, information of the 
 manner in which the evidence is to be 
 legitimately operative." Weidler v. 
 Farmers' Bank, 11 S. & R. (Pa.) 134, 
 140 (1824). 
 
 10. Palmer v. McCafferty, 15 Cal. 
 334, 335 (1860) ; Rogers v. Brent, 10 
 111. 573, 587, 588 (1849); Ming V. 
 Olster, 195 Mo. 460, 93 S. W. 898 
 
 (1906). 
 
 1. Where no possible relevancy ap- 
 pears and no connecting evidence is 
 furnished or promised the judge 
 should not admit the evidence over 
 Vol. I. 32 
 
 objection. Hagan v. McDermott, 
 (Wis. 1908) 115 ST. W. 138. 
 
 2. Rogers v. Brent, 10 111. 573, 588 
 (1849). 
 
 On cross-examination, this, except 
 under unusual circumstances, is the 
 duty of the court. A party is not 
 to be exposed to the hardship of being 
 obliged to disclose the object of his 
 cross-examination or put the witness 
 on his guard by so doing, or appraise 
 his counsel of the plan of attack. 
 The reasons for this practice are thus 
 succinctly stated by the supreme 
 court of Michigan. " On a cross- 
 examination the rule as to relevancy 
 is not so strict; and it would be a 
 very unsafe rule which should allow 
 the court to reject evidence which 
 may in any manner be rendered ma- 
 terial, because the party proposing it 
 has not volunteered to precede it with 
 a statement of its precise object, and 
 of the other facts, in connection with 
 which it is to be rendered material. 
 The court may, doubtless, in its dis- 
 cretion, when a question is asked on 
 cross-examination which he thinks 
 cannot be rendered pertinent, require 
 an intimation of its object, and re- 
 
376 
 
 A. Peotect Substantive Eights. 
 
 498 
 
 Hut in an extreme ease, 3 or, generally, where the evidence has 
 apparently no possible bearing on the truth of any proposition 
 in issue, the court may well decline to remain quiescent in the face 
 of a threatened waste of time, but may, as has been said, require 
 the assurance of proponent's counsel that he will, 4 or at least rea- 
 sonably expects to 5 prove the connecting facts at a later stage. 
 With such an assurance the court will, as a rule, rest content, 6 
 
 ject the evidence if not given. But 
 this is a discretion which should be 
 very sparingly exercised, and nothing 
 further than a bare intimation should 
 generally be required. For, in many 
 cases, to state the precise object of a 
 cross-examination would be to defeat 
 it." Campau v. Dewey, 9 Mich. 381, 
 422 (1861). To the same effect, see 
 Hyland v. Milner, 99 Ind. 308 (1884) ; 
 O'Donnell v. Segar, 25 Mich. 367, 371 
 (1872) ; Martin v. Elden, 32 Ohio St. 
 282, 289 (1877) ; Knapp v. Wing, 72 
 Vt. 334, 47 Atl. 1075 (1900). "I 
 know of no case where the rule re- 
 quiring such a disclosure has been 
 applied to a cross-examination. 
 Whether Buch a case might arise, 
 need not now be decided." Burt V. 
 State, 23 Ohio St. 394, 402 (1872). 
 But this rule is not invariable. As 
 was said by the supreme court of 
 Georgia : " Even when a party is 
 under cross-examination, the court 
 may exercise a sound discretion in 
 requiring counsel to make the rele- 
 vancy of his questions apparent." City 
 Bank V. Kent, 57 Ga. 283, 285, 299 
 (1876); Hyland v. Milner, 99 Ind. 
 308, 310 (1884). "On the direct 
 examination, it is true, if the rele- 
 vancy of a proposed inquiry does not 
 appear, the court have a right to call 
 on the counsel to state the proposed 
 testimony, and the manner in which 
 it is to be made relevant." Campau 
 v. Dewey, 9 Mich. 381, 422 (1861). 
 
 3. Rogers v. Brent, 10 111. 573, 587 
 (1849); Weidler v. Fanners' Bank, 
 11 S. & R. (Pa.) 134, 139 (1824). 
 
 4. Mardis v. Shackleford, 4 Ala. 
 
 493, 461 (1842) ; O'Brien v. Keefe, 
 175 Mass. 274, 56 N. E. 588 (1900) ; 
 Campau v. Dewey, 9 Mich. 381, 422 
 (1861). 
 
 5. " Counsel can only say what 
 they anticipate will be the case; if 
 this is not made evidence, I will 
 strike it out." Parnell Commission's 
 Proceedings, 33d day, Times' Rep., 
 pt. 9, p. 104 (1888), per Hannen, 
 Pres. 
 
 6. Wilson v. Jernigan, 57 Fla. 277, 
 49 So. 44 (1909); Pittman v. State, 
 
 (Fla. 1906) 41 So. 385; Lanier v. 
 Hebard, 123 Ga. 626, 51 S. E. 632 
 
 (1905); Ellis v. Thayer, 183 Mass. 
 309, 67 N. E. 325 (1903); Banks v. 
 State, (Tex. Cr. App. 1908) 108 S. 
 W. 693. " I think I must receive 
 evidence of it, and trust to the state- 
 ment of the counsel in the cause that 
 by some further evidence it will be 
 shown to be relevant." Haigh v. Bel- 
 cher, 7 C. & P. 389, 390 (1836), per 
 Coleridge, J. 
 
 Best evidence. — The practice under 
 consideration is not so treated as to 
 apply to the administrative principle 
 or canon that primary evidence is re- 
 quired. Thus, for example, parol evi- 
 dence of the contents of a document 
 will not be received conditionally 
 that it shall be disregarded by the 
 jury if contradicted by the docu- 
 ment itself when produced. North 
 Georgia Milling Co. v. Henderson 
 Elevator Co., 130 Ga. 113, 60 S. E. 
 258 ( 1908 ) . See, however, Kehlor v. 
 Wilton, 99 111. App. 228 (1901). 
 
 Deliberative facts may be admitted 
 de bene in the same manner as other 
 
'499 
 
 Stkiking Out Evidence Admitted de bene. § 376 
 
 and the evidence is admitted de bene — provisionally — to be con- 
 nected later, 7 by evidence which will render it relevant. 8 If the 
 connection is not made, if the appropriate fact is not proved, the 
 remedy is to have the fact already introduced in evidence stricken 
 out, 9 and this has been deemed a sufficient protection to the rights 
 
 facts. For example, contradicting 
 factB may be received before the tes- 
 timony so to be controverted has it- 
 self been given. Selensky v. Chicago 
 Great Western Ry. Co., (Iowa 1903) 
 94 N. W. 272. 
 
 7. Alabama. — Henry v. Frohlicjh- 
 stein, (Ala. 1907) 43 So. 126. 
 
 Illinois. — City of Chicago v. Said- 
 man, 129 111. App. 282 (1906) [decree 
 affirmed, 225 111. 625, 80 N. E. 349 
 (1907)]. 
 
 Maryland. — Davis v. Calvert, 5 6. 
 & J. (Md.) 269 (1833). 
 
 Michigan. — Hoffman v. Harrington, 
 44 Mich. 183, 184, 6 N. W. 225 
 (1880). 
 
 Montana. — Butte Consol. Min. Co. 
 v. Barker, (Mont. 1907) 89 Pac. 302 
 [affirmed in 90 Pac. 177]. 
 
 New Mexico. — Richardson v. Pierce, 
 93 Pac. 715 (1908). 
 
 Pennsylvania. — American Car, etc., 
 Co. V. Alexandria Water Co., 218. Pa. 
 542, 67 Atl. 861 (1907); Zell v. 
 Com., 94 Pa. 258, 274 (1880); Stew- 
 art v. Bank, 11 S. & R. 267 (1824). 
 
 Texas. — Marshall v. State, 5 Tex. 
 App. 273, 291 (1878). 
 
 Virginia. — Southern Ry. Co. v. 
 Stockdon, 106 Va. 693, 56 S. E. 713 
 (1907). 
 
 8. Alabama. — McCoy v. Watson, 51 
 Ala. 466, 467 (1874); Abney v. Kings- 
 land, 10 Ala. 360 (1846). 
 
 Indiana. — Bischof v. Mikels, 147 
 Ind. 115, 46 N. E. 348 (1897). 
 
 Iowa. — Cramer v. Burlington, 42 
 Iowa 315, 319 (1875). 
 
 Maryland. — Warner V. Hardy, 6 
 Md. 525, 538 (1854). 
 
 Minnesota. — Lane v. Agric. Soc, 67 
 Minn. 65, 69 N. W. 463 (1896). 
 
 Missouri. — Obcr v. Carson, 62 Mo. 
 209, 213 (1876). 
 
 New York. — Tilton v. Beecher, N. 
 Y., Abbott's Rep. II, 35 (1875). 
 
 North Carolina. — State v. Cherry, 
 63 N. 'C. 493, 494 (1869). 
 
 Pennsylvania. — Garrigues v. Har- 
 ris, 17 Pa. St. 344, 350 (1851). 
 
 Vermont. — State v. Hopkins, 50 
 Vt. 316, 330 (1877). 
 
 England. — Parnell Commission's 
 Proceedings, 54th day, Times' Rep., 
 pt. 14, p. 149 (1888). 
 
 Canada. — Key v. Thomson, 1 Han. 
 N. Br. 295, 302 (1869). 
 
 Subsequent certainty may be given 
 to the description of a deed intro- 
 duced de bene conditioned upon such 
 additional proof of certainty being 
 furnished. Uvalde County v. Oppen- 
 heimer, (Tex Civ. App. 1909) 115 S. 
 W. 904. 
 
 9. Alabama. — Henry v. Frohlieh- 
 stein, 43 So.. 126 (1907). 
 
 California. — Palmer v. MoCafferty, 
 15 Cal. 334, 335 (1860). 
 
 Georgia. — Hix v. Gulley, 124 Ga. 
 547, 52 S. E. 890 (1905); Lanier v. 
 Hebard, 123 Ga. 626, 51 S. E. 632 
 (1905) (treated as of no account). 
 
 Illinois. — Rogers v. Brent, 10 111. 
 573, 587 (1849). 
 
 Iowa. — Dorr Cattle Co. v. Chi- 
 cago & G. W. Ry. Co., 103 N. W. 
 1003 (1905). 
 
 Masachusetts. — O'Brien v. Keefe, 
 175 Mass. 274, 56 N. E. 589 (1900). 
 
 Michigan. — Smith v. Hubbell, 151 
 Mich. 59, 114 N. W. 865, 14 Detroit 
 Leg. N. 874 (1908). 
 
 To refuse such a motion, when 
 made under appropriate circumstances, 
 has been held to be error. Frorer 
 v. Landon & Mickelberry, 130 111. 
 App. 93 (1906). 
 
§376 
 
 A. Peotect Substantive Eights. 
 
 500 
 
 of the adverse party, 10 or as a fair risk of litigation. 11 If the 
 motion to strike out is not made, the objection to the admission 
 itself is regarded as waived. 12 
 
 But it may be doubted whether this is so. To permit a jury to 
 hear an extremely favorable piece of evidence, which subsequently 
 turns out to have been without foundation in fact, and then, at 
 the end, perhaps, of a long trial, ask them to disregard it, is to 
 require of an untrained tribunal the performance of a task which 
 the highest order of trained intelligence would find extremely 
 difficult, if not impossible of accomplishment — to thrust from 
 the mind, by an act of volition, part of its contents. 13 
 
 But if the chances seem to the trial judge to preponderate in 
 favor of subsequent lack of ability to connect up the evidence of- 
 fered, 14 if the difficulties or inconvenience of producing at once 
 
 10. Palmer v. McCafferty, 15 Cal. 
 334, 335 (1860); Alexander V. Grover, 
 190 Mass. 462, 77 N. E. 487 (1906) ; 
 Haigh v. Belcher, 7 C. & P. 389, 390 
 (1836). "The discernment of the 
 jury must be trusted so far, in case 
 it should turn out to be immaterial." 
 Haigh v. Belcher, 7 C. & P. 389, 390 
 
 (1836), per Coleridge, J. 
 
 11. " If he has suffered an injury, 
 it is one inherent in the trial of 
 causes; and it is well settled, when 
 such evidence is admitted in a jury 
 trial, that the objecting party cannot 
 be heard to complain, if the evidence 
 is ruled out and the jury are in- 
 structed to disregard it." O'Brien v. 
 Keefe, 175 Mass. 274, 56 N. E. 588 
 
 (1900). 
 
 It has even been questioned who 
 suffers when this is done. Thus, the 
 supreme judicial court of Massachu- 
 setts, speaking by Loring, J., say: 
 " Whether, in svich a case, the party 
 who produces the witness whose testi- 
 mony has been confused, or the party 
 who has undertaken to assert that 
 the witness is not to be believed be- 
 cause he is a criminal, and it turns 
 out that that assertion is unfounded, 
 is the greater sufferer, is open to 
 question." O'Brien v. Keefe, 175 
 Mass. 274, 56 N". E. 588 (1900). 
 
 12. Alexander v. Grover, 190 Mass. 
 
 462, 77 N. E. 487 (1906); German- 
 American Bank v. Manning, 133 Mo. 
 App. 294, 113 S. W. 251 (1908) (tax 
 bill) ; Galveston, etc., Ey. Co. r. Jan- 
 ert, (Tex. Civ. App. 1908) 107 S. W. 
 963. See also Tijerina v. State, (Tex. 
 Cr. App. 1903) 74 S. W. 913. 
 
 A motion should be made by 
 the party aggrieved. The presiding 
 judge is not to strike out the uncon- 
 nected evidence required upon his own 
 initiative. Thomas v. State, 129 Ga. 
 419, 59 S. E. 246 (1907); Hix r. 
 Gulley, 124 Ga. 547, 52 S. E. 890 
 (1905) ; Stone v. State, 118 Ga. 705, 
 45 S. E. 630 (1903). Where the 
 failure to connect is glaring, it is 
 said that the court should strike out, 
 sua sponte, the evidence already ad- 
 mitted. Pittman V. State, (Fla. 1906) 
 41 So. 385. 
 
 13. Infra, § 1957. 
 
 14. " The possibility of testimony 
 admitted de bene not being subse- 
 quently made competent is one of 
 the considerations to be passed upon 
 by the presiding magistrate in deter- 
 mining whether to admit such evi- 
 dence at the time it is offered or not, 
 and it is necessary, in the conduct of 
 trials, that such discretion should be 
 exercised." O'Brien v. Keefe, 175 
 Mass. 274, 56 N. E. 58S (1900). 
 
501 
 
 Eight to Test Advebsaby's Case. 
 
 377 
 
 the missing link are slight when compared with the loss of time, 
 or the prejudice caused to the opposite party if this is not done; 
 or if the assurance, though offered, is not satisfactory for any 
 reason, 15 or if no assurance is offered, 16 the court is justified in 
 declining to admit the evidence offered until the missing testi- 
 mony is actually produced. If no relevancy appears in the fact 
 itself, 17 if no sufficient assurance of future evidence is made, or if 
 the offer of subsequent proof is not satisfactory because, assum- 
 ing the promised facts were introduced, the evidence offered would 
 still be irrelevant, the judge may reject the actual tender. 18 
 
 The action of the trial court, with regard to admission of evi- 
 dence de bene will not be reversed in an appellate tribunal, unless 
 the administrative power has been exercised unreasonably. 19 The 
 propriety of the decision will be aided by every intendment or 
 inference in its favor whether the original action were to admit 20 
 or to exclude 21 the evidence. 
 
 § 377. (2) Right to Test Adversary's Case. — The right to test 
 an opponent's case which is conferred on every litigant by 
 substantive law is of an importance to him which makes 
 
 15. Campau v. Dewey, 9 Mich. 381, 
 428 (1861). 
 
 16. Pier v. Speer, (N. J. 1906) 64 
 Atl. 161; Lewis, Hubbard & Co. V. 
 Montgomery Supply Co., (W. Va. 
 1906) 52 S. E. 1017. 
 
 17. Weidler v. Farmers' Bank, 11 
 B. & R. (Pa.) 134, 139 (1824). 
 
 Otherwise, no court could ever re- 
 ject for irrelevancy for every fact 
 may be connected with an issue by 
 some chain of circumstances, however 
 remote. Weidler v. Farmers' Bank, 
 11 S. & B. (Pa.) 134, 139 (1824). 
 Accordingly, evidence is not admis- 
 sible because it may become relevant. 
 It must appear potentially relevant 
 or evidence must be in sight or at 
 least promised, making it so. Weid- 
 ler v. Farmers' Bank, 11 S. & R. 
 (Pa.) 134,139 (1824). " If evidence 
 be irrelevant at the time it is offered, 
 it is not error to reject it because 
 other evidence may afterwards be 
 given in connection with which it 
 would become competent.'' Mardis v. 
 Shackelford, 4 Ala. 493, 501 (1842). 
 
 18. The offer may be renewed and 
 the evidence received at a later period 
 when subsequent developments have 
 established the relevancy of the evi- 
 dence formerly rejected. Lyford v. 
 Thurston, 16 N. H. 399, 405 (1844). 
 
 19. Ellis v. Thayer, 183 Mass. 309, 
 67 N. E. 325 (1903); Hoffman V. 
 Harrington, 44 Mich. 183, 184 (1880) ; 
 Bradley v. Dinneen, 88 Minn. 334, 93 
 N. W. 116 (1903) ; Davidson v. King, 
 16 N. Br. 396 (1876). 
 
 20. Reed v. Brashers, 3 Port. (Ala.) 
 375 (1836) ; Lynch v. Benton, 3 Rob. 
 (La.) 105 (1842); State v. McAl- 
 lister, 24 Me. 139, 143 (1844). 
 
 21. Innerarity v. Byrne, 8 Port. 
 (Ala.) 176, 179 (1838) ; Cones v. 
 Binford, 54 Ind. 516, 517 (1876); 
 Stewart v. Spedden, 5 Md. 433, 444 
 (1854). See also Mardis v. Shackel- 
 ford, 4 Ala. 493, 501 (1842); Reyn- 
 olds v. Ins. Co., 36 Mich. 131, 144 
 (1877). 
 
§ 378 A. Protect Substantive Eights. 502 
 
 its denial or unreasonable curtailment contrary to the principle 
 of judicial administration now under consideration. This right 
 of testing is, in the normal course of judical proceedings, exer- 
 cised by the parties at two principal stages, (a) on cross-examina- 
 tion, and (b) on rebuttal. 
 
 § 378. ( [2] Right to Test Adversary's Case); (a) Cross- 
 examination. — Consideration of the rights of the party upon cross- 
 examination may appropriately be postponed until it can be 
 undertaken in connection with the general treatment of that topic. 
 In the exercise of this right, it is the administrative duty of the 
 presiding judge to protect him. Unreasonable failure to do so 
 will cause reversal of the action of the trial court. 1 He may, in 
 general, attack his opponent's affirmative case in one of three 
 ways: (1) He may introduce facts to destroy or minimize the 
 probative effect of the new matter offered by his antagonist; (2) 
 he may deny the existence of these new facts ; — in so far as such 
 denial does not amount to a mere reaffirmance of the assertions 
 of his evidence in chief; or, (3) he may attack the credibility of 
 his opponent's witnesses or seek to establish the improbability of 
 their story. It is no objection to such evidence that it might have 
 been adopted by the actor as a substitutionary method of proving 
 his prima facie case ; 2 nor, as is more fully stated elsewhere, 3 is 
 it objectionable that it is secondary evidence of the same facts 
 which have been proved by primary evidence as part of his origi- 
 nal case. 
 
 The right to a reasonable opportunity for cross-examination, 
 at an appropriate stage, and in relation to matters then open for 
 consideration, 4 in itself considered, i. e., as distinct from ques- 
 tions of the scope of the right in particular cases, is undisputed 
 in any quarter. The supreme court of North Dakota states a 
 familiar and conceded rule of procedure in saying: 5 — "An 
 
 1. Stanley v. Beckham, 153 Fed. the damages. He can no longer in- 
 152, 82 C. C. A. 304 (1907). terrogate as to the merits of the ac- 
 
 2. Burk V. Pence, 206 Mo. 315, 104 tion. First Nat. Bank v. Miller, 139 
 S. W. 23 (1907). 111. App. 608 (1908) [judgment af- 
 
 3. Infra, § 476. firmed, 235 111. 135, 95 N. E. 312 
 
 4. City of Chicago v. Marsh, 238 (1908)]. 
 
 111. 254, 87 N. E. 319 (1909). 5. State r. Foster, (N. D. 1905) 
 
 Even after a default and a refer- 105 N. W. 938, per Young, J., citing 
 
 ence for the assessment of damages, 1 Thomp. on Trials, § 352; 8 Enc. PI. 
 
 the defendant may cross-examine on & Pr. 110; Hamilton v. Miller, (Kan. 
 
 the issue then open, the amount of 1891), 26 Pac. 1030; State r. Brown, 
 
S03 
 
 Limits of Right of Ceoss-Examination. 
 
 opportunity to cross-examine is a matter of right, but the lati- 
 tude and extent of the cross-examination rests largely in the dis- 
 cretion- of the presiding judge, and he may place ' a reasonable 
 limit upon the time which shall be allowed for the examination 
 or cross-examination of a witness.' " 6 The limitations upon this 
 
 100 Iowa 50, 69 N. W. 277 (1896) ; 
 Hamilton v. Hulett, 51 Minn. 208, 53 
 N. W. 364 (1894) ; Jones v. Stevens, 
 3C Neb. 849, 55 N. W. 251 (1893) ; 
 Railway Co. v. Bailey, 43 111. App. 
 293 (1892). 
 
 6. What is reasonable under given 
 circumstances, unlike the right to a 
 reasonable cross-examination, is very 
 largely a matter of administration; 
 or, as is commonly said, of " dis- 
 cretion." 
 
 Alabama. — Gregory v. State, 42 So. 
 829 (1906) ; Hill v. State, 41 So. 621 
 (1906) ; Smiley v. Hooper, 41 So. 660 
 (1906). 
 
 Arkansas. — Richardson v. State, 80 
 Ark. 201, 96 S. W. 752 (1906); 
 Corothers v. State, 88 S. W. 585 
 ( 1905 ) . 
 
 Colorado. — Van Wyk v. People, 99 
 Pac. 1009 (1909). 
 
 Connecticut. — Gorman v. Fitts, 80 
 Conn. 531, 69 Atl. 357 (1908). 
 
 Georgia. — Fouraker v. State, 4 Ga. 
 App. 692, 62 S. E. 116 (1908). 
 
 Illinois. — Shields v. People, 132 
 111. App. 109 (1907); Chicago City 
 Ry. Co. v. Creech, 207 111. 400, 69 
 N. E. 919. 
 
 Indiana. — Heath v. Shutz, 164 Ind. 
 665, 74 N. E. 505 (1905). 
 
 Indian Territory. — Wilson v. TJ. S., 
 82 S. W. 924 (1904). 
 
 Kansas. — State v. Ross, (Kan. 1908) 
 94 Pac. 270. 
 
 Massachusetts. — Gleason v. Daly, 
 80 N. E. 486 ( 1907 ) ; Barnes v. 
 Squier, 193 Mass. 21, 78 N. E. 731 
 (1906) ; Taylor p. Schofield, 191 Mass. 
 1, 77 N. E. 652 (1906). 
 
 New Jersey. — N. Risley & Sons v. 
 Ocean City Dev. Co., 69 Atl. 192 
 (1908). 
 
 North Dakota. — Schwoebel v. Fu- 
 gina, 104 N. W. 848 (1905). 
 
 Rhode Island. — State v. Farr, 69 
 Atl. 5 (1908). 
 
 Texas. — Taylor v. MoFatter, (Civ. 
 App. 1908) 109 S. W. 395 The privi- 
 lege of recalling a witness for further 
 cross-examination, is in like manner 
 a question of administration. Mc- 
 Bride v. Sullivan, (Ala. 1908) 45 So. 
 902. Great latitude is allowed upon 
 cross-examination, and the course of 
 the examination from the necessity of 
 the case must be directed and con- 
 trolled in a large measure by the good 
 sense of the presiding judge. Regester 
 V. Regester, (Md. 1906) 64 Atl. 286; 
 Phillips v. Chase, 201 Mass. 444 
 (1909). So, by permission of court, 
 a party may cross-examine his own 
 witnesses. State v. Robinson, (Iowa 
 1904) 101 N. W. 634 ; State V. Church, 
 199 Mo. 605, 98 S. W. 16 (1906). 
 This permission the court may be 
 justified in refusing. Whistler v. 
 Cowan, 26 Ohio Cir. Ct. R. 511 (1903) 
 [affirmed without opinion 70 Ohio St. 
 514, 72 N". E. 1167 (1904)]. If so, 
 the cross-examination will not be per- 
 mitted. Ryan v. Schutt, 135 111. App. 
 554 (1907); Brayman v. Grant, 114 
 N. Y. Suppl. 336, 130 App. Div. 272 
 (1909); Myatt v. Myatt, 149 N. C. 
 137, 62 S. E. 887 (1908). So also of 
 the privilege of calling one's advers- 
 ary as a witness. Mutchmor v. Mc- 
 Carty, 149 Cal. 603, 87 Pac. 85 (1906). 
 The details of a cross-examination of 
 the adverse party may also be made 
 the subject of special administrative 
 orders. Taylor v. Schofield, 191 Mass. 
 1, 77 N. E. 652 (1906). 
 
 Variations in order.— Sound admin- 
 istration may require that the cus- 
 tomary practice prevailing in a par- 
 ticular jurisdiction as to the order 
 in which evidence is received should 
 be varied, under appropriate circum- 
 
378 
 
 A. Protect Substantive Eights. 
 
 504 
 
 exercise of discretionary power are thus stated by the Illinois 
 Court of Appeals : 7 — " This discretion should be exercised for 
 the discovery of truth and in furtherance of justice, and not be 
 so restricted as to defeat these ends." The right to cross-examine 
 is, however, conditioned by the existence of a direct examination. 
 ~No right exists in the absence of direct examination. A party 
 has no just legal claim to insist upon cross-examining a witness 
 whom his adversary has merely called and sworn. 8 The rule as 
 
 stances, by the trial judge. Supra, 
 § 367. This may be, and frequently 
 is, due in connection with the cross- 
 examination of witnesses. Thus, in a 
 jurisdiction where cross-examination 
 is normally limited to examination 
 into facts about which a, witness has 
 testified on direct examination, a 
 judge may properly permit a counsel 
 to examine a particular witness as to 
 other matters than those covered by 
 direct examination. State t". High, 
 116 La. 79, 40 So. 538 (1906) ; Cate 
 v. Fife & Child, 80 Vt. 404, 68 Atl. 1 
 (1907). 
 
 Collateral matters. — Eastman v. 
 Boston Elevated Ry. Co., 200 Mass. 
 412, 86 N. E. 793 (1909) (too attenu- 
 ated and remote for consideration). 
 The administrative power of the court 
 to limit the scope of cross-examina- 
 tion is particularly noticeable in con- 
 nection with proposed inquiries into 
 collateral matters. Leavitt v. Fiber- 
 loid Co., 196 Mass. 440, 82 N. E. 682 
 (1907) ; Record v. Pennsylvania R. 
 Co., (N. J. Suppl. 1907) 67 Atl. 1040. 
 A refusal to allow a purely abstract 
 question on a subject as to which 
 there was already concrete and posi- 
 tive evidence was not an undue re- 
 striction of the right of cross-examin- 
 ation. Hagood v. State, 5 Ga. App. 80, 
 62 S. E. 641 ( 1908 ) . To few ends is 
 this power better exercised than in 
 refusing to compel a witness to an- 
 swer a humiliating question which 
 does not show any possible bias. Ad- 
 kinson v. State, (Fla. 1904) 37 So. 
 522. The presiding judge need not 
 wait until objection is made, but may 
 
 exclude the irrelevant matter sua 
 sponte. Wells v. Missouri-Edison 
 Electric Co., 108 Mo. App. 607, 84 
 S. W. 204 (1904). In such a connec- 
 tion, the length, as well as the range, 
 of cress-examination is largely a mat- 
 ter of administration. St. Louis, etc., 
 Ry. Co. v. Pell, 89 Ark. 87, 115 S. W. 
 957 (1908). While a reluctant, evas- 
 ive, or interested witness may be 
 cross-examined with great liberality 
 in order to elicit the truth, the trial 
 court, in the exercise of sound discre- 
 tion, may limit such examination 
 when it becomes tedious or appar- 
 ently frivolous so that time is un- 
 necessarily consumed. People v. Smith, 
 (Cal. App. 1908) 98 Pac. 546. 
 
 Action of appellate courts. — State 
 f. Phillips, 105 Minn. 375, 117 N. W. 
 508 (1908) (length); Corkran v. Tay- 
 lor, (N. J. Sup. 1908) 71 Atl. 124; 
 Warren v. State, (Tex. Cr. App. 1908) 
 114 S. W. 380. The scope of cross- 
 examination being within the admin- 
 istrative power of the trial court, the 
 action taken will not be reversed on 
 appeal unless the discretion has been 
 abused i. e., reason has not been 
 shown. Sloss-Sheffield Steel & Iron 
 Co. v. House, (Ala. 1908) 47 So. 572; 
 Swygart w. Willard, (Ind. 1906) 76 
 N". E. 755. 
 
 7. Prussian Nat. Ins. Co. v. Eimpire 
 Catering Co., 113 111. App. 67 (1904), 
 per Vickers, J., citing Hanchett v. 
 Kimbark, 118 111. 121 (1886). 
 
 8. Harris v. Quincy, O. & K. C. Ry. 
 Co., 115 Mo. App. 527, 91 S. W. 1010 
 (1906); Aikin f. Martin, 11 Paige 
 499 (1845). See, however, Jackson w. 
 
505 
 
 Testing Opponent's Case on Rebuttal. 
 
 § 379 
 
 to the right of cross-examination in a criminal 9 case is the same 
 which is applied in a civil 10 one; — although what is reasonable 
 as to scope in any particular instance may he affected by the na- 
 ture of the proceeding in which the question arises. 11 The right 
 of cross-examination in criminal cases has also been conferred by 
 constitutional provisions. 12 
 
 § 379. f[2] Right to Test Adversary's Case); (b) Rebuttal. 
 
 — A party has a legal right not only to test by cross-examina- 
 
 Varick, 7 Cow. 238 (1824) [affirmed, 
 Varick v. Jackson, 2 Wend. 166, 19 
 Am. Dec. 571 (1828)]. 
 
 9. Howard v. Com., 25 Ky. L. Rep. 
 2213, 80 S. W. 211 (1904) [re- 
 hearing denied, 26 Ky. L. Rep. 
 30, 81 S. W. 704]; People V. Billis, 
 110 N. Y. Suppl. 387, 58 Misc. Eep. 
 150 (1908). 
 
 Witnesses already examined. — The 
 right of a criminal defendant to cross- 
 examine witnesses already examined 
 must be promptly claimed. Otherwise, 
 it will be deemed to have been waived. 
 Eddleman v. Fasig, 128 111. App. 120 
 (1906). 
 
 10. California. — Graham l>. Larimer, 
 83 Gal. 173, 23 Pac. 286 (1890). 
 
 Illinois. — Dank Bros. Coal & Coke 
 Co. v. Tetherington, 128 111. App. 256 
 (1906). 
 
 Kansas. — Nickelson v. Dial, 93 
 Pac. 606 (1908). 
 
 Massachusetts. — Sullivan v. Fu- 
 gazzi, 193 Mass. 518, 79 N. E. 775 
 (1907). 
 
 New Jersey. — Newcomb v. Down- 
 man, 13 N. J. L (1 J. S. Green) 135 
 (1832). 
 
 New York. — Willis v. Green, 1 
 Wend. 78 (1828). 
 
 Ohio. — Minzey v. Marcy Mfg. Co., 
 25 Ohio Cir. Ct. R. 593 (1903). 
 
 United States. — Resurrection Gold 
 Min. Co. v. Fortune Gold Min. Co., 
 129 Fed. 668 (1904). The rule is 
 the same on any subsidiary motion or 
 proceeding. Bruce v. Barnes, 20 Ala. 
 219 (1852) (motion to enter satis- 
 faction of a judgment) ; Thompson v. 
 Haislip, 14 Ark. 220 (1853) (writ of 
 
 inquiry of damages) ; Mask v. State, 
 32 Miss. 405 (1856) (change of 
 venue). Where intervenors appear, it 
 is the right of both the other parties 
 to examine the intervener's wit- 
 nesses, in the absence of obvious com- 
 munity of interest. Succession of 
 Townsend, 40 La. Ann. 66, 3 So. 488 
 (1888). Should extraordinary exam- 
 ination of a witness be had by the 
 jury after their retirement, the right 
 of cross-examination attaches to the 
 facts so elicited. Thompson v. Poston, 
 62 Ky. (1 Duv.) 389 (1865). 
 
 11. The government cannot defeat 
 the defendant's right of cross-examin- 
 ation by entering a nolle prosequi on 
 the count on which the witness whose 
 cross-examination is desired has testi- 
 fied. Com. v. Scott, 121 Mass. 33 
 (1876). 
 
 Disclosing object of cross-examina- 
 tion. — The circumstances in a crim- 
 inal case may be such as to render it 
 unreasonable for the presiding judge 
 to call upon the defendant to disclose 
 the object with which he is seeking to 
 elicit a certain fact upon cross-exam- 
 ination. Brown v. State, (Miss. 1906) 
 40 So. 737. 
 
 Right of co-defendants. — In a crim- 
 inal case, where two co-defendants are 
 being tried together, it has been held 
 bad administration to require that the 
 counsel for only one of the defendants 
 should cross-examine the state wit- 
 nesses. People v. Billis, 110 N. Y. 
 Suppl. 387, 58 Misc. Rep. 150 (1908). 
 
 12. Wray v. State, (Ala. 1908) 45 
 So. 697. 
 
379 
 
 A. Protect Substantive Eights. 
 
 506 
 
 tion or otherwise, 1 the ease made by his opponent, at any stage; 
 it is a further part of the right, at present under consideration, 
 that he should be at liberty to introduce evidence to offset any 
 affirmative matter on which his opponent relies. In other words, 
 each litigant has a right to rebuttal. 2 While evidence in chief is, 
 when properly used a single stage, that of rebuttal may have 
 several. The general rule of administration is simple. Whenever 
 a party at a particular stage of rebuttal, original or subsequent, 
 introduces to the attention of the tribunal new matter, it becomes 
 the right of his opponent to introduce evidence to meet it. Should 
 the opponent, at this stage, in turn set up new matter, or a new 
 aspect of old matter, the right to a subsequent stage of rebuttal 
 to meet it enures to the benefit of the original pleader ; — and sc 
 on, until the supply of relevant facts is exhausted. 
 
 Testing on Rebuttal. — But the litigant may not only introduce 
 at this stage facts which tend directly to meet and disprove those 
 set up by his opponent; he may introduce evidence which tests 
 
 1. Supra, § 378. 
 
 2. Rebuttal defined. — Rebuttal is a 
 term which, in this connection may 
 properly be used to designate either a 
 class of evidentiary facts or the stage 
 of a trial at which it may be submit- 
 ted to the tribunal. What properly 
 may be called rebutting evidence or 
 rebuttal seems free from ambiguity. 
 It is, normally, that which meets or 
 offsets new or affirmative matter in- 
 troduced by the opponent at the next 
 preceding stage of the evidence. " Re- 
 butting evidence," say the Maryland 
 court of appeals, " is that which re- 
 pels or counteracts the effect of evi- 
 dence which has preceded it. Evidence 
 which shows that the evidence of the 
 opposite party was not entitled to 
 the force and effect which the law im- 
 putes to it prima facie must in its 
 strictest sense be rebutting." Davis 
 v. Hamblin, 51 Md. 525, 539 (1879). 
 " Rebuttal evidence is that which is 
 given to explain, repel, counteract, 
 or disprove facts given in evidence 
 by the adverse party. Anything may 
 bo given as rebuttal evidence which 
 is a direct reply to that produced by 
 the other side." People v. Page, 1 
 
 Idaho 189, 195 (1868). "Rebutting 
 evidence means not merely evidence 
 which contradicts the evidence on the 
 opposite side, but evidence in denial 
 of some affirmative fact which the 
 answering party is endeavoring to 
 prove." State v. Fourchy, 51 La. Ann. 
 228, 240, 25 So. 109, 114 (1899), 
 quoting Rice, Ev. " Bouvier says 
 that rebutting evidence is that evi- 
 dence which is given by a party in a 
 case to counteract or disprove facts 
 which have been given in evidence by 
 the other party." Toledo & 0. C. Ry. 
 Co. v. Wales, (Ohio 1896) 5 0. C. D. 
 168, 170. 
 
 A secondary meaning of rebuttal is 
 that which not only has a tendency 
 to rebut but which succeeds in doing 
 so, i. e. has that effect. "The word 
 ' rebutting ' " say the supreme court 
 of Georgia, " has a twofold significa- 
 tion, both in common and legal par- 
 lance. It sometimes means contra- 
 dictory evidence only. At other times 
 conclusive or overcoming testimony. 
 It may be employed as contravening 
 or opposing, as well as overcoming 
 proof. Fain v. Cornett, 25 Ga. 184, 
 1S6 (1858). 
 
507 
 
 Scope of Eight to Eebutting Evidence. 
 
 379 
 
 them and merely minimizes or destroys their probative force. At 
 the stages of rebuttal, the right of a party to offer facts which 
 tend to contradict or impair the probative value of an opponent's 
 case by discrediting, impeaching or otherwise disparaging his 
 witnesses; or by showing the improbability of their story, is cus- 
 tomarily exercised. 
 
 The range of deliberative facts z appropriate to the litigant is 
 dependent upon the scope of the evidence at the preceding stage 
 of the adversary's case. Tbis evidence it is designed to test. It, 
 therefore, of necessity follows its scope. The element is lacking 
 in the case presented by the actor's evidence in chief ; 4 — there be- 
 ing no previous case to be thus tested. 
 
 Scope of Rebuttal. — The object of rebutting evidence is to 
 meet, antagonize or confute new facts introduced by tbe adverse 
 party at the next previous stage, 5 whether given by him- 
 
 3. Supra, § 52. 
 
 4. Supra, § 3G9. 
 
 5. Alabama. — Stodenmeyer v. Hart, 
 46 So. 488 (1908); Heninburg v. 
 State, (Ala. 1907) 43 So. 959. 
 
 California. — People v. Yee Foo, 
 (Cal. App. 1907) 89 Pac. 450 (alibi). 
 
 Colorado. — Smith v. People, (Colo. 
 1907) 88 Pae. 1072 (alibi) ; Perry v. 
 People, (Colo. 1906) 87 Pac. 796. 
 
 Connecticut.^- State v. Sheronk, 78 
 Conn. 718, 61 Atl. 897 (1905). 
 
 Delaware. — State v. Jack, 4 Penne- 
 will 470, 58 Atl. 833 (1903). 
 
 Florida. — Thompson v. State, 41 
 So. 899 (1906). 
 
 Illinois. — Pronskevitch •!;. Chicago 
 & A. Ry. Co., 232 111. 136, 83 N\ E. 
 545 (1908). 
 
 Iowa. — State w. Thomas, (Iowa 
 1906) 109 N. W. 900. 
 
 Kentucky. — Mussellam v. Cincin- 
 nati, N. O. & T. P. Ry. Co., 31 Ky. L. 
 Rep. 908, 104 S. W. 337 (1907). 
 
 Louisiana. — ■ Longino v. .Shreveport 
 Traction Co., 45 So. 732 (1908). 
 
 Michigan. — Alpena Tp. v. Mainville, 
 153 Mich. 732, 117 N. W. 338, 15 
 Detroit Leg. N. 605 (1908). 
 
 Missouri. — State v. Dilts, 191 Mo. 
 665, 90 S. W. 782 (1905). 
 
 North Dakota. — State v. Werner, 
 (N. D. 1907) 112 ST. W. 60. 
 
 Ohio. — Schmidt v. Turner, 27 Ohio 
 Cir. Ct. R. 327 (1905). 
 
 Oregon. — Bade v. Hibberd, 93 Pac. 
 364 (1908). 
 
 Pennsylvania. — American Car & 
 Foundry Co. v. Alexandria Water Co., 
 218 Pa. 542, 67 Atl. 861 (1907). 
 
 South Dakota. — Smith v. Mutual 
 Cash Guaranty Fire Ins. Co., 113 N. 
 W. 94 (1907). 
 
 Texas. — Hardin v. State, ( Cr. App. 
 1909) 117 S. W. 974; Smith v. State, 
 (Cr. App. 1908) 106 S. W. 1161; 
 Walker v. Erwin, (Tex. Civ. App. 
 1907) 106 S. W. 164. 
 
 Vermont. — Willard v. Norcross, 81 
 Vt. 293, 69 Atl. 942 (1908) ; Morgan 
 V. Hendricks, 80 Vt. 284, 67 Atl. 702 
 ( 1907 ) ; State v. Baird, 79 Vt. 257, 
 65 Atl. 101 (1906). 
 
 Virginia. — Southern Express Co. v. 
 Jacobs, 63 S. E. 17 (1908). 
 
 Wisconsin. — Wood v. Town of 
 Washington, 115 N. W. 810 (1908); 
 Bazelon v. Lyon, 128 Wis. 337, 107 
 N. W. 337 (1906) ; Olwell v. Skobis, 
 126 Wis. 308, 105 N. W. 777 (1905). 
 Spoliation of evidence may be shown 
 on rebuttal. Crawford v. U. S., 212 
 
379 
 
 A. Peotect Substantive Rights. 
 
 508 
 
 self e or by his other witnesses 7 or on cross-examination ; 8 — mere 
 reassertion of the propositions advanced on the evidence in chief 
 not being permitted at this stage. 9 While an opportunity for rea- 
 sonable rebuttal is a matter of substantive right, 10 which it is the 
 
 U. S. 183, 29 S. Ct. 260 (1909) 
 [judgment reversed, 30 App. D. C. 1 
 (1907)]; Infra, §§ 1070 et seg. 
 
 Explanation which contravenes and 
 controls the inference sought to be 
 drawn from a fact set up by the ad- 
 verse party is proper rebuttal. 
 
 Alabama. — Boyd v. State, (Ala. 
 1908) 45 So. 591; Cooke v. Loper, 
 (Ala. 1907) 44 So. 78. 
 
 Arkansas. — Dow v. State, 92 S. W. 
 28 (1906). 
 
 Florida. — Clinton v. State, 47 So. 
 389 (1908). 
 
 Michigan. — McNaughton iv. Smith, 
 (Mich. 1904) 99 N. W. 382, 11 De- 
 troit Leg. N. 51. 
 
 Texas. — Meyer Bros. Drug Co. v. 
 Madden, Graham & Co., (Tex. Civ. 
 App. 1907) 99 S. W. 723. 
 
 Washington. — Rowe v. Whatcom 
 County Ry. & Light Co., (Wash. 1906) 
 87 Pac. 921. The presiding judge 
 may properly exclude explanatory 
 evidence until that which is to be 
 explained has itself been introduced 
 in evidence. San Miguel Consol. Gold 
 Min. Co. v. Bonner, 33 Colo. 207, 79 
 Pac. 1025 (1905). 
 
 A psychological fact may be con- 
 troverted in this way, Roberts v. 
 Terre Haute Electric Co., (Ind. App. 
 1906) 76 N. E. 895 [denied petition 
 for rehearing 76 N. E- 323 (1905)] 
 ( mental condition ) , e. g., the mental 
 attitude of a prosecuting witness in 
 rape toward the accused. Brown w. 
 State, (Tex. Cr. App. 1907) 106 S. W. 
 368. 
 
 The theory upon which the case 
 is being tried may materially affect 
 the right of a party to a particular 
 fact as a part of his rebuttal. If 
 new matter has been introduced by 
 his adversary, even under an errone- 
 ous theory of the case, it is, in gen- 
 eral, but reasonable that a party 
 
 should be allowed to rebut it. Dun- 
 nett & Slack v. Gibson, (Vt. 1906) 
 62 Atl. 141. 
 
 6. Wells v. Gallagher, (Ala. 1905) 
 39 So. 747 ; State v. Beckner, 194 Mo. 
 281, 91 S. W. 892 (1906) (self de- 
 fense ) . 
 
 7. Cross v. State, (Ala. 1906) 41 
 So. 875 ; Cutcliff v. Birmingham Ry., 
 Light & Power Co., (Ala. 1906) 41 
 So. 873. 
 
 8. Alabama. — Thomas <v. State, 
 (Ala. 1907) 43 So. 371. 
 
 Indiana. — Roberts v. Terre Haute 
 Electric Co., (Ind. App. 1906) 76 
 N. E. 895 [denied petition for rehear- 
 ing, 76 N. E. 323 (1905)]. 
 
 Louisiana. — State v. Heidelberg, 
 (La. 1908) 45 So. 256. 
 
 Texas. — Newcomb v. State, (Tex. 
 Cr. App. 1906) 95 S. W. 1048. 
 
 Washington. — Port Townsend South- 
 ern R. Co. v. Barbare, (Wash. 1907) 
 89 Pac. 710. 
 
 9. California. — Higgins v. Los An- 
 geles Ry. Co., (App. 1907) 91 Pac. 
 344. 
 
 Connecticut. — State v. Kelly, 77 
 Conn. 266, 58 Atl. 705 (1904). 
 
 Louisiana. — State V. Smith, 45 So. 
 415 (1908). 
 
 New Hampshire. — Hallwood Cash 
 Register Co. v. Rollins, 62 Atl. 380 
 (1905). 
 
 Texas. — Wade v. Galveston, H. & S. 
 A. Ry. Co., (Civ. App. 1908) 110 
 S. W. 84. 
 
 10. California. — Burrell v. Collins, 
 9 Cal. App. 288, 99 Pac. 211 (1908). 
 
 Illinois. — Loftus v. Loftus, 134 111. 
 App. 360 (1907). 
 
 Montana. — Mahoney v. King, 76 
 Pac. 4 (1904). 
 
 ■New York. — Emanuel v. Maryland 
 Casualty Co., 94 N. Y. S. 36, 47 Misc. 
 Rep. 378 (1905). 
 
509 
 
 Action of Judge Stands if Eeasonable. 
 
 § 379 
 
 administrative duty of the court to protect, the judge, as a ques- 
 tion of administration, determines what range of evidence is 
 reasonable at this stage under the circumstances of the case. 11 It 
 follows from what has been said that, except by leave of court, a 
 party has not the right to introduce as rebuttal facts which prop- 
 erly constitute part of his evidence in chief. The same rule is 
 even more carefully applied in criminal cases. 12 It frequently 
 happens that nice questions of administration may arise where 
 a fact which might have been made part of the evidence in chief 
 is also, in another aspect, competent in rebuttal of some new 
 facts, not strictly in denial, set up by the accused in a criminal 
 case, 13 or the nonactor in a civil one. 14 The right of the presiding 
 judge to receive on rebuttal evidence which should have been 
 offered as part of the evidence in chief, is, as has been seen, 15 
 undoubted. 10 Where the action is reasonable, 17 or the course of the 
 
 Pennsylvania. — Bunnell <i>. Kintner, 
 27 Pa. Super. Ct. 605 (1905). 
 
 South Carolina, — Martin 1>. West- 
 ern Union Telegraph Co., 81 S. C. 
 432, 62 S. E. 833 (1908). 
 
 Wisconsin. — Anderson v. Arpin 
 Hardwood Lumber Co., (Wis. 1907) 
 110 N. W. 788; Lounsbury v. Davis, 
 124 Wis. 432, 102 N. W. 941 (1905). 
 
 11. Eckhardt V. People, 116 111. 
 App. 408 (1904) ; Hall <v. Wagner, 97 
 N. Y. S. 570, 111 App. Div. 70 (1906). 
 No right exists to insist upon re- 
 butting evidence introduced upon a 
 purely collateral point. Pichon V. 
 Martin, (Ind. App. 1905) 73 N. E. 
 1009. 
 
 12. People v. Schmitz, (Cal. App. 
 1908) 94 Pac. 407; Flower v. State, 
 (Miss. 1905) 37 So. 814. 
 
 13. California. — People v. Yee Poo, 
 (Cal. App. 1907) 89 Pae. 450. 
 
 Iowa. — State ». No wells, (Iowa 
 1906) 109 N. W. 1016. 
 
 Kentucky. — Adams v. Com., 33 Ky. 
 Law Rep. 779, 111 S. W. 348 (1908). 
 
 Nebraska. — City of McCook v. Mc- 
 Adams, (Neb. 1906) 106 N. W. 988. 
 
 Teams. — Magill v. State, (Tex. Cr. 
 App. 1907) 103 S. W. 397. 
 
 14. St. Louis Southwestern Ry. Co. 
 of Texas v. Garber, (Tex. Civ. App. 
 1908) 108 S. W. 742; Wilkins v. 
 Brock, 81 Vt. 332, 70 Atl. 572 
 (1908). 
 
 15. Supra, § 369. 
 
 16. Alabama. — Birmingham Ry., 
 Light & Power Co. v. Martin, (Ala. 
 1906) 42 So. 618 (railroad fires); 
 Cross v. State, (Ala. 1906) 41 So. 
 875; Terry v. Williams, (Ala. 1906) 
 41 So. 804. 
 
 Arkansas. — Kansas City Southern 
 Ey. Co. v. Henrie, 112 S. W. 967 
 (1908) ; Butler v. State, (Ark. 1907) 
 103 S. W. 382. 
 
 California. — Moody v. Peirano, 
 (Cal. App. 1907) 88 Pac. 380; Pat- 
 terson v. San Francisco & S. M. Elec- 
 tric Ry. Co., 147 Cal. 178, 81 Pac. 
 531 (1905). 
 
 District of Columbia. — Crawford v. 
 U. S„ 30 App. D. C. 1 (1907). 
 
 Florida. — Thomap v. State, 36 So. 
 161 (1904). 
 
 Georgia. — Smith v. State, 126 Ga. 
 803, 55 S. E. 1024 (1906). 
 
 Indiana. — Tinkle v. Wallace, (Ind. 
 1906) 79 N. E. 355. 
 
 Kentucky. — Louisville & N. R. Co. 
 
379 
 
 A. Peotect Substantive Rights. 
 
 510 
 
 objecting party has removed any danger of prejudice to him 18 
 
 v. Board, 28 Ky. Law Rep. 921, 90 
 S. W. 944 (1906). 
 
 New Jersey. — Minard v. West Jer- 
 sey & S. Ry. Co., (N. J. Supp. 1906) 
 64 Atl. 1054. 
 
 New York. — Jaffe v. Nagel, 114 
 N. Y. S. 905 (1909). 
 
 North Dakota. — Petersburg School 
 Dist. of Nelson County v. Peterson, 
 (N. D. 1905) 103 N. W. 756. 
 
 Oregon. — Crosby v. Portland Ry. 
 Co., 100 Pac. 300 (1909) [rehearing 
 denied, 101 Pae. 204]. 
 
 South Carolina. — Bolton v. Western 
 Union Telegraph Co., 76 S. C. 529, 57 
 S. E. 543 (1907). 
 
 South Dakota. — Kime t\ Bank of 
 Edgemont, 119 N. W. 1003 (1909). 
 It is not reversible error to permit 
 the introduction in rebuttal of evi- 
 dence that should have been intro- 
 duced as a part of the testimony in 
 chief, since the order of introducing 
 proof rests largely in the discretion 
 of the trial court and should be so 
 exercised that neither parties will be 
 taken by surprise or deprived of an 
 opportunity without notice to intro- 
 duce evidence in contradiction. Floto 
 v. Floto, 233 111. 605, 84 N. E. 712 
 (1908). 
 
 17. Alabama. — Braham v. State, 
 (Ala. 1905) 38 So. 919. 
 
 Arkansas. — Western Union Tele- 
 graph Co. v. Hanley, 85 Ark. 263, 107 
 S. W. 1168 (1908). 
 
 Colorado. — Kingsbury v. People, 
 44 Colo. 403, 99 Pac. 61 (1908). 
 
 Colorado. — Prudential Ins. Co. v. 
 Hummer, 84 Pac. 61 (1906). 
 
 Georgia. — Green v. State, 119 Ga. 
 120, 45 S. E. 990 (1903). 
 
 Iowa. — i State •«. Seligman, 127 Iowa 
 415, 103 N. W. 357 (1905). 
 
 Kentucky. — Morehead's Trustee v. 
 Anderson, 30 Ky. Law Hep. 1137, 100 
 S. W. 340 (1907). 
 
 Missouri. — State v. Forsha, 190 
 IMo. 296, 88 S. W. 746 (1905). 
 
 New Jersey. — State v. Skillman, 
 (Suppl. 1908) 70 Atl. 83 (not review- 
 
 able in the absence of gross abuse) ; 
 Crosby v. Wells, 73 N. J. Law 790, 67 
 Atl. 295 (1907). 
 
 North Dakota. — Pease v. Magill, 
 115 N. W. 260 (1908). 
 
 Oregon. — Multnomah County v. 
 Williamette Towing Co., (Or. 1907) 
 89 Pac. 389. 
 
 South Carolina. — State v. Harmon, 
 79 S. C. 80, 60 S. E. 230 (1908). 
 
 South Dakota. — Schott t\ Swan, 
 114 N. W. 1005 (1908). 
 
 Wisconsin. — Steward v. State, 124 
 Wis. 623, 102 N. W. 1079 (1905). 
 
 The rule is the same in case of real 
 evidence; — e. g. a diagram. Gosdin 
 v. Williams, (Ala. 1907) 44 So. 611. 
 Where the trial judge has improperly 
 excluded a portion of the actor's evi- 
 dence in chief, he may reasonably re- 
 pair the error by permitting him to 
 introduce it on the stage of rebuttal. 
 Dutton v. Philadelphia, B. & W. R. 
 Co., 32 Pa. Super. Ct. 630 (1907); 
 State v. Thompson, 68 S. C. 133, 46 
 S. E. 941 (1904). 
 
 Where a fact is material to the 
 issue and the party who naturally 
 would offer it as part of his evidence 
 in chief announces an intention of not 
 proving it, it is reasonable adminis- 
 tration to permit the other party to 
 introduce it upon rebuttal. Brock- 
 miller v. Industrial Works, 148 Mich. 
 642, 112 N. W. 688, 14 Detroit Leg N. 
 336 (1907). The same course may be 
 adopted where the party primarily 
 entitled to introduce certain evidence, 
 rests his evidence in chief- without 
 doing so. 
 
 Use of cumulative evidence on re- 
 buttal. — A party may close his evi- 
 dence in chief upon the establishment 
 by him of a prima facie case. In fact, 
 the court will probably require him 
 to do so. Muntz v. Cottage Hill Land 
 Co., 222 Pa. 621, 72 Atl. 247 (1909). 
 If this be attacked, he may then sub- 
 mit additional proof which might 
 have been used as cumulative at the 
 stage of evidence in chief had the ad- 
 
511 Eights of Actok cm Rebuttal.. § 380 
 
 the result will not be disturbed. The facts offered in rebuttal 
 being in their nature deliberative, 19 strong probative force is not 
 essential to admissibility ; 20 — although some evidentiary cogency, 
 actual or potential, must be made to appear. 21 On the other hand, 
 no test of admissibility is furnished by the fact that the rebutting 
 evidence tends to strengthen the case made by the evidence in 
 chief in a civil or criminal 22 case. That is, directly or indirectly, 
 the object of any rebuttal. 
 
 § 380. ( [2] Right to Test Adversary's Case; [b] Rebuttal); 
 
 Actor. — If the actor fail at the end of the nonactor's case to move 
 for a verdict in his own favor ; or if, when such a motion is made, 
 it has been overruled ; the actor has reached the stage of rebuttal. 
 The evidence in chief of the nonactor has, as is characteristic of 
 the general position of one who will succeed if he but offsets the 
 case against him, has consisted largely of what practically amounts 
 to rebuttal in the average instance. 1 But, so far as the actor is 
 concerned, the first opportunity for rebuttal occurs at the close 
 of the nonactor's case. He is not entitled to reiterate his evi- 
 dence in chief, nor to reaffirm what his antagonist has denied, 
 or to introduce evidence which he should have offered as part of 
 
 ministrative principle of expediting Iowa. — State v. Eohn, 119 N. W. 
 
 trials permitted the use of cumulative 88 (1909) (opportunity to meet), 
 
 proof at that stage. Burk <B. Pence, Kentucky. — Nelson County v. Bards- 
 
 206 Mo. 315, 104 S. W. 23 (1907). town & L. Turnpike Road Co., 
 
 It would be manifestly unreasonable 30 Ky. Law Rep. 1254, 100 S. W. 
 
 tc refuse him at the stage of rebuttal 1181 (1907) (introduced evidence at 
 
 an opportunity of doing so. Where it former trial). 
 
 appeared on the examination of a wit- Montana. — State v. De Hart, 38 
 ness in rebuttal that, if the examina- Mont. 211, 99 Pae. 438 (1909) (op- 
 tion were allowed to proceed, the portunity to meet declined), 
 court would again have to go at large 19. Supra, § 52. 
 into testimony in chief, it was proper 20. State v. Gallagher, 14 Idaho 
 to refuse to permit the examination 656, 94 Pac. 581 (1908). 
 to so proceed. Union B.y. Co. f. Hun- 21. Wojtylak v. Kansas & T. Coal 
 ton, 114 Tenn. 609, 88 S. W. 182 Co., 188 Mo. 260, 87 S. W. 506 
 (1905). In a proper case, the pre- (1905); Hallwood Cash Register Co. 
 siding judge may properly decline to v. Rollins, (N. H. 1905) 62 Atl. 380; 
 permit cumulative evidence on re- People v. Cascone, 185 N. Y. 317, 78 
 buttal. C. Seheerer & Co. v. Demihg, N. E. 287 (1906) ; Mahoney v. State, 
 (Cal. 1908) 97 Pac. 155. (Tex. Cr. App. 1906) 98 S. W. 854. 
 
 18. Colorado. — Jaynes v. People, 44 22. State v. Howard, (La. 1908) 45 
 
 Colo. 535, 99 Pac. 325 (1909). So. 260. 
 
 Illinois. — City of Decatur V. 1. Supra, § 372. 
 Vaughan, 233 111. 50, 84 N. E. 50 
 (1908). 
 
§ 380 
 
 A. Protect Substantive Eights. 
 
 512 
 
 his original case. 2 All this may be done by leave of court; 3 but, 
 in the average instance, to permit it would amount to trying -the 
 case over again by the use of cumulative evidence. As to tbe 
 assertions of his original case, he must, in general, rely upon case 
 formulated by him in his evidence in chief. But should the 
 nonaetor in -course of his own evidence in chief fail to confine 
 himself to denial of the actor's assertions; should he, on the 
 contrary, go further by ^asserting the existence of independent 
 facts which tend to impair the effect of the actor's original case, 
 the latter may and, if he can, should meet this new evidence on 
 rebuttal ; — even where the defense might have been excluded on 
 
 2. Alabama. — Wilkinson v. State, 
 44 So. 611 (1907) (diagram); Cut- 
 cliff v. Birmingham Ry. Light & 
 Power Co., 41 So. 873 (190C). 
 
 California. — Higgina v. Los Angeles 
 Ry. Co., 91 Pac. 344 (1907); Pat- 
 terson v. San Francisco & S. M. Elec- 
 tric Ry. Co., 147 Cal. 178, 81 Pac. 
 531 (1905). 
 
 Kentucky. — Morehead's Trustee v. 
 Anderson, 100 S. W. 340, 30 Ky. L. 
 Rep. 1137 (1907). 
 
 Montana. — Schilling v. Curran, 76 
 Pac. 998 (1904). 
 
 Oregon. — Multnomah County v. 
 Williamette Towing Co., 89 Pac. 389 
 (1907). 
 
 Evidence offered and rejected as 
 part of the actor's evidence in chief 
 may upon rebuttal be rendered com- 
 petent and indeed admissible as a 
 matter of right, e.r debito justitice, 
 when the nonaetor opens up the 
 subject on his evidence in chief. 
 Thu?, where an expert witness called 
 to establish negligence has been im- 
 properly rejected, and the defendant 
 has introduced testimony to negative 
 the contention of the plaintiff, the 
 court may permit the plaintiff to 
 call the expert in rebuttal. Dutton 
 v. Philadelphia, B. & W. R. Co., 32 
 Pa. Super. Ct. 630 (1907). 
 
 Proper rebuttal does not cease to 
 be competent because it also tends to 
 establish a fact which the actor might 
 have offered as part of his original 
 
 case. City of McCook v. McAdams, 
 (Neb. 1906) 106 N. W. 988. 
 
 3. Alabama. — ■Birmingham Ry., 
 Light & Power Co. v. Martin, 42 
 So. 618 (1906); Terry v. Williams, 
 41 So. 804 (1906) ; Birmingham Ry., 
 Light & Power Co. r. Mullen, 138 Ala. 
 614, 35 So. 701 (1903). 
 
 Calilfornia. — Moody v. Peirano, 88 
 Pae. 380 (1907). 
 
 Colorado. — Prudential Ins. Co. v. 
 Hummer, 84 Pac. 61 (1906). 
 
 North Dakota. — Petersburg School 
 Dist. of Nelson County v. Peterson, 
 103 N. W. 756 (1905). 
 
 Illinois. — Eckhardt v. People, 116 
 111. App. 408 (1904). 
 
 Indiana. — Tinkle v. Wallace, ( Ind. 
 1906) 79 N. E. 355. 
 
 Kentucky. — Louisville & N. R. Co. 
 v. Board, 28 Ky. L. Rep. 921, 90 
 S. W. 944 (1906). 
 
 N e\o Jersey. — Minard v. West 
 Jersey & S. Ry. Co., 64 Atl. 1054 
 (1906) ; Foley r. Brunswick Traction 
 Co., 55 Atl. 803 (1903). 
 
 New York. — Hall v. Wagner, 97 
 N. Y. Suppl. 570, 111 App. Div. 70 
 (1906). 
 
 Pennsylvania. — Wilmoth v. Hamil- 
 ton, 127 Fed. 48 (1904). 
 
 South Carolina. — Bolton v. Western 
 Union Tel. Co., 76 S. C. 529, 57 
 S. E. 543 (1907). 
 
 Texas. — International & G. N. R. 
 Co. v. McVey, (Civ. App. 1907) lO? 
 S. W. 172. 
 
513 
 
 Eebdttal of Facts on Oeoss-Examinatioit. 
 
 380 
 
 objection. 4 The normal scope of rebuttal is that it should meet 
 the new matter given in the nonactor's evidence in chief ; B nor is 
 it material that the nonactor should have interpolated part of his 
 ease into the actor's evidence in chief. 6 His rights at this stage 
 are confined to attacking the inferences from this new matter. 7 
 Rebuttal to Matter Elicited on Cross-Examination. — Where new 
 facts are introduced into evidence upon the cross-examination of 
 the actor's witness, the court may permit the actor to attempt to 
 control the inferences arising from it at the stage of rebuttal. 8 
 Naturally, this occurs with special frequency in jurisdictions 
 where a party may make out his defense on the cross-examination 
 of his opponent's witnesses. 9 The suggestion has, however, been 
 
 Wisconsin. — Olwell v. Skobis, 126 
 Wis. 308, 105 N. W. 777 (1905). 
 
 The same difficulty arises when 
 material evidence properly belonging 
 at the stage of evidence in chief is 
 received at the stage of rebuttal* 
 Alexander v. Byron, 2 Johns. Cas. 318, 
 319 (1801;. 
 
 4. White v. Western State Bank, 
 119 111. App. 354 (1905). 
 
 5. Louisiana. — Longino v. Shreve- 
 port Traction Co., 45 So. 732 (1908). 
 
 Nebraska. — ■ Campion v. Lattimer, 
 97 N. W. 290 (1903); Crockett V. 
 Miller, 2 Neb. (Unof.) 292, 96 N. W. 
 491 (1902). 
 
 Pennsylvania. — American Car & 
 Foundry Co. v. Alexandria Water Co., 
 218 Pa. 542, 67 Atl. 861 (1907). 
 
 South Dakota.— Smith v. Mutual 
 Cash Guaranty Fire Ins. Co., 113 
 N. W. 94 (1907). 
 
 Vermont. — Morgan v. Hendricks, 80 
 Vt. 284, 67 Atl. 702 (1907). 
 
 Evidence offered by plaintiff in re- 
 buttal which rebuts no evidence 
 offered by defendants is properly ex- 
 cluded. Saucier v. New Hampshire 
 Spinning Mills, 72 N. H. 292, 56 Atl. 
 545 (1903). 
 
 6. Bade v. Hibberd, (Or. 1908) 93 
 Pac. 364. 
 
 The interpolation itself may not be 
 permitted. McGregor v. Oregon R. 
 Co., (Or. 1908) 93 Pac. 465. 
 
 7. Connecticut. — Hoggson & Pettis 
 
 Vol. I. 33 
 
 Mfg. Co. v. Sears, 77 Conn. 587, 60 
 Atl. 133 (1905). 
 
 Illinois. — . Mueller v. Rebhan, 94 
 111. 142, 150 (1879). 
 
 Nevada. — Jos. Schlitz Brewing Co. 
 V. Grimmon, 81 Pac. 43 (1905). 
 
 Pennsylvania.— Bunnell v. Kintner, 
 27 Pa. Super. C't. 605 (1905). 
 
 Texas. — Meyer Bros. Drug Co. t>. 
 Madden, Graham & Co., 99 S. W. 723 
 (1907). 
 
 Vermont. — Green v. Dodge, 64 Atl. 
 499 (1906). 
 
 Wisconsin. — AnderBon v. Arpin 
 Hardwood Lumber Co., 110 N. W. 
 788 (1907); Bazelon V. Lyon, 128 
 Wis. 337, 107 N. W. 337 (1906). 
 
 Rebuttal of incompetent evidence. 
 — That the new matter introduced by 
 the nonactor might have been ex- 
 cluded on objection is no ground for 
 rejecting the countervailing evidence 
 offered on rebuttal. Dunnett & Slack 
 v. Gibson, (Vt. 1906) 62 Atl. 141. 
 But a question of administration is 
 frequently presented. For example, 
 where a party on cross-examination 
 has permitted a purely collateral ques- 
 tion to be asked, he cannot, as of 
 right, introduce evidence on the same 
 point in rebuttal. Pichon v. Martin, 
 (Ind. App. 1905) 73 N. E. 1009. 
 
 8. Roberts v. Terre Haute Electric 
 Co., (Ind. App. 1906) 76 N. E. 895. 
 
 9. Bennett v. Susser, 191 Mass. 329 
 77 N. E. 884 (1906). 
 
§ 380 A. Pkotect Substantive Eights. 514 
 
 made that the preferable course would be to ask the witness on 
 redirect examination the requisite questions rather than call him, 
 or other witnesses, in rebuttal. 10 
 
 The actor's rebuttal may, as of right, discredit the witnesses 
 and attack the claim set up by the nonactor in his evidence in 
 chief. 
 
 No Defense, No Rebuttal. — If the nonaotor introduces no evi- 
 dence, there is, as a rule, no rebuttal; — there being nothing to 
 rebut. The court will, however, prevent this rule from being 
 made an instrument of injustice. Where an actor has offered 
 evidence on his examination in chief which the court has declined 
 to receive at that stage because more properly receivable in 
 rebuttal, the actor may tender it when the nonactor rests without 
 introducing evidence. 11 
 
 Any stage of rebuttal, however designated, covers, so far as the 
 actor is concerned, only such facts as may tend to offset those 
 adduced against him. He is parrying logical blows directed at 
 his position. He cannot succeed, logically, on the strength of his 
 rebuttal. Its indirect effect, by removing weight from the other 
 side of the scales may well aid him but he will succeed if at all, 
 on the strength of his evidence in chief. The final preponderance 
 of the scale necessary to sustaining the burden of proof 12 cannot 
 well be in his favor unless his evidence in chief is sufficient to 
 create it. 13 
 
 10. Struth v. Decker, (Md. 1905) buttal and has been so designated. 
 59 Atl. 727. So far, however, as the nonactor's 
 
 11. Brockmiller l>. Industrial Works, evidence in chief, i. e ., the case in re- 
 148 Mich. 642, 112 N. W. 688, 14 ply, embodies, as it largely does in 
 Detroit Leg. N. 336 (1907). most cases, the element of rebuttal, 
 
 12. Infra, §§ 930 et seq. the position of the actor in his reply 
 
 13. Surrebuttal. — It ha9 seemed is that of rebutting the nonactor's re- 
 convenient, in this connection, to treat buttal and might properly have been 
 the nonactor's evidence in chief as spoken of as surrebuttal, using the 
 one which set up new matter, i. e., term as a general one meaning the 
 was affirmative from the point of view stage or process of rebutting a re- 
 of logic, evidentially regarded, rather buttal. The terms rebuttal and sur- 
 than considered from the view point rebuttal are, moreover, confusing 
 of pleading. Rebutting testimony is when employed in jurisdictions where 
 addressed to evidence produced by the the plaintiff invariably goes forward 
 opposite party, not to his pleading. at each stage regardless of the state 
 Lux v. Haggin, 69 Cal. 255, 414, 10 of the pleadings, i. e., as to whether 
 Pac. 674, 767 (1886). Under these he is actor or not. Supra, § 361. 
 conditions, the actor's reply neces- As a matter of fact, the propriety of 
 sarily partakes of the nature of a re- the terms rebuttal or surrebuttal in 
 
515 Anticipatory Rebuttal Continued Latek. §§ 381, 382 
 
 § 381. (12~\ Right to Test Adversary's Case; [b] Rebuttal); 
 
 Use of "Experts." — Where a nonactor introduces expert testi- 
 mony in support of his position, the actor may, as a rule, intro- 
 duce similar evidence on rebuttal. 1 
 
 § 382. f [2] Right to Test Adversary's Case; [b] Rebuttal); 
 
 Anticipatory Bebuttal — Where the position of the nonactor is 
 known to the actor, a very natural impatience is often .shown, 
 especially by inexperienced practitioners, to come at once to the 
 real point upon which the issue will ultimately turn, by means 
 of what may be called an " anticipatory rebuttal." l This has 
 the strategic forensic value that it tends to make the nonactor's 
 story a stale one when it reaches the jury. It is, however unfair, 
 and, like most unfair expedients, ultimately unwise, an especial 
 danger being that of suggesting to an ignorant nonactor the true 
 nature of his position. To this form of trying a case the uncer- 
 tainty of much code pleading gives opportunity. It is, however, 
 clear that a fact is not competent in an actor's evidence in chief 
 merely because it may be received upon rebuttal, when that stage 
 is reached. 2 In general, therefore, such anticipatory rebuttal is 
 excluded ; — except by leave of court. Thus, a plaintiff in an action 
 involving negligence cannot, in his original case, attempt the dis- 
 proof of contributory negligence, 3 or undertake, at that stage, to 
 negative a claim, which he expects will be raised, that the person 
 inflicting the injury was a fellow servant. 4 
 
 Where rebuttal has been anticipated, as on the examination of 
 the actor's witness, 5 the subject may still be resumed, as a matter 
 
 their application to any particular 1. Atlas Lumber & Coal Co. v. 
 
 stage can seldom be of serious conse- Flint, (S. D. 1905) 104 N. W. 1046. 
 
 quence. A rebuttal of rebutting evi- 2. Maurice v. Hunt, 80 Ark. 476, 
 
 dence may, however, so far as the 97 S. W. 664 (1906). 
 
 term is important, be spoken of as 3. Owen v. Portage Telephone Co., 
 
 surrebuttal, and the reply to a surre- 126 Wis. 413, 105 N". W. 924 (1905). 
 
 buttal and an answer to that reply be 4. Turner v. Southern Pac. Co., 142 
 
 designated as the stages of re-rebuttal Cal. 580, 76 Pac. 384 (1904). 
 
 and re-surrebuttal respectively. 5. Supra, § 371. 
 
 1. Guenther v. Metropolitan E. Co., In general, however, it will be re- 
 
 23 App. D. C. 493 (1904); William quired that facts available in rebuttal 
 
 Grace Co. v. Larson, 227 111. 101, 81 shall be reserved for that stage. 
 
 N. E. 44 (1907) [affvrming 129 111. Turner v. Southern Pae. Co., 142 Cal. 
 
 App. 290 (1906)]; St. Louis South- 580, 76 Pac. 384 (1904) (not fellow 
 
 western Ey. Co. of Texas v. Smith, servant) ; Jos. Schlitz Brewing Co. v. 
 
 (Tex. Civ. App. 1905) 86 S. W. 943; Grimmon, (Nev. 1905) 81 Pac. 43. 
 
 Rowe v. Whatcom County Ey. & Light A mere incidental reference, in the 
 
 Co., (Wash. 1906) 87 Pac. 921. proper conduct of the actor's case, to- 
 
383 
 
 A. Protect Substantive Rights. 
 
 516 
 
 of right, upon Tebuttal. 6 In much the same way, ■where the non- 
 actor fails to put in a -material document or other evidence, as was 
 reasonably to have been anticipated, the actor may himself be 
 permitted to put it in evidence on rebuttal. 7 
 
 § 383. (12] Right to Test Adversary's Case; [b] Rebuttal); 
 
 Nonactor. — At the close of the actor's stage of rebuttal, the bur- 
 den of evidence * returns to the nonactor to rebut, as it were, -the 
 actor's rebuttal. The opportunity to meet rebuttal is, for pur- 
 poses of distinction, called the surrebutted. The rights of the non- 
 actor on surrebuttal are analogous to the rights of the actor on 
 rebuttal. 2 He is not at liberty, without leave of court, 3 to reaffirm 
 the allegations of his evidence in chief. The stage for that is 
 past. 4 His rights are entirely in connection with the new matter 
 introduced by the actor on his rebuttal. He may directly deny 
 the existence of those facts or set up other facts inconsistent with 
 their effect, supplementing facts ; 5 or he may attempt to discredit 
 this new matter or the witnesses by which it is sought to estab- 
 lish it; 
 
 matters pleaded by the nonactor does 
 not prevent the actor offering evi- 
 dence in rebuttal of the nonactor's 
 evidence in chief in support of his de- 
 fence. Rose v. Lewis, (Ala. 1908) 48 
 So. 105. 
 
 6. Hamilton v. Smith, 74 Conn. 
 374, 50 Atl. 884 (1901); York v. 
 Pease, 2 Gray (Mass.) 282 (1854) j 
 Harrison v. Rowan, 3 Wash. C. C. 582 
 (1820). 
 
 7. Western Union Telegraph Co. v. 
 Hanley, 85 Ark. 263, 107 S. W. 1168 
 (1908). 
 
 1. Infra, §§ 967 et seq. 
 
 2. Alabama. — Gosdin v. Williams, 
 106 Ala. 23, 17 So. 457 (1894). 
 
 California. — First National Bank 
 r. Wolff, 79 Cal. 69, 73, 21 Pac. 551, 
 748 (1889). 
 
 Connecticut. — Belden ». Allen, 61 
 Conn. 173, 23 Atl. 963 (1891). 
 
 Georgia. — Walker v. Walker, 14 
 Ga. 242, 250 (1853). 
 
 Illinois. — Willard v. Pettitt, 153 
 111. 663, 39 N. E. 991 (1895). 
 
 Iowa. — Cannon c. Iowa City, 34 
 Iowa 203 (1872). 
 
 Louisiana. — State v. Spencer, 45 
 La. Ann. 1, 9, 12 So. 135 (1893). 
 
 Michigan. — Devonshire v. Peters, 
 104 Mich. 501, 63 ST. W. 973 (1895). 
 
 Nebraska. — Argabright v. State, 56 
 Neb. 363, 76 N. W. 876 (1898). 
 
 New York. — Stephens v. People, 19 
 N. Y. 573 (1859). 
 
 Oregon. — State v. Dilley, 15 Or. 75, 
 13 Pac. 648 (1887). 
 
 Pennsylvania. — Koenig v. Bauer, 57 
 Pa. 168, 172 (1868). 
 
 South Carolina. — Clinton v. Mo- 
 Kenzie, 5 Strobh. 36, 41 (1850). 
 
 Terns. — Bittick v. State, 40 Tex. 
 117, 120 (1874). 
 
 Vermont. — Pratt v. Rawson 4 40 Vt. 
 183, 188 (1868). 
 
 3. Crosby v. Wells, 73 N. J. L. 790, 
 67 Atl. 295 (1907) ; Wysong v. Sea- 
 board Air Line Ry., 74 S. C 1, 54 
 S. B. 214 (1906). 
 
 4. Baum v. Palmer, 165 Ind. 513, 
 76 N. E. 108 (1905). 
 
 5. Cooke v. Loper, (Ala. 1907) 44 
 So. 78; Duckworth v. Duckworth, 
 (Md. 1903) 56 Atl. 490; Maloney v. 
 King, (Mont. 1904) 76 Pae. 4. 
 
517 Eight to the Use or Reason. §§ 384, 385 
 
 Bights on surrebuttal. — A nonactor is not entitled on surre- 
 buttal to introduce evidence which he might properly have made 
 part of his evidence in chief, 6 nor does a bare repetition of evi- 
 dence given in chief constitute surrebuttal. 7 The proper office of 
 a surrebuttal is to antagonize, meet, explain or confute new 
 matter set up by the adverse party at the stage of rebuttal. 8 It 
 can scarcely occur at this stage that the opportunity to intro< 
 duce evidence is a matter of right. Should it happen that the 
 evidence offered is material and first becomes competent on 
 surrebuttal, it may be error to exclude it at that stage. 9 More 
 often, the question of admissibility is* decided as a matter of 
 administration. 10 
 
 § 384. f [2] Right to Test Adversary's Case; [b] Rebuttal); 
 
 Subsequent Rebuttal. — The nonactor's deliberative evidence may 
 on surrebuttal discredit the witnesses 1 and attack the fresh facts 
 set up by the actor on rebuttal. The remote benefits which can 
 ■accrue to the tribunal by a further testing must be, of necessity, 
 largely problematical ; — and therefore a matter of administrative 
 discretion. An actor may be permitted 2 to exercise, at the stage 
 of re-rebuttal, as regards the witnesses and new facts set up by 
 the nonactor on surrebuttal, the same rights as were exercised 
 by the latter at that stage. If new matter appears in the rerrebut- 
 tal the nonactor becomes entitled to a re-surrebuttal, where the 
 rights are similar to those on surrebuttal, mutatis mutandis; — 
 and so on, in alternating stages to which specific names are <m.ot, 
 as a practical matter, usually assigned. 
 
 § 385. (3) Right to the "Use of Reason — "At the outset, and 
 for centuries after the beginnings of our law as an established) 
 
 G. Illinois Steel Co. v. Ferguson, Georgia. — Thomas v. State, 27 Ga. 
 
 129 111. App. 396 (1906). 287, 298 (1859). 
 
 7. People v. Hutchings, (Cal. App. South Carolina. — State v. Summer, 
 1908) 97 Pae. 325. 55 S. C. 32, 32 S. E. 771 (1899). 
 
 8. Hickey v. State, (Tex. Civ. App. Vermont. — Kent v. Lincoln, 33 Vt. 
 1907) 102 S. W. 417. 591, 599 (1860). 
 
 9. Anderson v. Anderson, 136 Wis. West Virginia. — State v. Staley, 45 
 328, 117 N. W. 801 (1908). W. Va. 792, 32 S. E. 198 (1899). 
 
 10. Wysong v. Seaboard Air Line There is authority to the contrary. 
 Ey., 74 S. C. 1, 54 S. E. 214 (1906). Keffer V. State, (Wyo. 1903) 73 Pac. 
 See also Tettcrton v. Com., 28 Ky. 556. 
 
 Law Rep. 146, 89 S. W. 8 (1905). 2. State v. Alford, 31 Conn. 40, 46 
 
 1. Colorado.— Nutter v. O'Donnell, (1862). 
 6 Colo. 253, 259 (1882). 
 
§ 385 A. Peotect Substantive Rights. 518 
 
 system, there was no clear conception of Substantive Law as such. 
 The whole legal theory was embodied in forms of remedy. Cere- 
 monies had been embalmed as primary and immutable principles 
 of law. Forms and modes of procedure stood in the place of 
 substantive rights; nor could justice see beyond them or above 
 them." 1 In the slow evolution of legal institutions of English- 
 men the use of reason has succeeded the application of the more 
 formal tests with which our ancestors were familiar. These forms 
 of proof were essentially mechanical and proof, oddly enough as 
 it seems to later generations, was a fixed result of doing certain 
 acts, mental processes being excluded; — in much the same way 
 that a magician might expect to evoke a familiar spirit by the 
 precise repetition of an incantation. " He who would establish 
 his case must maintain it, for example, by success in that judicial 
 battle the issue of which was held to be the judgment of Heaven 
 (judicium Dei) ; or he must go unscathed through the ordeal, and 
 so make manifest his truth or innocence; or he must procure 
 twelve men to swear in set form that they believe his testimony 
 to be true; or it may be sufficient if he himself makes solemn 
 oath that his cause is just. If he succeeds in performing the 
 conditions so laid upon him, he will have judgment; if he fails 
 even in the slightest point he is defeated. His task is to satisfy 
 the requirements of the law, not to convince the court of the truth 
 of his case. What the court thinks of the matter is nothing to 
 the point. The whole procedure seems designed to take away 
 from the tribunals the responsibility of investigating the truth, 
 and to cast this burden upon providence or fate. Only gradually 
 and reluctantly did our law attain to the conclusion that there 
 is no such royal road in the administration of justice, that the 
 heavens are silent, that the battle goes to the strong, that oaths 
 are naught, and that there is no just substitute for the laborious 
 investigation of the truth of things at the mouths of parties and 
 witnesses." 2 
 
 A Substantive Right to Reason. — In an attempt, at the present 
 day, to determine the truth of a proposition of fact by the use 
 of reason, it is one of the inherent fundamental rights of the 
 parties to insist that this test should be reason alone and that 
 the test should be properly applied. The presiding justice should 
 
 1. Hepburn, The Development of For some consideration of forms of 
 Code Pleading. trial in England antecedent to the use 
 
 2. Salmond, Jurisp., (2d ed.) 451. of reason, see supra, §§ 269-271. 
 
519 Preventing Jury from Being Misled. § 386 
 
 so discharge his administrative functions in dealing with the 
 admission of evidence as to preserve this right. He will insist 
 upon the use of correct reasoning by all parts of the tribunal, 
 at each stage of the trial and by all persons who attempt to 
 influence its action. It will be required equally of judge, counsel, 
 witnesses and jurors. Eeason constitutes, as it were, the vital 
 atmosphere of a properly administered trial; in this alone the 
 several functions of its various participants can properly be dis- 
 charged. 3 
 
 The Legal Test for Conduct. — It will be observed that in pre- 
 scribing the procedural rule that in all branches and at all stages 
 of judicial proceedings reason must be employed, the law is by 
 no means segregating legal procedure in court from all other legal 
 and proper conduct. The test which the law applies to conduct 
 as between the different citizens of the state is that it should be 
 reasonable. The dispatch of judicial business is governed by the 
 same procedural rule as that prescribed and enjoined in case of 
 all other conduct ; — that the act should be that of a reasonable 
 man. In other words, court procedure is merely a part of pro- 
 cedure in general, and, legally, subject to the same standards of 
 required observance. 
 
 § 386. ([3] Right to the Use of Reason); Should Prevent 
 Jury from Being Misled. — In enforcing the use of reason upon the 
 jury, the court will be vigilant to prevent the use of any evidence 
 or argument which will tend to mislead them ; or to replace reason 
 as a guide by any form of emotionalism. 1 Thus where a bitter 
 vindictive assault has been made on one of the parties by a wit- 
 ness 2 or other person in such a way as to present a danger that 
 the jury may be prejudiced or misled, the court will be justified 
 
 3. Reason is not an absolute guar- is like a dove's neck, . . and if 
 
 anty for the attainment of truth. It we inquire after the law of nature by 
 
 is merely the present legally estab- the rules of our reason, we shall be 
 
 lished test for it and the one of high- as uncertain as the discourses of the 
 
 est efficiency which judicial progress people or the dreams of disturbed 
 
 has as yet evolved. This efficiency is fancies." Ductor Dubitantium, (Works 
 
 conditioned not only by the perfection XII, 209. Heber's ed. ) . 
 
 of the instrument but by the extent 1. Union Pac. R. Co. v. Field, (U. 
 
 and accuracy of the data upon which S. 1905) 69 C. C. A. 536, 137 Fed. 
 
 it is to be applied. " Reason," says 14. 
 
 Jeremy Taylor, " is such a box of 2. Hale v. Hale, 32 Pa. Super. Ct. 
 
 quicksilver that it abides nowhere; 37 (1906). 
 it dwells in no settled mansion; it 
 
§ 387 A. Protect Substantive Rights. 520 
 
 in continuing the case. 3 So where counsel insist upon asking in 
 the presence of the jury a number of irrelevant questions appar- 
 ently designed to cause the other party to object and thus to 
 present the appearance of seeking to hold back the truth, the 
 judge may compel the offending attorney to dictate his questions 
 to the stenographer out of the jury's hearing.* 
 
 Appeals to Sympathy. — The court well may be cautious in 
 admitting a party to testify in an unusual way calculated to 
 influence the emotion of the jury, as where a plaintiff in a per- 
 sonal injury action asks leave to be brought into court and to 
 testify in a reclining position on a stretcher. 5 Unless it should 
 affirmatively appear that such a course is so necessary that its. 
 refusal would be unreasonable, the judge's action will not be re- 
 versed. 6 In like manner, though plaintiff in an action to recover 
 for personal injuries may show his wounds to the jury, it may be 
 reversible error to permit a dramatic exhibition in the presence 
 of the jury, a demonstration of the extent of his disability. 7 
 
 Many of the rules of evidence, procedural or administrative, 
 e. g., excluding hearsay, 8 rejecting inference — "opinion," as it 
 is called 9 — and the like, have been adopted and are being en- 
 forced, with the very object of protecting the jury from being 
 misled. Similarly, where the undisputed circumstances show 
 that the testimony of a witness cannot by any possibility be true, 
 it is the duty of the court to withdraw such testimony from the 
 jury. 10 
 
 § 387. C [3] Right to the Use of Reason) ; Guessing not Per- 
 mitted — The jury will not be permitted to guess. Where they 
 cannot reason to a conclusion involving the necessity of judicial 
 action, they must decline to act. It is the administrative duty of 
 the court to enforce this rule. It is, for example, error to submit 
 
 3. A caution and implied reprimand 6. Blanchard v. Holyoke St. Ry. 
 by the presiding judge has, however, Co., 186 Mass. 582, 72 N. E. 94 
 been spoken of as an improper com- (1904). 
 
 ment upon the evidence. Levels v. 7. Felsch v. Babb, (Neb. 1904) 101 
 
 St. Louis & H. Ry. Co., 196 Mo. 606, N. W. 1011. 
 
 94 S. W. 275 (1906). This seems a 8. Infra, § 2700. 
 
 strange restriction to place upon the 9. Infra, § 1791. 
 
 executive officer of a court of justice. 10. Wolf v. City Ry. Co., (Or. 1907) 
 
 4. Mareum v. HargiB, 31 Ky. Law 91 Pac. 460. 
 Rep. 1117, 104 S. W. 693 (1907). 
 
 5. Blanchard v. Holyoke St. Ry. Co., 
 186 Mass. 582, 72 N. E. 94 (1904). 
 
521 Waivek of Admission of Impropek Question. § 388 
 
 a cause to a jury where the evidence only enables the latter to 
 guess as to which one of several causes produced a certain result. 1 
 
 § 388. f[3] Right to the Use of Reason); Striking Out 
 Prejudicial Evidence. — Where inadmissible evidence has been re- 
 ceived and is of such a nature as to prejudice the party, the court 
 will, in general, grant a motion to strike it out of the record. Of 
 this nature would be prejudicial hearsay. 1 The same course may 
 i properly be followed where the evidence is irrelevant. 2 The fact 
 that the probative force of evidence is seriously impaired by cross- 
 examination 3 or in some other similar way furnishes no ground 
 for striking it out. Nor will this course be adopted merely on the 
 ground that the evidence is insufficient.' 1 
 
 Irresponsiveness. — Where an answer is irresponsive, either 
 party may move to strike it out. 5 But here, as in other cases 
 where objection to the reception of evidence is taken, the object- 
 ing party, to secure consideration in an appellate court, will be 
 required to obtain a ruling upon the question by the trial judge. 
 If the ruling is adverse to him, he may then except. 6 
 
 Objection must have been made to an obvious incompetent 
 question if the motion to strike out is to be urged as a matter of 
 right. 7 But where the evidence has been admitted without objec- 
 
 1. Puller v. Ann Arbor R. Co., counsel really want evidence excluded 
 
 (Mich. 1905) 12 Detroit Leg. N. 348, it must be objected to. Then, if the 
 
 104 N. W. 414. objection made is overruled, the ob- 
 
 1. Skinner Mfg. Co. v. Dowville, 54 jecting party may take an exception. 
 Fla. 251, 44 So. 1014 (1907). In the taking of testimony the oc- 
 
 2. Johnston v. Beadle, (Cal. App. casional ejaculation of the word ' ex- 
 1907) 91 Pac. 1011. ception' is in the nature of a run- 
 
 3. Piatt v. Rowand, 54 Fla. 237, ning and unfavorable comment on the 
 45 So. 32 (1907). proceedings, and nothing more. It 
 
 4. Piatt v. Rowand, 54 Fla. 237, raises no question for the decision of 
 45 So. 32 (1907). the court and reserves nothing." 
 
 5. Kramer v. Haeger Storage, etc., Sheldon v. Wright, 80 Vt. 298, 304 
 Co., 108 N. Y. Suppl. 1, 123 App. (1907). 
 
 Div. 316 (1908). 7. Florida.— Piatt v. Rowand, 54 
 
 6. Sheldon v. Wright, 80 Vt. 298, Fla. 237, 45 So. 32 (1907). 
 
 67 Atl. 807 (1907). Iowa.— Aughey v. Windrem, 114 
 
 "While the testimony as to the N. W. 1047 (1908). 
 
 Hardwick and Parlin casts was being Maryland. — Darrin V. Whittingham, 
 
 taken, the defendant's counsel at three 68 Atl. 269 (1907). 
 
 different times uttered the word ' ex- Texas. — Kansas City Consol., etc., 
 
 ception.' The course taken by coun- Co. v. Taylor, 107 S. W. 889 (1908). 
 
 Bel called for no ruling by the court, Utah. — Spiking v. Consolidated Ry. 
 
 the court made none and the defend- & Power Co., 93 Pac. 838 (1908). 
 ant has nothing to complain of. If 
 
§§ 389, 390 A. Protect Substantive Eights. 522 
 
 tion, the judge is under no obligation to strike out cumulative 
 testimony on the same point. 8 But this proceeds upon the ground 
 of waiver, in failing to assert a legal right at the proper time. If 
 nothing in the question appears objectionable, no rights are lost 
 by failing to object to it, if a motion to strike out is promptly 
 made. 9 On a general objection and motion to strike out, if any 
 part of the evidence is competent, the motion will properly be 
 overruled. 10 
 
 § 389. ([3] Right to the Use of Reason); Withdrawal of 
 Jury — Where an argument on any point if conducted in the 
 presence of the jury would tend to mislead them, they may be re- 
 quired to withdraw. 1 The court is to judge, as a question of ad- 
 ministration, whether it be preferable, in the interests of justice, 
 to order such a withdrawal and have the same thing gone over by 
 counsel in his argument to the jury; or, on the contrary, to ex- 
 pedite the trial 2 by having the entire matter discussed in their 
 presence in the first instance. Counsel have no right to have the 
 court adopt the latter course. 3 
 
 § 390. ( [3] Right to the Use of Reason) ; Preventing Irra- 
 tional Verdicts — As is stated more at length elsewhere, 1 the justice 
 presiding at a jury trial may direct a verdict for either party, 
 when a contrary finding could not, as a matter of reason, be sus- 
 tained by the evidence. 2 The judge, being charged with the duty 
 
 8. Skinner Mfg. Co. V. Dowville, 54 1. Infra, §§ 397 et seq. 
 
 Fla. 251, 44 So. 1014 (1907). 2. Alabama. — Hatch v. Varner, 43 
 
 9. Johnston v. Beadle, (Cal. App. So. 481 (1907); McCleskey & Whit- 
 1907) 91 Pac. 1011; Skinner Mfg. man V. Howell Cotton Co., 42 So. 67 
 Co. v. Dowville, 54 Fla. 251, 44 So. (1906). 
 
 1014 (1907). California. — Wilson v. Alcatraz As- 
 
 10. Piatt V. Rowand, 54 Fla. 237, phalt Co., 142 Cal. 182, 75 Pac. 787 
 45 So. 32 (1907); Darrin v. Whit- (1904). 
 
 tingham, (Md. 1907) 68 Atl. 269; Colorado. — Snyder v. Colorado 
 
 Galveston, etc., Ry. Co. v. Janert, Springs & C. C. D. Ry. Co., 85 Pac. 
 
 (Tex. Civ. App. 1908) 107 S. W. 963. 686 (1906). 
 
 An objection to certain answers of a District of Columbia. — Dodge v. 
 
 witness must be determined without Eush, 28 App. Cas. 149 (1906) ; Ford 
 
 reference to other answers. Kansas v. Ford, 27 App. Cas. 401 (1906). 
 
 City Consol., etc., Co. v. Taylor, (Tex. Florida. — Mugge v. Jackson, 43 
 
 Civ. App. 1908) 107 S. W. 889. So. 91 (1907). 
 
 1. Henrietta Coal Co. v. Campbell, Illinois. — Kelly v. Ins. Co., 126 111. 
 211 111. 216, 71 N. E. 863 (1904). App. 528 (1906); Chicago & E. I. R. 
 
 2. Infra, §§ 544 et seq. Co. v. Henderson, 126 111. App. 530 
 S.Rice v. Dewberry, (Tex. Civ. (1906) ; Smithley v. Snowden, 120 111. 
 
 App. 1906) 93 S. W. 715. App. 86 (1905). 
 
523 
 
 Judge Required to Oedee Verdicts. 
 
 391 
 
 of enforcing upon the jury the use of the reasoning faculty, may 
 also set aside a verdict which is irrational, either as a matter of 
 
 logical 3 or legal 4 reasoning. 
 
 Actions for a penalty follow the same rules. In such a case a 
 verdict against the defendant has been ordered. 5 
 
 § 391. ( [3] Right to the Use of Reason); Directing Verdicts. 
 
 — But a result which it would be the administrative duty of the 
 court to nullify as irrational and therefore illegal by awarding a 
 new trial, 1 the judge may properly look upon as something which 
 it is his administrative duty to prevent. 
 
 It is not necessary that he should sit idly by until the end of a 
 protracted trial which so far as the party having the burden of 
 proof is concerned can only result in a verdict which the judge is 
 aware would be set aside as soon and as often as rendered; or, 
 as the phrase is, toties quoties. As the law prescribes the use of 
 reason, ruling that a verdict cannot rationally be rendered is, in 
 reality, announcing a rule of law. 2 Such a course would, in fact, 
 be in contravention of the canon of administration requiring the 
 
 Maine. — Young v. Chandler, 102 
 Me. 251, 66 Atl. 539 (1906). 
 
 Maryland. — National Bank of Bris- 
 tol v. Baltimore & O. R. Co., 99 Md. 
 661, 59 Atl. 134 (1904). 
 
 Michigan. — Harrison Granite Co. 
 v. Pennsylvania R. Co., 145 Mich. 
 712, 108 N. W. 1081, 13 Detroit Leg. 
 N. 631 (1906). 
 
 Missouri. — Holden v. Missouri R. 
 Co., 108 Mo. App. 665, 84 S. W. 133 
 (1904); Houts v. St. Louis Transit 
 Co., 108 Mo. App. 686, 84 S. W. 161 
 (1904). 
 
 New Jersey. — Vandegrift Const. Co. 
 11. Camden & T. Ry. Co., 65 Atl. 986 
 (1907) ; Loper v. Soniers, 71 N. J. 
 L. 657, 61 Atl. 85 (1905). 
 
 Texas. — Murphy v. Galveston, H. 
 & N. Ry. Co., 96 S. W. 940 (1906) ; 
 Maffi v. Stephens, 93 S. W. 158 
 (1906) ; Lamberida v. Barnum, 90 S. 
 W. 698 (1905). 
 
 United States. — Guild v. Pringle, 
 145 Fed. 313 (1906) ; Turnbull v. 
 Ross, 72 C. C. A. 609, 141 Fed. 649 
 (1905) ; Chicago & N. W. Ry. Co. v. 
 De Clow, 124 Fed. 142 (1903). 
 
 Federal courts. — In order to justify 
 the direction of a verdict, in an ac- 
 tion tried in the federal courts, the 
 undisputed evidence must be so con- 
 clusive that all reasonable men, in 
 the exercise of an honest and im- 
 partial judgment, can draw but one 
 conclusion therefrom, and that the 
 court, in the exercise of a sound judg- 
 ment, would be required to set aside 
 a verdict returned in opposition 
 thereto. Crookston Lumber Co. v. 
 Boutin, 149 Fed. 680, 79 C. C. A. 
 368 (1906). 
 
 3. Supra, § 59. 
 
 4. Supra, § 61. 
 
 5. Gilbreath v. State, (Tex. Civ. 
 App. 1904) 82 S. W. 807. 
 
 1. Supra, § 307. 
 
 S$. A motion to direct a verdict for 
 the defendant raises only a question 
 of law, namely, whether there is evi- 
 dence before the jury from which, 
 taken as true, the jury may properly 
 find a verdict for the party. Smith 
 v. Eitel, 121 III. App. 464 (1905). 
 
392 
 
 A. Protect Substantive Eights. 
 
 524 
 
 presiding judge to expedite trials. 3 He may, therefore, intervene 
 either on motion or sua sponte, at an earlier stage by withdrawing 
 the case from the jury and directing a verdict against one of the 
 parties. 4 Thus, where there is an entire failure of proof to sus- 
 tain a material allegation of a party's petition put in issue by the 
 answer, the action of the trial court in directing a verdict for 
 defendant will be sustained. 5 
 
 § 392. ( [3] Right to the Use of Reason; Directing Ver- 
 dicts); Relation to Grant of a New Trial As a verdict by a 
 
 jury may properly be set aside by the presiding judge if reason 
 has not been exercised 1 and as a verdict will be directed where 
 only one conclusion is logically, i. e., legally permissible, 2 it may 
 properly be said, the test being the same, that where the court 
 would be constrained to set aside a verdict for a party complain- 
 ing, it would be justified in directing a verdict in his favor. 3 It 
 
 3. Infra, § § 544 et seq. 
 
 4. North Carolina. — State v. Mc- 
 Bryde, 97 N. C. 393 (1887). 
 
 Pennsylvania. — School Furniture 
 Co. r. Warsaw School Disk, 122 Pa. 
 St. 494 (1888). 
 
 South Carolina. — Bridger v. Ash- 
 ville, etc., Ey. Co., 25 S. C. 24 (1885). 
 
 United States. — Chandler v. Van 
 Roeder, 24 How. 224 (1860). 
 
 England. — Metropolitan Ey. Co. v. 
 Jackson, L. E. 3 App. Cas. 193 
 (1877) ; Bridges v. North London 
 Ey. Co., L. R. 7 H. L. 213, 218 
 ( 1874 ) . Where the evidence fails to 
 establish, either directly or by ra- 
 tional deductions, all the facts which 
 go to make up the issue, as where 
 there is a failure of evidence in re- 
 spect to any material fact involved in 
 the issue, the evidence is not legally 
 sufficient to sustain a finding upon 
 such issue, and it is the duty of the 
 trial judge to instruct the jury ac- 
 cordingly. Kearns v. Southern Ey. 
 Co., 139 N. C. 470, 52 S. E. 131 
 (1905). 
 
 5. Keckler v. Modern Brotherhood 
 of America, (Neb. 1906) 109 N, W. 
 157. 
 
 1. Supra, § 307. 
 
 2. Infra, § 61. 
 
 3. Arizona. — Ewing v. U. S. 89 
 Pac. 593 (1907). 
 
 Arkansas. — Western Union Tele- 
 graph Co. v. Baker, 140 Fed. 315 
 (1905). 
 
 California. — Meyer v. Lovdal, 92 
 Pac. 322 (1907). 
 
 Colorado. — Watson v. Manitou & 
 Pikes Peak Ry. Co., 41 Colo. 138, 92 
 Pac. 17 (1907). 
 
 District of Columbia. — Guenther v. 
 Metropolitan E. Co., 23 App. Cas. 493 
 (1904). 
 
 Illinois. — Illinois Cent. R. Co. v. 
 Bailey, 222 111. 480, 78 N. E. 833 
 (1906). 
 
 Indianai — Green v. Macy, 76 N. E. 
 264 (1905) ; Westfall v. Wait, 73 N. 
 E. 1089 (1905). 
 
 Mississippi. — Wooten v. Mobile & 
 O. B. Co.. 42 So. 131 (1906). 
 
 Montana. — Coulter v. Union Laun- 
 dry Co., 34 Mont. 590, 87 Pac. 973 
 (1906). 
 
 New Jersey. — Maurer v. Gould & 
 Eberhardt, 59 Atl. 28 (1904). 
 
 New Mexico. — ■ Armstrong v. Ara- 
 gon, 79 Pac. 291 (1905). 
 
 Oklahoma. — Neeley v. Southwest- 
 ern Cotton Seed Oil Co., 75 Pac. 537 
 (1903). 
 
525 Jtjey Should Decide Between Rational Coubses. § 392 
 
 is stating the same proposition to say that a verdict will be ordered 
 when the evidence at the trial, with all the inferences which the 
 jury could justifiably draw from it, is so insufficient to support 
 a verdict that were it returned it would be set aside. 4 
 
 In jurisdictions, on the contrary, where new trials may be 
 granted because the verdict is against the weight or preponderance 
 of the evidence, 5 a jury cannot be ordered to return a verdict where 
 there is enough evidence to warrant them, as a matter of reason, in 
 finding otherwise; although the court fully intends, the weight 
 of the evidence being determined in his mind, that if the jury re- 
 turn any other verdict than the one he is asked to order he will 
 set it aside. 6 This seems contrary to sound judicial administra- 
 tion. That the presiding justice is not himself favorably im- 
 pressed with the truth of the proposition for which one party or 
 the other is contending should not constitute a factor in deter- 
 mining his course. He should still permit the evidence to go to the 
 jury. 7 
 
 It is not for a judge to refuse to submit a case . to the 
 jury because he feels that it should not prevail. If a case is pre- 
 
 South Dakota. — Greenwald v. Ford, 
 109 N. W. 516 (1906). 
 
 West Virginia. — Williams v. Bel- 
 mont Coal & Coke Co., 46 S. E. 802 
 (1904). 
 
 United States. — ■ International Text 
 Book Co. v. Heartt, (N. C. 1905) 136 
 Fed. 129, 69 C. C. A. 127; Aetna In- 
 demnity Co. v. Ladd, (Or. 1905) 68 
 C. C. A. 274, 135 Fed. 636; Patillo v. 
 Allen- West Commission Co., (Ark. 
 1904) 131 Fed. 680, 65 C. C. A. 508; 
 Riley v. Louisville &N.R. Co., (Tenn. 
 1904) 133 Fed. 904; Gentry v. Sin- 
 gleton, (Ind. T. 1904) 128 Fed. 679, 
 63 C. C. A. 231 ; Shoup V. Marks, 128 
 Fed. 32, 62 C. C. A. 540 (1904). 
 
 4. Chicago Hardware Co. v. Mat- 
 thews, 124 111. App. 89 (1905); An- 
 derson v. Cumberland Telephone & 
 Telegraph Co., (Miss. 1905) 38 So. 
 786; Cobb v. Glenn Boom & Lumber 
 Co., (W. Va. 1905) 49 S. E. 1005. 
 
 5. Supra, § 308. 
 
 8. Georgia. — Pendleton Bros. v. At- 
 lantic Lumber Co., 3 Ga. App. 714, 
 60 S. E. 377 (1908). 
 
 Illinois. — ■ Cicero & P. St. Ry. Co. v. 
 Hughes, 125 111. App. 186 (1907). 
 
 Mississippi. — Fore v. Alabama & 
 V. Ry. Co., 39 So. 493 (1905). 
 
 New York. — Schmal v. Rothschild, 
 96 N. Y. Suppl. 179 ( 1905 ) ; Lewis V. 
 Erie R. Co., 94 N. Y. Suppl. 765, 105 
 App. Div. 292 (1905) ; Wagner v. 
 Einhorn, 88 N. Y. Suppl. 370 (1904) ; 
 McCrystal v. O'Neill, 86 N. Y. Suppl. 
 84 (1904) ; Marshall v. City of 
 Buffalo, 176 N. Y. 545, 68 N. E. 1119 
 (1903). 
 
 North Carolina. — Lehew v. Hewitt, 
 138 N. C. 6, 50 S. E. 459 (1905). 
 
 Texas. — -Walker v. Erwin, 106 S. 
 W. 164 (1907) ; Waggoner v. Wyatt, 
 94 S. W. 1076 (1906). 
 
 Washington. — Weir v. Seattle Elec- 
 tric Co., 41 Wash. 657, 84 Pac. 597 
 (1906). 
 
 7. " It is surely possible to admit 
 that reasonable and fair men might 
 come to a conclusion which oneself 
 would not arrive at." Brett, J. in 
 Bridges v. North London Ry. Co., L. 
 R. 7 H. L. 218 (1874). 
 
§ 392 A. Protect Substantive Rights. 526 
 
 sented from which men may rationally draw different inferences, 
 the court should submit it to the determination of the jury, how- 
 ever strong may be the proofs to the contrary, 8 or however 
 earnestly the judge may feel that the contention ought not to suc- 
 ceed. 9 The difficulty lies in setting aside a rational verdict be- 
 cause the judge does not agree with it. From such a course the 
 judge seems, on principle, to be estopped by his action in sub- 
 mitting the case when requested to withdraw it. Where he allows 
 a case to go to the jury it is because he feels that reason has not 
 absolutely declared against it. If from the evidence adduced the 
 jury might reasonably find in favor of a party's contention, he 
 is entitled to have it submitted for their action. 10 
 
 The weight and sufficiency n of the evidence should remain 
 entirely within the function of the jury in cases where it is rea- 
 sonably possible that more than one inference can be drawn 
 from it. 12 
 
 Sounder Administration. — Even where new trials may be 
 granted, should the verdict, though rational, be not such as the 
 judge would himself have rendered, a sounder administrative 
 view is to apply the same test to the granting of a motion to direct 
 a verdict. 13 Apparently, if the test is valid in one case, it is 
 
 8. School Furniture Company v. judges to blend their personal prefer- 
 Warsaw School District, 122 Pa. St. ences into the formation of a general 
 494 (1888). rule on the subject (see supra Chap. 
 
 9. Cook v. Union Ry. Co., 125 Mass. II), and enforce an individual opinion 
 57 (1878) ; Gaynor v. Old Colony Ry. by excluding evidence in a. particular 
 Co., 100 Mass. 208 ( 1868 ) ; Eilert v. case as part of what the judge deems 
 Green Bay, etc., Ry. Co., 48 Misc. 606 an objectionable class. " He will do 
 (1879). so (enforce his individual view) if 
 
 10. Bridges v. North London Ry. he states questions of fact as if they 
 Co., L. R. 7 H. L. 218 (1874). were questions of law." Bridges V. 
 
 11. Sufficiency for the jury.— North London Ry. Co., L. R. 7 H. L. 
 "Whether there is any evidence is a 218 (1874). The formation of a rule 
 question for the judge; whether there of law should be based upon and fol- 
 is sufficient evidence is for the jury.'' low repeated appeals to experience 
 Chandler v. Van Roeder, 24 How. (U. as represented by jury verdicts, 
 S.) 224 (1860). rather than used as a means of fore- 
 
 12. "The judge has no legal right stalling such verdicts and transfer- 
 either directly or indirectly to force ring the function of the jury in such 
 upon the jury his view of any fact or matters to the rulings of an appellate 
 inference of fact." Bridges v. North court. 
 
 London Ry. Co., L. R. 7 H. L. 218 13. Livesay v. First Nat. Bank, 
 
 (1874). (Colo. 1906) 86 Pac. 102; Bowen V. 
 
 A more common danger to the rights Chicago & N. W. R. Co., 117 111. App. 
 
 of the litigant in a jury trial lies in 9 (1904). 
 the at times unconscious tendency of 
 
527 Obdebing Verdict and Aeeest of Judgment. § 393 
 
 sound in both. The question which is presented as to submis- 
 sion to a jury is precisely the same which arises when the judge 
 is asked to set aside the verdict as being against the weight of 
 the evidence. In either case it should be : Is the evidence sufficient 
 in point of reason to warrant the verdict ? 14 But should the test 
 adopted be whether the judge is satisfied with the finding of the 
 jury, if his dissatisfaction be sufficient warrant for setting aside 
 a verdict, it should, in point of principle, be a satisfactory reason 
 for ordering one to the contrary effect. There is, of course, the 
 motive for allowing the case to proceed in the hope that the jury 
 will find in favor of the view which the judge has taken of the 
 evidence. But the course seems but little characterized by fair- 
 ness to the parties or good faith to the jury. For a judge who 
 has taken a fixed, permanent view of the evidence to leave a ques- 
 tion to the jury secretly purposing, if any verdict than the one 
 he desires is rendered to set it aside, but that if his view is 
 adopted the verdict will stand, suggests juggling rather than 
 justice. 15 
 
 Federal Courts. — Under the rule of the Federal courts, a judge 
 should direct a verdict where the evidence produced by the party 
 on whom rests the burden of proof is insufficient to sustain a ver- 
 dict in his favor. 16 
 
 § 393. f [3] Right to the Use of Reason; Directing Ver- 
 dicts); Relation to Motion in Arrest of Judgment. — Where a 
 defect exists in the declaration or similar pleading which is of 
 such a character as to be ground for a motion in arrest of judg- 
 ment, it is proper to move to withdraw the case from the jury on 
 the same ground. 1 On such a motion based on a defect in the decla- 
 ration, matters of evidence and facts proved cannot be considered. 2 
 The same result may follow where the actor has proved his prima 
 facie case and the latter is not such as to warrant, as matter of 
 law, affirmative action by the court in his favor. When issue is 
 
 14. Bridges v. North London Ry. Clerks v. Scott, (N. Y. 1907) 155 
 Co., L. R. 7 H. L. 218 (1874). Fed. 92, 83 C. C. A. 652. 
 
 15. It is not the least among ad- 1. Grace & Hyde Co. v. Sanborn, 
 ministrative objections to the rule re- 124 111. App. 472 (1906) [affirmed 
 fusing to allow a judge to comment in 225 111. 238, 80 N. E. 88]. 
 
 to the jury on the evidence that it 2. American Car & Foundry Co. v. 
 
 practically forces a conscientious judge Hill, 226 111. 227, 80 N. E. 784 
 
 of strong convictions to adopt this (1907) [affirming 128 111. App. 176 
 
 course. (1S06)]. 
 1G. National Ass'n of Ry. Postal 
 
394 
 
 A. Peotect Substantive Eights. 
 
 528 
 
 joined on an immaterial plea, and its averments are proved, the 
 defendant is entitled to the general charge in his favor. 3 If the 
 defect of a count is one that would be cured by verdict, the jury 
 should not be properly instructed to disregard it ; but if each count 
 of a declaration be so faulty that with all the intendments in its 
 favor it cannot, after verdict, support a judgment, there is no 
 reason why the court may not properly instruct the jury to find 
 a verdict for the defendant, notwithstanding the defendant has 
 pleaded to the declaration. 4 
 
 § 394. ([3] Right to the Use of Reason; Directing Ver- 
 dicts); A Matter of Law. — As the duty of the jury is to reason 
 correctly, and as it is the substantive right of the party to insist 
 that this reasoning be exercised, 1 a ruling as to what is or is not 
 rationally possible for the jury to do is, in reality, ruling on a 
 matter of law. 2 In other words, whether there is any evidence 
 
 3. Rasco v. Jefferson, (Ala. 1905) 
 38 So. 246. 
 
 4. Owens v. Lehigh Valley Coal 
 Co., 115 111. App. 142 (1904). 
 
 1. Infra, §§ 385 et seq. 
 
 2. Arkansas. — St. Louis, I. M. & 
 S. Ey. Co. v Neal, 78 S. W. 220 
 (1903). 
 
 Illinois. — 'Cleveland, C. C. & St. L. 
 Ry. Co. v. Sparks, 122 111. App. 400 
 (1905); Libby, McNeil & Libby V. 
 Banks, 209 111. 109, 70 N. E. 599 
 (1904) [affirming 110 111. App. 330 
 (1903)]. 
 
 Indiana. — Jennings v. Ingle, 73 N. 
 E. 945 (1905). 
 
 Maryland. — Baltimore & O. R. Co. 
 v. Belinski, 67 Atl. 249 (1907). 
 
 Nebraska. — .Baker v. Swift & Co., 
 110 N. W. 654 (1906). 
 
 North Carolina. — Campbell v. Ever- 
 hart, 139 N. C. 503, 52 S. E. 201 
 (1905). 
 
 Tennessee. — Norman v. Southern 
 Ry. Co., 104 S. W. 1088 (1907). 
 
 Texas. — Lamborida v. Barnum, 90 
 S. W. 098 (1905) ; Bonn v. Galveston, 
 H. & S. A. Ry. Co., 82 S. W. 808 
 (1904). 
 
 United States. — Minnesota & D. 
 Cattle Co. v. Atchison, T. & S. P. Ry. 
 Co., 147 Fed. 463, 77 C. C. A. 607 
 
 (1906) ; Love v. Scatcherd, 146 Fed. 
 1, 77 C. C. A. 1 (1906) ; United 
 States Fidelity & Guaranty Co. v. 
 Board of Com'rs of Woodson County, 
 Kan., (Kan. 1906) 145 Fed. 144; 
 Northern Pac. Ry. Co. V. Jones, 
 (Idaho 1906) 144 Fed. 47. No case 
 should be withdrawn from the jury 
 unless the conclusion- necessarily fol- 
 lows from the facts as a matter of 
 law that no recovery could be had on 
 any view which could reasonably be 
 drawn from the facts which the evi- 
 dence tends to establish. McCabe v. 
 Montana Cent. Ry. Co., (Mont. 1904) 
 76 Pac. 701. Frequently the necessary 
 inference from an undisputed state of 
 facts is so certain that it becomes a 
 question of law. Sovereign Camp 
 Woodmen of the World v. Hruby, 
 (Neb. 1903) 96 N. W. 998. Whether 
 from facts in proof a particular infer- 
 ence can be drawn is a question of 
 law. Seely r. Manhattan Life Ins. 
 Co., 73 N. H. 339, 61 A. 585 (1905). 
 A question of law always arises at the 
 close of the evidence in any case in 
 the Federal courts, whether there is 
 any substantial proof warranting a 
 verdict in favor of plaintiff. Crook- 
 ston Lumber Co. v. Boutin, 149 Fed. 
 680, 79 C. C. A. 368 (1906). 
 
529 
 
 MlSCONTEOVEETED EVIDENCE A MATTEE OF LAW. § 394 
 
 upon which the jury could reasonably determine as to the truth 
 of a matter in issue is a question of law for the court; 3 if there 
 is, it must be left to them. 4 But, in general, a matter about which 
 there is no controversy in the evidence should not be left to the 
 jury. 5 A question of law arises also where the evidence is un- 
 
 3. Universal Metal Co. v. Durham 
 & C. R. Co., 145 N. C. 293, 59 S. B. 
 50 (1907); Boswell v. First Nat. 
 Bank, (Wyo. 1907) 93 Pae. 624 [re- 
 hearing denied 93 Pae. 661]. 
 
 4. Alabama. — Speakman v. Vest, 
 44 So. 1021 (1907). 
 
 Connecticut. — Pigeon v. Lane, 80 
 Conn. 237, 67 Atl. 886 (1907). 
 
 District of Columbia. — Morgan v. 
 Adams, 29 App. D. C. 198 (1907). 
 
 Georgia. — Southern Ry. Co. v. 
 Hardeman, 130 Ga. 222, 60 S. E. 539 
 (1908). 
 
 Illinois. — Clark v. Chicago R., etc., 
 Ry. Co., 231 111. 548, 83 N. E. 286 
 (1907); Illinois Cent. R. Co. v. 
 Bailey, 222 111. 480, 78 N. E. 833 
 
 (1906) {affirming judgment, 127 111. 
 App. 41 (1906)]; Schillinger Bros. 
 Co. v. Smith, 225 111. 74, 80 N. E. 65 
 
 (1907) [affirming judgment, 128 111. 
 App. 30 (1906)]; Eldorado Coal & 
 Coke Co. v. Swan, 227 111. 586. 81 N. 
 E. 691 (1907) [affirming judgment, 
 128 111. App. 237 (1906)]; Swift & 
 Co. v. O'Brien, 127 111. App. 26 
 
 ( 1906 ) ; Packer v. Sheppard, 127 111. 
 App. 26 (1906). 
 
 Iowa. — Cahill v. Illinois Cent. R. 
 Co., 115 N. W. 216 (1908) ; Webster 
 v. Armstrong, 113 N. W. 549 ( 1907 ) . 
 
 Kansas.— Darling v. Atchison, etc., 
 Ry. Co., 76 Kan. 893, 93 Pae. 612 
 
 (1907) [rehearing denied, 94 Pae. 202 
 (1908)] ; Missouri, K. & T. R. Co. v. 
 L. A. Watkins Merchandise Co., 76 
 Kan. 813, 92 Pae. 1102 (1907). 
 
 Kentucky. — Supreme Lodge K. P. 
 v. Bradley, 32 Ky. Law Rep. 743, 107 
 S. W. 209 (1908) [judgment modi- 
 fied on rehearing, 109 S. W. 1178]; 
 Louisville & N. R. Co. v. Brown, 32 
 Ky. Law Rep. 1002, 107 S. W. 321 
 
 ( 1908 ) ; Champion Ice Mfg., etc., Co. 
 
 Vol. I. 34 
 
 V. F. Delsignore & Bro., 32 Ky. Law 
 Rep. 427, 105 S. W. 1181 (1907); 
 Switchmen's Union of North America 
 v. Johnson, 32 Ky. Law Rep. 583, 105 
 S. W. 1193 ( 1907 ) ; Owensboro City 
 R. Co. v. Robertson, 31 Ky. Law Rep. 
 1047, 104 S. W. 707 (1907). 
 
 Massachusetts. — Paine v. Kelley, 
 83 N. E. 8 (1907). 
 
 Missouri. — Scott Co. Milling Co. v. 
 St. Louis, etc., R. Co., 127 Mo. App. 
 80, 104 S. W. 924 (1907). 
 
 New York. — Powers v. Miller, 107 
 N. Y. S. 960, 123 App. Div. 396 
 ( 1908 ) ; New York Evening Journal 
 Pub. Co. v. William F. Simpson, etc., 
 Agency, 106 N. Y. S. 858, 56 Misc. 
 ,Rcp. 347 (1907) [judgment affirmed 
 110 N. Y. S. 391 (1908)]; Hann v. 
 Brettler, 107 N. Y. S. 78 (1907). 
 
 North Dakota. — Higgs v. Minne- 
 apolis, St. P. etc., Ry. Co., 114 N. W. 
 722 (1908). 
 
 Oklahoma. — Lane v. Choctaw, etc., 
 R. Co., 91 Pae. 883 (1907). 
 
 Texas. — Gray v. Fussell, 106 S. W. 
 454 (1907) ; Red River Nat. Bank V. 
 De Berry, 105 S. W. 998 (1907). 
 
 Washington. — Hoffman v. Titlow, 
 92 Pae. 888 (1907). 
 
 Wisconsin. — Gallaway v. Massee, 
 113 N. W. 1098 (1907). 
 
 Wyoming. — Boswell v. First Nat. 
 Bank, 92 Pae. 684 (1907) [rehearing 
 denied, 93 Pae. 661], 
 
 5. Alabama.— Southern Ry. Co. v. 
 Hardin, 157 Fed. 645 (1907). 
 
 Georgia. — Willingham & Cone v. 
 Huguenin, 129 Ga. 835, 60 S. E. 186 
 (1908). 
 
 Kentucky i — Central Consumers' Co. 
 v. Booher, 32 Ky. Law Rep. 794, 107 
 S. W. 198 (1908) ; Hall v. Louisville, 
 etc., Ry. Co., 31 Ky. Law Rep. 853, 
 104 S. W. 275 (1907). 
 
394 
 
 A. Peotect Substantive Eights. 
 
 530 
 
 controverted ; 6 viz., could the jury rationally find more than one 
 way in view of the evidence ? 7 If not, the general administrative 
 rule is to the effect that the judge will direct them to find in the 
 only way in which they can rationally decide. 8 This is in ac- 
 cordance with the general principle elsewhere mentioned, 9 that 
 where the facts are uncontroverted an issue may be dealt with 
 as a question of law. 10 It becomes evident that as the existence 
 and nature of the rule of law is the only doubtful element in reach- 
 
 New York. — Keene v. Newark 
 Watch Case, etc., Co., 188 N. Y. 598, 
 81 N. E. 1167 ( 1907 ) [affirming judg- 
 ment, 98 N. Y. S. 68, 112 App. Div. 
 7 (1906)]. 
 
 Texas. — Southern Pac. Co. v. God- 
 frey, 107 S. W. 1135 (1908). 
 
 West Virginia. — Hutchinson V. 
 United States Express Co., 59 S. E. 
 949 (1907). 
 
 6. Colorado. — Israel v. Day, 41 
 Colo. 52, 92 Pac. 698 (1907). 
 
 District of Columbia. — Barstow V. 
 Capital Traction Co., 29 App. D. C. 
 362 (1907). 
 
 India na. — City of Valparaiso V. 
 Schwerdt, 40 Ind. App. 608, 82 N. E. 
 923 (1907). 
 
 Missouri. — Cornovski v. St. Louis 
 Transit Co., 207 Mo. 263, 106 S. W. 
 51 (1907) ; Hendley v. Globe Refinery 
 Co., 106 Mo. App. 20, 79 S. W. 1163 
 (1904). 
 
 Nebraska. — Schwanenfeldt V. Chi- 
 cago, etc., Ry. Co., 115 N. W. 285 
 (1908). 
 
 New York. — Oppenheimer v. Mit- 
 tenthal, 107 N. Y. S. 48 (1907); 
 Freifeld v. M. Groh's Sons, 116 N. Y. 
 App. Div. 409, 101 N. Y. Suppl. 863 
 (1906). 
 
 North Carolina. — Harton v. Forest 
 City Telephone Co., 59 S. E. 1022 
 (1907). 
 
 South Dakota. — McComb v. Basker- 
 ville, 106 N. W. 300 (1906). 
 
 Tennessee. — Norman v. Southern 
 Ry. Co., 104 S. W. 108S (1907). 
 
 Texas. — Smith v. Humphreyville, 
 104 S. W. 495 (1907); St. Louis 
 Southwestern Ry. Co. of Texas v. 
 Groves, 97 S. W. 1084 (1906). 
 
 West Virginia. — Kuykendall v. 
 Fisher, 56 S. E. 48 (1906). 
 
 It has, however, been held that 
 where evidence is oral in its nature, 
 though it is impossible to con- 
 tradict it, the case must go to 
 the jury. Fuller Buggy Co. v. 
 Waldron, 188 N. Y. 630, 81 N. 
 E. 1165 ( 1907 ) ; Wallace v. Pennsyl- 
 vania Co., 219 Pa. 327, 68 Atl. 952 
 ( 1908 ) ; Perkiomen R. Co. v. Kremer, 
 218 Pa. 641, 67 Atl. 913 (1907). 
 
 7. This is not a matter of adminis- 
 tration, except as to time of announce- 
 ment. Essentially, it is a matter of 
 law. Norman v. Southern Ry. Co., 
 (Tenn. 1907) 104 S. W. 1088. 
 
 8. Jennings v. Philadelphia, etc., 
 Ry. Co., 29 App. I), C. 219 (1907); 
 City of Chicago v. O'Brien, 128 111. 
 350 (1906) ; Hollon v. Campton Fuel 
 & Light Co., 32 Ky. Law Rep. 178, 
 105 S. W. 426 (1907). 
 
 9. Supra, §§ 128 et seq.; Williams- 
 port v. Lycoming County, 34 Pa. Sup. 
 Ct. 221 (1907). 
 
 10. Deschner v. St. Louis & M. R. 
 R. Co., 200 Mo. 310, 98 S. W. 737 
 (1906) ; Ryon v. Starr, 214 Pa. 310, 
 63 Atl. 701 (1906) ; Smith v. Mutual 
 Cash, etc., Ins. Co., (S. D. 1907) 113 
 N. W. 94; Peyser v. Western Dry 
 Goods Co., (Wash. 1907) 92 Pac. 8S6. 
 
 Criminal libel. — It is on this prop- 
 osition that the English crown law- 
 yers contended for the right on the 
 part of the judge to say whether, 
 when publication was found by the 
 jury, the same was libelous. 
 
531 
 
 No Oedee Upon Conflicting Evidence. § 395 
 
 ing a decision, that th~e court is, in reality, applying it to them, 
 i. e., that the essential question is what is proper legal reasoning. 
 If there be any legal doubt as to the conclusion to be drawn from 
 the whole evidence, the case must be submitted to the jury. 11 
 Where both parties move for direction of a verdict, it is an affirm- 
 ance on the part of each that there is no disputed question of fact 
 which could operate to deflect or control the questions of law. 12 
 
 § 395. f [3] Right to the Use of Reason; Directing Ver- 
 dicts); General Rules — It is not necessary to submit a cause to 
 a jury, unless there is evidence which will warrant a verdict in 
 favor of the party producing it. 1 As a rule, where the evidence 
 on material points is conflicting, a verdict cannot be ordered; 2 
 
 11. Tyrus v. Kansas City, Ft. S. & 
 M. R. Co., 114 Tenn. 579, 86 S. W. 
 1074 (1905). 
 
 12. "West v. Roberts, (La. 1905) 
 135 Fed. 350, 68 C. C. A. 58. 
 
 1. Lynch v. Englehardt, Winning, 
 Davison Mercantile Co., 1 Neb." 
 (Unof.) 528, 96 N. W. 524 (1901). 
 
 2. Alabama. — Birmingham Ry., 
 Light & Power Co. v. Martin, 42 So. 
 618 (1906) ; Sloss-Sheffield Steel & 
 Iron Co. v. Hutchinson, 40 So. 114 
 (1906). 
 
 California. — Copriviza v. Rilovich, 
 87 Pac. 398 (1906). 
 
 Georgia. — Wilcox v. Evans & Pen- 
 nington, 127 Ga. 580, 56 S. E. 635 
 ( 1907 ) ; Shumate v. Ryan, 127 Ga. 
 118, 56 S. E. 103 (1906); McFar- 
 land v. Darien & W. R. Co., 127 Ga. 
 97, 56 S. E. 74 (1906). 
 
 Illinois. — City of Chicago v. Jar- 
 vis, 226 111. 614, 80 N. E. 1079 
 (1907). 
 
 Ioioa. — Fleming Bros. v. Linder, 
 (Iowa 1906) 109 N. W. 771. 
 
 Nebraska. — Continental Lumber 
 Co. v. Munshaw & Co., 109 N. W. 760 
 (1906); Gillis V. Paddock's Estate, 
 109 N. W. 734 (1906). 
 
 New Jersey. — Hummer v. Lehigh 
 Valley R. Co., 65 Atl. 126 (1906). 
 
 New York. — Reilly v. Troy Brick 
 Co., 184 N. Y. 399, 77 N. E. 385 
 (1906) ; Conte V. City of New York, 
 
 116 N. Y. App. Div. 356, 101 N. Y. 
 Suppl. 491 (1906). 
 
 North Dakota. — Zink v. Lahart, 
 110 N. W. 931 (1907). 
 
 Pennsylvania. — Raymer v. Stand- 
 ard Steel Works, 216 Pa. St. 101, 64 
 Atl. 902 (1906). 
 
 Texas. — Logan v. Meade, 98 S. W. 
 210 (1906). 
 
 Washington. — Menasha Wooden 
 Ware Co. v. Nelson, 88 Pac. 1018 
 (1907). 
 
 West Virginia. — Johnson v. Bank, 
 55 S. E. 394 (1906). 
 
 United States. — Jenkins & Rey- 
 nolds Co. v. Alpena Portland Ce- 
 ment Co., 147 Fed. 641, 77 C. C. A. 
 625 (1906). It is not within the prov- 
 ince of the judge, on a motion to 
 withdraw a. case from the jury, to 
 weigh the evidence, and ascertain 
 where the preponderance is, but his 
 duty is limited strictly to determin- 
 ing whether there is or is not evi- 
 ence legally tending to prove the fact 
 affirmed. Woodman v. Illinois Trust 
 & Savings Bank, 211 111. 578, 71 N. E. 
 1099 (1904). When the inferences to 
 be drawn from established facts may 
 change with the personality of him 
 who makes them, and when the mind 
 hesitates to affirm just what a rea- 
 sonable man would likely do under the 
 circumstances, then the; ascertainment 
 of the legal duty becomes a mixed 
 
§ 395 
 
 A. Peotect Substantive Eights. 
 
 532 
 
 unless, indeed, although there is technically a conflict, the evi- 
 dence on one side is of so conclusive a character that the court 
 would set aside a verdict rendered in opposition to it. 3 The 
 
 question of law and fact, and must be 
 submitted to a jury. Portland Ice Co. 
 r. Connor, 32 Pa. Super. Ct. 438 
 ( 1907 ) . Where several grounds of 
 negligence are alleged in an action by 
 a passenger for injuries, failure to 
 prove one of them is no ground for 
 direction of verdict for defendant. 
 Cain v. Atlantic Coast Line R. Co., 74 
 S. C. 89, 54 S. E. 244 (1906). 
 
 If there be any count of the declar- 
 ation on which evidence is offered, a 
 verdict cannot be directed against the 
 plaintiff. Lewes v. John Crane & 
 Sons, 78 Vt. 216, 62 A. 60 (1905). In 
 an action at law tried before a jury in 
 a federal court, where an issue of fact 
 is involved the determination of which 
 depends upon the weight, preponder- 
 ance, and effect of conflicting evi- 
 dence, such issue must be determined 
 by the jury, and it is error for the 
 court to direct a verdict. Newburger 
 Cotton Co. v. York Cotton Mills, 152 
 Fed. 398, 81 C. C. A. 524 (1907). In 
 passing upon a motion to instruct a 
 verdict it is not the province of the 
 judge to weigh the evidence, but if 
 there is any evidence which, with the 
 inferences that may legitimately be 
 drawn therefrom, would warrant » 
 verdict in favor of the party against 
 whom the motion is made, such mo- 
 tion should be overruled. A mere 
 scintilla of evidence, however, is not 
 enough to prevent the withdrawal of 
 the case from the jury. Berry v. 
 Chase, 146 Fed. 625, 77 C. C. A. 161 
 (1906). 
 
 3. District of Columbia. — Green v. 
 Stewart, 23 App. Cas. 570 (1904). 
 
 Georgia, — Harriss v. Howard, 126 
 Ga. 325, 55 S. E. 59 (1906) ; Skinner 
 v. Braswell, 126 Ga. 761, 55 S. E. 914 
 (1906). 
 
 Illinois. — Nicholls v. Colwell, 113 
 111. App. 219 (1904). 
 
 Missouri.— Hendley v. Globe Refin- 
 
 ery Co., 106 Mo. App. 20, 79 S. W. 
 1163 (1904). 
 
 Nebraska. — Husenetter v. Little, 
 110 jST. W. 541 (1907); Allen v. 
 American Beet Sugar Co., 106 N. W. 
 469 (1906). 
 
 New Jersey. — Dederick v. Central 
 R. Co., 65 Atl. 833 (1907). 
 
 Pennsylvania. — Barley v. Beegle, 
 29 Pa. Super. Ct. 635 (1905). 
 
 South Dakota. — Edwards v. Chi- 
 cago, M. & St. P. Ry. Co., 110 N. W. 
 832 (1907). 
 
 Vermont. — Bass v. Rublee, 57 Atl. 
 965 (1904). 
 
 Wisconsin. — Clark v. Slaughter, 
 129 Wis. 642, 109 N. W. 556 (1906). 
 
 United States.— St. Louis & S. F. 
 R. Co. v. Dewees, 153 Fed. 56, 82 C. 
 C. A. 190 ( 1907 ) ; Jenkins & Rey- 
 nolds Co. v. Alpena Portland Ce- 
 ment Co., 146 Fed. 641, 77 C. C. A. 
 625 (1906); Woodward V. Chicago, 
 M. & St. P. Ry. Co., (Minn. 1906) 145 
 Fed. 577; Turnbull v. Ross, 72 C. C. 
 A. 609, 141 Fed. 649 ( 1905 ) ; Cham- 
 bers v. Van Elderen, (Ark. 1905) 137 
 Fed. 557 ; Chicago Great Western Ry. 
 Co. v. Roddy, (Minn. 1904) 131 Fed. 
 712, 65 C. C. A. 470; Riley v. 
 Louisville & N. R. Co., (Tenn. 1904) 
 133 Fed. 904. It is not within the 
 province of the judge, on a motion to 
 withdraw from the jury, to weigh the 
 evidence and ascertain where the pre- 
 ponderance is. Bunnell v. Rosenbergs 
 126 111. App. 196 (1906). Where the 
 evidence was sufficient to create more 
 than a surmise or suspicion of plain- 
 tiff's right to recover, it was proper 
 to submit the issue to the jury. Clark 
 v. Wilson, (Tex. Civ. App. 1906) 91 
 S. W. 627. Though there be slight 
 testimony, yet, if its probative force 
 be so weak that it only raises a mere 
 surmise or suspicion of the existence 
 of the facts sought to be established, 
 the court should instruct a verdict. 
 
533 
 
 An Issue of Fact Pbevents Okdee. 
 
 395 
 
 trial judge is not authorized to weigh conflicting testimony in 
 deciding a motion to direct a verdict. 4 The same rule is applied 
 where the evidence, although not in strictness conflicting, is so 
 ambiguous or uncertain as to make it probable that reasonable 
 men might disagree as to the conclusion to be drawn from it. 5 
 In such a pasture of affairs it is the duty of the jury to decide. 
 It is, moreover, for the jury to judge when doubtful or equivocal 
 language has been employed and in what sense it has been used. 6 
 Where, therefore, at the conclusion of the evidence, both parties 
 move for a directed verdict, each thereby asserts that there is no 
 disputed question of fact that can control or affect the conclusion 
 of law that on all the evidence he is entitled to prevail. 7 On the 
 contrary, should there be no dispute as to the evidence, it is not 
 error to direct a verdict. 8 It should not, however, be directed un- 
 
 Wills v. Central Ice & Cold Storage 
 Co., (Tex Civ. App. 1905) 88 S. W. 
 265. 
 
 4. Bowen v. Chicago & N. W. R. 
 Co., 117 111. App. 9 (1904). Author- 
 ity may be conferred by statute. 
 Lightcap v. Nicola, 34 Pa. Super. Ct. 
 189 (1907). 
 
 5. Williams v. Sleepy Hollow Min. 
 Co., (Colo. 1906) 86 Pac. 337; Roed- 
 ler v. Chicago, M. & St. P. Ry. Co., 
 129 Wis. 870, 109 N. W. 88 (1906). 
 
 6. Missouri, K. & T. Ry. Co. v. 
 Anderson, (Tex. Civ. App. 1904) 81 
 S. W. 781. It is for the jury to de- 
 termine what a witness means when 
 he uses language warranting distinct 
 and opposite inferences. They must 
 determine his meaning, not only from 
 his words, but from his manner and 
 all the surrounding circumstances, 
 and find whether he was careful or 
 careless. Smith v. Jackson Tp., 26 Pa. 
 Super. Ct. 234 (1904). A verdict can- 
 not be directed unless the testimony 
 is undisputed, and, to constitute such 
 dispute as to preclude such direction, 
 it is not necessary that the testimony 
 in favor of the party asking for the 
 verdict be directly denied, but it is 
 sufficient if it is disputed by indi- 
 rection, or is subject to doubt in view 
 of the cross-examination of his wit- 
 nesses. Wilson v. Royal Neighbors of 
 
 America, (Mich. 1905) 11 Detroit 
 Leg. N. 867, 102 N. W. 957. 
 
 7. Minnesota & D. Cattle Co. v. 
 Atchison, T. & S. F. Ry. Co., 147 Fed. 
 463, 77 C. C. A. 607 (1906) ; Love v. 
 Scatcherd, 146 Fed. 1, 77 C. C. A. 1 
 (1906). 
 
 The right to a jury trial, being 
 a constitutional one, is not to be de- 
 nied, except in a clear case. When the 
 facts are such that two fair-minded 
 men may draw different inferences 
 from them, and such different infer- 
 ences lead to different verdicts, then 
 the jury, and not the court, is the tri- 
 bunal to decide which inference shall 
 be drawn. Cascade Foundry Co. v. 
 L. J. Mueller Furnace Co., (Pa* 
 1905) 140 Fed. 791 [judgment re- 
 versed, 145 Fed. 596 (1906)]. 
 
 8. Georgia. — Brockhan v. Hersch, 
 128 Ga. 819, 58 S. E. 468 (1907) ; Rey- 
 nolds v. Nevin, 1 Ga. App. 269, 57 S. 
 E. 918 (1907) ; Home Ins. Co. of New 
 York v. Chattahoochee Lumber Co., 
 126 Ga. 334, 55 S. E. 11 (1906); 
 Kern v. Kansas City Southern Ry. 
 Co., 125 Ga. 496, 54 S. E. 355 (1906). 
 
 Iowa. — Cragun Bros. v. Todd & 
 Kraft, 108 N. W. 450 (1906). 
 
 Maryland. — Ziehn v. United Elec- 
 tric Light & Power Co. of Baltimore, 
 64 Atl. 61 (1906). 
 
 New Jersey. — Ryle v. Manchester 
 
§ 395 
 
 A. Peotect Substantive Eights. 
 
 634 
 
 less there is no issue of fact, or unless the proved facts, examined 
 from every legal point of view, can sustain no other finding than 
 that directed. 9 It states the same rule in another form to say 
 that the judge has no legal right to withdraw a case from the 
 jury against a party who has produced evidence upon which the 
 jury might reasonably find in his favor 10 and that where there is 
 no evidence in favor of a contention the judge is not justified in 
 leaving it to the jury. 11 So where, of several issues, evidence is 
 produced in favor of but certain of them, these only should be sub- 
 
 Building & Loan Ass'n, 67 Atl. 87 
 (1907). 
 
 New York. — Oravath v. Baylis, 99 
 N. Y. Supp. 973, 113 App. Div. 666 
 (1906) ; Keene v. Newark Watch Case 
 Material Co., 98 N. Y. Supp. 68, 112 
 App. Div. 7 (1906) ; Standard Supply 
 & Equipment Co. v. Merritt, 96 N. Y. 
 Suppl. 181, 48 Misc. Bep. 498 (1905). 
 
 North Carolina. — Walker r. Caro- 
 lina Cent. E. Co., 135 N. C. 738, 47 
 S. E. 675 (1904). 
 
 Oklahoma. — Sovereign Camp Wood- 
 men of the World v. Welch, 33 
 Pac. 547 (1905); Neely V. South- 
 western Cotton Seed Oil Co., (Okla. 
 1903) 75 Pac. 537. 
 
 Pennsylvania. — Bube v. Weatherly 
 Borough, 25 Pa. Super. Ct. 88 (1904) ; 
 Gudfelder v. Pittsburg, C. C. & St. L. 
 By. Co., 207 Pa. 629, 57 Atl. 70 
 (1904). 
 
 United States. — International Text- 
 Book Co. v. Heartt, (N. C. 1905) 136 
 Fed. 129, 69 C. C. A. 127. 
 
 9. Colorado. — Mageon v. Alkire, 92 
 Pac. 720 (1907). 
 
 District of Columbia. — Biddle v. 
 Gibson, 29 App. D. C. 237 (1907). 
 
 Georgia. — Pendleton Bros. v. At- 
 lantic Lumber Co., 3 Ga. App. 714, 60 
 S. E. 377 (1908) ; Davis v. Kirkland, 
 1 Ga. App. 5, 58 S. E. 209 (1907). 
 
 Illinois. — Gathman v. City of Chi- 
 cago, 127 111. App. 150 (1906) ; Lin- 
 derman Box & Veneer Co. v. Thomp- 
 son, 127 111. App. 134 (1906). 
 
 Iowa. — Kothrock v. City of Cedar 
 Eapids, 103 N. W. 475 (1905). 
 
 Kentucky. — Schonbachler's Adm'r 
 
 Mischell, 89 Ky. L. Bep. 460, 89 
 W. 525 (1905). 
 
 Maryland. — Acker, Merrill & Con- 
 dit Co. v. McGaw, 106 Md. 536, 68 
 Atl. 17 (1907). 
 
 Massachusetts. — Le Baron r. Old 
 Colony St. By. Co., 83 N. E. 674 
 (1908.) 
 
 New Jersey. — Daggett v. North Jer- 
 sey St. Ry. Co., 68 Atl. 179 (1907). 
 
 New York. — Lekas v. Schwartz, 
 107 N. Y. S. 145, 56 Misc. Bep. 594 
 (1907). 
 
 Oklahoma. — Guss v. Federal Trust 
 Co., 91 Pac. 1045, (1907). 
 
 South Carolina. — Bice v. Bamberg, 
 68 S. C. 184, 46 S. E. 1009 (1904). 
 
 South Dakota. — Boberts v. Ruh, 
 114 N. W. 1097 (1908). 
 
 Texas. — Walker v. Erwin, 106 S. 
 W. 164 (1907). 
 
 Wisconsin. — Kersten v. Weichman, 
 114 N. W. 499 (1908). 
 
 10. Missouri Real Estate Syndi- 
 cate v. Sims, 121 Mo. App. 156, 98 
 S. W. 783 (1906); Provident, etc., 
 Soc. v. Hadley, 102 Fed. 856, 861, 8 
 Sup. Ct. 1142 (1900) ; Starr v. U. S. 
 153 U. S. 614 (1893) ; Lovejoy v. U. 
 S., 128 U. S. 171, 173, 9 Sup. Ct. 57 
 (188S) ; Rucker v. Wheeler, 127 U. S. 
 85, 93 (1887). 
 
 11. Gambill v. Fuqua, (Ala. 1906) 
 42 So. 735; Gillespie V. Ashford, 125 
 Iowa 729, 101 N. W. 649 (1904); 
 Kamproann r. McCormick, (Tex. Civ. 
 App. 1907) 99 S. W. 1147; Chicago, 
 B. I. & M. Ry. Co. v. Harton, (Tex. 
 Civ. App. 1904) 81 S. W. 1236. 
 
535 
 
 Scintilla Does Not Prevent Order. 
 
 § 396 
 
 mitted. 12 The trial court in directing a verdict is not required to 
 specify its reasons for the order. 13 
 
 § 396. f[3] Right to the Use of Reason; Directing Ver= 
 diets); Scintilla of Evidence Not Sufficient. — It is not at the 
 
 present day sufficient to prevent ordering a verdict that the party 
 against whom the ruling is asked may have been able to furnish 
 some little evidence in support of his contention. 1 Before the 
 firm establishment in the modern law of evidence of the require- 
 ment that all branches of the judicial tribunal should act in 
 obedience to the rules of reason, any evidence offered by a party 
 must be submitted to the jury, whether the judge could or could 
 not see any rational purpose for which they might use it. The 
 earlier law allowed the jury to act if a scintilla 2 of proof were 
 furnished; and the same proposition is still occasionally an- 
 nounced. 3 In general, however, it is well settled that a scintilla 
 is no longer sufficient; 4 as very fully appears in the statement of 
 
 12. Missouri Real Estate Syndicate 
 v. Sims, 121 Mo. App. 156, 98 S. W. 
 7S3 (1906). 
 
 13. Owens v. San Pedro, L. A. & S. 
 L. R. Co., (Utah 1907) 89 Pac. 825. 
 
 1. Offutt v. Columbian Exposition, 
 175 111. 472, 51 N. E. 651 (1898); 
 Simmons v. Chicago & Tomah Rail- 
 road Co., 110 111. 340 (1884). 
 
 2. A spark; a remaining particle; 
 the least particle. The doctrine that 
 where there is any evidence, however 
 slight, tending to support a material 
 issue, the case must go to the jury, 
 since they are the exclusive judges of 
 the weight of the evidence. Black., 
 Law Diet. 
 
 3. Louisville, H. & St. L. Ry. Co. v. 
 Hall, 29 Ky. Law Rep. 584, 94 S. W. 
 26 (1906); McFarland's Adm'r v. 
 Harbison & Walker Co., 82 S. W. 430, 
 26 Ky. L. Rep. 746 (1904). 
 
 4. Georgia. — Carter v. Central of 
 Georgia Ry. Co., 3 Ga. App. 222, 59 
 S. E. 603 (1907). 
 
 Illinois. — Nolan v. Morris, 108 111. 
 App. 261 (1903). 
 
 Indiana. — Gipe v. Pittsburgh, etc., 
 Ry. Co., 82 N. E. 471 (1907). 
 
 Maryland. — Vogele.r v. Devries, 56 
 Atl. 782 (1904). 
 
 Nebraska. — Weed v. Chicago, St. 
 
 P., M. & O. Ry. Co., 99 N. W. 827 
 (1904). 
 
 North Carolina. — Butts v. Atlantic 
 & N. C. R. Co., 45 S. E. 472 (1903). 
 
 Pennsylvania. — Cromley v. Penn- 
 sylvania R. Co., 211 Pa. 429, 60 Atl. 
 1007 (1905). 
 
 Texas. — Harpold v. Moss, 106 S. 
 W. 1131 (1908) [judgment reversed 
 (Suppl.) 109 S. W. 928]. 
 
 West Virginia. — Dye v. Corbin, 53 
 S. E. 147 (1906). 
 
 United States. — New York Cent. & 
 n. R. R. Co. v. Difendaffer, (111. 
 1303) 125 Fed. 893. While in a civil 
 case, where plaintiff is supported 
 solely by circumstantial evidence, the 
 sufficiency thereof is for the jury ; yet 
 before there is any evidence for the 
 jury's consideration, the circum- 
 stances must in some appreciable de- 
 gree tend to establish the conclusion 
 claimed. Georgia Ry. & Electric Co. 
 v. Harris, 1 Ga. App. 714, 57 S. E. 
 1076 (1907). It is not, however, 
 error to submit a question of fact to 
 the jury under proper instructions, 
 where there is evidence, however 
 alight, reasonably tending to support 
 the proposition. Snyder v. Stribling, 
 18 Okla. 168, 89 Pac. 222 (1907). 
 
397 
 
 A. Pkotect Substantive Eights. 
 
 536 
 
 the modern rule which is now to be considered. The question 
 under the present development of the law is correctly stated by 
 Meade, J. : 5 "Applying the maxim de minimis non curat lex, when 
 we say that there is no evidence to go to the jury we do not mean 
 that there is literally none, but that there is none which ought 
 reasonably to satisfy the jury that the fact sought to be proved is 
 established." 6 It is, indeed, quite frequently said that a verdict 
 cannot be ordered if there is any evidence. 7 But this is not the 
 real meaning of those who announce the rule. It should be com- 
 pleted by adding to the words " any evidence " the phrase " from 
 which the jury might reasonably find in its favor." 8 
 
 § 397. ([3] Right to the Use of Reason; Directing Ver- 
 dicts); Motion Equivalent to a Demurrer to Evidence. — 
 
 A motion to direct a verdict is in effect a demurrer to the evi- 
 dence of the opposing party ; and in passing on the same the court 
 should consider as established all the facts proved and all in- 
 ferences which can be logically and reasonably drawn from the 
 evidence submitted by the party against whom the order is asked. 1 
 
 5. Jewell v. Parr, 13 C. B. 909, 916 
 
 (1353). 
 
 6. Wheelton v. Hardisty, 8 E. & 
 B. 232, 262 (1857). "It is not 
 enough to say that there was some 
 evidence. . . A scintilla of evi- 
 dence . . clearly would not justify 
 the judge in leaving the case to the 
 jury. There must be evidence on 
 which they might reasonably and 
 properly conclude " that the necessary 
 fact was established. Toomey v. 
 London, etc., Ry. Co., 3 C. B. (N. S.) 
 146, 150, per Williams, J. (1857). 
 
 7. Florida. — Jacksonville Electric 
 Co. r. Sloan, 42 So. 516 (1906). 
 
 Georgia. — Davis v. Albritton, 127 
 Ga. 517, 56 S. E. 514 (1906). 
 
 Idaho. — Idaho Comstock Min. & 
 Mill Co. v. Lundstrum, 74 Pac. 975 
 (1903). ' 
 
 Illinois. — Frank Parmelee Co. v. 
 Wheelock, 224 111. 194, 79 N. E. 652 
 (1906) ; Chicago & J. E. Ry. Co. v. 
 Muff, 122 111. App. 183 (1906); 
 Kellyville Coal Co. v. Strine, 217 HI. 
 516, 75 N. E. 375 (1905); Chicago 
 City Ry. Co. v. McCaughna, 216 111. 
 
 202, 74 N. E. 819 (1905) [affirming 
 judgment 117 111. App. 538]. 
 
 Indiana. — Indianapolis Traction & 
 Terminal Co. v. Romans, 79 N. E. 
 1068 (1907). 
 
 Kentucky. — Provident Sav. Life 
 Assur. Soc. r. Johnson, 99 S. W. 
 1159, 30 Ky. L. Rep. 1031 (1907) ; 
 Smith v. Park's Adm'r, 80 S. W. 
 1167, 27 Ky. L. Rep. 351 (1905). 
 
 Nebraska. — Continental Lumber 
 Co. v. Ed. Munshaw & Co., 109 N. 
 W. 760 (1906). 
 
 South Carolina. — Koon V. South- 
 ern By., 69 S. C. 101, 48 S. E. 86 
 (1904). 
 
 Vermont. — Scofield's Adm'x i\ Met- 
 ropolitan L. Ins. Co., 79 Vt. 161, 
 64 Atl. 1107 (1906). 
 
 8. Hillsborough Grocery Co. v. Le- 
 man, (Fla. 1906) 40 So. 680. 
 
 1. District of Columbia. — Ubhoff v. 
 Brandenburg, 26 App. Cas. 3 (1905). 
 
 Illinois. — Gibson v. Fidelity & 
 Casualty Co., 232 111. 49, 83 N. E. 
 539 (1908); McKenzie Furnace Co. 
 v. Mailers, 231 111. 561, 83 N. E. 
 451 (1908); Village of Montgomery 
 
537 
 
 All Intendments foe Adverse Paety. 
 
 397 
 
 A motion thai a case be withdrawn from the jury admits the truth 
 of all evidence introduced in the opponent's behalf and all the 
 inferences which may be properly drawn therefrom. 2 The court, 
 therefore, will take that view of the evidence most favorable to the 
 party against whom the instruction is asked. 3 It follows that 
 
 v. Robertson, 229 111. 466, 82 N. E. 
 396 (1907) ; Illinois Cent. R. Co. v. 
 McCollum, 122 111. App. 531 (1905) ; 
 B. Shoninger Co. v. Mann, 219 111. 
 242, 76 N. E. 354 (1905); Birch V. 
 Charleston Light, Heat & Power Co., 
 
 113 111. App. 229 (1903). 
 Indiana. — Hall v. Terre Haute 
 
 Electric Co., 76 N. E. 334 (1905). 
 
 Iowa. — Hansen v. Kline, 113 N. W. 
 504 (1907); Hartman v. Chicago G. 
 W. Ry. Co., 110 ST. W. 10 (1906); 
 Meadows v. Ins. Co., 67 Iowa 57, 24 
 N. W. 591 (1885). 
 
 Kansas. — Avery ». Union Pac. R. 
 Co., 85 Pac. 600 (1906). 
 
 Kentucky. — Hobbs v. Ray, 96 S. 
 W. 589, 29 Ky. L. Rep. 999 (1906) ; 
 Southern Ry. Co. in Kentucky v. 
 Goddard, 28 Ky. L. Rep. 523, 89 
 S. W. 675 (1905). 
 
 Maryland. — Acker, Merrall & Con- 
 dit Co. v. McGaw, 106 Md. 536, 68 
 Atl. 17 (1907) ; United Rys. & Elec- 
 tric Co. of Baltimore v. Weir, 62 
 Atl. 588 (1905). 
 
 Mississippi. — Alexander v. Zeigler, 
 36 So. 536 (1904). 
 
 Nebraska. — Harris v. Lincoln Trac- 
 tion Co., 111. N. W. 580 (1907) ; 
 McLean v. Omaha & C. B. Ry. & 
 Bridge Co., 103 N. W. 285 (1905). 
 
 "New Jersey. — Underfeed Stoker 
 Co. v. Hudson County Consumers' 
 Brewing Co., 58 Atl. 296 (1904). 
 
 New York. — Hirsch v. American 
 Dist. Tel. Co., 90 N. Y. Suppl. 464 
 (1904). 
 
 North Carolina. — Harton v. Forest 
 City Telephone Co., 59 S. E. 1022 
 (1907). 
 
 North Dakota. — Nystrom v. Lee, 
 
 114 N. W. 478 (1907). 
 Wisconsin.-— McCune v. Badger, 
 
 105 N. W. 667 (1905). The court 
 
 is bound to accept as true all the 
 facts which the evidence tends to 
 prove, and to draw against the party 
 requesting such instruction all in- 
 ferences which the jury might reason- 
 ably draw, and in case of a conflict 
 in the evidence consider only that 
 evidence available to the party 
 against whom the instruction is 
 asked. Roberts v. Terre Haute Elec- 
 tric Co., (Ind. App. 1906) 76 N. E. 
 895. The true question is, is there 
 any evidence in the case which, if 
 true, with all the inferences and in- 
 tendments reasonably to be drawn 
 from it, would have tended to sup- 
 port a verdict for the plaintiff? 
 This question is to be considered, 
 leaving entirely out of view the effect 
 of all modifying or countervailing 
 evidence. Ware v. Illinois Cent. R. 
 Co., 119 111. App. 456 (1905). On 
 a motion for a peremptory instruc- 
 tion for defendant, the case must be 
 considered solely on plaintiff's evi- 
 dence. J. I. Case Threshing Maeh. 
 Co. v. Sanford, 97 S. W. 805, 30 Ky. 
 L. Rep. 188 (1906). 
 
 2. Lane v. Yoemen of America, 125 
 111. App. 406 (1905). 
 
 3. Birmingham Rolling Mill Co. v. 
 Rockhold, 143 Ala. 115, 42 So. 96 
 (1904); Schillinger Bros. Co. v. 
 Smith, 225 111. 74, 80 N. E. 65 
 (1907) ; Hanley v. West Virginia 
 Cent. & P. Ry. Co., (W. Va. 1906) 
 53 S. E. 625; Detroit Southern R. 
 Co. v. Lambert, 150 Fed. 555, 80 
 C. C. A. 357 (1907) ; Jenkins & Rey- 
 nolds Co. v. Alpena Portland Cement 
 Co., 147 Fed. 641, 77 C. C. A. 625 
 (1906); Williams v. Choctaw, O. & 
 G. R. Co., (Tenn.) 149 Fed. 104, 79 
 C. C. A. 146 (1906) ; McGuire v. 
 Blount, 199 U. S. 142, Adv. S. U. S. 
 
§ 398 
 
 A. Pbotect Substantive Eights. 
 
 538 
 
 where each party requests a direction of a verdict in his favor, 
 the court must exercise the functions of a jury in determining 
 questions of fact and in drawing inferences warranted by the evi- 
 dence. 4 In so doing, the judge may adopt as true the statement 
 of any witness or set of witnesses. 5 A motion by each party that 
 a verdict be directed in his favor is not a waiver, if the motions 
 are disallowed, of the right to have the facts passed upon by the 
 jury, and to submit them to a judge. 6 
 
 § 398. (13] Right to the Use of Reason; Directing Ver- 
 dicts) ; Direction Against the Actor. — Frequently this power of 
 the court is employed against the party having the burden of proof 
 on the issue, the actor. As was said in Ryder v. Womhwell, and 
 cited with approval in later cases, 2 " There is, in every case . . . 
 a preliminary question which is one of law, viz., whether there is 
 any evidence on which the jury could properly find the question 
 
 1, 26 S. Ct. 1, 50 L. ed. 142 (1905). 
 Only evidence tending to prove the 
 opponent's case is considered; and it 
 matters not from which party to the 
 cause the evidence comes. Nothing 
 in rebuttal of opponent's case is to 
 be considered. There is to be no 
 weighing of proof on the respective 
 sides. Chicago, P. & St. L. Ry. Co. 
 v. Condon, 121 111. App. 440 (1905). 
 4. Dilcher v. Nellany, 52 Misc. 
 
 (N. Y.) 304, 102 N. Y. Suppl. 264 
 
 (1907); Reed V. Spear, 94 N. Y. 
 Suppl. 1007, 107 App. Div, 144 
 
 (1905) ; Baker v. D. Appleton & Co., 
 95 N. Y. Suppl. 125, 107 App. Div. 
 358 (1905) ; Cullinan v. Stein, 177 
 N. Y. 574, 69 N. E. 1122 (1904); 
 Leggat v. Leggat, 176 N. Y. 590, 68 
 N. E. 1119 (1903); Bank of Park 
 River v. Town of Norton, (N. D. 
 1903) 97 N. W. 860; Richter v. 
 Phoenix Building & Loan Co., 27 Ohio 
 Cir. Ct. R. 793 (1905); Gilligan v. 
 Supreme Council of Royal Arcanum, 
 26 Ohio Cir. Ct. R. 42 (1904) ; Swind- 
 ling v. Willey, (S. D. 1905.) 103 N. 
 W. 38. A verdict so directed is in 
 effect, that of the jury. Kennedy v. 
 City of New York, 99 N. Y. App. 
 
 Div. 588, 91 N. Y. Suppl. 588 (1904). 
 It is an election that the trial judge 
 decide any questions of fact in the 
 case. Rosenstein v. Vogemann, 102 
 N. Y. App. Div. 39, 92 N. Y. Suppl. 
 86 (1905). A motion by both parties 
 for the direction of a verdict is not 
 a waiver of a decision by the jury 
 on questions of fact, requiring the 
 court to decide the facts. National 
 Cash Register Co. v. Bonneville, 119 
 Wis. 222, 96 N. W. 558 (1903). 
 
 5. Zeller v. Leiter, 99 N. Y. Suppl. 
 624, 114 App. Div. 148 (1906). 
 
 6. Stauff v. Bingenheimer, (Minn. 
 1905) 102 N. W. 694. To the con- 
 trary effect, see Larsen v. Calder, 
 (N. D. 1907) 113 N. W. 103. See 
 also German Sav. Bank v. Improve- 
 ment Co., Ill Iowa 432, 82 N. W. 
 1005 (1900); Thompson v. Brennan, 
 104 Wis. 564, 80 N. W. 947 (1899) ; 
 German-American Bank v. Cunning- 
 ham, 97 N. Y. App. Div. 244, 89 N. 
 Y. Suppl. 836 (1904). 
 
 1. L. R. 4 Ex. 32 (necessaries for 
 an infant) (1868). 
 
 2. Bridges v. North London Ry. 
 Co., L. R. 7 H. L. 218 (1874). 
 
539 
 
 When Veedict is Dieected Against Actoe. § 398 
 
 for the party on whom the onus of proof lies. If there is not, 
 the judge ought to withdraw from the jury and direct a nonsuit 3 
 or verdict for the defendant, if the onus is on the plaintiff, 4 or on 
 the contrary direct a verdict for the plaintiff if the onus is on the 
 defendant." B The simplest situation which can be presented is 
 where the actor produces no evidence in support of his conten- 
 tion 6 or of a material portion of it, 7 evidence so slight that no 
 
 Mo. 502, 46 S. W. 268 (1898); Lit- 
 tlejohn v. Fowler, 5 Cold. (Term.) 
 284, 288 (1868). As the greater in- 
 cludes the less, where the actor does 
 not make out a prima facie case, it 
 is error to direct a verdict in his 
 favor. Moultrie Lumber Co. v. 
 Driver Lumber Co., (Ga. 1905) 49 
 S. E. 729. 
 
 5. Baxley Tie Co. v. Simpson & 
 Harper, 1 Ga. App. 670, 57 S. E. 
 1090 (1907) ; McCall v. Herring, 118 
 Ga. 522, 45 S. E. 442 (1903) ; Crosby 
 v. Wells, 73 N. J. L. 790, 67 Atl. 
 295 (1907). 
 
 6. Illinois. — Pennsylvania Co. v. 
 Canadian Pac. Ey. Co., 107 111. App. 
 386 (1903). 
 
 Indiana. — Jennings v. Ingle, 73 
 N. E. 945 (1905). 
 
 Mississippi. — Town of Flora v. 
 American Express Co., 45 So. 149 
 (1908). 
 
 Pennsylvania. — Warmcastle v. Cast- 
 ner, 34 Pa. Super. Ot. 464 (1907). 
 
 West Virginia. — La Rue v. Lee, 60 
 S. E. 388 (1908). 
 
 _ The court is only authorized to di- 
 rect a verdict for defendant when 
 there is no evidence to support some 
 material part of the plaintiff's cause 
 of action. Dill v. Marmon, (Ind. 
 App. 1904) 71 N. E. 669. 
 
 Where one of several counts of a 
 declaration is unsustained by the 
 evidence, the jury may be instructed 
 to disregard that count. Portsmouth 
 St. R. Co. v. Peed's Adm'r, 102 Va. 
 662. 47 S. E. 850 (1904). 
 
 7. Agnew v. Montgomery, (Neb. 
 1904) 99 N. W. 830. 
 
 3. See also Brooker v. Scott, 11 M. 
 & W. 67 (1843) (necessaries for an 
 infant) . 
 
 4. Illinois. — Lasher v. Golton, 126 
 111. App. 119 (1906) [affirmed in 80 
 N. E. 122 (1907)]; Bartlett v. Wa- 
 bash R. Co., 220 111. 163, 77 N. E. 
 96 (1906) ; Baltimore & O. S. W. R. 
 Co. v. H. Friend, 119 111. App. 306 
 (1905). 
 
 Kentucky. — Leamon's Adm'x v. 
 Louisville, H. & St. L. Ry. Co., 98 
 S. W. 1016, 30 Ky. L. Rep. 443 
 (1907). 
 
 Maine. — Young v. Chandler, 102 
 Me. 251, 66 Atl. 539 (1906). 
 
 Missouri. — Matousek v. Bohemian 
 Roman Catholic First Cent. Union, 
 U. S. A., 192 Mo. 588, 91 S. W. 538 
 (1905). 
 
 Nebraska. — Kielbeck v. Chicago, 
 B. & Q. R. Co., 97 N. W. 750 (1903). 
 
 New York. — Romaine v. New York, 
 N. H. & H. R. Co., 86 N. Y. Suppl. 
 248, 91 App. Div. 1 (1904). 
 
 South Carolina. — Norris v. Clink- 
 scales, 47 S. C. 488, 25 S. E. 797 
 (1896). 
 
 West Virginia. — Hi Williamson & 
 Co. v. Nigh, 53 S. E. 124 (1906); 
 Ketterman v. Ry. Co., 48 W. Va. 
 606, 37 S. E. 683 (1900). 
 
 United States. — Comm'rsof Marion 
 Co. v. Clark, 94 U. S. S78, 284 
 (1876). 
 
 Certain States forbid the court to 
 exercise this function. The ruling is 
 based upon a misconception of the 
 province of the jury. Dalton V. Pop- 
 lar Bluff, 173 Mo. 39, 72 S. W. 1068 
 (1902) ; Gannon v. Gaslight Co., 145 
 
§ 398 A. Protect Substantive Eights. 540 
 
 reasonable man could act in accordance with it; 8 or it appears 
 without contradiction that a conclusive defense to it exists. 9 
 
 The principle is the same as that which permits the judge to 
 apply the rule of law to the constituent facts when nothing re- 
 mains to be done, as to ascertaining what the latter are. 10 Where 
 the evidence is undisputed or the facts clearly established beyond 
 all reasonable doubt, the constituent facts are, in reality, found; 
 all that remains for a verdict or judgment is to apply the rule of 
 law. Doing this in itself considered and apart from the allotment 
 of function between judge and jury is a matter of law. It amounts 
 to construing the law by the facts, construing the law in terms of 
 fact ; it is, therefore, a question of law. 
 
 The propriety of a ruling withdrawing a case from the jury 
 must be decided upon the evidence, by whomever introduced, as 
 it stood at the time when the ruling was made. The facts them- 
 selves may have been introduced by either party. Thus an affirma- 
 tive case, in itself insufficient, may be saved from withdrawal 
 from the jury by evidence produced by the other side. 11 Or, on 
 the contrary, the affirmative case, apparently adequate may be 
 shown by the undisputed evidence of the adversary to be, in 
 reality, such that a jury could not reasonably find in its favor. 12 
 It has been held that a verdict will not be ordered where the evi- 
 dence is oral. 13 
 
 The lack of rational probative quality in a party's case may 
 demonstrate its existence on any given set of facts in one of two 
 ways: (1) The evidence as presented, in itself considered, may 
 be too slight in probative value to warrant affirmative action by 
 the court, i. e., it fails to so clearly establish a prima facie case 
 that no reasonable person could fail to perceive it. (2) The evi- 
 dence, while sufficient in itself to establish a prima facie case, 
 
 8. Illinois. — Continental Nat. Bank 9. Peckinpaugh v. Lamb, (Kan. 
 
 t>. Metropolitan Nat. Bank, 107 111. 1905) 79 Pac. 673 (modification). 
 
 App. 455 (1903). 10. Supra, §§ 128 et seq. 
 
 Indian Territory. — Edwards v. Bro- 11. Gagnon v. Dana, 69 N. H. 264, 
 
 naugh, 76 S. W. 294 (1903). 89 Atl. 982 (1897). 
 
 Nebraska. — Sattler v. Chicago, R. 12. Lonzer v. R. Co., 196 Pa. St. 
 
 I. & P. Ry. Co., 98 N. W. 663 (1904). 610, 46 Atl. 937 (1900). 
 
 Oklahoma. — Kentucky Refining Co. 13. Cleveland, C, C. & St. L. Ry. 
 
 i?. Purcell Cotton Seed Oil Mills, 13 Co. v. Henry, (Ind. App. 1907) 80 
 
 Okl. 220, 73 Pac. 945 (1903). N. E. 636. 
 
 Texas.— W. T. Rickards & Co. v. 
 3. H. Bemis & Co., 78 S. W. 239 
 (1903). 
 
541 
 
 Directing Veedict in Favok of Actoe. 
 
 § 399 
 
 were certain parts of the evidence omitted, yet shows also the ex- 
 istence of a legally or logically insuperable obstacle in the way 
 of the actor's recovery. In other words, should a party fail to 
 establish a prima facie case, or if his evidence shall disclose facts 
 which destroy any right of recovery, the judge should direct a 
 verdict for the opposing side. 14 
 
 § 399. ([3] Right to the Use of Reason; Directing Ver- 
 dicts) ; Direction in Favor of Actor. — By a parity of reasoning, 
 where the party having the burden of proof produces to the 
 tribunal a case so completely proved, established by such credible 
 witnesses, and beyond the range of controversy to such an extent 1 
 that the only rational course for the jury to pursue would be to 
 render a verdict in favor of it, or where the actor proves a prima 
 facie case and the nonactor introduces no evidence whatever 2 the 
 court may direct the jury to find in accordance with the evidence 
 submitted to them. 3 The same result follows where the actor, 
 
 14. Begenish v. Grates, 2 Alaska 511 
 (1905). 
 
 1. McKnight v. Parsons, (Iowa 
 1907) 113 N. W. 858. 
 
 Evidence which a party cannot dis- 
 pute because it is supplied by his 
 own witnesses has for many purposes, 
 the same effect as evidence which can- 
 not be disputed because it is true. 
 American, etc., Bank v. New York, 
 etc., Co., 148 N. Y. 698, 43 N. E. 168 
 (1896). 
 
 If a reasonable conflict of testimony 
 is presented, the ruling should be re- 
 fused. Haven v. Missouri Ry. Co., 155 
 Mo. 216, 55 S. W. 1035 (1899) (on 
 cross-examination) . 
 
 2. Georgia. — Murphy v. Davis, 122 
 Ga. 306, 50 S. E. 99 (1905); Whit- 
 ley v. Clegg, 120 Ga. 1038, 48 S. E. 
 406 (1904). 
 
 Illinois. — Village of Franklin Park 
 V. Franklin, 231 111. 380, 83 N. E. 
 214 (1907). 
 
 Missouri. — Badger Lumber Co. v. 
 Muehlebach, 109 Mo. App. 646, 83 
 S. W. 546 (1904). 
 
 New Jersey. — United States Fidelity 
 & Guaranty Co. v. Donnelly, 61 Atl. 
 445 (1905). 
 
 "New York. — Harding v. Roman 
 Catholic Church of St. Peter, 188 N. 
 Y. G31, 81 N. E. 1165 (1907)' [judg- 
 ment affirmed, 99 N. Y. Suppl. 945, 
 113 App. Div. 685 (1906)]. 
 
 South Carolina. — Uzzell v. Horn, 71 
 S. C. 426, 51 S. E. 253 (1905). 
 
 3. Georgia. — 'Williams Mfg. Co. v. 
 Warner Sugar Refining Co., 125 Ga. 
 408, 54 S. E. 95 (1906) ; MoCullough 
 v. Pritchett, 120 Ga. 585, 48 S. E. 148 
 (1904); Brown v. Drake, 109 Ga. 
 179, 34 S. E. 309 (1899). 
 
 Illinois. — Marshall v. Gross, etc., 
 Co., 184 111. 421, 56 N. E. 807 (1900). 
 
 Missouri. — Stone v. Grand Lodge 
 A. O. U. W. of Missouri, 117 Mo. App. 
 295, 92 S. W. 1143 (1906). 
 
 New York. — Harding v. Roman 
 Catholic Church of St. Peter, 99 N. Y. 
 Suppl. 945, 113 App. Div. 685 (1906) ; 
 People v. Cook, 8 N. Y. 67, 74 (1853). 
 
 United States. — Leach v. Burr, 188 
 U. S. 510, 23 Sup. 393 (1902); 
 Union Pacific Ry. Co. v. McDonald, 
 152 U. S. 262, 284, 14 Sup. 619 
 (1893); Delaware, etc., Ry. Co. v. 
 Converse, 139 U. S. 469, 472, 11 Sup. 
 569 (1890). 
 
§ 399 A. Protect Substantive Eights. 542 
 
 having established a prima facie case, the nonaetor introduces no 
 evidence,* or such evidence as is produced is of such slight logical 
 bearing as to show no tendency to offset the case made out by the 
 actor, 5 or is inadmissible under the rules of evidence. 6 Where 
 the nonaetor admits the actor's claim 7 or relies on a defense bad 
 in law, the same order should be made. In reality, however, the 
 rules directing verdicts against the party having the affirmative 
 of the issue or in his favor are merely aspects of the same func- 
 tion of the court to enforce the rules of reason. 
 
 The contrary view has been strongly maintained in North 
 Carolina. 8 
 
 Actor May Be Either Plaintiff or Defendant. — The order di- 
 recting a verdict may be in favor of either plaintiff or defendant. 
 Indeed, whether the ruling in certain cases of verdicts ordered for 
 defendants, as, for example, those involving contributory negli- 
 gence, 9 takes this form, or that of nonsuiting the plaintiff on ac- 
 count of the strength of the defendant's case, depends on 
 whether the particular defense is in that jurisdiction regarded as 
 affirmative or negative. The evidence, by reason of which the 
 ruling was made, may be introduced by the party against whom 
 the judge is ruling, either as his own evidence in chief, or it may, 
 on the contrary, have been elicited against him on a cross-exam- 
 ination, conducted by his adversary. 10 
 
 4. De Witt County v. Spaulding, ment of an attempted defense. Dan- 
 Ill III. App. 364 (1903) ; Polhemus ziger v. Pittsfield Shoe Co., 107 III. 
 v. Prudential Realty Corp., (N. J. App. 47 (1903). 
 
 1907 ) 67 Atl. 303. 6. National City Bank of New York 
 
 5. Nebraska-— Henry V. Dussell, 99 v. Pacific Co., 117 N. Y. App. Div. 12, 
 N. W. 484 (1904). 101 N. Y. Suppl. 1098 (1907) (opin- 
 
 New Hampshire. — Boston & M. B. ion). 
 
 B. v. Sargent, 72 N. H. 455, 57 Atl. 7. Tilley v. Cox, 119 Ga. 867, 47 
 
 688 (1904). S. E. 219 (1904) ; McCormick V. Gub- 
 
 Mi'ssoun.— Poindexterfl. McDowell, ner, 90 N. Y. Suppl. 1073 (1904). 
 
 110 Mo. App. 233, 84 S. W. 1133 8. Anniston, etc., Bank V. Commit- 
 
 (1905). tee, 121 N. C. 106, 109, 28 S. E. 134 
 
 New York.— Mitterwallner v. Su- (1897); Eller v. Church, 121 N. C. 
 
 preme Lodge of Knights & Ladies of 269, 28 S. E. 364 (1S97). But see 
 
 Golden Star, 90 N. Y. Suppl. 1076 Neal V. By. Co., 126 N. C. 634, 36 
 
 (1904). S. E. 117 (1900). 
 
 West Virginia.— Kuykendall v. 9. Neal v. By. Co., 126 N. C. 634, 
 
 Fisher, 56 S. E. 48 (1906). 36 S. E. 117 (1900). 
 
 Conversely, moving for verdict, in 10. American Exchange Bank r. 
 
 a certain sum, for the actor is an ad- New York, etc., Co., 148 N. Y. 698, 
 
 mission of liability and an abandon- 43 N. E. 168 (1896). 
 
543 Caution in Directing Vebdict on Opening. §§ 400, 401 
 
 In a criminal case the court is not at liberty to order a verdict 
 for the prosecution. 11 
 
 § 400. ([3] Right to the Use of Reason; Directing Ver*. 
 diets); Time for Making Motion. — When the original case of the 
 actor ia closed, the nonactor may test its sufficiency by a request 
 to direct a verdict in his own favor. 1 On the other hand, the 
 court may postpone the decision of the motion until all the evi- 
 dence is introduced by both sides. 2 The matter is one of adminis- 
 tration ; 3 — largely concerned at all times, with the expediting of 
 trials.* It is too late to move for a verdict after the stage of argu- 
 ment and among the requests for rulings and instructions by the 
 court to the jury. 5 On the other hand, the judge may perceive 
 that, assuming everything the party asking relief alleges in 
 his pleadings to be true, there is no aspect of the matter in which 
 he is entitled to recover. If so, the court may suggest the diffi- 
 culty, sua sponte and entertain a motion to direct <a verdict. 6 When 
 such a motion is made, the party will be regarded as entitled to 
 have every allegation of fact taken most .strongly in his favor and 
 to the benefit of every fair presumption which may be implied 
 therefrom. 7 
 
 § 401. C[3] Right to the Use of Reason; Directing Ver- 
 dicts; Time for Making Motion); Direction on Opening. — 
 
 An administrative device of occasional value in expediting 
 causes is for the presiding judge to rule, sua sponte, or on request, 
 at the close of the opening to the jury made by the actor's counsel, 
 that the jury could not, on these facts, find in his favor. Great 
 care must, however, be exercised by the court in seeing that the 
 course does not foreclose the party from the use of any probative 
 
 11. People v. Warren, 122 Mich. 4. Infra, §§ 544 et seq. 
 
 541, 81 N. W. 360 (and cases cited) 5. Ewen v. Wilbor, 208 111. 492, 70 
 
 (1899) ; Sparf v. U. S., 156 U. S. 51, N. E. 575 (1904) [affirming 99 111. 
 
 177, 15 Sup. 273 (1894). But see App. 132 (1901)]; Foy v. City of 
 
 contra, Com. v. Magee, 12 Cox Cr. 549 Winston, 135 N. C. 439, 47 S. E. 
 
 (1873). 466 (1904). 
 
 1. Grooms v. Neff Harness Co., 6. Robinson Humphrey Co. v. Wil- 
 (Ark. 1906) 96 S. W. 135. See also cox County, 129 Ga. 104, 58 S. E. 
 Crean v. McMahon, 106 Md. 507, 68 644 (1907). 
 
 Atl. 265 (1907). 7. Locker v. American Tobacco Co., 
 
 2. White v. Wilmington City Ry. 106 N. Y. Suppl. 115, 121 App. Div. 
 Co., (Del. Super. 1906) 63 Atl. 931. 443 (1907). 
 
 3. Oates v. Union R. Co., 27 R. I. 
 499, 63 Atl. 675 (1906). 
 
§ 402 A. Peotect Substantive Eights. 544 
 
 fact or argument The actor must be given an opportunity for 
 deliberation, for reviewing and reinforcing his statement. Every 
 legitimate inference which can rationally be drawn in his favor 
 should be placed on his side of the scales. If, after all suitable 
 administrative precautions against injustice have been taken, the 
 court still feels that the jury could not rationally find in favor 
 of the actor's contention, the judge may properly order a verdict 
 against the actor on his own statement of it. But it must affirma- 
 tively be made plain that the actor has no case. 1 The power of the 
 court has even been denied ; — it having been held that in a case 
 not founded on a corrupt cause of action, the trial judge has no 
 power, after issue joined, to direct a verdict solely on the insuf- 
 ficiency of the opening statement of the attorney for the plaintiff. 2 
 
 § 402. ([3] Right to the Use of Reason; Directing Ver- 
 
 dicts) ; Party Moving May Be Required to Rest By analogy to 
 
 the rule employed by the court in dealing with demurrers to evi- 
 dence, 1 a party moving that the action be withdrawn from the 
 jury should rest his case, introducing no evidence. It was early 
 contended that by introducing evidence on his own behalf a party 
 waived the right to make a motion to withdraw. 2 "While this has 
 not prevailed generally, 3 time of passing upon a motion to with- 
 draw from the jury is clearly a question of administration, and 
 the presiding judge may decline to act on such a motion until after 
 the entire evidtenee has been introduced, 4 unless the party moving 
 
 1. Brown v. District of Columbia, 46 Atl. 337 (1900) ; State v. Groves, 
 29 App. D. C. 373 (1907). Where U9 N. C. 822, 824, 25 S. E. 819 
 in an action for -wrongful death, the (1896) ; Purnell r. Ry. Co., 122 X\ C. 
 opening statement of plaintiff's case 832, 835, 29 S. E. 953 (1898). But 
 by her counsel was defective only in -see North Carolina Stat. 1899, c. 131. 
 that it fell short of stating facts suf- 3. Stephen v. Scott, 43 Kan. 285 
 firient to warrant plaintiff's recovery, j(1890) ; Weber v. Kansas City, etc., 
 but no fact indicating a complete de- Co., 100 Mo. 194, 12 S. W. 804, 13 
 fense, or showing affirmatively that S. W. 587 (1S89). "The defendant, 
 there was no cause of action, was by putting in its evidence took the 
 stated, it was error to direct a final chance of aiding the plaintiff's case; 
 judgment on the merits for defendant but it is not thereby deprived of the 
 on such statement. Bedding r. Puget right to ask the court to direct a 
 Sound Iron & Steel Works, 36 Wash. verdict on all of the evidence." Weber 
 642, 79 Pac. 308 (1905). r. Kansas City, etc., Co., 100 Mo. 194 
 
 2. Martin Emerich Outfitting Co. v. (1889). 
 
 Siegel, Cooper & Co., 108 111. App. 4. Kaley r. Van Ostrand, (Wis. 
 
 364 (1903). 1908) 114 N. W. 817; Robertson V. 
 
 1. Supra, §§ 139 et seq. Perkins, 129 U. S. 233 (1888) ; North 
 
 2. Barabasz v. Kabat, 91 Md. 53, Pacific Ry. Co. v. Mares, 123 U. S. 
 
545 
 
 Postponing Motion Until End of Case. 
 
 § 402 
 
 shall be willing to rest his case, foregoing the privilege of intro- 
 ducing evidence on his own behalf. 5 
 
 It follows that a party may not only, as of right, i. e., with the 
 privilege of having the ruling reviewed in an appellate tribunal, 
 should he rest, move to withdraw the issue at the close of his ad- 
 versary's evidence, 6 he may, when such a motion, made at the close 
 of his opponent's case, has been denied, or when he has neglected 
 to make it at that time, 7 still offer or renew the early motion 
 to withdraw at the close of all the evidence. 8 In this event, he is> 
 neither entitled to assign the previous denial as error, 9 nor com- 
 plain that the evidence introduced subsequent to the original 
 making of the motion has so altered the complexion of the case 
 that the order which should properly have been granted at the 
 earlier stage is correctly refused at the later. 10 
 
 An administrative advantage to the cause of justice results 
 from suspending a ruling until the close of the entire evidence. 
 
 710 ( 1887 ) ; Accident In8. Co. V. 
 Crandal, 120 U. S. 527 (1886) . " The 
 question of the sufficiency of the evi- 
 dence for the plaintiff to support his 
 action cannot be considered by this 
 court. It has repeatedly been decided 
 that a request for a ruling that upon 
 the evidence introduced the plaintiff 
 is not entitled to recover cannot be 
 made by the defendant, as a matter 
 of right, unless at the close of the 
 whole evidence; and that if the de- 
 fendant, at the close of the plaintiff's 
 evidence, and without resting his 
 own case, requests and is refused 
 such a ruling, the refusal cannot be 
 assigned for error." Columbia, etc., 
 Ry. Co. v. Hawthorne, 144 U. S. 202 
 (1891). 
 
 5. Columbia, etc., Ry. Co. v. Haw- 
 thorne, 144 U. S. 202 (1891) ; Grand 
 Trunk Ry. Co. v. Cummings, 106 U. 
 S. 700 (1882). 
 
 6. Nashville Ry. & Light Co. v. 
 Henderson, (Tenn. 1907) 99 S. W. 
 700. 
 
 7. Gardner v. Porter, (Wash. 1906) 
 88 Pac. 121. 
 
 8. Frye & Bruhn v. Phillips, (Wash. 
 1908) 93 Pac. 668 [judgment modi- 
 fied on rehearing 89 Pac. 559 (1907)] ; 
 First Nat. Gold Min. Co. of New York 
 
 Vol. I. 35 
 
 & Colorado «. Altwater, 149 Fed. 393, 
 79 C. C. A. 213 (1906). 
 
 9. Columbia Ry. Co. v. Hawthorne, 
 144 U. S. 202, 12 Sup. 591 (1891). 
 
 10. Illinois. — Ames, etc., Co. V. 
 Strachurski, 145 111. 192, 195, 34 N. 
 E. 48 (1893) ; Joliet, etc., Ry. Co. v. 
 Velie, 140 111. 59, 26 N. E. 1086 
 (1892). 
 
 Maryland. — New York, etc., Ry. Co.. 
 V. Jones, 94 Md. 24, 59 Atl. 423 
 (1901); Barabasz v. Kabot, 91 Md. 
 53, 46 Atl. 337 (1900). 
 
 Missouri. — Klockenbrink v. Ry. Co., 
 172 Mo. 678, 72 S. W. 900 (1902) ; 
 Weber v. Kansas City Co., 100 Mo. 
 194, 12 S. W. 804, 13 S. W. 587 
 (1889). 
 
 New York. — Sigua Iron Co. v. 
 Brown, 171 N. Y. 488, 64 N. E. 194 
 (1902). 
 
 United States. — Columbia, etc., Ry. 
 Co. v. Hawthorne, 144 U. S. 202, 12 
 Sup. 591 (1891); Walton v. Wild 
 Goose, etc., Co., 123 Fed. 209, 60 
 C. C. A. 155 (1903) ; McCrea v. Par- 
 sons, 112 Fed. 917, 50 C. C. A. 612 
 (1902). 
 
 In North Carolina the original error 
 may be reviewed. Purnell v. Ry. Co., 
 122 N. C. 832, 29 S. E. 953 (1898). 
 
§ 403 A. Protect Substantive Eights. 546 
 
 It is always possible that an original case, imperfectly and un- 
 skilfully presented on the evidence in chief, may be strengthened 
 by accessions of fact or argument from the evidence designed to 
 complete its overthrow, 11 or on the stage of rebuttal. In judging 
 at the end of all the evidence, facts and arguments may well be 
 considered as they bear on the case of the party against whom the 
 ruling is asked, though furnished by his opponent — • the moving 
 party. 12 If the subsequent evidence has added nothing to the 
 strength of the original case, and it would not have been proper 
 to have directed a verdict at the close of the original case, it would 
 not be right to make such an order 'at the close of all the evi- 
 dence. On the contrary, if it would have been proper to have 
 so instructed at the close of the original case, a second motion 
 for such an order, made at the close of all the evidence, should 
 be allowed. 13 
 
 § 403. f[3] Right to the Use of Reason; Directing Ver- 
 diets) ; Nominal or Actual Verdicts — If the reason for directing 
 a verdict against the actor be the weakness of his case, the proper 
 verdict is one of nonsuit 1 or default; especially where the non- 
 actor produces no sufficient evidence in support of his own con- 
 tention. 2 On the other hand, should the result be due to the 
 affirmative strength of the nonactor's case, he is entitled to a 
 verdict in his own favor. Thus, where at the close of the evi- 
 dence the court reached a conclusion favorable to defendant, who 
 moved for dismissal, a verdict for defendant should have been 
 directed, and a direction to return a " verdict of nonsuit " was 
 
 11. Fields v. Missouri Pao. Ry. Co., App. 196 (1906); Dow v. Kansas 
 (Mo. App. 1905) 88 S. W. 134. Plain- City Southern Ry. Co., 116 Mo. App. 
 tiff's failure to make out a. prima 555, 92 S. W. 744 (1906). 
 
 facie case does not preclude him from 1. Caudell v. Southern Ry. Co., 2 
 
 going to the jury, where defendant Ga. App. 479, 58 S. E. 689 (1907). 
 
 offers evidence which, taken in con- If, on the conclusion of plaintiff's evi- 
 
 nection with plaintiff's evidence, may dence, no prima facie case for recov- 
 
 reasonably satisfy the jury of plain- ery has been made, it is error to 
 
 tiff's right to recover. Southern Ry. direct a verdict for defendant over 
 
 Co. v. Hill, (Ala. 1905) 39 So. 987. plaintiff's objections, but a nonsuit 
 
 12. Chicago, P. St. L. Ry. Co. v. should be awarded that plaintiff may 
 Condon, 121 111. App. 440 (1905); renew his action. Equitable Mfg. Co. 
 Dow v. Kansas City Southern Ry. Co., V. J. B. Davis Co., 130 Ga. 67, 60 S. 
 116 Mo. App. 555, 92 S. W. 744 E. 262 (1908). 
 
 (1906). 2. Rothenberg v. Rosenberg, 108 N. 
 
 13. Bunnell v. Rosenberg, 126 111. Y. Suppl. 678, 57 Misc. 653 (1908). 
 
547 Waivee op Right to Have a Juey Trial. § 404 
 
 erroneous in form, 3 On the other hand, it has been held that 
 where the actor has failed to prove his case as laid and the evi- 
 dence, with all the inferences reasonably drawn therefrom is in- 
 sufficient to warrant a verdict in his favor, the judge should order 
 a verdict for the nonactor. 4 These divergent rulings may be 
 reconciled, as a matter of administration, by the consideration 
 that where the actor might, upon a new trial, reasonably hope to 
 produce a stronger case, a nominal verdict may well be ordered; 
 otherwise, a final verdict against him may properly be directed. 5 
 For a like reason a verdict should not be ordered against the actor 
 because of defects in his pleadings which mayfbe cured by 
 amendment. 6 
 
 § 404. f [3] Right to the Use of Reason; Directing Ver- 
 dicts) ; Effect of Waiver — Failure to raise a question as to the 
 sufficiency of the evidence to warrant a verdict for a particular 
 party before the evidence is closed amounts to a waiver of the 
 objection. 1 A previous request to direct a verdict does not pre- 
 clude a party from requesting to have the case submitted to the 
 jury; 2 but such a course may constitute a waiver of the motion to 
 withdraw. 3 A motion to direct a verdict in favor of the moving 
 party may, until acted upon, be itself withdrawn.* Where the 
 judge has acted on the motion, it is then too late to withdraw it 
 and ask for a jury trial. 5 An objection to a motion to direct a 
 
 3. Stumpf v. Hallahan, 185 N. Y. 825. This lias been put into the some- 
 550, 77 N. E. 1196 (1906) ; Stumpf what misleading form of saying that 
 v. Hallahan, 101 X. Y. App. Div. 383, a failure to move to dismiss the com- 
 91 N. Y. Suppl. 1062 (1905). plaint at the close of plaintiff's case, 
 
 4. Riley v. American Steel & Wire or of the whole case, is an admission 
 Co., 129 111. App. 123 (1906) ; Smith that there is a question of fact. Rapp 
 V. Chicago Junction Ry. Co., 127 111. v. Hutchinson Stair Elevator Co., 87 
 App. 89 (1906); Wamsley v. Cleve- N. Y. Suppl. 459 (1904). 
 
 land, C, etc., Ry. Co., (Ind. App. 2. Seddon v. Tagliabue, 98 N. Y. 
 
 1907) 82 N. E. 490 [rehearing denied, Suppl. 236, 50 Misc. 156 (1906). 
 
 83 N\ E. 640 (1908)]; Brunson v. 3. Chicago Union Traction Co. V. 
 
 Southwestern Development Co., (Ind. CDonnell, 113 111. App. 259 (1904) 
 
 Ter. 1907) 104 S. W. 593. [affirmed in 211 111. 349, 71 N. E. 
 
 5. Alex v. Matzke, 151 Mich. 36, 1015] ; Chicago City Ry. Co. v. Fetzer, 
 115 N. W. 251, 14 Detroit Leg. N. 955 113 111. App. 280 (1904). 
 
 (1908). 4. Cravath v. Baylis, 99 N. Y. 
 
 6. Cahill v. Illinois Cent. R. Co., Suppl. 973, 113 App. Div. 666 (1906). 
 (Iowa 1908) 115 N. W. 216. 5. Solomon v. Levine, 54 Misc. (N. 
 
 1. Elwell v. Roper, 72 N. H. 585, Y.) 270, 104 N. Y. Suppl. 443 (1907); 
 58 Atl. 507 (1904); Jordan V. City Simpson v. Hefter, 43 Misc. (KT. Y.) 
 of Philadelphia, (Pa. 1903) 125 Fed. 608, 88 N. Y. Suppl. 282 (1904). The 
 
§ 405 A. Protect Substantive Rights. 548 
 
 verdict prevents a waiver of the right to go to the jury. 6 But, on 
 the other hand, when the excepting party states to the court, in 
 such a case, that there is only one question on which he desires 
 to go to the jury, there is a waiver of the right to have any other 
 question presented. 7 Error in denying a motion to direct a ver- 
 dict is waived, unless the motion is renewed after the taking of 
 evidence is closed. 8 
 
 Counterclaim. — Where defendant pleaded a counterclaim, and 
 on the conclusion of plaintiff's evidence procured an order direct- 
 ing a verdict for defendant on plaintiff's cause of action, he is not 
 entitled thereafter to introduce evidence of his counterclaim, as 
 the order concluded the trial, and defendant by moving for a 
 directed verdict waived a hearing on his counterclaim. 9 
 
 § 405. f [3] Right to the Use of Reason; Directing Ver- 
 diets); Action of Appellate Courts. — The order directing a ver- 
 dict being a ruling on matter of law 1 the appellate court may pass 
 upon it as upon other questions of a legal nature. 2 Where it has 
 been ruled by the trial court that there is no sufficient evidence 
 to support a verdict for the actor and the appellate .court differs 
 in opinion, error may be declared. In the same way, if the trial 
 court has ordered a verdict for the actor and the appellate court 
 is of opinion, as matter of law, that the conclusion is not a rational 
 one, it is also not a legal one, and will be deemed erroneous. 3 
 Where a trial court in directing a verdict assumes or decides a 
 material fact on which a different conclusion might legitimately 
 be reached on the testimony, the resulting judgment will be set 
 
 withdrawal is not too late if made 7. Wood v. Rairden, 97 N. Y. Suppl. 
 after the judge says what verdict he 735, 111 App. Div. 303 (1906). 
 will order but before the verdict has 8. Bernheimer Bros. v. Becker, 102 
 been returned by the jury or recorded. Md. 250, 62 Atl. 526 (1905); Gar- 
 Brown v. Joy S. S. Co., 55 Miac. (N. land v. Keeler, (N. D. 1906) 108 N. 
 Y.) 201, 105 N. Y. Suppl. 81 (1907). W. 484. 
 
 After both parties have moved for a 9. Miller v. McGannon, (Neb. 1907) 
 
 directed verdict, and the court has 113 N. W. 170. 
 
 announced its decision, a party can- 1. Supra, §§ 394. 
 
 not demand the submission of the case 2. Sunderland v. Cowan, (Md. 1907) 
 
 to the jury, and assign error upon 67 Atl. 141. 
 
 the court's refusal. Insurance Co. of 3. Montelius v. Montelius, 209 Pa. 
 
 North America v. Wisconsin Cent. Ry. St. 541, 58 Atl. 910 (1904); Mc- 
 
 Co., (Wis. 1905) 134 Fed. 794, 67 Comb v. Baskerville, (S. D. 1906) 106 
 
 C. C. A. 300. N. W. 300. 
 
 6. Wood v. Rairden, 97 N. Y. Suppl. 
 735, 111 App. Div. 303 (1906). 
 
549 1 Judge as Juby Dibecting Veedicts. §§ 406, 407 
 
 aside. 4 An arbitrary judgment of dismissal rendered before trial 
 of the issue presented, will be reversed on appeal. 5 Where, how- 
 ever, action in favor of the claim would be unreasonable, as where 
 gross laches has intervened, the judge may be justified in adopt- 
 ing the course, as the only available one. 
 
 § 406. (£3] Right to the Use of Reason; Directing Ver- 
 dicts; Action of Appellate Courts); Effect of Rulings on Evi- 
 dence. — The irrationality of finding in favor of a given conten- 
 tion may have been caused by the fact that the presiding judge 
 has made rulings which have had the effect of excluding impor- 
 tant portions of the party's proof. This circumstance is imma- 
 terial so far as the trial court is concerned, in passing on the 
 motion to withdraw. For the purposes of a motion to direct a 
 verdict, rulings had in connection with the introduction of evi- 
 dence must be regarded as the law of the case. 1 But in an appel- 
 late court these rulings on the admissibility of evidence are them- 
 selves open, in most cases, to review. An order, holding erroneous 
 a rejection of important evidence, may involve in it the ruling of 
 the trial court directing a verdict against a contention which was 
 rendered irrational, i. e., illegal of adoption, as the basis of the 
 court's action by reason of the rejection. The trial judge may 
 anticipate the action of the appellate court by refusing to consider 
 in ordering a verdict any evidence already improperly admitted. 2 
 
 § 407. ([3} Right to the Use of Reason); Judge Sitting as 
 a Jury. — Where a judge sits as a jury for the determination of 
 issues of fact, a party is as clearly entitled to the use by him of 
 the reasoning faculty as he would be entitled to insist upon its 
 exercise by a jury. It is not, for example, reasonable that a judge 
 so sitting should reject evidence upon a material issue on the 
 ground that it is cumulative, 1 and then deciding that issue in 
 favor of the other side. Where but one rational conclusion can 
 be drawn from the evidence a party may properly move that a 
 verdict be directed by the judge in favor of that result, as he 
 
 4. Rand v. Armm, (N. J. 1907) 2. Townsend v. Greenwich Ins. Co., 
 67 Atl. 71. 178 N. Y. 634, 71 N. E. 1140 (1904) 
 
 5. Teitelbaum v. Scheinert, 99 N. [affirming 86 N. Y. App. Div. 323, 
 Y. Suppl. 8]3 (1906). 83 N. Y. Suppl. 909 (1903)]. 
 
 6. Kavanaugh v. Flavin, 35 Mont. 1. Brown v. Cohen, 96 N. Y. Suppl. 
 133, 88 Pac. 764 (1907). 116 (1905). 
 
 1. Hamilton v. Jos. Schlitz Brewing 
 Co., (Iowa 1905) 105 N. W. 438. 
 
§§ 408, 409 A. Peotect Substantive Eights. 550 
 
 might do in a jury case. 2 If there be such evidence that a finding 
 of fact might rationally have been made in either way, it is error 
 to dismiss, summarily, the action. 3 Where there is a conflict in 
 the testimony, the court must judge, of necessity, as to the credi- 
 bility of the witnesses. 4 
 
 § 408. (4) Eight to Judgment of Court or Jury. — A party has 
 a right under the substantive law to insist not only that each 
 branch of the mixed tribunal of judge and jury shall exercise 
 correct reasoning in connection with his case — that all their acts 
 shall be reasonable or reasoned acts ; 1 his right extends to a de- 
 mand that the reasoning faculty shall be applied to any particular 
 portion of his case by that part of the tribunal to which the law 
 has assigned its consideration. In the enjoyment and exercise of 
 this right it is the administrative duty of the presiding judge to 
 protect the litigant. 
 
 In other words, the judge will require that the jury exercise 
 logical reasoning upon finding the constituent facts in a litigant's 
 case and apply legal reasoning to these constituent facts in all 
 cases where the law requires them to do so. He will refrain, so 
 far as not required by other administrative principles to do other- 
 wise, from intruding on this field of the jury. 2 
 
 § 409. ( [4] Right to Judgment of Court or Jury); Perform- 
 ance of Functions by Judge.— A party is entitled to insist upon a 
 discharge by the presiding justice of his customary judicial func- 
 tions. It is the litigant's right to ask that the court pass upon 
 the competency of evidence. 1 The judge, therefore, will exercise 
 his duty of making preliminary findings of fact ; he will not dele- 
 
 2. Foskett, etc., Co. r. Swayne, 70 miss the same without findings on the 
 Conn. 74, 38 Atl. 893 (1897) ; Lee ground that plaintiff has failed to 
 v. Callahan, 84 N. Y. Suppl. 167 establish a cause of action, except 
 ( 1903 ) . where the evidence for plaintiff would 
 
 3. Ness r. March, (Minn. 1905) 104 not have justified findings in his 
 N. W. 242; Vincent v. Means, (Mo. favor. Ness r. March, (Minn. 1905) 
 1904) 82 S. W. 96; Weisberger v. 104 N. W. 242. 
 
 Martin, 86 N. Y. Suppl. 115 (1904). 4. Miller l\ Piatt, 33 Pa. Super. 
 
 Such a ruling does not amount to a Ct. 547 (1907). 
 
 ■withdrawal by the judge from himself 1. Hupra, §§ 385 et seq. 
 
 as a jury of any portion of the evi- 2. Supra, §§ 306 et seq., 311 et seq. 
 
 dence in the case. Kansas City ex rel. 1. Com. r. Culver, 126 Mass. 464, 
 
 Neill v. Askew, 305 Mo. App. 84, 79 466 (1879) ; Bartlett r. Smith, 11 M. 
 
 S. W. 483 (1904). In an action tried & W., 483 (1843). 
 to the court, it has no right to dis- 
 
551 General Eight to Jury Trial. §§ 410, 411 
 
 gate this power to the jury. Nor will he, in general, so discharge 
 his administrative duties as to leave questions of law to them. 2 
 So the construction of a written contract cannot properly be left 
 to the jury. 3 Still, where no difference of opinion can well arise 
 as to the meaning of the rule of law, no serious administrative 
 error has been committed where the jury are referred to the law 
 rather than directed as to it. It is not error, therefore, where an 
 ordinance has been duly proved, and its terms are plain, for the 
 court to charge the jury that they are to determine what the ordi- 
 nance is, and whether it has been violated. 4 
 
 On the contrary, the judge must, when requested, rule upon 
 propositions of law submitted to him for the purpose ; 8 nor does 
 a considerable delay of a party in doing so conclude his only legal 
 right in this respect. 6 
 
 § 410. ( [4] Right to Judgment of Court or Jury) ; Waiver. — 
 
 The right of insistence upon discharge of functions by the appro- 
 priate branch of the tribunal may be waived, either expressly, 
 or by conduct. Thus, for example, the right to treat the question 
 of contributory negligence as one of law is waived where the de- 
 fendant has caused such question to be submitted to the jury as 
 one of fact. 1 
 
 § 411. C [4] Right to Judgment of Court or Jury) ; General 
 Right to Jury Trial ; Witnesses not Permitted to Reason. — It is an 
 essential part of this right to insist upon performance of judicial 
 
 2. Alabama. — Birmingham Ry., La. West Virginia. — Tracewell r. 
 
 & Power Co. v. Hayes, 44 So. 1032 Wood, County Court, 52 S. E. 185 
 
 (1907). (1905). An instruction which per- 
 
 Illinois. — Chicago, etc., Ry. Co. v. nrits the jury to determine what are 
 
 Walker, 127 111. App. 212 (1906); the material averments of the declara- 
 
 Turner V. Owen, 122 111. App. 501 tion, is erroneous as leaving to them 
 
 (1905) (contract) ; Ware v. Souders, the determination of legal questions. 
 
 120 111. App. 209 (1905). Peoria & P. Terminal Ry. v. Hoerr, 
 
 Missouri. — Carpenter v. Chicago & 120 111. App. 65 (1905). 
 
 A. Ry. Co., 119 Mo. App. 204, 95 S. 3. Standard Mfg. Co. v. Slaughter, 
 
 W. 985 (1906). 122 111. App. 479 (1905). 
 
 Montana. — Gallick v. Bordeaux, 78 4. Thomasson v. Southern Ry., '72 
 
 Pac. 583 (1904). S. C. 1, 51 S. E. 443 (1905). 
 
 New York. — Outhouse v. Baird, 106 5. Western Valve Co. v. Wells, 127 
 
 N. Y. S. 246, 121 App. Div. 556 111. App. 655 (1906). 
 
 (1907). 6. Western Valve Co. v. Wells, 127 
 
 Texas. — Ben C. Jones & Co. v. Gam- 111. App. 655 (1906) (six months). 
 
 mel-States-Man Pub. Co., 94 S. W. 1. Chicago City Ry. Co. v. Nelson, 
 
 191 (1906). 116 111. App. 609 (1904). 
 
§ 412 A. Peotect Substantive Eights. 552 
 
 function by the appropriate branch of the mixed tribunal that 
 the judge should not only protect his own province of judging 
 from invasion by the jury and himself refrain from interfering, 
 by an extension of his own province, from invading the field of 
 the jury's judicial action; he is also required to protect his own 
 reasoning function and that of the jury from invasion by the ex- 
 ercise on the part of witnesses of their reasoning faculties — their 
 '' opinions," so-called. Judges, jurors, counsel, reason, should 
 reason, must reason, correctly, for attaining sound judicial results. 
 Normally, witnesses do not reason; ' they are required not to 
 do so. Their province is to use the perceptive faculties — their 
 sense organs, and report the phenomena observed by them to the 
 judge and jury who, in accordance with their respective functions, 
 will reason with regard to such original sense impressions. An 
 ideal jury trial would exclude the use of inference by the observers 
 who testify. Any evidence which tends to supplant the reasoning 
 faculty of the jury is equally incompetent with that which oper- 
 ates to confuse or mislead them. It is, therefore, within the scope 
 of the present principle of administration that, except in case of 
 reasonable necessity, the province of the jury in drawing the final 
 inferences of fact should not be invaded by the inference, con- 
 clusions or judgment of witnesses. 1 "Whether accepted in terms 
 or not, this view largely governs the administration of the rule" 
 excluding opinion evidence. 2 
 
 § 412. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial) ; A Strongly Entrenched Right. — Entirely 
 apart from this principle of administration, which forbids wit- 
 nesses to reason, except so far as is necessary, and, in a sense, 
 behind and above it, stands the substantive right of a litigant to 
 a trial by jury. Within its appropriate scope, few of the rights 
 of a litigant are so strongly entrenched in the substantive law. 
 The original conception of the right to a trial by jury is of ancient 
 date and a matter of gradual evolution, in which no distinct steps 
 are traceable. 1 The right was claimed and conceded prior to 
 
 1. Infra, §§ 1791 et seq. Montana. — Kleinschmidt v. Dun- 
 
 2. Thayer, Prelim. Treat., 525. phy, 1 Mont. 118 (1869). 
 
 1. Colorado. — Denver v. Hyatt, 28 A'cio Jersey. — Brown v. State, 62 
 
 Colo. 129, 63 Pac. 403 (1900). N. J. L. 666, 42 Atl. 811 (1899). 
 
 Michigan. — McRae v. Grand Pap- Ohio. — Work v. State, 2 Ohio St. 
 
 ids, etc., P. Co., 93 Mieh. 399, 53 N. 296, 69 Am. Dec. 671 (1853). 
 
 W. 561, 17 L. P. A. 750 (1892). The development of the institution 
 
553 
 
 Tkial by Juey Undee Federal Constitution. § 413 
 
 Magna Charta, 2 and it was confirmed, as is commonly supposed, 
 by that famous historical document. 3 The American colonists 
 took it from England as the palladium of the liberties of English- 
 men.* No procedural right is conferred by the substantive law 
 upon a litigant with a positiveness, with an unequivocal fullness 
 equal to that which characterizes the vindication of trial by jury 
 in civil B and, to a still greater extent, in criminal ° cases. Espe- 
 cially noticeable is this feature of the written constitutions, state 7 
 and national, 8 and statutory legislation of the states of the Ameri- 
 can Union. It would almost seem that a sacred and solemn effi- 
 cacy, some sure guaranty of automatic and self -created justice, 
 was anticipated from the use of the time-honored formulary — 
 " the right to trial by jury shall never be questioned." 
 
 § 413. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial) ; Federal Constitution. — The provisions of 
 the Constitution of the United States relating to the right to trial 
 by jury, extend only to common law actions in the federal 
 courts. 1 The constitutional guaranty does not apply to causes in 
 
 of trial by jury and the nature of 
 certain earlier forms of proof-making 
 are briefly considered, supra, §§ 269- 
 271. 
 
 2. People v. Harding, 53 Mich. 48, 
 481, IS N. W. 555, 19 N. W. 155, 51 
 Am. Rep. 95 (1884). 
 
 3. Brown V. State, 62 N. J. D. 666, 
 42 Atl. 811 (1899) ; Proffatt Jury Tr. 
 § 24; 4 Blackstone Comm. 349. 
 
 4. Denver v. Hyatt, 28 Colo. 129, 
 63 Pac. 403 (1900) ; McEae v. Grand 
 Bapids, etc., E. Co., 93 Mich. 399, 53 
 N. W. 561, 17 L. E. A. 750 (1892) ; 
 State v. Holt, 90 N. C. 749, 47 Am. 
 Rep. 544 (1884); Work v. State, 2 
 Ohio St. 296, 59 Am. Dec. 671 
 (1853). 
 
 5. Sharp v. New York, 18 How. Pr. 
 213 (1S59) ; State v. Holt, 90 N. C. 
 749, 47 Am. Rep. 544 (1884) ; Work 
 v. State, 2 Ohio St. 296, 59 Am. Dec. 
 671 (1853). 
 
 6. 4 Blackstone Comm. 349. See 
 also Flint River, etc., Co. v. Foster, 
 5 Ga. 194, 48 Am. Dec. 248 (1848). 
 
 7. Infra, f 419. 
 
 8. Infra, § 413. 
 
 1. The courts of the United States 
 include, however, as the term is used 
 in this connection, those of the Dis- 
 trict of Columbia. Capital Traction 
 Co. v. Hof, 174 U. S. 1, 19 Sup. Ct. 
 580, 43 L. ed. 873 (1898) ; Callan v. 
 Wilson, 127 U. S. 540, 8 Sup. Ct. 
 1301, 32 L. ed. 223 (1888). Compare 
 Matter of Fry (D. C.) 3 Mackey 135 
 (1884). Within the phrase are also 
 included appropriate courts estab- 
 lished by authority of Congress in the 
 territories of the United States, (Peo- 
 ple v. Havird, 2 Idaho 531, 25 Pac. 
 294 (1889) ; Bradford v. Territory, 1 
 Okla. 366 34 Pac. 66 (1893) ; Carlson 
 v. Sullivan, 146 Fed. 476, 77 C. C. A. 
 32 (1906); Thompson v. Utah, 170 
 U. S. 343, 18 Sup. Ct. 620, 42 L. ed. 
 1061 (1898); Webster v. Reid, 11 
 How. 437, 13 L. ed. 761. Compare 
 Walker v. New Mexico, etc., R. Co., 
 7 N. M. 282, 34 Pac. 43 (1893) ), and 
 in her colonial possessions, such as 
 the island of Porto Rico. Em p. 
 Ortiz, 100 Fed. 955 (1900). The Fed- 
 eral Constitution does not guaranty to 
 citizens the right to a jury trial, ex- 
 
§413 
 
 A. Peotect Substantive Rights. 
 
 554 
 
 equity or admiralty ; 2 or affect proceedings in the state courts. 3 
 The interpretation limiting the right so guaranteed as confined to 
 cases where a jury might have been claimed at common law, has 
 been adopted in the federal as well as in the state courts. Such 
 provisions do not, in the least, abridge the right of the states to 
 deal with the question of trial by jury as they may see fit. 4 Eight 
 to such a trial in a state court is not a " privilege and immunity " 
 of a citizen of the United States, 5 nor necessary to " due process 
 of law." 6 It is sufficient in such cases if the person claiming to 
 
 cept in the courts of the United 
 States. Ex parte Brown, (N. C. 
 1905) 140 Fed. 461. 
 
 2. Home Ins. Co. v. Virginia-Caro- 
 lina, etc., Co., 109 Fed. 681 (1901) ; 
 Motte v. Bennett, 17 Fed. Cas. No. 
 9,884, 2 Fish. Pat. Cas. 642 (1849). 
 
 3. Alabama. — Boring v. Williams, 
 17 Ala. 510 (1850). 
 
 Colorado. — Huston r. Wadsworth, 
 5 Colo. 213 (1880). 
 
 Connecticut. — Colt v. Eves, 12 
 Conn. 243 (1837). 
 
 Georgia. — Foster v. Jackson, 57 
 Ga. 206 (1876). 
 
 Indiana. — Baker v. Gorden, 23 
 Ind. 204 (1864). 
 
 Louisiana. — Joseph v. Bidwell, 28 
 La. Ann. 382, 76 Am. Rep. 102 
 (1870) ; State v. Carro, 26 La. Ann. 
 377 (1874). 
 
 ~Nrw Mexico. — Walker V. New 
 Mexico, etc., R. Co., 7 N. M. 382, 34 
 Pac. 43 (1893). 
 
 A'cu' York. — In re Newcomb, 18 N. 
 Y. Suppl. 16 (1891) ; Livingston v. 
 New York, 8 Wend. 85, 22 Am. Dec. 
 623 (1831). 
 
 Rhode Island. — In re New State 
 House, 19 R. I. 326, 33 Atl. 448 
 (1895). 
 
 Utah. — In re Maxwell, 19 Utah 
 495, 57 Pac. 412 (1899). 
 
 Vermont. — Hall v. Armstrong, 65 
 Vt. 421, 26 Atl. 592, 20 L. R. A. 366 
 (1893). 
 
 United States. — 'Pearson v. Yew- 
 dall, 95 U. S. 294, 24 L. ed. 436 
 (1877); Walker v, Sauvinet, 92 U. 
 S. 90; 23 L. ed. 678 (1875); Ed- 
 
 wards V. Elliott, 21 Wall. 532, 22 L. 
 ed. 487 (1874). 
 
 4. Alabama. — Boring r. Williams, 
 17 Ala. 510 (1850). 
 
 Connecticut. — Colt r. Eves, 12 
 Conn. 243 (1837). 
 
 Illinois. — Keith r. Henkleman, 173 
 111. 137, 50 N. E. 692 (1898). 
 
 Louisiana. — State v. ICennard, 25 
 La. Ann. 238 (1873). 
 
 New York. — In re Newcomlb, 18 N. 
 Y. Suppl. 16 (1891). 
 
 Rhode Island. — Shaw r. Silver- 
 stein, 21 R. I. 500, 44 Atl. 931 
 (1899). 
 
 Utah. — In re McKee, 19 Utah 231, 
 57 Pac. 23 (1897). 
 
 Vermont. — Hall r. Armstrong, 65 
 Vt. 421, 26 Atl. 592, 20 L. R. A. 366 
 (1893). 
 
 West Virginia. — Ex p. MeXeeley, 
 36 W. Va. 84, 14 S. E. 436, 32 Am. 
 St. Rep. 831, 15 L. R. A. 226 (1892). 
 
 United States. — Pearson v. Yew- 
 dall, 95 U. S. 294, 24 L. ed. 436 
 (1877) ; Walker f. Sauvinet, 92 U. S 
 90, 23 L. ed. 678 (1875); Edwards 
 v. Elliott, 21 Wall. 532, 22 L. ed. 487 
 (1874) ; Williams V. Hert, 110 Fed. 
 166 (1901). 
 
 5. Hall v. Armstrong, 65 Vt. 421, 
 26 Atl. 592, 20 L. R. A. 366 (1893) ; 
 Walker r. Sauvinet, 92 U. S. 90, 23 
 L. ed. 678 (1875). 
 
 6. Hall V. Armstrong, 65 Vt. 421, 
 26 Atl. 592, 20 L. R. A. 366 (1893) ; 
 Pearson r. Yewdall, 95 U. S. 294, 24 
 L. ed. 4S6 (1877); Walker r. Sau- 
 vinet, 92 U. S. 90, 23 L. ed. 678 
 (1875). 
 
555 Juries Under Special Federal Proceedings. §§ 414-418 
 
 have been aggrieved has received the benefit of such a trial as is 
 provided by the law of the state forum. 7 
 
 § 414. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial; Federal Constitution); Consular Courts. — 
 
 Consular courts, established under the treaties and laws of the 
 United States for the trial of American citizens in foreign coun- 
 tries, are not required to provide a trial by jury. 1 
 
 § 415. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial; Federal Constitution) ; Criminal Cases. — 
 
 The Federal Constitution guarantees the same right to one ac- 
 cused of crime, under the laws of the United States. 1 But it has 
 no effect to prevent a state from abolishing trial by a common-law 
 jury. 2 It extends in application to the territories of the United 
 States. 3 
 
 § 416. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial; Federal Constitution); " Jury Defined." — 
 
 The term " jury," as used in the Federal Constitution, is the com- 
 mon law petit jury of twelve. Providing a jury of a smaller num- 
 ber, e. g., six, 1 is not a compliance with this provision. 
 
 § 417. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial; Federal Constitution) ; Removed Causes. 
 
 — To a case removed from a state to a federal court attach all 
 the rights to trial by jury conferred by the Constitution of the 
 United States. 1 
 
 § 418. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial; Federal Constitution); Special Pro- 
 ceedings. — In special proceedings which did not exist at common 
 law, as the exportation of a Chinese person, 1 where no provision 
 
 7. Hall v. Armstrong, 65 Vt. 421, 2. Darden v. State, 80 Ark. 295, 97 
 
 26 Atl. 592, 20 L. R. A. 366 (1893) ; S. W. 449 (1906). 
 
 Pearson v. Yewdall, 95 U. S. 294, 24 3. Bettge v. Terr., 17 Okl. 85, 87 
 
 I. ed. 436 (1877); Walker v. Sail- Pac. 897 (1906). 
 
 vinet, 92 U. S. 90, 23 L. ed. 678 1. Cius v. United States, (Alaska 
 
 (1875). 1905) 141 Fed. 956, 73 C. C. A. 272. 
 
 1. In re Ross, 140 U. S. 453, 11 1. Phillips v. Moore, 100 U. S. 208, 
 
 Sup. Ct. 897, 35 L. ed. 581 [affirming 25 L. ed. 603 (1879). 
 
 44 Fed. 185 (1890) (1891)]. 1. U. S. v. Ngum Lira May, 153 Fed. 
 
 1. Bettge v. Terr., 17 Okl. 85, 87 209 ( 1907 ) ; Toy Tong v. U. S„ 146 
 
 Pac. 897 (1906). 338 (1906). 
 
I 419 A. Peotect Substantive Eights. 556 
 
 for a jury trial has been made by Congress, none can be claimed 
 under the constitution. 
 
 § 419. C [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial); State Constitutions. — In all state consti- 
 tutions the right to a trial by jury is regarded as existing and the 
 constitution purports only to forbid making change. " Inviolate " 
 is the favorite word to describe the condition as to the right of 
 trial by jury which the organic law decrees shall continue to exist. 
 The right is to be " inviolate; " 1 or the decree is that it shall 
 remain so. 2 While the particular constitutional provision, like 
 most similar enactments, as the right of confrontation, 3 privilege 
 against self-incrimination, 4 and so on, is conferred in the broadest 
 and most unconditioned terms; still, an important qualification, 
 in point of fact, exists* The right in America is coextensive with 
 the claim which the seventeenth century Englishman made for 
 it. The right, as conferred by the American statutes and consti- 
 tutions, is the ratification of an existing condition. The circum- 
 stances under which a jury was commonly employed at common 
 law are those under which it may be claimed by virtue of the 
 constitutional enactment. Wherever, according to the course of 
 
 1. Kimball v. Conner, 3 Kan. 414 Minnesota. — Whallon v. Bancroft, 
 (1866); Salt Creek Valley, etc., Co. 4 Minn. 109 (1860). 
 
 v. Parks, 50 Ohio St. 568, 35 K. E. Mississippi. — Isom v. Mississippi 
 
 304, 88 L. R. A. 769 (1893) ; Ammon Cent. R. Co., 36 Miss. 300 (1858). 
 
 v. Johnson, 3 Ohio Cir. Ot. 263, 2 "Nevada. — State V. McClear, 11 Nev. 
 
 Ohio Cir. Dee. 149 (1888). 39 (1876). 
 
 2. Alabama. — Collins v. State, 88 New Jersey. — Raphael v. Lane, 56 
 Ala. 212, 7 So. 260 (1889) ; Tims v. N. J. L. 108, 28 Atl. 421 (1893) ; 
 State, 26 Ala. 165 (1855). State r. Doty, 32 N. J. L. 403, 90 
 
 California. — Koppikus v. State Am. Dec. 671 (1868). 
 
 Capitol Com'rs, 16 Cal. 248 (1860). Oregon. — Raymond v. Flavel, 27 
 
 Connecticut. — Meridan Sav. Bank Oreg. 219, 40 Pac. 158 (1895). 
 
 t>. McCormack, 79 Conn. 260, 64 Atl. Rhode Island. — Crandall v. James, 
 
 358 (1906). 6 R. I. 144 (1859). 
 
 Florida. — Blanchard r. Raines, 20 South Dakota. — Belatti v. Pierce, 
 
 Fla. 467 (1884); Flint River, etc., Co. 8 S. D. 456, 66 N. W. 1088 (1896). 
 
 v. Roberts, 2 Fla. 102, 48 Am. Dec. Tennessee. — Trigally v. Memphis, 6 
 
 178 (1848). Coldw. 382 (1869). 
 
 Indiana. — Anderson v. Caldwell, 91 Texas. — Cockrill v. Cox, 65 Tex. 
 
 Ind. 451, 46 Am. Rep. 613 (1883); 669 (1886). 
 
 Reynolds V. State, 61 Ind. 393 Wisconsin. — Norval v. Rice, 2 Wis. 
 
 (1878); Allen V. Anderson, 57 Ind. 82 (1853). 
 
 388 (1877). 8. Infra, §§ 458 et seq. 
 
 Iowa. — In re Bresee, 82 Iowa 573, 4. See Witnesses. 
 48 N. W. 991 (1891). 
 
557 Implied Limitation Upon Constitutional Eight. § 420 
 
 the common law, a jury could not be claimed, a jury cannot be 
 insisted upon by virtue of later general legislation, statutory or 
 constitutional. 6 
 
 § 420. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial; State Constitutions); "Hitherto Used 
 and Enjoyed." — In certain states it is provided that the right, as 
 hitherto used and enjoyed, 1 shall remain inviolate. The additional 
 words seem to add nothing. 2 
 
 But whether the phrase " as heretofore used or enjoyed," or 
 their equivalents, are added or not, the constitution guarantees 
 only the observance of such a right as existed at the time when 
 the constitution was adopted. 3 The fundamental rule is that where 
 
 5. Florida. — Camp Phosphate Co. 
 v. Anderson, 37 So. 723 (1904). 
 
 Georgia. — Flint River, etc., Co. v. 
 Foster, 5 Ga. 104, 48 Am. Dec. 248 
 (1848). 
 
 Illinois. — Seavey v. Seavey, 30 111. 
 App. 625 (1889). 
 
 Kansas. — Kimball v. Conner, 3 
 Kan. 414 (1866). 
 
 New Jersey. — Wood v. Tallman, 1 
 N. J. L. 153 (1793). 
 
 South Carolina. — New Town Cut v. 
 Seabrook, 2 Strobh. 560 (1846); 
 Marler v. Wear, (Tenn. 1906) 96 S. 
 W. 447. 
 
 1. Delaware. — ■ Bailey v. Philadel- 
 phia, etc., R. Co., 4 Harr. 389, 44 Am. 
 Dec. 593 (1846). 
 
 Georgia. — Flint River, etc., Co. v. 
 Foster, 5 Ga. 194, 48 Am. Dec. 248 
 (1848) ; Rouse V. State, 4 Ga. 136 
 (1848). 
 
 Illinois. — Gage v. Ewing, 107 111. 
 11 (.1883) ; Seavey v. Seavey, 30 III. 
 App. 625 (1889). 
 
 Missouri. — State v. Allen, 45 Mo. 
 App. 551 (1891). 
 
 New York. — Devine v. People, 20 
 Hun 98 (1880). 
 
 Pennsylvania. — Byers v. Com., 42 
 Pa. St. 89 (1862). 
 
 South, Carolina. — Charleston v. 
 Stelges, 10 Rich. 438 (1857). 
 
 2. The state of Illinois, however, 
 appears to have intentionally added 
 
 the words (Gage v. Ewing, 107111.11 
 [1883] ) to the language employed by 
 its former constitution. Bullock v. 
 Geomble, 45 111. 218 (1867) ; Ross v. 
 Irving, 14 111. 171 (1852). 
 
 3. Florida. — Camp Phosphate Co. 
 v. Anderson, 37 So. 722 (1904). 
 
 Georgia. — Flint River Steamboat 
 Co. v. Foster, 5 Ga. 194, 48 Am. Dec. 
 248 (1848). 
 
 Illinois. — Ross v. Irving, 14 111. 
 171 (1852); Mahoney v. People, 98 
 111. App. 241 (1901). 
 
 Indiana. — Baltimore, etc., R. Co. v. 
 Ketving, 122 Ind. 5, 23 N. E. 527 
 (1889). 
 
 Kansas. — Swarz v. Ramala, 63 
 Kan. 633, 66 Pac. 649 (1901). 
 
 Minnesota. — Whallon v. Bancroft, 
 4 Minn. 109 (1860). 
 
 New Jersey. — State v. Doty, 32 N. 
 J. L. 403, 90 Am. Dec. 671 (1868). 
 
 Neic York. — People v. Fisher, 20 
 Barb. 652, 11 How. Pr. 554, 2 Park. 
 Cr. 402 (1855). 
 
 Ohio. — Amnion 17. Johnson, 3 Ohio 
 Cir. Ct. 263, 2 Ohio Cir. Dec. 149 
 (1888). 
 
 Oregon. — Raymond v. Flavel, 27 
 Or. 219, 40 Pac. 158 (1895). 
 
 Pennsylvania. — Byers v. Com., 42 
 Pa. St. 89 (1862). 
 
 South Carolina. — Charleston v. 
 Stelges, 10 Rich. 438 (1857). 
 
421, 422 
 
 A. Protect Substantive Eights. 
 
 558 
 
 the right existed to a trial by jury at the time of the adoption of 
 the constitution, it exists at the present time, 4 and not otherwise. 5 
 
 § 421. ( [4] Right to Judgment of Court or Jury; General 
 
 Right to a Jury Trial) ; Scope at Common Law At common law 
 
 the function of the jury is confined to an issue. 1 The right to a 
 trial by jury was, as a rule, restricted to actions at law in which 
 there was an issue of fact raised by means of pleadings. 2 In ac- 
 tions at law in contract, tort, replevin, real actions, 3 and the like, 
 where the use of a jury was customary at common law, the right 
 is, as a rule, secured to litigants by American constitutions or 
 other statutes, state or federal. 
 
 § 422. ( [4] Right to Judgment of Court or Jury; General 
 Right to Jury Trial; Scope at Common Law); Civil Actions. — 
 
 A litigant may insist upon a trial by jury in all civil actions where 
 the right existed at common law. In the absence of constitutional 
 or statutory modifications, this rule applies equally whether the 
 
 Tennessee. — Trigally V. Memphis, 
 6 Coldw. 3S2 (1869). 
 
 Wisconsin. — Gaston v. Babcock, 6 
 Wis. 503 (1858). 
 
 4. Florida. — Flint River, etc., Co. 
 v. Roberts, 2 Fla. 102, 48 Am. Deo. 
 178 (1848). 
 
 Georgia. — Mattox v. State, 115 6a. 
 212, 41 S. E. 709 (1902). 
 
 Indiana. — Reynolds v. State, 61 
 Ind. 392 (1878). 
 
 Iowa. — Reed v. Wright, 2 Greene 
 15 (1849). 
 
 Kentucky. — Carson v. Com., 1 A. 
 K. Marsh. 290 (1818). 
 
 New Hampshire. — East Kingston 
 V. Towle, 48 N. H. 57, 97 Am. Dec. 
 575, 2 Am. Rep. 174 (1868). 
 
 New Jersey. — Raphael v. Lane, 56 
 N. J. L. 108, 28 Atl. 421 (1893). 
 
 New York. — Rinne v. Kinne, 2 
 Thomps. & C. 393 (1873). 
 
 Pennsylvania. — Rhines v. Clark, 51 
 Pa. St. 96 (1865). 
 
 South Carolina. — White v. Kend- 
 rick, 1 Brev. 469 (1805). 
 
 Texas. — Cockrill v. Cox, 65 Tex. 
 669 (1886). 
 
 5. People v. City of Alton, 233 111. 
 542, 84 N. E. 661 (1908). 
 
 1. Supra, § 275. 
 
 2. California. — Taylor v. Ford, 92 
 Cal. 419, 28 Pac. 441, 24 Pac. 942 
 (1890) ; People V. Blake, 19 Cal. 579 
 (1862); Koppikus V. State Capitol 
 Com'rs, 16 Cal. 248 (1860). 
 
 Nebraska.— Yeiser v. Broadwell, 
 115 N. W. 293 (1908) ; Lett v. Ham- 
 mond, 59 Neb. 339, 80 N. W. 1042 
 (1899). 
 
 North Carolina. — Andrews t>, 
 Pritchett, 66 N. C. 387 (1872). 
 
 Ohio. — Clarke v. Huff, 6 Ohio Dec. 
 (Reprint) 771, 8 Am. L. Rec. 26 
 (1879). 
 
 Pennsylvania. — Glone V. Arleth, 
 162 Pa. St. 550, 29 Atl. 862 (1894). 
 
 South Carolina. — Gregory v. 
 Ducker, 31 S. C. 141, 9 S. E. 780 
 (1889). 
 
 Washington. — Johnson v. Good- 
 time, 1 Wash. Torr. 484 (1875). 
 
 3. Lee v. Conran, 213 Mo. 404, 111 
 S. W. 1151 (1908) (alluvial de- 
 posits). 
 
559 Comptjlsoey References Oedeeed at Common Law. § 423 
 
 action is one in tort 1 or contract; 2 including money judgments. 3 
 It extends also, as at common law, to actions involving the title 
 to any interest in lands, 4 to actions of replevin. The intervention 
 of a jury is not required where the issue raised is one as to a 
 proposition of law, 5 or is to be resolved by an examination of the 
 record. 6 
 
 § 423. C [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial; Scope at Common Law); Compulsory 
 References. — The judicial machinery at the time of the adoption 
 of various state constitutions included a provision for the ordering 
 of a compulsory reference where there is a long and complicated 
 account. Such an order, therefore, does not violate the right to 
 trial by jury. 1 
 
 1. Kentucky Land, etc., Co. v. 
 Crabtree, 113 Ky. 922, 70 S. W. 31, 
 24 Ky. L. Rep. 743 (1902) ; Bratton 
 ■v. Catawba Power Co., (S. C. 1908) 
 60 S. E. 673 (punitive damages) ; 
 Righton v. Righton, 1 Mill Const. 
 130 (1817) (assignment of owner). 
 
 2. Michael v. Albright, 126 Ind. 
 172, 25 N. E. 902 (1890) ; Galway V. 
 State, 93 Ind. 161 (1883) ; McCoy v. 
 Oldham, 1 Ind. App. 372, 27 N. E. 
 647, 50 Am, St. Rep. 208 (1890); 
 Bardwell v. Clare, 47 Iowa 297 
 (1877); Parker v. Slaughter, 24 
 Iowa 252 (1868) (bond); Van 
 Raalte v. Epstein, 202 Mo. 173, 99 
 S. W. 1077 (1906) ; Sherman v. Ran- 
 dolph, 13 Okl. 224, 74 Pae. 102 
 (1903). 
 
 3. Arkansas. — Weaver v. Arkansas 
 Xat. Bank, 73 Ark. 462, 84 S. W. 
 510 (1004). 
 
 California. — Piatt V. Havens, 119 
 Cal. 244, 51 Pae. 342 (1897). 
 
 Minnesota. — Nordeen v. Buck, 79 
 Minn. 352, 82 N. W. 644 (1900). 
 
 Nebraska. — Lett v. Hammond, 59 
 Neb. 339, 80 N. W. 1042 (1899). 
 
 South Carolina. — Sloan v. Courte- 
 nay, 54 S. C. 314, 32 S. E. 431 
 (1898). 
 
 Wisconsin. — South Milwaukee Co. 
 v. Murphy, 112 Wis. 614, 88 N. W. 
 583, 58 L. R. A. 82 (1902). 
 
 4. Alaska. — Seliner v. McKay, 2 
 Alaska 564 (1905). 
 
 New York. — Ryan v. Murphy, 116 
 N. Y. App. Div. 242, 101 N. Y. 
 Suppl. 553 (1906). 
 
 South Carolina. — Bratton v. Ca- 
 tawba Power Co., 60 S. E. 673 
 (1908). 
 
 West Virginia. — State v. Jackson, 
 49 S. E. 465 (1904). 
 
 United States. — Carlson v. Sulli- 
 van, 146 Fed. 476, 77 C. C. A. 32 
 (1906). 
 
 Condemnation proceedings may be 
 included. State v. Jones, 139 N. C. 
 613, 52 S. E. 240 (1905). 
 
 5. Harrison v. Chiles, 3 Litt. (Ky.) 
 194 (1823); Wilson v. Forsyth, 16 
 How. Pr. 448 (1857); Scranton 
 School Dist. v. Simpson, 133 Pa. St. 
 202, 19 Atl. 359 (1890). See also 
 Avcrill v. Chadwick, 153 Mass. 171, 
 26 N. E. 441 (1891). 
 
 6. Johnston v. Atwood, 2 Stew. 225 
 ( 1829 ) ; Bank of Eau Claire v. Reed, 
 232 111. 238, 83 N\ E. 820 (1908); 
 State v. Martin, 38 W. Va. 568, 18 S. 
 E. 748 (1893) ; Amory v. Amory, 26 
 Wis. 152 (1870). 
 
 1. Roughton v. Sawyer, (N. C. 
 1907) 56 S. E. 480; Smith v. Ku- 
 nert, (N. D. 1908) 115 N. W. 76. 
 
§§ 424, 425 A. Peotect Substantive Rights. 560 
 
 § 424. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial; Scope at Common Law); Judicial Powers 
 
 Reserved. — The power of the presiding judge to set aside ver- 
 dicts, 1 order nonsuits 2 or other verdicts, 3 award sentence 4 and per- 
 form the other functions of his judicial office, are not, in the ab- 
 sence of express provisions, 5 affected by these enactments regard- 
 ing jury trial. He may reasonably award compensation to officers 
 acting under his orders, or, when permitted to do so under statu- 
 tory authority. 6 But the court cannot find facts and so deprive 
 a party of his right to a jury trial. 7 'Nor are the rules of evidence, 
 e. g., those relating to the existence of presumptions of fact 8 or 
 law, nor the right of the court to instruct the jury as to them, in 
 any way affected. A judge cannot by a remittitur to an excessive 
 jury verdict, substitute his judgment for theirs. 9 The waiver, 
 moreover, of the right to a jury trial implied in adopting alterna- 
 tive forms of trial, is strictly limited to the necessary implications. 
 For example, a party does not, by agreeing to the appointment of 
 a referee, authorize the judge to disregard the findings of the 
 referee and make different ones of his own. 10 
 
 § 425. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial) ; Statutory Construction — The same canon 
 of interpretation is adopted in case of a statutory enactment regu- 
 lating trial by jury. In the absence of further specification the 
 system as it existed at the time of the constitution will be under- 
 stood. 1 
 
 1. Supra, §§ 306 et seq. Gunn v. Union R. Co., 27 R. I. 320, 
 
 2. Bonn v. Pacific Electric Ry Co., 62 A. 118 (1905). 
 
 (Cal. App. 1907) 91 Pac. 115; New 4. Em parte Brown, 39 Wash. 160, 
 
 England Trust Co. v. Boston Elevated 81 Pac. 552 (1905). 
 
 Ry. Co., 191 Mass. 233, 77 ST. E. 769 5. Reed & McCormick v. Gold, (Va. 
 
 (1906). 1903) 45 S. E. 868 (hear demurrers 
 
 3. Moore & Jester v. H. B. Smith to evidence) . 
 
 Mach. Co., 4 Ga. App. 151, 60 S. E. 6. Schutz v. Burges, (Tex. Civ. 
 
 1035 (1908) (where all defenses are App. 1908), 110 S. W. 494. 
 
 stricken) ; Jester v. Bainbridge State 7. Merritt V. State, (Tex. Civ. App. 
 
 Bank, 4 Ga. App. 469, 61 S. E. 926 1906) 94 S. W. 372. 
 
 (1908) (plaintiff's case admitted; 8. Vance r. State, 128 Ga. 661, 57 
 
 answer set up no defense) ; Central of S. E. 889 (1907). 
 
 Georgia Ry. Co. t\ Price, (Ga. 1906) 9. Heimlich v. Tabor, (Wis. 1905) 
 
 49 S. E. 683 [petition for rehearing 102 N. W. 10. 
 
 overruled, 49 S. E. 683 (1905)]; 10. U. S. v. Ramsey, (Idaho 1907) 
 
 Tilley r. Cox, 119 Ga. 867, 47 S. E. 158 Fed. 488. 
 
 219 (1904); Cadwalader v. Spring- 1. Camp Phosphate Co. r. Ander- 
 
 steen, 36 Pa. Sup. Ct. 134 (1908); son, (Fla. 1904) 37 So. 722; Risser 
 
561 Increase of Penalty Eequiees Jury Trial. §§426,427 
 
 Court May Allow Jury Trial. — That the judge may, in exer- 
 cise of his administrative powers, employ a jury in cases where 
 such a trial cannot be claimed as of right, is undoubted. 2 
 
 § 426. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial; Statutory Construction) ; Criminal Cases. 
 — A person cannot be punished either by fine, imprisonment or 
 committal to an institution for reformatory purposes, 1 without a 
 trial by jury — in any case where, at common law, a person so 
 accused would have had a right to claim a jury. 2 As may be seen 
 elsewhere, 3 the legislature may provide otherwise in case of mis- 
 demeanors and minor offenses. 4 But unless it has seen fit to do 
 so, the right attaches in all such instances. 5 
 
 § 427. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial; Statutory Construction; Criminal 
 Cases) ; Waiver Forbidden — The defendant is not at liberty to 
 waive such a right. 1 So strong a course is, however, intended only 
 
 v. Hoyt, 53 Mich. 185, 18 N. W. 611 
 (1884); Colon v. Lisk, 153 N. Y. 
 188, 47 N. E. 302, 60 Am. St. Rep. 
 609 (1897) ; New York Fire Dept. v. 
 Harrison, 2 Hilt. 455, 9 Abb. Pr. 1, 
 17 How. Pr. 273, 18 How. Pr. 181 
 (1859) ; Plimpton v. Somerset, 33 Vt. 
 283 (1860). 
 
 2. McLean v. Tompkins, 18 Abb. 
 Pr. 24 (1857). 
 
 1. Pugh v. Bowden, 54 Fla. 302, 45 
 So. 499 (1907); Com. v. Fisher, 27 
 Pa. Super. Ct. 175 (1905) (incorrigi- 
 ble child). The power to commit an 
 infant to a reformatory institution 
 has, however, been held to be not so 
 much in the nature of a criminal as 
 of an equitable nature. Accordingly 
 the accused has no right to a jury 
 trial. Dinson v. Drosta, (Ind. App. 
 1907) 80 N. E. 32. Such a proceed- 
 ing is not so much a, trial as an 
 effort to prevent the necessity for 
 one. Accordingly, a jury is not re- 
 quired. Com. v. Fisher, 213 Pa. 48, 
 62 A. 198 (1905) ; State v. Packen- 
 ham, 40 Wash. 403, 82 Pac. 597 
 (1905). 
 
 2. Hughes v. State, 29 Ohio Cir. Ct. 
 K. 237 (1907). It has been held that 
 
 Vol. L 36 
 
 any statute, which subjects an indi- 
 vidual to a greater punishment for 
 crime without the verdict of a jury 
 than it vsas understood at the time of 
 the adoption of the state constitution 
 could be thus inflicted, is void. Wil- 
 marth v. King, 74 N. H. 512, 69 Atl. 
 889 (1908). 
 
 3. Infra, § 452. 
 
 4. Bray f. State, (Ala. 1904) 37 
 So. 250; Bowles v. District of Colum- 
 bia, 22 App. D. C. 321 (1903) ; Ku- 
 baoh v. State, 25 Ohio Cir. Ct. R. 
 488 (1904). 
 
 5. City of Vineland v. Denoflio, (N. 
 J. 1907) 65 Atl. 837. 
 
 1. Illinois. — Dallman v. People, 113 
 111. App. 507 (1904). 
 
 Iowa.— State v. Rea, 101 N. W. 
 507 (1904). 
 
 Nebraska. — Michaelson v. Beemer, 
 101 N. W. 1007 (1904). 
 
 Oklahoma. — In re McQuown, 91 
 Pac. 689, 11 L. R. A. (N. S.) 1136 
 (1907). 
 
 Texas. — Jones v. State, 106 S. W. 
 345 (1907); Archer v. State, 100 S. 
 W. 769 (1907). 
 
 Wisconsin. — Jennings v. State, 114 
 N. W. 492 (1908). This is true 
 
§42S 
 
 A. Pkotect Substantive Eights. 
 
 562 
 
 for the protection of the accused in cases of serious felony. He 
 may effectively make such waiver in case of misdemeanors, minor 
 offenses, 2 or the like. 3 The same right of waiver ohtains in cer- 
 tain special proceedings criminal in form; e. g., those designed 
 to punish, under a statute, for failure to answer questions pro- 
 pounded by a court-martial, 4 the unlawful sale of oleomargarine, 5 
 bastardy proceedings, etc. 6 
 
 § 428. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial; Statutory Construction) ; Suits for Pen- 
 alties. — An action for a penalty conferred by statute may be a 
 civil action ; ] and, accordingly, be without the scope of a provision 
 securing trial by jury in criminal causes. 
 
 Venue. — Trial by jury means trial by jury in the county where 
 the alleged offense was committed. 2 
 
 The power of the court to perform its ordinary common law 
 judicial functions, e. g., receive pleas of guilty, 3 determine the 
 nature of the offense thus admitted, 4 instruct jury as to grades of 
 
 even where one juryman absents him- 
 self and cannot be found. Jennings 
 v. State, (Wis. 1908) 114 N. W. 492. 
 One accused of an infamous crime, 
 not a felony, cannot agree with effect 
 that two jurors may be excused from 
 service and that the verdict of ten 
 jurors shall be that of the jury. 
 Diehinson v. U. S. (Mass. 1908) 159 
 Fed. 801, 86 C. C. A. 625. For the 
 same reasons a statute permitting » 
 jury of six to award verdicts in case 
 of crimes punishable by imprison- 
 ment has been held to be unconstitu- 
 tional. Robinson v. Wayne Circuit 
 Judges, 151 Mich. 315, 115 N. W. 
 682, 11 Detroit Leg. N. 945 (1908). 
 
 2. California. — Goodman v. Sup. 
 Ct. of Cal. in Santa Clara County, 
 (App. 1908) 96 Pac. 395. 
 
 Georgia. — Moore v. State, 124 Ga. 
 30, 52 S. E. 81 (1905); Hollis v. 
 State, 118 Ga. 760, 45 S. E. 617 
 (1903) (vagrancy). 
 
 Illinois. — Jacobs r. People, 218 111. 
 500, 75 N. E. 1034 (1905). 
 
 Iowa. — Town of Lovilia v. Cobb, 
 102 N. W. 496 (1905). 
 
 Kansas. — State V. Wells, 77 Pac. 
 547 (1904). 
 
 Ohio. — Simmons v. State, 75 Ohio 
 St. 346, 79 N. E. 555 (1906). 
 
 Washington. — State v. Packenham, 
 40 Wash. 403, 82 Pac. 597 (1905). 
 
 3. Otto v. State (Tex. Cr. App. 
 1905) 87 S. W. 698 (Local Option 
 Law). 
 
 4. U. S. Praeger, 149 Fed. 474 
 (1907). 
 
 5. Broadwell r. United States, 195 
 U. S. 65, Adv. S. V. S. 826, 24 S. 
 Ct. 49 L. ed. (1904). 
 
 6. Kanorowski v. People, 113 111. 
 App. 468 (1904). 
 
 1. City of Chicago r. Knobel, 232 
 111. 112, S3 N. E. 459 (1908). 
 
 2. People r. Brock, 149 Mich. 464, 
 112 N. W. 1116, 14 Detroit Leg. N. 
 506 (1907). 
 
 3. Hollibaugh r. Hehn, (Wyo. 
 1905) 79 Pac. 1044. 
 
 4. People f. Chew Lan Ong, 141 
 Cal. 550, 75 Pac. 186 (1904). 
 
563 No Juey on Hearing of Motions. §§ 429, 430 
 
 crime, 5 and the like, 6 is not affected by the constitutional guar- 
 anty of a jury trial. Such a right is not violated because few of 
 the same race as the accused were put on the jury. 7 ISTo right to 
 a jury trial is infringed by permitting the judge, rather than the 
 jury, to determine on the punishment for crime. 8 
 
 The right of an appellate court to order a lower court to im- 
 pose a lesser sentence than that of which the accused stands coiv- 
 victed is not inconsistent with a right to trial by jury. Such a 
 court may lawfully, for example, reduce a conviction of murder in 
 the second degree to one of manslaughter. 9 
 
 § 429. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial) ; Incidental Hearings. — The jury are not 
 concerned with hearings prior, incidental or subsequent to the 
 trial of the issue. 
 
 § 430. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial); Motions. — ■ They do not, for example, 
 take part in the hearing upon motions, 1 e. g., for a pluries execu- 
 tion 2 or for an execution against a stockholder on the unsatis- 
 fied judgmenit against the corporation, 3 or similar matters. 4 
 Where, however, a motion raises the same issue of fact as would, 
 if stated upon pleadings, be triable by a jury, one has been 
 allowed. 5 But motions in general, such as those for the removal 
 of a default, 6 to vacate an order for arrest, 7 for the granting of a 
 
 5. State v. McPhail, 39 Wash. 199, North Carolina. — Pasour v. Line- 
 81 Pac. 683 (1905). berger, 90 N. C. 159 (1884). 
 
 6. Barry v. Truax, (N. D. 1904) 6'5 Pennsylvania. — Banning v. Taylor, 
 L. R. A. 762, 99 N. W. 769 (order 24 Pa. St. 289 (1855). 
 
 change of venue) . Wisconsin. — Amory v. Amory, 26 
 
 7. Mierav. Territory, (N. M. 1905) Wis. 153 (1870). 
 
 81 Pae. 586. 2. Hobson v. Bein, 2 Rob. (La.) 
 
 8. State v. Eubanks, 199 Mo. 122, 109 (1842). 
 
 97 S. W. 876 (1906). 3. Erskine C. Lowenstein, 11 Mo. 
 
 9. Darden v. State, 80 Ark. 295, 97 App. 595 (1882) ; Schaeffer v. Phoe- 
 S. W. 449 (1906). nix, etc., Co., 4 Mo. App. 115 (1877). 
 
 1. Indiana^ — Logansport, etc., R. 4. Cassady v. Morris, (Okl. 1907) 
 
 Co. r. Patton, 51 Ind. 487 (1875). 91 Pac. 888 (discharge property from 
 
 Maryland. — Gittings v. State, 33 attachment). 
 
 Md. 458 (1871). 5. Drea e. Carrington, 32 Or. St. 
 
 Missouri. — Hensley v. Baker, 10 595 (1877). 
 
 Mo. 157 (1846); Schaeffer v. Phoenix, 6. Quick v. Lawrence, Nat. Bank, 
 
 etc., Co., 4 Mo. App. 115 (1877). 10 Ind. App. 523, 38 X. E. 73 (1894). 
 
 New York. — McLean v. Tompkins, 7. Light v. Canadian County Bank, 
 
 18 Abb. Pr. 24 (1857). 2 Okl. 543, 37 Pac. 1075 (1894). 
 
§§ 431, 432 A. Protect Substantive Eights. 564 
 
 new trial s and similar applications, are addressed to the adminis- 
 trative power of the court and do not, therefore, require the use 
 of a jury. 
 
 § 431. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial); Proceedings Subsequent to Verdict. — 
 
 Nor have they anything to do with proceedings subsequent to the 
 verdict; e. g., those which follow the judgment, 1 as opening the 
 judgment, 2 settling of exceptions, 3 the taxing of costs* and the 
 like. 
 
 § 432. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial) ; Special Proceedings Where, at com- 
 mon law, a party was entitled to a trial by jury, as in case of quo 
 warranto/ contempt, 2 writ of mandate, 3 or proceedings of a similar 
 nature, he will be regarded as having the same right under the 
 statutory or constitutional provisions. A certain measure of good 
 faith is, however, required on the part of the claimant of a right 
 to trial by jury in such a connection. One who at a preliminary 
 stage of an offense would have had, at common law, no right to a 
 jury, cannot proceed to complete his wrongful act for the purpose 
 of gaining it. 4 Where, as in case of a criminal contempt, 5 a writ 
 
 8. Houston v. Bruner, 59 Ind. 35 2. Colorado. — People v. Tool, 86 
 
 (1877); Carpenter v. Brown, 50 Pae. 224 (1905). 
 
 Iowa 451 (1879). Florida. — Johnson v. Price, 36 So. 
 
 1. Banning v. Taylor, 24 Pa. St. 1031 (1904). 
 
 289 (1855). Illinois. — O'Neil v. People, 113 111. 
 
 2. Groninger V. Acker, 32 Pa. Sup. App. 195 (1904). 
 
 Ct. 124 (1906). Iowa, — Drady v. District Court of 
 
 3. McGehee v. Brown, 3 La. Ann. Polk County, 102 N. W, 115 (1905). 
 272 (1848). Missouri. — State ex inf. Crow v. 
 
 4. Richardson v. City of Center- Shepherd, 177 Mo. 205, 76 S. W. 79 
 ville, (Iowa 1908) 114 N. W. 1071 (1903). 
 
 (attorney's fee) ; Forrester v. Boston Texas. — Ex parte Allison, 90 S. W. 
 
 & M. Consol. Copper & Silver Min. 492 (1905). 
 
 Co., 29 Monit. 397, 74 Pac. 1088 3. Nelson v. Steele, (Idaho 1906) 
 
 (1904). 88 Pae. 95. 
 
 1. Wheeler v. Caldwell, (Kan. 4. State ex rel. Attorney-General 
 
 1904) 75 Pac. 1031; Metz v. Maddox, v. Canty, 207 Mo. 439, 105 S. W. 1078 
 
 189 N. Y. 460, 82 N. E. 507 (1907) (1907). 
 
 '[order reversed, 105 N. Y. S. 702]. A 5. O'Flynn r. State, 89 Miss. 850, 
 
 right to a jury mny be claimed on an 43 So. 82, 9 L. R. A. (N. S.) 1119 
 
 issue of fact. Louisiana & Northwest (1907) ; Connell v. State, (Neb. 
 
 R. Co. i!. State, (Ark. 1905) 88 S. YV. 1907) 114 N. \V. 294. 
 559; Ohio Turnpike Co. r. Waechter, 
 25 Ohio Cir. Ct. R. 605 (1903). 
 
565 
 
 Jury Trial on Special Proceedings. 
 
 § 433 
 
 of habeas corpus 6 or other special proceeding, 7 no jury trial could 
 be had under the earlier law, none is available under the later. 
 Even in such cases the presiding judge has the administrative 
 power to submit an issue of fact to the jury. 8 In certain special 
 proceedings, such as scire facias, 9 the issue of domicil as essential 
 to jurisdiction, 10 determination of the right of a claimant to a 
 garnisheed fund, 11 the right to a jury has been conferred by 
 statute. 
 
 § 433. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial); Statutory Proceedings Novel and spe- 
 cial modes of trial such as the assessment of damages on condem- 
 nation proceedings, 1 the ascertainment of extra lateral mining 
 rights, 2 destruction of intoxicating liquor intended for illegal sale 3 
 and the like 4 may or may not have the incident of a right to a 
 jury trial, as the legislature may determine. 
 
 G. Pittman v. Byars, (Tex. Civ. 
 App. 1908), 112 S. W. 102. 
 
 7. Koppikus v. .State Capitol 
 Com'rs, 16 Cal. 248 (1860); Nelson 
 V. Steele, (Idaho 1906) 88 Pae. 95 
 (writ of mandate) ; City of Hoboken 
 v. O'Neill, (N. J. 1906) 64 Atl. 981 
 
 (summary investigations into munic- 
 ipal expenditures ) ; Wearne v. France, 
 3 Wyo. 273, 21 Pac. 703 (1889). 
 
 8. Marler v. Wear, (Tenn. 1906), 
 96 S. W. 447. 
 
 9. Hollister v. United States, (S. 
 D. 1906) 145 Fed. 773. 
 
 10. J. D. Hudgins & Bro. v. Low, 
 (Tex. Civ. App. 1906) 94 S. W. 
 411. 
 
 11. Hubbard «. Lamburn, 189 
 Mass. 296, 75 N. E. 707 (1905). 
 
 1. Ingram v. Maine Water Co., 
 98 Me. 566, 57 Atl. 893 (1904); 
 City of St. Louis v. Lawton, 189 
 Mo. 474, 88 S. W. 80 (1905) ; State 
 v. Jones, 139 N. C. 613, 52 S. E. 
 240 (1905). But see, as to past 
 damages, City of Waterbury v. Piatt 
 Bros. & Co., 76 Conn. 435, 56 Atl. 
 856 (1904). It is within the option 
 of the legislature to permit a per- 
 son or corporation on whose behalf 
 the right of eminent domain is exer- 
 cised to enter into active possession 
 
 of the land before the question of 
 damages is settled. St. Louis, I. M. 
 & S. By. Co. v. Pfau, 212 Mo. 398, 
 111 S. W. 10 (1908). So far as 
 the right to a jury trial extends, it 
 may be regarded as paramount. St. 
 Louis, I. M. & S. Ry. Co. v. Pfau, 212 
 Mo. 398, 111 S. W. 10 (1908). 
 
 2. Hickey v. Anaconda Copper Min. 
 Co., (Mornt. 1905) 81 Pac. 806. 
 
 3. Kirkland v. State, (Ark. 1904) 
 78 S. W. 770. 
 
 4. Arkansas. — Furth v. State 78 
 S. W. 759 (1904) (destroy gambling 
 instruments ) . 
 
 Colorado. — Kite v. People, 74 Pac. 
 886 (1903) (destruction of gambling 
 devices). 
 
 Illinois. — Parmelee v. Price, 208 
 111. 544, 70 N. E. 725 (1904) (lia- 
 bility of stock-holder). 
 
 Indiana. — Tomlinson v. Bainaka, 
 70 N. E. 155 (1904) (partition 
 fences ) . 
 
 Iowa. — Neff v. Manuel, 97 N. W. 
 73 (1903) (claim of an intervenor 
 in garnishment proceedings). 
 
 Maine. — Ingram v. Maine Water 
 Co., 98 Me. 566, 57 Atl. 893 (1904) 
 (mills and mill dams). 
 
 North Carolina. — Wallace v. Salis- 
 bury, 147 N. C. 58, 6Q S. E. 713 
 
§§ 434, 434a A. Peoteot Substantive Eights. 566 
 
 Proceedings for the committal of insane persons may properly 
 take place without the right to a trial by jury. 5 
 
 § 434. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial); Eight Must Be Claimed before a Court. — 
 
 Only in a u court " as that term was commonly understood at the 
 common law, when the provisions regarding jury trials were 
 adopted, can such a trial be lawfully demanded at the present 
 time. The fact that a body of men as arbitrators 1 are exercising 
 judicial powers confers no right to a trial by jury. 
 
 Common Law Courts. — A right to trial by jury, as usually 
 limited, extends to all courts of general jurisdiction and record 
 which proceed according to the course of the common law. 2 Thus 
 in courts of admiralty, 3 equity* or probate 5 as no jury was em- 
 ployed at common law, so no just claim to one on the part of a 
 litigant exists under the constitutional guaranties. 
 
 Where no machinery is provided or actually used in any court, 
 it will be judicially assumed that a litigant cannot, merely by ask- 
 ing for a jury, obtain one. 6 
 
 § 434a. ( [4] Right to Judgment of Court or Jury; General 
 
 Right to a Jury Trial) ; Admiralty Courts Ko right to trial by 
 
 jury in courts of admiralty having existed at common law, none 
 can properly be demanded under state or federal constitutions. 1 
 By statute, however, such a right may be conferred, either gen- 
 erally, or on the trial of specific issues, or as to causes arising in a 
 
 (1908) (validity of liquor election); Frink, (Neb. 1908), 116 N. W. 525; 
 
 Burke r. Jenkins, (N. C. 1908) 61 Walker v. McMahan, (Neb. 190S) 
 
 S. E. 608 (removal from office) ; 116 N. W. 528. 
 
 Porter v. Armstrong, 134 N. C. 447, 5. Ex parte Scudamore, (Fla. 
 
 46 S. E. 997 (1904). 1908) 46 So. 279. 
 
 Nebraska. — State v. Fleming, 97 1. Barker v. Jackson, 2 Fed. Cas. 
 
 N. W. 1063 (1903). No. 989, 1 Paine 559 (1826). 
 
 Pennsylvania. — In re Poewel's Es- 2. Vaughn v. Scade, 30 Mo. 600 
 
 tate, 209 Pa. 76, 57 Atl. 1111 (1904) (1860). 
 (issues before auditor). 3. Infra, § 434a. 
 
 Rhode Island. — In re School Com- 4. Infra, § 438. 
 
 mittee of North Smithfield, 26 R. I. 5. Infra, § 444. 
 
 164, 58 Atl. 628 (1904). 6. De Lamar v. Dollar, 128 Ga. 57, 
 
 Revocation of license.— The revo- 57 S. E. 85 (1907). 
 cation by a board of health of a phy- 1. Gillet v. Pierce, Brown Adm. 
 
 sician's license is summary in its 553, 10 Fed. Cas. No. 5,437 (1875) ; 
 
 natare and the person affected is not Clark r. U. S., 2 Wash. (U. S.) 519, 
 
 entitled to a trial by jury. Munk v. 5 Fed. Cas. No. 2837 (1811). 
 
567 Jury Teials on Issues in Bankruptcy. § 435 
 
 particular way, e. g., in respect to interstate commerce on the 
 great lakes and the navigable waters therewith connected. 2 
 
 A litigant who would demand a jury by virtue .of such provi- 
 sions must allege in his pleadings 3 facts sufficient to bring him 
 within the terms of the statute. Courts of admiralty, exercising an 
 equitable jurisdiction for the doing of justice, rather than sitting 
 for the purpose of applying procedural rules to certain states of 
 fact, regard the verdict of a jury, even when authorized by statute 
 as advisory, i. e., informing the conscience of the court, and may 
 disregard it if unjust or unreasonable. 4 On the other hand, 
 where a jury is employed in the trial of a cause in admiralty, 
 the verdict, if a just one, will not be reversed; 5 — although 
 there has been no authority for rendering it. 
 
 Suits for penalties are civil in their mature and a jury is not 
 demandable in a court of admiralty upon the trial of such an 
 issue. 6 
 
 § 435. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial); Bankruptcy Courts. — Proceedings in 
 bankruptcy, not being according to the course of the common law, 
 issues of fact raised in such courts do not involve the right 
 to a jury trial. 1 Where, however, the suit is tried at law 
 
 2. The Western States, 159 Fed. 6. The Sarah, 8 Wheat. (U. S.) 391, 
 354, 86 C. C. A. 354 (1908) [decree 5 L. ed. 644 (1823) ; Whelan v. U. S., 
 affirmed (D. C. 1907) 151 Fed. 929]; 7 Cranch (U. S.) 112, 3 L. ed. 286 
 Gillet V. Pierce, Brown Adm. 553, 10 (1812) ; U. S. v. The Schooner Betsey- 
 Fed. Cas. No. 5437 (1875); U. S. and Charlotte, 4 Cranch (U. S.) 443, 
 Rev. Stat. (1878), § 566. 2 L. ed. 673 (1808); U. S. v. La 
 
 The action is limited to torts or Vengeance, 3 Dall. (U. S.) 297, 1 
 
 contracts arising out of interstate L. ed. 610 (1796) ; The Paolina S., 18 
 
 commerce in the navigation of these Blatchf. (U. S.) 315, 11 Fed. 171 
 
 lakes or waters. The Western States, (1880); Clark v. U. S., 2 Wash. 
 
 159 Fed. 354, 86 C. C. A. 354 (1908) (U. S.) 519, 5 Fed. Cas. No. 2,837 
 
 [decree affirmed (D. C. 1907), 151 (1811). See also The Margaret, 9 
 
 Fed. 929]; The City of Toledo, 73 Wheat. (U. S.) 421, 6 L. ed. 125 
 
 Fed. 220 (1896) ; Bigley v. The Ven- (1824). 
 
 ture, 21 Fed. 880 (1884) ; The Erie 1. Comingor v. Louisville Trust 
 
 Belle, 20 Fed. 63 (1883). Co., 33 Ky. Law Rep. 53, 108 S. W. 
 
 3. Gillet V. Pierce, Brown Adm. 950 (1908), [rehearing denied, 33 
 553, 10 Fed. Cas. No. 5,437 (1875). Ky. Law Rep. 884, 111 S. W. 681 
 
 4. The Western States, 151 Fed. (1908)] (compel assignee to settle 
 929 (1907); The City of Toledo, 73 his account). In re Standard Tele- 
 Fed. 220 (1896); The Empire, 19 phone & Electric Co., (Wis. 1907) 
 Fed. 558 (1884). 157 Fed. 106. The right to a jury 
 
 5. Lee v. Thompson, 3 Woods (U. trial secured by the Constitution of 
 S.) 167, 15 Fed. Cas. No. 8,202 the United States as affected by the 
 (1878). seventh amendment is not infringed 
 
§§ 436-438 A. Pkotect Substantive Eights. 568 
 
 and the relief sought is legal rather than equitable, a jury may- 
 be had, 2 
 
 § 436. C [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial); Courts Martial. — Military tribunals, at 
 common law, were notoriously held without juries. Consequently 
 the right to a jury trial does not extend to proceedings before 
 such courts. 1 For the same reason the legislature may properly 
 permit military courts to impose fines or other penalties for mili- 
 tary offenses without violation of the constitutional provision 
 guaranteeing trial by jury. 2 There is no right to a trial by jury 
 in such a court. 3 
 
 § 437. C [4] Right to Judgment of Court or Jury; General 
 
 Right to a Jury Trial) ; Divorce Courts Divorce hearings being 
 
 equitable rather than legal in their nature, did not at common 
 law carry a right to a jury trial. Nor, in the absence of statute, 
 does such a right exist merely by virtue of a general guaranty of 
 jury trial. It may, however, be provided by statute that certain 
 issues, for example, that of adultery, 1 or, indeed, any issue 2 may 
 be tried by jury. 
 
 § 438. ( f4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial) ; Equity Tribunals. — No jury having been 
 employed in English chancery proceedings, none can properly be 
 claimed in connection with equity hearings at tbe present day. 1 
 
 by the provisions of the Bankruptcy 2. Wright V. Wright, (Tex. Civ. 
 
 Act (Stat. July 1st, 1898, Ch. 541, § App. 1908) 110 S. W. 158. 
 
 60d 30; Stats. 562 of U. S. Comp. 1. Alabama. — Southern Steel Co. 
 
 St. 1901, p. 3446) to re-examine and v. Hopkins, 47 So. 274 (1908) (pre- 
 
 reduce payments and transfers of vent multiplicity of suits). 
 
 property to counsel made by a bank- Arizona.— Cole v. Bean, 1 Ariz. 
 
 rupt in contemplation of bankruptcy 377 > 25 Pae - 538 (1878). 
 
 proceedings. In re Wood, 210 U. S. California.- Meek v. De Latour, 
 
 246, 23 S. Ct. 621, 52 L. ed. 1046 < Cal " A PP" 1905 > 83 Pac - 300 (1905) ' 
 (1 ' Still ('. Saunders, 8 Cal. 281 (1857) ; 
 
 2. Stern v. Mayer, 91 N. Y. Suppl. talker v. .Sedgwick, 5 Cal. 198 
 
 292, 99 App. Div. 427 (1904). (1855). ,,..«, t> , 
 
 rr Connecticut. — Meridan Sav. Bank 
 
 1. Merriman v, Bryant, 14 Conn. v McCormack; 79 C onn. 260, 64 Atl. 
 
 200 < 1841 >- 338 (1906). 
 
 2. Merriman r. Bryant, 14 Conn. De i aware .— U. S. v. Luce, 141 Fed. 
 200 (1841). 385 (1905 ). 
 
 3. Rawson v. Brown, 18 Me. 216 Florida.— Smith v, Croom, 7 Fla. 
 (1841); State v. Wagener, 74 Minn. 180 (ig57). 
 
 518, 77 N. W. 424, 73 Am. St. Rep. Georgia.— Houston v. Polk, 124 Ga. 
 
 369, 42 L. R. A. 749 (1898). 103, 52 S. E. 83 (1905); Hogan v. 
 
 1. Tietzel v. Tietzel, 107 N. Y. Walsh, 122 Ga. 283, 50 S. E. 84 
 
 Buppl. 878, 122 App. Div. 873 (1907). (1905). 
 
569 
 
 !Xo Jtjey on Issues in Equity Causes. 
 
 438 
 
 For example, a trial by jury is not required in suits brought to 
 enjoin and abate a public nuisance. 2 In equity questions of fact 
 as well as those of law are determined by the judge. 3 In fact, as 
 
 Idaho. — Shields v. Johnson, 79 Pax:. 
 391 (1904) ; Brady v. Yost, 6 Idaho 
 273, 55 Pac. 542 (1898). 
 
 Illinois.— Shedd v. Seefeld, 230 111. 
 118, 82 N. E. 580, 13 L. R. A. (N. S.) 
 709 (1907) [affirming decree, 126 111. 
 App. 375 (1906)]. 
 
 Indiana. — Small v. Binford, 83 N. 
 E. 507 (1908) [rehearing denied 84 
 N. E. 19] ; Burck v. Davis, 73 N. E. 
 192 (1905); Tomlinson v. Bainaka, 
 70 N. E. 155 (1904). 
 
 Iowa. — Sisson v. Board of Sup'rs of 
 Buena Vista County, 104 N. W. 454 
 (1905). 
 
 Kansas. — State v. Thomas, 86 Pac. 
 499 (1906). 
 
 Kentucky-. — ■ Bailey v. Nichols, 8 
 Ky. Law Rep. 64 (1886). 
 
 Massachusetts. — Ross v. New Eng- 
 land Mut. Ins. Co., 120 Mass. 113 
 (1876). 
 
 Minnesota. — Shipley v. Belduc, 93 
 Minn. 414, 101 N. W. 952 (1904). 
 
 Missouri. — Hagan •». Continental 
 Nat. Bank, 182 Mo. 319, 81 S. W. 
 171 (1904) ; Hagan v. Continental 
 Nat. Bank, 182 Mo. 319 (1904) ; Gay 
 v. Ihni, 69 Mo. 584 (1879). 
 
 Montana. — Demars v. Hudon, 82 
 Pac. 952 (1905). 
 
 "Nebraska. — Daniels v. Mutual Ben. 
 Ins. Co., 102 N. W. 458 (1905) ; Wood- 
 rough v. Douglas County, 98 N. W. 
 1092 (1904). 
 
 New Hampshire. — Sipola v. Win- 
 ship, 74 N. H. 240, 66 Atl. 962 (1907); 
 Curtice v. Dixon, 62 Atl. 492 (1905). 
 
 Nevada. — Costello v. Scott, 93 Pac. 
 1 (1908) [judgment modified on re- 
 hearing 94 Pac. 222]. 
 
 New York. — Tucker v. Edison Elec- 
 tric Illuminating Co. of New York, 
 •184 N. Y. 548, 76 N. E. 1110 (1906) ; 
 Page v. Herkimer Lumber Co., 96 N. 
 Y. Suppl. 272, 109 App. Div. 391 
 (1905)'; Tucker v. Edison Electric 
 Illuminating Co., 91 N. Y. Suppl. 439, 
 
 100 App. Div. 407 (1905) ; Magnolia 
 Metal Co. v. Drew, 68 N. Y. Suppl. 
 34, 68 App. Div. 47 (1902) ; Mar- 
 shall v. De Cordova, 50 N. Y. Suppl. 
 294, 26 App. Div. 615 (1898). 
 
 North Dakota. — Avery Mfg. Co. v. 
 Smith, 103 N. W. 410 (1905). 
 
 Ohio. — Fleurot v. Fletcher, 28 Ohio 
 Cir. Ct. R. 841 (1903) [judgment 
 affirmed, 73 Ohio St. 381, 78 N. E. 
 1125 (1905)]. 
 
 Oklahoma. — Gulley v. Territory, 91 
 Pac. 1037 (1907). 
 
 Pennsylvania. — Frank's Appeal, 59 
 Pa. St. 190 (1868). 
 
 South Carolina. — Atlantic & C, 
 etc., Ry. Co. v. Victor Mfg. Co., 79 
 S. C. 266, 60 S. E. 675 (1908) ; Bank 
 of Spartanburg v. Chickasaw Soap Co., 
 70 S. C. 253, 49 S. E. 845 (1904) ; 
 Brock v. Kirkpatrick, 69 S. C. 231, 
 48 S. E. 72 (1904) ; Pratt v. Timmer- 
 man, 69 S. C. 186, 48 S. E. 255 
 (1904). 
 
 Washington. — Wintermute V. Car- 
 ner, 8 Wash. 585, 36 Pac. 490 (1894). 
 
 Wisconsin,. — Harrigan v. Marshy 
 121 Wis. 127, 99 N. W. 909 (1904). 
 
 United States. — In re Plant, 148 
 Fed. 37 (1906). 
 
 Canada. — Clairmonte 1>. Prince, 30 
 Nova Scotia 258 (1897) ; Fox v. Fox, 
 ('Can. 1896) 17 Ont. Pr. 161; Bald- 
 win V. MoGuire, (Can. 1893) 15 Ont. 
 Pr. 305. 
 
 Having obtained jurisdiction, the 
 judge may properly make such in- 
 cidental findings of fact as would be 
 in accordance with established equity 
 practice. Slaughter v. McManigal, 
 (Iowa 1908) 116 N. W. 726. 
 
 2. Reaves v. Territory, 13 Okl. 396, 
 74 Pac. 951 (1903). 
 
 3. Arkansas. — State v. Churchill, 
 48 Ark. 426, 3 S. W. 352, 880 (1886). 
 
 Illinois. — Flaherty v. McCormick, 
 113 111. 538 (1885). 
 
§439 
 
 A. Peotect Substantive Eights. 
 
 570 
 
 is elsewhere mentioned, 4 this distinction between legal and equi- 
 table proceedings obtains even where all special equity forms have 
 been abolished and the rules of equity are applied in a common 
 law court by a common law judge. 5 As far as a jurisdiction exer- 
 cised by an equity judge, e. g., care and custody of delinquent or 
 wayward children, is transferred to another court acting under 
 the forms of common law, the establishment by the legislature 
 of a jury of six to act in such cases violates no right to a jury 
 trial. 6 
 
 § 439. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial; Equity Tribunals) ; Code Procedure. — 
 
 Under the blending of legal and equitable remedies in this system 
 of procedure it is frequently provided that legal issues arising in 
 equitable causes must, as of right, be tried by a jury; and, per 
 contra, that equitable issues arising in a controversy essentially 
 
 Nebraska. — Sharmer v. Mcintosh, 
 43 Neb. 509, 61 N. W. 727 (1895). 
 
 New York. — Rathbun v. Rathbun, 
 3 How. Pr. 139 (1847). 
 
 South Carolina. — Lucken v. Wich- 
 man, 5 S. C. 411 (1874). 
 
 Wisconsin. — Stilwell v. Kellogg, 14 
 Wis. 461 (3861). 
 
 United States. — Goodyear v. Prov- 
 idence, etc., Co., 10 Fed. Cas. No. 
 5583, 2 Cliff. 351 (1864). 
 
 4. Infra, § 440. 
 
 5. California. — Smith v. Rowe, 4 
 Cal. 6 (1853). 
 
 Colorado. — Rice v. Goodwin, 2 Colo. 
 App. 267, 30 Pac. 330 (1892). 
 
 Minnesota. — Berkey V. Judd, 14 
 Minn. 394 (1869). 
 
 Montana. — Gallagher v. Basey, 1 
 Mont. 457 (1872). 
 
 New York. — Flanigan v. Skelly, 85 
 N. Y. Suppl. 4, 89 App. Div. 108 
 (1903); Toplitz v. Bauer, 49 N. Y. 
 Suppl. 840, 26 App. Div. 125 (1898) ; 
 Wheeler v. Falconer, 7 Rob. 45 (1867). 
 
 South Carolina. — Price v. Brown, 4 
 S. C. 144 (1872). 
 
 Wisconsin. — Harrigan v. Gilchrist, 
 121 Wis. 127, 99 N. W. 909 (1904). 
 
 United States. — Perego v. Dodge, 
 163 U. S. 160, 16 S. Ct. 971, 41 L. 
 ed. 113 (1S96) ; Basey v. Gallagher, 
 
 20 Wall. 670, 22 L. ed. 452 (1874). 
 Where an equitable remedy is invoked 
 a jury is not a matter of right. Cush- 
 man v. Thayer Mfg., etc., Co., 76 N. Y. 
 365, 32 Am. Rep. 315 (1879) [affirm- 
 ing 7 Daly 330 (1878)]. 
 
 North Carolina presents an anoma- 
 lous rule to the effect that in dealing 
 with issues of fact as distinguished 
 from questions of fact arising in 
 course of equity proceedings, the 
 jury may be claimed as of right, Ely 
 v. Early, 94 N. C. 1 (1886) ; Worthy 
 v. Shields, 90 N. C. 192 (1884) [dis- 
 approving Groldsborough V. Turner, 67 
 N. C. 403 (1872)]. See also Taylor 
 V. Person, 9 N. C. 298 (1822) ; Mar- 
 shall v. Marshall, 4 N. C. 318 (1815). 
 
 6. Robinson V. Wayne Circuit 
 Judges, 151 Mich. 315, 115 N. W. 682, 
 14 Detroit Leg. N. 945 (1908). 
 
 1. Dawson v. Town of Orange, 78 
 Conn. 96, 61 Atl. 101 (1905) ; Sand- 
 strom V. Smith, (Idaho 1906) 86 Pac. 
 416; Morawick v. Martineck's Guard- 
 ian, 32 Ky. L. Rep. 971, 107 S. W. 
 759 (1908) ; Kountze v. Hatfield, 99 
 S. W. 262, 30 Ky. L. Rep. 589 (1907)f 
 The right, however, may be waived. 
 Costelloc. Scott, (Nev. 1908) 93 Pac. 
 1 [judgment modified on rehearing 
 94 Pac. 322]. 
 
571 
 
 Juet Under Mebgek of Law and Equity. § 439 
 
 legal shall be determined by the judge. 2 In other cases, where the 
 relief sought is partly legal and partly equitable, the right to a 
 jury will depend upon what is the gist of the action. 3 In other 
 words, a legal cause of action will be tried to a jury though inci- 
 dental equitable relief is also asked. 
 
 On the other liand, a jury will be refused in an equitable action 
 though damages or other legal remedy be also claimed.* In some 
 jurisdictions the right to have a jury on all issues of fact in equity 
 causes has been conferred by statute in unlimited terms. 5 In 
 others, the right is given in connection with particular forms of 
 proceeding or with special questions. 6 
 
 New York. — People v. Equitable 
 Life Assur. Soe. of U. S., 109 N. Y. 
 Suppl. 453, 124 App. Div. 714 (1908) 
 [reversed, 101 N. Y. Suppl. 354, 51 
 Misc. 339 (1906)]; Ebling Brew. Co. 
 V. Mimphius, 109 N. Y. Suppl. 808, 58 
 Misc. 545 (1908) ; Heughes v. Galusha 
 Stove Co., 106 N. Y. Suppl. 606, 123 
 App. Div. 118 (1907). 
 
 North Dakota. — Gorthy v . Jarvis, 
 108 N. W. 39 (1906). 
 
 Ohio. — Willson Imp. Co. v. Malone, 
 78 Ohio St. 232, 85 N. E. 51 (1908) ; 
 Heintz v. Anthony, 26 Ohio Cir. Ct. 
 R. 380 (1904). 
 
 Oklahoma. — Maas v. Dunmyer, 96 
 Pac. 591 (1908). 
 
 South Carolina. — Brattan V. Ca- 
 tawba Power Co., 60 S. E. 673 (1908) ; 
 Keenan v. Lesslie, 79 S. C. 473, 60 
 S. E. 1114 (1908); Atlantic & C, 
 etc., Ry. Co. v. Victor Mfg. Co., 79 
 S. C. 266, 60 S. E. 675 (1908). 
 
 South Dakota. — Burleigh v. Hecht, 
 117 N. W. 367 (1908). 
 
 West Virginia. — Cheurront v. Hor- 
 ner, 59 S. E. 964 (1908). 
 
 Wisconsin. — Harrigan v. Marsh, 121 
 Wia. 127, 99 ST. W. 909 (1904). 
 
 4. Watt v. Barnes, 41 Ind. App. 
 466, 84 N. E. 158 (1908). 
 
 5. Call v. Perkins, 65 Me. 439 
 (1876). 
 
 6. MeKinsey v. Squires, 32 W. Va. 
 41, 9 S. E. 55 (1889); Druse v. 
 Horter, 57 Wis. 644, 16 N. W. 14 
 (1883). 
 
 2. Peterson v. Philadelphia Mort- 
 gage & Trust Co., 33 Wash. 464, 74 
 Pac. 585 (1903). 
 
 3. California. — Noble v. Learned, 94 
 Pac. 1047 (1908). 
 
 Idaho. — Robertson v. Moore, 77 Pac. 
 218 (1904). 
 
 Indiana. — Hoosier Const. Co. v. Na- 
 tional Bank of Commerce of Seattle, 
 73 N. W. 1006 (1905) ; Muncie Pulp 
 Co. v. Martin, 72 N. E. 882 (1904) ; 
 Hoosier Const. Co. v. National Bank 
 of Commerce, 72 N. E. 473 (1904). 
 
 Iowa. — Bradley v. Burkhart, 115 
 N. W. 597 (1908) ; Twogood V. Allee, 
 99 N. W. 288 (1904). 
 
 Kentucky. — Comingor v. Louisville 
 Trust Co., 33 Ky. L. Rep. 53, 108 
 S. W. 950 (1908) [rehearing denied, 
 33 Ky. L. Rep. 884, 111 S. W. 681 
 (1908)]. 
 
 Minnesota. — Johnson v. Peterson, 
 90 Minn. 503, 97 N. W. 384 (1903). 
 
 Missouri. — Thompson v. Nat. Bank 
 of Commerce, 132 Mo. App. 225, 110 
 S. W. 681 (1908) (action on cheque 
 where payment has been stopped by 
 makers) ; Magnuson v. Continental 
 Casualty Co., 125 Mo. App. 206, 101 
 S. W. 1125 (1907). 
 
 Montana. — Butte Consol. Min. Co. 
 V. Barker, 89 Pac. 302 (1907) [af- 
 firmed in 90 Pac. 177] ; Chessman v. 
 Hale, 79 Pac. 254 (1905). 
 
 Nebraska. — Gandy v. Wiltse, 112 
 N. W. 569 (1907). 
 
 New Mexico. — Mogollon Gold & 
 Copper Co. v. Stout, 91 Pac. 724 
 (1907). 
 
§§ 440, 441 A. Protect Substantive Eights. 572 
 
 § 440. ( [4] Right to Judgment oi Court or Jury; General 
 Right to a Jury Trial; Equity Tribunals); General Rule — The 
 
 distinction between law and equity is not, however, one of names 
 or of phraseology employed in pleading, 1 but of certain essential 
 differences in the nature of the right claimed or relief asserted. 
 Therefore, where the essential nature of the action is equitable, 
 the rule excluding a jury still prevails, 2 even where the precise 
 form of procedure be novel and statutory, as the liability of solvent 
 resident stockholders of a corporation for its indebtedness. 3 It is 
 wise that this should be so, for purely equitable remedies are not 
 cognizable, with advantage to the cause of justice, by a jury, how- 
 ever fitted they may be to find constituent facts as compared with 
 a master in chancery. 4 Where the action is, in its nature, legal, a 
 jury may, as a rule, be demanded wherever it could have been 
 successfully claimed at common law. This general right may be 
 increased or diminished by the action of the legislature. Even 
 where an action is equitable in its nature, the right of the trial 
 judge to have issues of fact tried by a jury is usually conceded. 
 The case, under these circumstances, properly goes to a jury in 
 the same way that an action at law is submitted. 9 
 
 § 441. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial; Equity Tribunals) ; Various Modifications 
 
 of Rule. — Various modifications of the right of jury trial in 
 equity cases may be created by statute. On the other hand, many 
 statutes, like that of Indiana, 1 are merely declaratory of the com- 
 
 1. Martin v. Martin, 118 Ind. 227, McNamara, (Mich. 1904) 10 Detroit 
 20 N. E. 763 (1888). Leg. N. 915, 98 N. W. 392; Miller 
 
 2. Noble v. Learned, (Cal. App. v. Edison Electric Illuminating Co., 
 
 1906) 87 Pac. 402; Cowan v. Skinner, 184 N. Y. 17, 76 N. E. 734 (1906) ; 
 (Fla. 1907) 42 So. 730; Blakemore Fernandez y Perez v. Perez y Pernan- 
 V. Cooper, (N. D. 1906) 106 N. W. dez, 202 U. S. 80, 26 S. Ct. 561, 50 
 566; Hurley v. Walter, 129 Wis. 508, L. ed. 942 (1906). 
 
 109 N. W. 558 (1906); Spafford v. 5. Voss v. Smith, 84 N. Y.~Suppl. 
 
 McNally, 130 Wis. 537, 110 N. W. 471, 87 App. Div. 395 (1903). 
 
 387 (1907). 1. Blair v. Curry, 150 Ind. 99, 46 
 
 3. Merrill v. Prescott, 67 Kan. 767, N. E. 672, 49 N. E. 908 (1897) ; 
 74 Pac. 259 (1903). Wright v. Fultz, 138 Ind. 594, 38 
 
 4. The computation of damages, N. E. 175 (1894) ; Monnett v. Turpie, 
 even in equitable actions is frequently 132 Ind. 482, 32 N. E. 328 (1892). 
 made the subject of the intervention See, for example, Wormley v. Hamburg, 
 of a jury. Cowan v. Skinner, (Fla. 46 Iowa 144 (1877) ; Wadsworth v. 
 
 1907) 42 So. 730. The matter, how- Wadsworth, 40 Iowa 448 (1875); 
 ever, is usually in equity causes, de- Benedict v. Hunt, 33 Iowa 27 (1871). 
 termined by the court. Rhoades v. 
 
573 DiEECTiNGr Issues Out of Chanceky. § 442 
 
 mon law rules on the subject. 2 Where issues at law and those in 
 equity are joined, the latter are to be tried by the court, the former 
 by a jury. 3 Statutory injunctions not known to the common law, 
 e. g., those in aid of the restriction of gaming,* prostitution, the 
 sale of intoxicating liquor, 5 oleomargarine, 6 and similar offenses 
 may be awarded without a trial by jury. 
 
 § 442. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial; Equity Tribunals); Issues out of Chan- 
 cery — While the modern equity judge, following the historical 
 course of the English Lord Chancellor, sits, as a rule, for the de- 
 termination of issues of fact, by the aid of masters' reports and 
 similar assistance, he may, in pursuance of his administrative 
 powers, send an issue of fact, framed by his court, to be tried by 
 a jury at law. 1 Certain issues he is required to treat in this way. 
 These are issues relating to matters strictly of legal right, as 
 where, for example, devisees under a will bring an action in equity 
 against the heir-at-law, asking that he be enjoined from bringing 
 suit against them under his claim as heir. " In every case of this 
 sort courts of equity will, unless the heir waives it, direct an 
 issue of devisavit vel non (as it is technically although according 
 to Mr. Wooddeson barbarously expressed) to ascertain the validity 
 of the will." 2 
 
 A second case is now practically obsolete; i. e., where a rector 
 claimed at common law the right to tithes 3 or a modus was 
 claimed against him. As was said by the supreme court of 
 Oregon : * "It was the privilege of an heir at law, and of a 
 rector or vicar, in suits to establish a will or modus, to demand a 
 hearing before a jury, and this was granted as a matter of right. 
 Aside from these exceptions, the granting of an issue at common 
 
 2. Canada has enacted a similar jury on issues of fact arising in a suit 
 statute. Clairmonte v. Prince, 30 in equity. Twogood v. Allee, (Iowa 
 Nova Scotia 258 (1897); Sawyer V. 1904) 99 N. W. 288. 
 
 Robertson, 19 Ont. Pr. 172 (1900). 2. 2 Story's Eq. Jurisp., § 1447. 
 
 3. Field v. Brown, 146 Ind. 293, 45 See also Bates v. Graves, 2 Ves. Ch. 
 N. E. 464 (1896) ; Martin v. Martin, Rep. 287 (1793). 
 
 118 Ind. 227, 20 N. E. 763 (1888). 3. " If the right is disputed, it 
 
 4. Ea> parte Allison, (Tex. 1906) 90 must he first ascertained at law be- 
 S. W. 492. fore an account will be decreed." 1 
 
 5. Cowdery v. State, (Kan. 1905) Story's Eq. Jurisp., § 519. See also 
 80 Pac. 953. Hughes v. Davies, 5 Sim. 331, 349 
 
 6. Com. v. Andrews, 24 Pa. Super. (1832). 
 
 Ct. 571 (1904). 4. Raymond r. Flavel, 27 Or. 219, 
 
 1. There is no right to a trial by 40 Pac. 158 (1895). 
 
442 
 
 A. Protect Substantive Rights. 
 
 574 
 
 law was discretionary with the court; it was not 'demandable as 
 of right." 5 In other ca§es, as has been said, the submission of 
 an issue of fact to a jury is purely a matter of administration. 6 
 The judge, therefore, is by no means bound by the verdict as he 
 would have been in <an action at law. 7 Where he concludes to 
 act in whole or in part, upon the jury's verdict, he carries it into 
 effect by such decrees or orders as seem to him judicious. 8 
 
 5. Pacific Railway Co. v. Wade, 91 
 Cal. 449, 456, 25 Am. St. Rep. 201, 
 13 L. R. A. 754, 27 Pac. 768 (1891) ; 
 Koons v. Blanton, 129 Ind. 383, 393, 
 27 N. E. 334 (1891) ; Brown v. Buck, 
 75 Mich. 274, 5 L. R. A. 226, 42 N. 
 W. 827, 13 Am. St. Rep. 438 (1889) ; 
 Barton v. Barbour, 104 U. S. 126, 133 
 (1881); Adams on Equity, * 377; 
 2 Daniel on Chancery Practice, § 1080. 
 
 6. Alabama. — Alexander r. Alex- 
 ander, 5 Ala. 517 (1843). 
 
 Arkansas. — State v. Churchill, 48 
 Ark. 426, 3 S. W. 352, 880 (1886). 
 
 Florida.— Smith v. Croom, 7 Fla. 
 180 (1857). 
 
 Indiana. — Helm v. Huntington, etc., 
 Bank, 91 Ind. 44 (1883). 
 
 Kentucky. — Bailey v. Nichols, 8 
 Ky. L. Rep. 64 (1886). 
 
 Minnesota. — Cochran v. Cochran, 
 96 Minn. 523, 105 N. W. 183 (1905). 
 
 Missouri. — Weil v. Kume, 49 Mo. 
 158 (1871). 
 
 New York. — Cantoni v. Forster, 33 
 N. Y. Suppl. 565, 12 Misc. 343 
 (1895): Smith v. Carll, 5 Johns. Ch. 
 118 (1821). 
 
 Oregon. — Raymond v. Flavel, 27 Or. 
 219, 40 Pac. 158 (1895). 
 
 United States. — Herdsman r, Lewis, 
 9 Fed. 853, 20 Blatchf. 266 (1882); 
 Ely v. Monson, etc., Mfg. Co., 8 Fed. 
 Cas. No. 4,431 (1860). "The course 
 of this practice has been uniform, and 
 its propriety has never been, so far 
 as I can learn, judicially criticised or 
 questioned." Newark, etc., R. Co. v. 
 Mayor of Newark, 23 N. J. Eq. 515 
 (1872), per Beasley, C. J. "Courts 
 of equity have an original jurisdic- 
 tion, which, I agree, must be exercised 
 according to a sound discretion, to 
 try questions of fact without the in- 
 
 tervention of a jury; and which aid 
 is sought, _ according to the common 
 expression, for the purpose of inform- 
 ing the conscience of the court. I 
 agree that a mistake in refusing to 
 send the case to a jury is a just 
 ground of appeal, if the court of ap- 
 peal should think that the contrary 
 decision would have been a sounder 
 exercise of discretion; but it is a, 
 competent exercise of the authority 
 and duty of the court, in every case, 
 and throughout every case, and in 
 every stage, to determine, according to 
 its discretion, whether it does or not 
 want that assistance." Hampson v. 
 Hampson, 3 Ves. and B. Ch. 42 (1814), 
 per Lord Chancellor Eldon. 
 
 Under Code practice, this may still 
 be done. Omaha F. Ins. Co. v. Thomp- 
 son, 50 Neb. 580, 70 N. W. 30 (1897). 
 
 7. Arkansas. — State v. Churchill, 
 48 Ark. 426, 3 S. W. 352, 880 (1886). 
 
 Idaho. — Brady v. Yost, 6 Idaho 273, 
 55 Pac. 542 (1898). 
 
 Illinois. — Gaby v. Hankins, 86 111. 
 App. 529 (1899). 
 
 Missouri. — James v. Oliver, 129 Mo. 
 App. 86, 107 S. W. 1012 (1908) ; Gay 
 V. Ihm, 69 Mo. 584 (1879). 
 
 United States. — Ely r. Monson, etc., 
 Mfg. Co., 8 Fed. Cas. No. 4,431 
 (1860) ; Goodyear !'. Providence, etc., 
 Co., 10 Fed. Cas. No. 5583, 2 Cliff. 
 351 (1864). In an equity action the 
 court may disregard a special verdict 
 of the jury and make its own find- 
 ings of fact and conclusions of law. 
 Ostrom v. De Yoe, (Cal. App. 1906) 
 87 Pac. 811. 
 
 8. Capron r. Devries, 83 Md. 220, 
 34 Atl. 251 (1896) ; Lowe t\ Riley, 
 57 Neb. 252, 77 N. W. 758 (1898); 
 Ex p. Cotten, 62 N. C. 79 (1867). 
 
575 Small Jueies Befoee- Infeeiob Couets. § 443 
 
 In the federal courts the rule is the same. As was said by Mr. 
 Justice Clifford, 9 " The federal courts under the constitution of 
 the United States and the laws of congress, as now existing, have 
 the power of deciding every question of law or fact which may 
 arise in equity suits over which they have complete jurisdiction, 
 and consequently it is not indispensably necessary as matter of 
 law in any case that any question in an equity suit should be sent 
 to a jury." 10 
 
 " Formerly an issue was directed only in cases where there was 
 a want of evidence, or wherein the testimony was contradictory, 
 or so nearly balanced that it was necessary to have an open and 
 rigid cross-examination of the witnesses where they could be seen 
 and heard by the jury, who were to decide the questions of fact 
 submitted to them. The awarding of an issue was merely a mat- 
 ter of discretion resting with the chancellor, and its purpose was 
 to inform his conscience. 11 But in all cases where there was 
 sufficient evidence to satisfy the conscience of the chancellor, or 
 where the evidence, though somewhat conflicting and contradic- 
 tory, unless it created a doubt in his mind, by reason whereof he 
 was unable to come to a satisfactory conclusion of his own, an 
 issue was not directed. 12 
 
 Unless removed by statute, the administrative power of the 
 judge to submit issues of fact to a jury in a cause exclusively 
 equitable continues to exist. 13 Such issues must be tried at law 
 ■as directed out of chancery; — and, of course, with a jury. 
 
 § 443. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial); Inferior Courts — A jury of not less than 
 twelve cannot, it is said, be provided for courts of limited juris- 
 
 9. Goodyear v. Providence, etc., Co., 12. New Jersey. — Newark, etc., R. 
 10 Fed. Cas. No. 5,583, 2 Cliff. 351 Co. v. Mayor of Newark, 23 N. J. Eq. 
 (1864). 515 (1872). 
 
 10. Fornshill v. Murray, 1 Bland New York. — Le Guen V. Gouverneur, 
 479, 485 (1828); Ward V. Hill, 4 1 Johns. Cas. 436, 500, 1 Am. Dec. 
 Gray 593 (1855). 121 (1800). 
 
 11. State v. Churchill, 48 Ark. 426, Virginia. — Reed v. Cline's Heirs, 9 
 436, 3 S. W. 352, 800 (1886) ; Clark Gratt. 136 (1852). 
 
 r>. First Congregational Society, 45 N. United States. — Harding v. Handy, 
 
 H. 331, 336 (1864); Townsend v. 11 Wheat. 103, 125 (1826). 
 
 Graves, 3 Paige on Chancery, 453, 456 England. — ■ Beaumont v. Bramley 1 
 
 (1832) ; 2 Daniel on Chancery Prae- Turn. & R. 41, 55 (1822) ; 2 Daniel 
 
 tise, * 1078. See also Sporza v. Ger- on Chancery Practice, * 1072-3. 
 
 man Sav. Bank, 192 N. Y. 8, 84 N. E. 13. Helm v. Huntington, etc., Bank, 
 
 406 (1908) [affirmed, 104 N. Y. 91 Ind. 44 (1883). 
 Suppl. 260, 119 App. Div. 172 (1907)] 
 (commitment of person as insane). 
 
§444 
 
 A. Protect Substantive Eights. 
 
 576 
 
 diction, by virtue of any common-law provision, 1 as no arrange- 
 ment of this sort for inferior courts existed under that form of 
 jurisprudence. A jury of this nature oan only be had by virtue 
 of a statutory provision. 2 But it by no means follows that it is 
 essential that there should be a trial by jury at all in such courts. 
 The intervention of a jury may properly be confined to courts of 
 general jurisdiction. 8 This is equally true in criminal cases 
 within the jurisdiction of such courts, e. g., for violating a munic- 
 ipal ordinance. 4 The judge of such a court may legally be em- 
 powered summarily to try and punish, without a jury, infractions 
 of local laws. 6 
 
 § 444. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial) ; Probate Courts. — As no right to a trial 
 by jury existed, at common law, in those ecclesiastical tribunals 
 which possessed the functions and jurisdiction now exercised by 
 probate courts, surrogates' or orphans' courts, no right exists at 
 the present time unless expressly conferred by statute. 1 This has 
 
 1. Connecticut. — Goddard v. State, 
 12 Conn. 448 (1838). 
 
 Maryland.— State v. Glenn, 54 Md. 
 572 (1880). 
 
 Yew Yorh. — People v. Justices Ct. 
 Spec. Sess., 74 N. Y. 406 (1878); 
 Knight v. Campbell, 63 Barb. 16 
 (1872). 
 
 Ohio. — Inwood v. State, 42 Ohio St. 
 1S6 (1884). 
 
 Pennsylvania. — Byers V. Com., 42 
 Pa. St. 89 (1862). 
 
 2. Ward v. Edmunds, 110 Mass. 340 
 (1872) ; MacKenzie v. Gilbert, 69 N. 
 J. L. 184, 54 Atl. 524 ( 1903 ) ; State 
 v. Nash, 51 S. C. 319, 28 S. E. 946 
 
 (1897) ; State V. Larkins, 44 S. C. 
 362, 22 S. E. 409 (1895); Beaufort 
 V. Ohlandt, 24 S. C. 158 (1886). 
 
 3. Harriss v. Hampton, 52 N. C. 
 597 (1860); Thompson v. Floyd, 47 
 N. C. 313 (1855). 
 
 4. Duren v. City of Thomasville, 
 125 Ga. 1, 53 S. E. 814 (1906) ; Pear- 
 son v. Wimbish, 124 Ga. 701, 52 S. E. 
 751 (1906). 
 
 5. State v. Marciniak, (Minn. 
 1906) 105 N. W. 965. 
 
 1. Alabama. — Reynolds v. Reynolds, 
 
 11 Ala. 1023 (1847) ; Willis v. Willis, 
 9 Ala. 330 (1846). 
 
 California. — In re Dolbeer's Estate, 
 96 Pac. 266 ( 1903 ) ; Moore's Estate, 
 72 Cal. 335, 13 Pac. 880 (1887). 
 
 Florida. — Lavey v. Doig, 25 Fla. 
 611, 6 So. 259 (1889). 
 
 Illinois.— Clifford v. Gridley, 113 
 111. App. 164 ( 1903 ) ; Moody ('. 
 Found, 208 111. 78, 69 N\ E. 831 
 (1904) ; Seavey t\ Seavey, 30 111. 
 App. 625 (1889). 
 
 Iowa. — Duffield v. Walden, 102 
 Iowa 676, 72 N". W. 278 (1897). 
 
 Kentucky. — Wills r. Lochnane, 9 
 Bush 547 (1873). 
 
 Maine. — Bradstreet ('. Bradstreet, 
 64 Me. 204 (1874). 
 
 Massachusetts. — Fay v. Vanderford, 
 154 Mass. 498, 28 N. E. 681 (1891). 
 
 Missouri.-— Stevens !'. Larwill, 110 
 Mo. App. 140, 84 S. W. 113 (1904) 
 (removal of administrators) ; Bradley 
 V. Woerner, 46 Mo. App. 371 (1891). 
 
 New Jersey. — Wood V. Tallman, 1 
 N. J. L. 153 (1793). 
 
 South Carolina. — Frierson r. Jen- 
 kins, 75 S. C. 471, 55 S. E. 890 
 (1906). 
 
577 
 
 Juky Trials on Probate Appeals. 
 
 § 444 
 
 teen done in certain states, 2 for the granting or revocation of the 
 probate of wills, the conferring of administration and other 
 branches of recognized probate jurisdiction. ~No right to a jury 
 trial is conferred upon one litigating in a probate court by some 
 general constitutional provision. 3 Such a statutory regulation 
 may apply either generally, as to all issues of fact,* or to certain 
 specific matters, 5 as proof of claims against an estate. 6 
 
 Probate Appeals. — Trials of issues raised on appeal from a 
 decree or order of a probate court stand in the same general posi- 
 tion with regard to a jury trial as do original proceedings in such 
 courts. 7 
 
 South Dakota. — In re McClellan's 
 Estate, 107 N. W. 681 (1906) (peti- 
 tion for letters of administration). 
 
 Vermont. — In re Welch, 69 Vt. 127, 
 37 Atl. 250 (1896). 
 
 United States. — Esterly v. Rua, 122 
 [Fed. 609, 58 C. C. A. 548 (1903). 
 
 2. District of Columbia. — In re At- 
 wood, 2 App. Cas. 74 (1893). 
 
 Illinois. — Maseall v. Drainage Dist. 
 Com'rs, 122 111. 620, 14 N. E. 47 
 (1887). 
 
 Indiana. — Clem v. Durham, 14 Ind. 
 263 (1860). 
 
 Maryland. — Pegg v. Warford, 4 Md. 
 385 (1853); Barroll v. Beading, 5 
 Harr. & J. 175 (1821). 
 
 Missouri. — Sehaaf v. Peters, 111 
 Mo. App. 447, 90 S. W. 1037 (1901) 
 (will or no will). 
 
 Montana. — In re Tuohy's Estate, 83 
 Pac. 486 (1905). 
 
 Pennsylvania. — In re Colt, 215 Pa. 
 St. 333, 64 Atl 597 (1906) (appoint- 
 ment of a guardian). 
 
 Texas.— Tolle v. Tolle, 104 S. W. 
 1049 (1907). See also Richardson V. 
 Daggett, 24 App. D. C. 440 (1904). 
 The right to a jury trial may be 
 limited as shall seem wise to the 
 legislature, no constitutional provi- 
 sions being involved. In re Dolbeer's 
 Estate, (Cal. 1908) 96 Pac. 266. 
 
 On the commitment of insane per- 
 sons a trial by jury is frequently 
 provided. Sporza v. German Sav. 
 Bank, 192 N. Y. 8, 84 N. E. 406 
 (1908) [affirmed 104 N. Y. Suppl. 
 Vol. I. 37 
 
 260, 119 App. Div. 172 (1907)]. The 
 right, however, may be made personal 
 to the alleged incompetent person or 
 his relatives and need not be extended 
 to his debtors. Sporza v. German 
 Sav. Bank, 192 N. Y. 8, 84 N. 
 E. 406 (1908) [affirmed, 104 N. Y. 
 Suppl. 260, 119 App. Div. 172 
 (1907)]. 
 
 In probate appeals a jury trial may 
 he granted. Nowland v. Rice's Estate, 
 (Mich. 1904) 11 Detroit Leg. N. 523 
 101 N. W. 214. 
 
 3. Moore's Estate, 72 Cal. 335, 13 
 Pac. 880 (1887) ; Lavey v. Doig, 25 
 Fla. 611, 6 So. 259 (1889) ; Seavey v. 
 Seavey, 30 111. App. 625 (1889); 
 Wood v. Tallman, 1 N. J. L. 153 
 (1793). 
 
 4. Clem v. Durham, 14 Ind. 263 
 (1860). 
 
 5. Reynolds v. Reynolds, 11 Ala. 
 1023 (1847) ; Bradley v. Woerner, 46 
 Mo. App. 371 (1891). 
 
 6. Ingham v. Dudley, 60 Iowa 16, 
 14 N. W. 82 (1882) ; Ribble v. Fur- 
 min, (Neb. 1904) 98 N. W. 420. But 
 see Maseall v. Drainage Dist Com'rs, 
 122 111. 620, 14 N. E. 47 (1887). 
 
 Jurisdictional facts of this nature 
 must be made to appear upon the rec- 
 ord. Reynolds v. Reynolds 11 Ala. 
 1023 (1847) ; Willis v. Willis, 9 Ala. 
 330 (1846). 
 
 7. Moody v. Found, 208 111. 78, 69 
 N. E. 831 (19041. Any written words 
 conveying the idea that the supposed 
 right of a jury trial is insisted upon 
 
445, 446 A. Protect Substantive Rights. 
 
 578 
 
 § 445. f [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial); Trials by Judge Without Jury; At Com- 
 mon Law As is well known, many classes of actions involving 
 
 the trial of issues of fact, did not, at common law, require the in- 
 tervention of a jury. 1 All cases tried without a jury prior to the 
 adoption of a constitution may, in the absence of affirmative pro- 
 vision to the contrary, still be so tried. 2 
 
 » § 446. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial; Trials by Judge Without Jury); Under 
 
 Codes and Statutes. — In the later jurisprudence, a limited right of 
 trial by the judge sitting without a jury has been provided. For 
 example, in Georgia, the court may try causes dependent upon the 
 constituent fact of an unconditional contract in writing where no 
 issuable defenses have been filed on oath. 1 In general, a judge 
 
 is sufficient for the claiming of the 
 appeal. Arnold v. Regan, (R. I. 1908) 
 69 Atl. 292. 
 
 1. Arkansas. — State v. Johnson, 26 
 Ark. 281 (1870). 
 
 New York. — Metropolitan Bd of 
 Health v. Heister, 37 N. Y. 661 
 (186S) ; Sands v. Kimbark, 27 N. Y. 
 147 (1863) [affirming 39 Barb. 108 
 (1863)]. 
 
 Oklahoma. — Light v. Canadian 
 County Bank, 2 Okl. 543, 37 Pac. 1075 
 (1894). 
 
 Rhode Island. — Crandall v. James, 
 6 R. I. 144 (1859). 
 
 Texas. — Janes v. Reynolds, 2 Tex. 
 250 (1847). 
 
 2. Arkansas. — Williams v. Citizens, 
 40 Ark. 290 (1883). 
 
 Florida. — Blanchard v. Raines, 20 
 Fla. 467 (1884). 
 
 Illinois. — Ross v. Irving, 14 111. 171 
 (1852). 
 
 Indiana.— Allen v. Anderson, 13 
 Ind. App. 451 (1883). 
 
 Kentucky. — 'Caldwell V. Com., Ky. 
 Dec. 129 (1802). 
 
 Maine.— Coffin v. Coffin, 55 Me. 361 
 (1S68). 
 
 Massachusetts. — Bigelow v. Bige- 
 low, 120 Mass. 320 (1876) ; Shirley v. 
 Luncnburgh, 11 Mass. 379 (1814). 
 
 Minnesota. — Whallon v. Bancroft, 4 
 Minn. 109 (1860). 
 
 New Jersey. — State v. Doty, 32 N. 
 J.L. 403, 90 Am. Dec. 671 (1868). 
 
 New York. — Metropolitan Bd. of 
 Health v. Heister, 37 N. Y. 661 
 (1868); People v. Fisher, 20 Barb. 
 652, 11 How. Pr. 554, 2 Park. Cr. 402 
 (1855). 
 
 Ohio. — Ammon v. Johnson, 3 Ohio 
 Cir. Ct. 263, 2 Ohio Cir. Dec. 149 
 (1888). 
 
 Oregon. — Raymond v. Flavel, 27 
 Oreg. 219, 40 Pac. 158 (1895). 
 
 Pennsylvania. — Byers v. Com., 42 
 Pa. St. 89 (1862). 
 
 South Carolina. — Charleston v. 
 Stelges, 10 Rich. 438 (1857); New 
 Town Cut r. Seabrook, 2 Strobh. 560 
 (1846). 
 
 Tennessee. — Trigally v. Memphis, 6 
 Coldw. 382 (1869). 
 
 Vermont. — Hall r. Armstrong, 65 
 Vt. 421, 26 Atl. 592, 20 L. R. A. 366 
 (1893). 
 
 Virginia. — Pillow l\ Southwest Vir. 
 ginia Imp. Co., 92 Va. 144, 23 S. E. 
 32, 52 Am. St. Rep. 804 (1895). 
 
 1. W. B. Parham & Co. v. Potter- 
 Thompson Liquor Co., 127 Ga. 303, 56 
 S. E. 460 (1907). 
 
579 Municipal Right to Juby Teial. ■§§ 447, 448 
 
 cannot try an issue in a common law action unless the benefit of 
 a jury is waived. 2 
 
 § 447. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial); Who May Claim Right — The condition 
 of the scope of the right to a trial by jury, as it existed at the 
 time of the adoption of the constitution, limits not only the classes 
 of actions in which, in the absence of express regulation, the right 
 may be claimed, and the court in which such right may be exer- 
 cised, but also the classes of legal persons who may properly claim 
 to exercise it. 1 For instance, where the state had, at common law, 
 no right to claim a jury trial in certain proceedings, none may 
 be properly demanded by it under the constitution. 2 Parties sub- 
 sequently joined to a pending suit have the same right to a jury 
 trial as was enjoyed by the primary parties. Such was the origi- 
 nal rule. 3 
 
 The power of the legislature to extend the right to new classes 
 of legal persons cannot be doubted. 4 
 
 § 448. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial; Who May Claim Right); Status of Mu- 
 nicipalities. — Cities, towns and other municipal corporations are 
 not entitled to claim a jury trial, as they possessed no right to one 
 at the time of the adoption of the constitution. 1 The legislature 
 
 2. Puffer v. American Central Ins. other hand, where changes from the 
 
 Co., 48 Or. 475, 87 Pac. 523 (1906). common law, in these tranches of pro- 
 
 Code -and statutory Procedure, cedure are sporadic and specific they 
 
 Pleading or Practice distinguished. — have been mentioned as statutory. 
 While it is difficult to draw any sa,t- 1. Harris v. Wood, 6 T. B. Mon. 641 
 
 isfactory line between matters Which (1828) ; Caldwell 1>. Com., Ky. Dec. 
 
 differ from each other only in the de- 129 (1802) ; State V. Dick, 4 Da. Ann. 
 
 gree of their departure from a given 182 (1849) ; Dowell v. Boyd, 3 
 
 base, it has seemed convenient to dis- Smedes & M. 592 (1844). 
 tinguish, in a general way, between 2. In re New State House, 19 K. I. 
 
 code pleading, procedure or practice 326, 33 Atl. 448 (1895). 
 and those which are denominated 3. Lacroix v. Menard, 3 Mart. (N. 
 
 statutory. Many code provisions are S.) 339, 15 Am. Dec. 161 (1825). 
 well known to be simply declaratory 4 In re New State House, 19 E. I. 
 
 of the common law upon the subject. 326, 33 Atl. 448 (1895). 
 Nevertheless, where the departure 1. Stone v. Charlestown, 114 Mass. 
 
 from the common-law rules on plead- 214 (1873) ; Kimball v. Bridgewater, 
 
 ing, procedure or practice has been 62 N. H. 694 (1882) ; Wooster v. 
 
 general and undertaken in a com- Plymouth, 62 N. H. 193 (1882) ; State 
 
 prehensive spirit of seeking to cover v. Jersey City, 38 N. J. L. 259 
 
 the entire ground the result has been (1876) ; Darlington v. New York, 31 
 
 spoken of as that of a code. On the N. Y. 164, 88 Am. Dec. 248, 28 How. 
 
§ 449 A. Protect Substantive Eights. 580 
 
 may dispose of the wealth of such agencies of government by par- 
 tition in such manner as seems to it equitable, and the municipal- 
 ity affected cannot claim a jury trial, not only because it is not a 
 fit case for such a claim, but also, it has been said, because a 
 municipality is not entitled to a jury trial. 2 The real reason for 
 declining to allow a trial by jury to a municipality under these 
 circumstances is somewhat different. Municipalities are agencies 
 designated by the legislature or constitution for the convenient dis- 
 charge of the functions of government As is said by the supreme 
 judicial court of Massachusetts : 3 " The power to alter the bound- 
 aries of the counties, towns and cities, into which the territory of 
 the commonwealth has been divided for political and municipal 
 purposes, is an inherent attribute of the legislature, to be exer- 
 cised according to its own views of public expediency, unless re- 
 strained by express constitutional provision." The powers which 
 the legislature has conferred, it may, in the absence of some con- 
 trolling legal provision, revoke. The creature cannot arbitrate 
 by means of a jury its equities against its creator — the legis- 
 lature. Nor can it object if the legislature permits claims against 
 the sovereign as represented by the municipality, without the in- 
 tervention of a jury. 4 
 
 § 449. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial) ; Option of the Legislature. — The constitu- 
 tional guarantee is much less serious as a controller of legislative 
 power than the solemnity and universality of the provision might 
 lead one to infer. Where the precise case arises in which at com- 
 mon law a jury might have been claimed as a matter of right, the 
 constitutional provision is given full effect. 1 But where one is 
 
 Pr. 352 (1865). But see Baldwin v. 2. Dunmore's Appeal, 52 Pa. St. 
 
 New York, 45 Barb. 359 (1865) 374 (1866). 
 
 [affirming 42 Barb. 549 (1864)]; Peo- 8. Stone V. Charlestown, 114 Mass. 
 pie i\ Haws, 37 Barb. 440, 15 Abb. Pr. 214, 220 (1873), per Gray, C. J. 
 115 (1862) ; Champaign County 4. State v. Jersey City, 38 N. J. L. 
 Com'rs v. Church, 62 Ohio St. 318, 57 259 (1876) ; Darlington i\ New York, 
 N. E. 50, 73 Am. St. Rep. 718, 48 L. 31 N. Y. 164, 88 Am. Dee. 248, 28 
 R. A. 738 (1900); Dunmore's Ap- How. Pr. 352 (1865) ; Dunmore's Ap- 
 peal, 52 Pa. St. 374 (1866). Whether peal, 52 Pa. St. 374 (1866). But see 
 one who has a right against a corpo- Baldwin v. New York, 42 Barb. 549 
 ration can be compelled to forego a (1864) People v. Haws, 37 Barb. 440, 
 jury trial as a condition for collecting 15 Abb. Pr. 115 (1862). 
 his claim may be more doubtful. Darl- 1. Lucas v. State, (Neb. 1905) 105 
 ingf. New York, 13 N. Y. 164, 88 Am. N. W. 976. 
 Dec. 248, 28 How. Pr. 352 (1865). 
 
581 Demand as Condition Upon Juky Trial, § 450 
 
 presented which is merely similar to the jury-claiming trial at 
 common law, the power of the legislature is entirely unaffected. 2 
 A fortiori where a new class of action is provided, as with rela- 
 tion to election contests, 3 the statute may provide, at the option 
 of the legislature, either a trial by jury or a summary process. 
 So where a distinct class of crime is created or forbidden;* — as 
 where an appellate court is given certain special powers in the 
 finding of facts, 5 the right to a jury trial may be excluded. The 
 constitution applies not to specific cases, but to classes, species or 
 groups of issues or their mode of settlement in court. 6 Such a 
 circumstance as that, at the time of the adoption of the constitu- 
 tion, trial by jury existed, in respect to a certain class of actions, 
 only locally, will not affect the right of the legislature to pass a 
 general law at a later time extending trial by jury to cases of this 
 nature throughout its jurisdiction. 7 
 
 § 450. C [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial); Seasonable limitations Permitted; Demand. 
 — The legislature may, with entire propriety, require a litigant 
 to avail himself of a right to jury trial under reasonable condi- 
 tions. It may, for example, properly be provided that one en- 
 titled to a jury trial should specifically demand it, either on the 
 original case 1 or on an appeal from an inferior court, 2 or upon a 
 
 2. Illinois. — 'Frost v. People, 193 111. (1863) [affirming 39 Barb. 108 
 635, 61 N. E. 1054, 86 Am. St. Rep. (1863)]. 
 
 352 (1901) ; People v. Hill, 163 111. 7. Rigga v. Shannon, 16 N. Y. 
 
 186, 46 N. E. 796, 36 L. R. A. 634 Suppl. 939, SI N. Y. Civ. Proc. 434, 
 
 (1896). 27 Abb. N. Cas. 456 (1891). 
 
 Kentucky. — Harris v. Wood, 6 T. 1. Alabama. — Baker v. Jackson, 40 
 
 B. Mon. 641 (1828). So. 348 (1906). 
 
 New Jersey. — Carter v. Camden California. — Maddux v. Walthall, 
 
 District Ct., 49 N. J. L. 600, 10 Atl. 141 Cal. 412, 74 Pae. 1026 ( 1903 ) . 
 
 108 (1887). Georgia. — Miller v. Georgia R. 
 
 New York. — Sands V. Kimbark, 27 Bank, 120 Ga. 17, 47 S. E. 525 
 
 N. Y. 147 (1863) [affirming 39 Barb. (1904). 
 
 108 (1863)]. Massachusetts. — Clark v. Baker, 78 
 
 South Carolina. — Prazee v. Beattie, N. E. 455 (1906). 
 
 26 S. C. 348, 2 S. E. 125 (1886). New York.— People v. Hal-wig, 84 
 
 3. Metz v. Maddox, 121 N. Y. App. N. Y. Suppl. 221, 41 Misc. Rep. 227 
 J>iv. 147, 105 N. Y. Suppl. 703 (1903). 
 
 (1907). South Carolina. — Town of Clinton 
 
 4. Com. v. Andrews, 211 Pa. 110, v. Leake, 71 S. C. 22, 50 S. E. 541 
 60 Atl. 554 (1905). (1905). 
 
 5. Terminal R. Ass'n v. Larkins, Tennessee. — Harris v. Bogle, 115 
 112 111. App. 366 (1904). Tenn. 701, 92 S. W. 849 (1906). 
 
 6. Sands v. Kimbark, 27 N. Y. 147 
 
§§ 451, 452 A. Peotect Substantive Eights. 582 
 
 proceeding for the assessment of damages. 3 A request for a jury 
 after the trial of the issue has begun may be too late. 4 On the 
 other hand, where a party in an inferior court has the right to a 
 jury trial and seasonably claims it, the presiding judge, in the 
 event of a denial of the right, has no jurisdiction to proceed fur- 
 ther in the matter." 
 
 § 451. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial; Reasonable Limitations Permitted); 
 
 Time of Application. — It may properly be required that an appli- 
 cation for a jury in either a civil or criminal 1 case should be made 
 within a limited reasonable time. Unless application for a jury 
 is made within the time specified, the right will be deemed to have 
 been waived. 2 A similar result may be prescribed by statute. 3 
 Failure to claim in time as to certain of several defendants is not 
 cured, as to them, by a seasonable claim made by the others. 4 
 
 When one party seasonably claims a jury trial he preserves the 
 rights of both parties and cannot later, by withdrawing his claim 
 or waiving it, prevent a jury trial, unless his opponent also con- 
 sents. 5 
 
 § 452. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial; Reasonable Limitations Permitted); 
 
 Minor Criminal Offenses — Misdemeanors may, in the discretion of 
 the legislature, be tried without a jury. 1 The same rule applies 
 
 Texas. — Nalle v. City of Austin, 93 v. Ivey, 3 Ga. App. 557, 60 S. E. 299 
 
 S. W. 141 (1906). (1908). 
 
 Washington. — State v. Neterer, 33 3. Ross v. McCaldin, 107 N. Y. S. 
 
 Wash. 535, 74 Pac. 668 (1903). 381, 123 App. Div. 13 (1907); Ett- 
 
 2. Harrison v. City of Anniston, linger v. Trustees of Sailors' Snug 
 (Ala. 1908) 46 So. 980 (recorder's Harbor, etc., 107 N. Y. S. 779, 122 
 
 court). App. Div. 681 (1907). 
 
 3. Clark v. Baker, (Mass. 1906) 78 4. Spencer v. Adams Dry Goods Co., 
 N. E. 455; Pointer V. Jones, (Wyo. 54 Misc. (N. Y.) 614, 104 N. Y. 
 1906) 85 Pac. 1050. Suppl. 867 (1907). 
 
 4. In re Wickersham's Estate, ( Cal. 5. Elmore v. New York City Ry. 
 1908) 96 Pac. 311. Co., 51 Misc. (N. Y.) 675, 100 N. Y. 
 
 5. New Jersey Soc. for Prev. of Suppl. 1019 (1906) ; Allworth v. In* 
 Cruelty to Animals r. Wilbur, (N. J. terstate Oonsol. Ry. Co., 27 R. I. 106, 
 Suppl. 1908) 69 Atl. 1010. 60 Atl. 834 (1905). 
 
 1. Merriweather v. State, (Ala. 1. People v. Flaherty, 119 N. Y. 
 1908) 45 So. 420; Jones v. State, App. Div. 462, 104 N. Y. Suppl. 173 
 (Ala. 1906) 41 So. 299. (1907). Where at the time of the 
 
 2. Hammond v. State, (Ala. 1908) adoption of a state constitution jus- 
 45 So. 654; Stafford v. State, (Ala. tices of the peace exercised jurisdiction 
 1908) 45 So. 673; Mills & Williams over offenses punishable by public 
 
583 Payment of Fees and Rights to Jury. §§ 453, 454 
 
 to other lesser criminal offenses. The violator, for example, of a 
 municipal ordinance which is not also part of the criminal laws of 
 the state, is not entitled to a jury trial. 2 On the other hand, 
 where he has an option to claim a jury he cannot be forced to a 
 jury trial against his will. 3 
 
 § 453. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial; Reasonable Limitations Permitted); 
 
 Number of Jurors — While " jury," as the term is used in state 
 constitutions, means twelve men voting unanimously, various 
 statutory modifications have been permitted. For example, nine 1 
 may return a valid verdict. No provision of the Federal Constitu- 
 tion is violated by such legislation on the part of a state. 2 
 
 On the other hand, in a criminal case, a statute permitting a 
 jury of six to render a verdict in a case of a juvenile offender 
 which may involve a sentence of imprisonment, has been held to 
 be unconstitutional. 8 
 
 § 454. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial; Reasonable Limitations Permitted); 
 
 Payment of Jury Fees — It is not unreasonable that a party who 
 claims a jury should be required to deposit a reasonable sum, not 
 exceeding the amounts actually paid the jury, as a condition prece- 
 dent to the allowance of his right to a jury trial in a municipal * 
 or other inferior court. The same requirement may be made on 
 each continuance of such a jury trial granted at the request of a 
 party. 2 One who demands a jury without depositing officers' and 
 
 whipping and setting in the stocks, it 2. Franklin v. St. Louis & M. R. R. 
 
 cannot be said, as matter of law, that Co., 188 Mo. 533, 87 S. W. 930 
 
 statutes conferring upon them juris- (1905). 
 
 diction over criminal offenses punish- 3. Robinson p. Wayne Circuit 
 
 able by imprisonment not exceeding Judges, 151 Mich. 315, 115 N. W. 682, 
 
 six months is an infringement of the 14 Detroit Leg. N. 945 (1908). 
 
 constitutional right to a jury trial on 1. Williams v. Gottschalk, 231 111. 
 
 the ground that the modern penalty is 175, 83 N. E. 141 (1907) ($6); 
 
 the more severe. Wilmarth v. King, Humphrey ■». Eakley, 72 N. J. L. 424, 
 
 74 N. H. 512, 69 Atl. 889 (1908). 60 Atl. 1097 (1905) [affirmed in 65 
 
 2. Miller v. City of Birmingham, Atl. 1118 (1907)] ; Humphrey v. Eak- 
 (Ala. 1907) 44 So. 388. ley, (N. J. Suppl. 1905) 60 Atl. 1097; 
 
 3. Wadkins v. State, 127 G-a. 45, Cohen v. New York City Ry. Co., 106 
 56 S. E. 74 (1906). N. Y. Suppl. 561, 121 App. Div. 803 
 
 1. Logan v. Field, (Mo. 1905) 90 (1907) ($4.50 per day). 
 
 S. W. 127 ; Taussig v. St. Louis & K. 2. Cohen v. New York City Ry. Co., 
 
 R. Co., 186 Mo. 269, 85 S. W. 378 106 N. Y. Suppl. 561, 121 App. Div. 
 
 (1905). 803 (1907). 
 
§§ 455, 456 A. Pkotect Substantive Eights. 584 
 
 jury fees as prescribed by law, waives his demand. 3 There must, 
 however, be statutory authority for making such a requirement. 4 
 On the other hand, it has been held that the timely demand by 
 a defendant in a justice's court for a jury cannot be denied be- 
 cause of his refusal to advance the venire fees. 5 
 
 § 455. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial; Reasonable Limitations Permitted); 
 
 Restricted Appeals. — It is a reasonable regulation upon the right 
 to a jury trial that a court of first instance should hear and 
 determine issues of fact, in civil actions involving a. limited 
 amount, in quasi criminal actions, as those for forfeiture of liquor 
 kept contrary to law, 1 and, in criminal cases, on misdemeanors or 
 minor crimes ; 2 — provided that the party is given, as of right, an 
 appeal to a higher court in which a trial by jury is preserved to 
 him. Under both the state and federal 3 constitutions, such an 
 appeal does not satisfy the right under consideration in a case 
 of treason, felony or other serious crime. While this appeal 
 must be as of right, it need not be unconditioned or unlimited. 
 The legislature may provide certain reasonable restrictions. For 
 example, the appellant may be required to content himself with 
 a hearing upon the matters which he specifies on his appeal. 4 
 
 Bond Required. — In either a civil or criminal action 8 the ap- 
 pellant may be required to furnish a bond. 
 
 § 456. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial); Unreasonable Limitations Unconstitutional. 
 
 — The constitutional provision is violated by any monetary quali- 
 fication likely to prove an unreasonable impediment upon the right 
 to a jury trial ; e. g., that the claim must amount to at least $50.* 
 
 3. Martin v. Borden, 107 N. Y. Paducah, 27 Ky. L. Rep. 717, 86 S. 
 Suppl. 725, 123 App. Div. 66 (1907). W. 531 (1905); State v. Lytle, 138 
 
 4. Seott v. Young, 113 Mo. App. 46, N. C. 738, 51 S. E. 66 (1905) ; Bettge 
 87 S. W. 544 (1905); City of Vine- V. Terr., 17 Okl. 85, 87 Pae. 897 
 land v. Denoflio, (N. J. 1907) 65 (1906). 
 
 Atl. 837; Story v. Walker, (N. J. 3. Bettge v. Territory, 17 Okl. 85. 
 
 Suppl. 1904) 58 Atl. 349. 87 Pac. 897 (1906). 
 
 5. New Jersey Soc. for Prev. of 4. Mead v. Cutler, (Mass. 1907) 80 
 Cruelty to Animals v. Wilbur, (N. J. N. E. 496. 
 
 Suppl. 1908), 69 Atl. 1010. 5. City of Topeka V. Kersch, 80 Pac. 
 
 1. Stahl v. Lee, (Kan. 1905) 80 29 (Kan. 1905). 
 
 Pae. 983. 1. De Lamar r. Dollar, 138 Ga. 57, 
 
 2. Little v. State, 123 Ga. 503, 51 57 S. E. 85 (1907). 
 S. E. 501 (1905); Stone v. City of 
 
585 
 
 Waiver of Juey Need Not Be In Writing. § 457 
 
 It has been further held that to permit a litigant to obtain a final 
 hearing in the supreme court upon a matter of fact upon contro- 
 verted evidence only upon stipulating that a judgment may be 
 entered in the supreme court against him unless he prosecutes 
 his appeal, is unconstitutional, as unreasonably abridging the 
 right of trial by jury. 2 
 
 § 457. ( [4] Right to Judgment of Court or Jury; General 
 Right to a Jury Trial) ; Waiver and Estoppel. — A waiver may be 
 created not only by express agreement, 1 but by failure to claim a 
 jury at a proper time, neglecting to appear at the trial, 2 or other- 
 wise evidencing an intention not to claim a jury. 3 Even where 
 the form of pleadings would call for a jury, the parties may so 
 describe their contention to the court that the judge commits no 
 error in refusing one to them. 4 A waiver of a jury, as abundantly 
 appears passim need not be in writing, 5 unless the more formal 
 
 a. Patterson v. Warfield, 233 111. 
 147, 84 N. E. 176 (1908). 
 
 1. Goodman v. Sup. Ct. of Cal. in 
 Santa Clara County, (Cal. App 1908) 
 96 Pac. 395 ; Lindstrom v. Hope Lum- 
 ber Co., (Idaho 1906) 88 Pac. 92; 
 Ramsden v. Keene Five Cent. Say. 
 Bank, (Kan. 1904) 132 Fed. 721; 
 Maass v. Rosenthal, 109 N. Y. Suppl. 
 917, 125 App. Div. 452 (1908). 
 
 Implied agreement as a consent to 
 a reference may have the same effect. 
 Reynolds v. Wynne, 111 N. Y. Suppl. 
 248, 127 App. Div. 69 (1908) ; Bruce 
 l'. Carolina Queen Consol. Min. Co., 
 
 (N. C. 1908) 61 S. E. 579; Williams 
 v. Weeks, 70 S. C. 1, 48 S. E. 619 
 
 (1904). 
 
 2. Cerussite Min. Co. v. Anderson, 
 (Colo. App. 1903) 75 Pac. 158. 
 
 3. Juvinall v. Jamesburg Drainage 
 Dist., 204 111. 106, 68 N. E. 440 
 
 ( 1903 ) ; Blanton v. Howard, 25 Ky. 
 Law Rep. 929, 76 S. W. 511 (1903) ; 
 Horton v. Simon, (Neb. 1903) 97 N. 
 W. 604 ; Albemarle Steam Nav. Oo. V. 
 Worrell, 133 N. C. 93, 45 S. E. 466 
 
 (1903). This may be done even on a 
 
 question of insanity. Sporza v. Ger- 
 man Sav. Bank, 192 N. Y. 8, 84 N. E. 
 406 (1908) [affirmed in 104 N. Y. Suppl. 
 260, 119 App. Div. 172 (1907)]. To 
 deny a jury trial on an action where 
 
 a jury might have been moved is 
 error only and not action in excess of 
 jurisdiction. Goodman v. Sup. Ct. of 
 Cal. in Santa Clara County, (Cal 
 App. 1908) 96 Pac. 395. A party 
 improperly refused a jury in a town 
 court but who, on appeal, enjoys the 
 benefit of his privilege in this respect 
 has no cause of complaint on account 
 of the earlier error. New Jersey Soc. 
 for Prev. of Cruelty of Animals v. 
 Atkinson, (N. J. Suppl. 1908) 69 Atl. 
 976. 
 
 4. Wiscomb t\ Cubberly, 51 Kan. 
 580, 33 Pac. 320 (1893). 
 
 5. Arkansas. — Gerstle v. Vander- 
 griffe, 79 S. W. 776 (1904). 
 
 Colorado. — > Frank v. Bauer, 75 
 Pac. 930 (1903). 
 
 Indiana. — Boonville Nat. Bank v. 
 Blakey, 76 N. E. 529 ( 1906) . 
 
 New York. — Brooklyn Heights R. 
 Co. v. Brooklyn City R. Co., 93 N. 
 Y. Suppl. 849, 105 App. Div. 88 
 (1905). 
 
 North Carolina. — Roughton v. Saw- 
 yer, 56 S. E. 480 (1907). 
 
 Washington. — Zilke v. Woodley, 36 
 Wash. 84, 78 Pac. 299 (1904). 
 
 United States. — Brock v. Fuller 
 Lumber Co., 153 Fed. S72, 88 C. C. A. 
 402 (1907). 
 
§458 
 
 A. Protect Substantive Eights. 
 
 586 
 
 method be expressly prescribed by statute. 6 That the conduct by 
 which the waiver was accomplished is irregular in point of pro- 
 cedure, 7 is of no consequence. It has been held, however, that a 
 waiver of the right to a jury must be strictly construed ; 8 and 
 limitations upon any exercise of the right of waiver may be pre- 
 scribed by statute. 9 Where a party neglects to insist upon his 
 right to a jury at each appropriate stage, he will be regarded as 
 waiving it. 10 
 
 Estoppel. — Waiver may become reinforced by estoppel where 
 good faith requires that a party who has failed to claim a jury 
 should not be permitted to obtain one at a later stage. 11 
 
 Retrials. — Waiver of a jury on his original case does not pre- 
 vent a party from claiming a jury on a retrial. 13 
 
 § 458. (5) Right to Confrontation . Prominent among rights 
 
 with which the substantive law has endowed a litigant is that of 
 confrontation; — the privilege of meeting the witnesses against 
 him face to face. In other words, the object to be secured is 
 that the ivitness should give his evidence in presence 1 of the ad- 
 
 177, 86 S. W. 307 
 
 6. Al'bien v. Smith, (S. D. 1905) 
 103 N. W. 655. The administrative 
 power of the judge extends to per- 
 mitting the withdrawal of a written 
 stipulation waiving a jury. Hartford 
 Fire Ins. Co. V. Redding, (Fla. 1904) 
 37 So. 62. 
 
 7. Sharrock v. Kreiger, (Indian 
 Terr. 1906) 98 S. W. 161. 
 
 8. Sharrock v. Kreiger, (Indian 
 Terr. 1906) 98 S. W. 161; Simmons 
 V. State, 75 Ohio St. 346, 79 N. E. 
 555 (1906); Allworth r. Interstate 
 Consol. Ry. Co., 27 R. I. 106 60 Atl. 
 834 (1905). See also Howard v. Max- 
 well's Ex'r, 98 S. W. 1013, 30 Ky. 
 L. Rep. 448 (1907). 
 
 9. Chessman v. Hale, (Mont. 1905) 
 79 Pac. 254; Lipscomb's Adm'r v. 
 Condon, (W. Va. 1904) 67 L. R. A. 
 670, 49 S. E. 392. 
 
 10. Ogden V. Apalachian Land & 
 Lumber Co., (N. C. 1907) 59 S. E. 
 1027. 
 
 11. Brock v. Fuller Lumber Co., 
 153 Fed. 272, 82 C. C. A. 402 (1907). 
 
 12. Freifeld v. Sire, 84 N. Y. Suppl. 
 144, 13 N. Y. Ann. Cas. 359 (1903) ; 
 Worthjngton v. Nashville, C. & St. L. 
 
 Ry., 114 Tenn. 
 (1905). 
 
 1. The meaning of "presence," or 
 " face to face " in this connection has 
 received a common sense construction. 
 It does not require that the witness 
 should look at the party. He may 
 look in another direction, as to the 
 Court, while giving his testimony. 
 As was said to Earl Stafford, who 
 complained that a witness had averted 
 his face from him : " My lord, do you 
 see the witness; that is enough for 
 face to face." Earl of Stafford's Trial, 
 7 How. St. Tr. 1293, 1341 (1680). 
 A mere temporary absence from the 
 court room of the witness while testi- 
 fying should not be deemed an infrac- 
 tion of the Constitution. Skaggs v. 
 State, 108 Ind. 571 N. E. 695 (1886). 
 With regard to the temporary ab- 
 sence of the party from the court 
 room, apparently misplaced sympathy 
 for the accused has carried the court 
 at times to extreme lengths. Thus a 
 conviction was reversed because a wit- 
 ness was allowed to proceed while the 
 Recused was in the water-closet. Ben- 
 nett v. State, 62 Ark. 516, 36 S. W. 
 
587 
 
 Confrontation in Criminal Cases. 
 
 § 458 
 
 verse party. 2 In the broadest and most sweeping terms the or- 
 ganic law of every state in the American Union purports to confer 
 it upon all parties to a legal process. This effort is especially 
 
 is fully secured. Morris v. U. S., 149 
 Fed. 123 (1907). The provision of 
 necessity is limited in its effect by the 
 nature of the federal jurisdiction. 
 Thus, the amendment to the Constitu- 
 tion of the United States (Amend. 
 VI) providing that in all criminal 
 prosecutions the accused shall enjoy 
 the right to be confronted by the wit- 
 nesses against him, does not apply to 
 prosecutions in state courts. People 
 17. Welsh, 84 N. Y. Suppl. 703, 88 
 
 947 (1896). In another case, prejudi- 
 cial error was held to have been com- 
 mitted by a trial court in removing 
 an accused to the back of the room 
 while a timid witness was testifying. 
 State v. Mannion, 19 Utah 505, 57 
 Pac. 543 (1899). Where a witness is 
 too ill to be cross-examined, it has 
 been held to be reversible error to per- 
 mit him to be interrogated on a single 
 point, i. e., whether he [witness] 
 killed deceased; — although the court 
 did not decline to permit the cross- 
 examination and it was the claim of 
 the accused that deceased killed him- 
 self. Wray v. State, (Ala. 1908) 45 
 So. 697. The constitutional right of 
 one accused of an offense against the 
 laws of the state, to be confronted 
 with witnesses, contemplates that 
 they should be examined in his pres- 
 ence and subjected to cross-examina- 
 tion. Ralph v. State, 124 Ga. 81, 52 
 S. E. 298 (1905). That a witness, how- 
 ever, in response to an attachment, 
 appeared before a judge and testified 
 in the absence of accused suggests no 
 adequate ground for the granting of 
 writs of certiorari or prohibition. 
 State v. Kiernan, 116 La. Ann. 739, 
 41 So. 55 (1906) ; In re Kiernan, 116 
 La. Ann. 739, 41 So. 55 (1906). 
 
 Substituted means of communica- 
 tion. — ■ Where accused is deaf and 
 dumb and is thereby prevented from 
 hearing the evidence of the state's 
 witnesses, it becomes the administra- 
 tive duty of the presiding judge to 
 have their evidence made known to 
 him. Ralph V. State, 124 6a. 81, 52 
 S. E. 298 (1905). Allowing defend- 
 ant's counsel to write out and sub- 
 mit to the perusal of his client the 
 adverse testimony during the progress 
 of the trial is a reasonable method of 
 accomplishing this result. Ralph v. 
 State, 124 Ga. 81, 52 S. E. 298 
 (1905). See supra, §§ 350 et seq. 
 
 Under federal constitution, the right 
 
 A pp. Div. 65 (1903). 
 
 2. Woodside v. State, 3 How. 
 (Miss.) 665 (1837) ; State V. Houser, 
 26 Mo. 437 (1858). 
 
 An untenable suggestion. It has 
 been suggested that the constitu- 
 tional right of confrontation is satis- 
 fied, in case of a dying declaration, 
 by the production of the reporting 
 witness. "The argument for the ex- 
 clusion of the testimony, proceeds 
 upon the idea that the deceased is 
 the witness, when in fact it is the 
 individual who swears to the state- 
 ments of the deceased, who is the 
 witness. And it is as to him that 
 the privileges of an oral and cross- 
 examination are secured." Campbell 
 v. State, 11 Ga. 353, 374 (1852). 
 
 " This objection is founded in a 
 misconception of fact. The accused 
 is confronted by the witness on his 
 trial. The deceased person is not 
 the witness, but the person who can 
 relate, on the trial, the death-bed 
 declarations, is the witness. The ob- 
 jection, if there be one, is to the 
 competency of the evidence, and not 
 to the want of the personal presence 
 of the witness, and it appears to be 
 well settled, that dying declarations, 
 within the restricted rule prescribed, 
 fall within the exceptions to the gen- 
 eral rule that hearsay is not evi- 
 dence." Robbins v. State, 8 Ohio St. 
 131, 163 (1857). This seems to be 
 an attempt to evade rather than to 
 
§ 459 A. Pkotect Substantive Eights. 588 
 
 marked in favor of the accused in a criminal action. In the ab- 
 sence of a written constitution, the right is fundamental in the 
 jurisprudence of all countries in which the common law of Eng- 
 land is largely operative. In the view of that system of juris- 
 prudence it is almost an elementary principle of natural justice. 
 The duty of the court to give it full effect, in accordance with its 
 proper scope, is unquestionable. The point of difficulty lies in 
 determining what are its limitations. That it has them is as 
 obvious as is the right itself. The absence of limitation in the 
 statement of the constitutional provisions cannot be accorded any 
 special weight in this connection. It is a peculiarity, necessitated 
 by the requirement of a reasonable brevity, that a constitution 
 should deal in generalities — broad declarations of principle — 
 with no attempt at stating precise boundaries, but leaving these to 
 be drawn from knowledge of the existing state of the law or the 
 operation of other principles laid down by the instrument in the 
 same way. In dealing with the administration of justice, con- 
 stant reference is implied to the existence of a large number of 
 rules of law or canons of administration without which the pre- 
 cept of the written constitution would be unworkable and even, at 
 times, unintelligible. No attempt was made to alter the then ex- 
 isting state of the law of evidence by means of the present pro- 
 vision. The object was rather to emphasize and enforce certain 
 rights regarded as already existing and having a recognized place 
 in the entire system of jurisprudence which it was not intended 
 to disturb. 
 
 § 459. ( [5] Right to Confrontation) ; limitations on the Right. 
 
 • — So of the right of confrontation. The language in which it is 
 announced is broad enough to forbid the use of any evidence 
 where the declarant is not produced in court. Yet, notwithstand- 
 ing this language, it is entirely settled, by the great weight of 
 
 interpret the constitutional guaranty. posed as a mere subterfuge. " To 
 " [In dying declarations] the murd- Bay that the witness who must 
 ered individual is not a witness. meet the accused ' face to face ' is he 
 . . . His declarations are regarded who repeats what the dying man has 
 as facts or circumstances connected said, is a mere evasion." . . . 
 with the murder. ... It is the " The living witness is but a con- 
 individual who .swears to the state- duit-pipe, — a mere organ through 
 ments of the deceased that is the wit- whom this evidence is conveyed to the 
 ness, not the deceased." Woodside v. Court and jury." State v. Houser, 26 
 State, 2 How. (Miss.) 665 (1837). Mo. 437 (1858). 
 This view has been earnestly op- 
 
589 
 
 Use of Depositions in Criminal Cases. 
 
 § 459 
 
 authority, that depositions may be received in evidence against 
 a party, 1 although the use of a deposition in a criminal case has, 
 State, is 
 
 1. Alabama. — Horton v. 
 Ala. 488, 495 (1875). 
 
 Arkansas. — MeNamara v. State, 60 
 Ark. 400, 30 S. W. 762 (1895). 
 
 California. — People v. Cady, 117 
 Cal. 10, 48 Pac. 908 (1897). 
 
 Colorado. — Ryan v. People, 21 Colo. 
 119, 40 Pac. 775 (under Const, art. 2, 
 §§ 16, 17) (1895). 
 
 Delaware. — State v. Oliver, 2 Houst. 
 589 (1855). 
 
 Georgia. — Williams v. State, 19 Ga. 
 403 (1856). 
 
 Idaho. — Terr. v. Evans, 2 Ida. 627, 
 632 (1890). 
 
 Illinois. — Gillespie v. People, 176 
 111. 238, 52 N. E. 250 (1898). 
 
 Iowa. — State v. Fitzgerald, 63 la. 
 272, 19 N. W. 202 (1884). 
 
 Kentucky. — Walston v. Com., 16 B. 
 Monr. 35 (1855). 
 
 Louisiana. — State v. Banks, 111 La. 
 22, 35 So. 370 (1903). 
 
 Massachusetts. — Com. v. Richards, 
 18 Pick. 437 (1836). 
 
 Michigan. — People V. Case, 105 
 Mich. 92, 62 N. W. 1017 (1895). 
 
 Minnesota. — State v. George, 60 
 Minn. 503, 63 N. W. 100 (1895). 
 
 Mississippi. — Dukes v. State, 80 
 Miss. 353, 31 So. 744 (1902). 
 
 Montana. — State v. Byers, 16 Mont. 
 565, 41 Pa. 708 (1895). 
 
 Nevada. — State v. Johnson, 12 Nev. 
 123 (1877). 
 
 New York. — People v. Elliott, 172 
 N. Y. 146, 64 N. E. 537 (1902) ; How- 
 ard v. Moot, 64 N. Y. 262, 268 (1876) 
 ( perpetuating testimony without 
 cross-examination, held constitu- 
 tional ) . 
 
 Ohio. — Robbing v. State, 8 Ohio 
 St. 163 (1857). 
 
 Pennsylvania. — ■ Com. v. Cleary, 148 
 Pa. 26, 38, 23 Atl. 1110 (1892). 
 
 Tennessee. — Baxter v. State, 13 Lea 
 660 (1885). 
 
 Texas.— Steagald v. State, 22 Tex. 
 464, 490 (1887). 
 
 Vtah.— V. S. v. Reynolds, 1 Utah 
 322 (1876). 
 
 "Washington. — State v. Cushing, 17 
 Wash. 544, 50 Pac. 412 (1897). 
 
 West Virginia. — Carrico v. R. Co., 
 39 W. Va. 86, 89, 19 S. E. 571 
 (1894). 
 
 Wisconsin. — Jackson v. State, 81 
 Wis. 127, 130, 51 N. W. 89 (1892). 
 
 United States. — Robertson v. State, 
 165 U. S. 275, 17 Suppl. 326 (1897) ; 
 Mattox v. U. S., 156 U. S. 237, 15 
 Suppl. 337 (1895). 
 
 Affidavits. — On the issue of a crim- 
 inal action it has been held that an 
 affidavit will not be admitted. So, in 
 general, it has been decided that in a 
 criminal case neither a deposition 
 regularly taken nor an eco parte affida- 
 vit can be introduced as evidence by 
 the prosecution. Com. v. Zorambo, 
 205 Pa. 109, 54 Atl. 716 (1903). In 
 the same way, where a question arose 
 on a. trial for murder over occurrences 
 between the state's attorney and cer- 
 tain witnesses in his office, that the 
 facts could not be shown by ea> parte 
 affidavits but that the witnesses them- 
 selves should have been put upon the 
 stand and made subject to cross-ex- 
 amination. Wilburn v. State, (Tex. 
 Cr. App. 1903) 77 S. W. 3. 
 
 On the other hand, in any case 
 where an affidavit is not offered as 
 evidence on the issue no constitutional 
 guaranty is violated by its reception. 
 Thus, using affidavits in aggravation 
 of the offense on a hearing for sen- 
 tence invades no right of confrontation 
 or to cross-examine, as the affidavits 
 cannot offset the verdict of the jury. 
 State v. Reeder, 79 S. C. 139, 60 S. E. 
 434 ( 1908 ) . In the same way, a pre- 
 siding judge may force a defendant to 
 trial by receiving as true the fact3 
 stated by him in an affidavit as to 
 what an absent witness if present, 
 would state in evidence. Risner v. 
 Com., (Ky. 1909) 117 S. W. 318; 
 Davis v. Com., 25 Ky. L. Rep. 1426, 
 77 S. W. 1101 (1904). A conviction 
 for a criminal contempt, based on 
 affidavits, is not a deprivation of the 
 
§ 459 
 
 A. Protect Substantive Rights. 
 
 590 
 
 however, been deemed, by certain courts, to be in violation of the 
 constitutional provision. 2 In like manner, exceptions to the 
 " hearsay rule," 3 as declarations concerning pedigree,* against 
 proprietary or pecuniary interest, dying declarations, 6 official 
 
 constitutional privilege of an accused 
 to meet his witnesses face to face. 
 O'Neil v. People, 113 111. App. 19-5 
 (1904). 
 
 2. Alabama. — Anderson v. State, 
 89 Ala. 12, 7 So. 429 (1889). 
 
 Arkansas. — Woodruff v. State, 61 
 Ark. 157, 32 S. W. 102 (1895). 
 
 Illinois. — Tucker v. People, 122 111. 
 583, 593, 13 N. E. 809 (1887). 
 
 Iowa. — State v. Collins, 32 Iowa 
 36, 40 (1871). 
 
 Kansas. — State v. Tomblin, 57 Kan. 
 841, 48 Pac. 144 (1897). 
 
 Kentucky. — Kaelin v. Com., 84 Ky. 
 354, 368, 1 S. W. 594 (1886). 
 
 Montana. — . State v. Lee, 13 Mont. 
 218, 33 Pac. 690 (1893). 
 
 Oklahoma. — Watkins v. U. S., 5 
 Okl. 729, 50 Pac. 88 (1897). 
 
 Texas.— Cline v. State, 36 Tex. Ct. 
 App. 320, 36 S. W. 1099 (1896). 
 
 Virginia. — Com. v. Brogy, 10 Gratt. 
 722, 732 ( 1853 ) ; Finn V. Com., 5 
 Rand. 708 (1827). 
 
 Ab appears by the foregoing part of 
 this note, many of these decisions 
 were subsequently overruled. 
 
 3. State v. Wing, 66 Oh. St. 407, 
 64 N. E. 514 (1902). 
 
 Entries in the course of official 
 business have been excluded on this 
 principle. State v. Eeidel, 26 Iowa 
 430, 436 (1868) (notarial certificate 
 of protest) ; People v. Foster, 64 
 Mich. 715, 31 N. W. 596 (1887) (sig- 
 nal service record) ; Cutler v. Terr., 
 8 Okl. 101, 56 Pac. 861 (1899) (offi- 
 cial stenographer). 
 
 4. Infra, §§ 2910 et seq. 
 
 5. Infra, §§ 2762 et seq. 
 
 6. Alabama. — Green v. State, 66 
 Ala. 40, 41 Am. Rep. 744 (1880). 
 
 California. — People V. Glenn, 10 
 Cal. 36 (1858). 
 
 Delaware. — State r. Oliver, 2 Houst. 
 585 (1871). 
 
 Georgia. — Campbell r. State, 11 Ga. 
 
 374 (1852), per Lampkin, J. See also 
 Jones v. State, 130 Ga. 274, 60 S. E. 
 840 (1908). 
 
 Hawaii. — Govt. v. Herring, 9 Haw. 
 181, 189 (1893). 
 
 Iowa. — State v. Nash, 7 Iowa 377 
 (1858). 
 
 Kentucky. — Walston v. Com., 16 B. 
 Monr. 34 (1855). 
 
 Louisiana. — State v. Brunetto, 13 
 La. Ann. 45 (1858); State v. Price, 
 6 La. Ann. 697 (1851). 
 
 Massachusetts. — Com. v. Carey, 12 
 Cush. 246 (1853). 
 
 Mississippi. — Lambeth v. State, 23 
 Miss. 322, 357 (1852) ; Woodside V. 
 State, 2 How. 665 (1837). See also 
 McDaniel v. State, 8 Sin. & M 401 
 (1847). 
 
 Missouri. — State t\ Vansant, 80 Mo. 
 67 (1883). 
 
 New York. — People v. Corey, 157 
 N. Y. 332, 51 N. E. 1024 (1898). 
 
 North Carolina. — State v. Tilgh- 
 man, 11 Ired. 513, 554 (1850). 
 
 Ohio. — State v. Kindle, 47 Ohio 
 St. 361, 24 N. E. 485 (1890); Rob- 
 bins v. State, 8 Ohio St. 131 (1858) 
 
 Oregon. — State r. Saunders, 14 Or, 
 300, 12 Pac. 441 (1886). 
 
 Pennsylvania. — Com. r. Winkel 
 man, 12 Pa. Super. Ct. 497 (1900) 
 Brown r. Com., 73 Pa. St. 321 (1873) 
 
 Rhode Island. — State v. Jeswell, 22 
 R. I. 136, 46 Atl. 405 (1900). 
 
 Tennessee. — Anthony r. State, Meigs 
 265, 33 Am. Dec. 143 (1838). 
 
 Texas. — Black v. State, 1 Tex. App. 
 368, 384 (1876). See also Payne v. 
 State, (Tex. Cr. App. 1904) 78 S. W. 
 934; Burrell v. State, 18 Tex. 713 
 (1857). 
 
 Virginia. — Hill r. Com., 2 Gratt 
 594 (1845). 
 
 Washington. — State r. Baldwin, 15 
 Wash. 15, 45 Pac. 650 (1896). 
 
 Wisconsin. — Jackson v. State, 81 
 Wis. 130, 137, 51 X. W. 89 (1892); 
 
591 
 
 CONFRONTATION AND THE HEARSAY Kui-E. 
 
 459 
 
 certificates of public records, 7 former testimony of an unavailable 
 
 State v. Dickinson, 41 Wis. 299 
 (1877). "The constitution does not 
 alter the rules of evidence, or deter- 
 mine what shall be admissible testi- 
 mony against the prisoner, but it 
 only secures to him the right to con- 
 front the witnesses who may be in- 
 troduced to prove such matters as, 
 according to the settled principles of 
 law, are evidence against him. This 
 objection, if carried out fully, would 
 result in the rejection of all declara- 
 tions, even where they constitute part 
 of the res gestce. The law determines 
 the admissibility of testimony — the 
 constitution secures to the accused 
 the right to meet the witness who 
 deposes face to face. But what the 
 witness, when thus confronted, shall 
 be allowed to state as evidence, the 
 constitution does not undertake to 
 prescribe, but leaves it to be regu- 
 lated by the general principles of the 
 law of evidence. When the declara- 
 tions of the deceased are offered to 
 the jury, they constitute facts in legal 
 contemplation, which tend to estab- 
 lish the truth of the matter to which 
 they relate. The position, therefore, 
 that their admission as evidence in- 
 fringes upon the constitutional right 
 of the prisoner to confront the wit- 
 nesses against him, is wholly without 
 foundation, and cannot be main- 
 tained." Walston v. Com., 16 B. 
 Monr. 15, 35 (1855). 
 
 United States. — Robertson v. Bald- 
 win, 165 U. S. 275, 17 Suppl. 326 
 (1897); Mattox v. U. S., 156 U. S. 
 237, 243, 15 Suppl. 337 (1895). 
 " The rule, however, was well settled 
 before the adoption of our constitu- 
 tion, that the declarations of a dying 
 person were admissible in cases of 
 homicide ' where the death of the de- 
 ceased is the subject of the charge, 
 and the circumstances of the death 
 are the subject of the dying declara- 
 tions;' and we have no idea that it 
 was the object of this provision in the 
 bill of rights to abrogate this rule 
 
 of evidence." Miller v. State, 25 Wis. 
 384 (1870). 
 
 Infra, §§ 2811 et seq. 
 
 7. Tucker V. People, 122 111. 583, 
 593, 13 N. E. 809 (1887) (marriage 
 certificate) ; State v. Smith, 74 la. 
 580, 583, 38 N. W. 492 (1888) ; State 
 v. Matlock, 70 la. 229, 30 N. W. 495 
 (1896) (record of marriage); State 
 v. Behrman, 114 N. C. 797, 804, 19 S. 
 E. 220 (1894) (marriage certificate; 
 excluded on other grounds) ; Beeves 
 v. State, 7 Coldw. 96, 101, 108 
 (1869). 
 
 A certificate by a. proper officer 
 that no record of a certain nature ap- 
 pears in his office has been rejected as 
 a violation of the constitutional pro- 
 vision. People v. Goodrode, (Mich. 
 1903) 94 N. W. 14. 
 
 Documents, writings, etc. — Nothing 
 in the constitutional provisions con- 
 ferring the right to confrontation, or 
 in the legislation enforcing the same, 
 prevents the use of documents, public 
 or private, according to the general 
 rules of evidence. Thus, for example, 
 where certified copies of public rec- 
 ords, state or national, are admissi- 
 ble in evidence under a statute and 
 the custodian of the records is for- 
 bidden by law to testify orally as to 
 the records of his office, a certified 
 copy of a list of persons paying spe- 
 cial internal revenue taxes in a cer- 
 tain collection district maybe received 
 in evidence without violating the right 
 of accused to confrant the witnesses 
 against him. State ». Dowdy, 145 
 N. C. 432, 58 S. E. 1002 (1907); 
 State v. Toler, 145 N. C. 440, 58 S. E. 
 1005 (1907). In such a connection, 
 a witness who has copied the inter- 
 nal revenue records may testify as to 
 the accuracy of his copy and no 
 constitutional right of the accused is 
 infringed by his so doing. King v. 
 State, (Tex. Cr. App. 1908) 109 S. 
 W. 182. Nor is it objectionable that 
 the statute permits the use of a copy 
 of the internal revenue license. The 
 
§459 
 
 A. Protect Substantive Eights. 
 
 592 
 
 witness, 8 proof of reputation, 9 and the like, 10 must be received in 
 evidence. 
 
 provision in favor of confrontation 
 does not prevent the use of any com- 
 petent documentary evidence. Runde 
 V. Com., (Va. 1908) 61 S. E. 792. 
 In the same way, the admission of 
 record proof of marriage in a prosecu- 
 tion for bigamy does not violate the 
 constitutional guaranty to persons 
 accused of crime of meeting witnesses 
 face to face. Sokel v. People, 212 111. 
 23S, 72 N. E. 382 (1904). The official 
 certificate of the custodian of certain 
 public documents to the effect that 
 their is no record in his office to » 
 given purport will not be received 
 in evidence. People v. Goodrode, 
 (Mich. 1903) 94 N. W. 14, 10 Detroit 
 Leg. X. 19. On rebuttal of certain 
 evidence by A. now deceased, as to the 
 age of accused, a school census signed 
 by A. assigning a different age for 
 accused, is competent. McAnally v. 
 State, (Tex. Cr. App. 1903) 73 S. W. 
 404. 
 
 Private writings stand in the same 
 position, in this respect, as public 
 documents. For this reason » wit- 
 ness may, at the request of counsel 
 for accused, give an answer in writ- 
 ing to a specific question asked by 
 him. Xo right of confrontation is 
 infringed in so doing. 
 
 Non constat that the court would 
 not, if defendant's counsel had in- 
 sisted, have required that the witness 
 answer orally. People t". White, 
 ( Cal. App. 1907 ) 90 Pac. 471. 
 
 8. Infra, §§ 1629 et seq. 
 
 Former evidence. — The right to con- 
 frontation in no way affects the pro- 
 cedural rules regulating the admis- 
 sibility of evidence given at a former 
 or preliminary trial. 
 
 Absence or ignorance of wherabouts. 
 — Thus, the testimony of witnesses, 
 now absent from the state, given at a 
 preliminary hearing, is admissible 
 against accused. Butler r. State. 
 (Ark. 1907) 103 S. W. 382 (although 
 not represented by counsel 1 ; State t\ 
 Harmon. (Kan. 1904) 7S Pac. $05: 
 
 State v. Nelson, (Kan. 1904) 75 Pac. 
 505; State v. Banks, 111 La. Ann. 
 22, 35 So. 370 (1903) ; State v. Kline, 
 109 La. Ann. 603, 33 So. 618 (1903) ; 
 State v. King, 24 Utah 482, 68 Pac. 
 418 (1902). Unavailing search, with 
 due diligence is deemed equivalent to 
 proof of absence from the jurisdiction. 
 State v. King, 24 Utah 482, 68 Pac. 
 418 (1902). The statute allowing 
 the admission in evidence at trial of 
 reporter's notes of testimony taken at 
 the preliminary examination of de- 
 fendant is constitutional. People v. 
 Plyer, 126 Cal. 379, 58 Pac. 904 
 (1899) [citing People v. Oiler, 66 Cal. 
 101, 4 Pac. 1066 (1884) ; People r. 
 Chin Hane, 108 Cal. 597, 41 Pac. 697 
 (1895); People v. Sierp, 116 Cal. 
 249, 250, 48 Pac. 88 (1897); People 
 v. Cady, 117 Cal. 10, 48 Pac 908 
 (1897)]. On the other hand, it has 
 been held that where certain of the 
 state's witnesses are absent from the 
 jurisdiction at the time of trial it 
 is error to read to the jury from the 
 stenographer's minutes the testimony 
 of these witnesses given at a prelim- 
 inary hearing of the cause. State c. 
 Heffernan, (S. D. 1908) 113 X. W. 
 1027. In the same way, where a wit- 
 ness is absent without the procure- 
 ment or connivance of the accused, 
 but rather by reason of the negligence 
 of the prosecution, his evidence given 
 at a preliminary trial will not be ad- 
 mitted. Motes r. U. S.. 173 U. S. 
 45$. 20 S. CI 993, 44 L. ed. 1150 
 (1900). 
 
 Sickness. — The rule is the same 
 where a witness on a preliminary 
 trial was at the time of hearing dang- 
 erously ill, with no hope of recovery. 
 Spencer r. State. (Wis. 1907) 113 X. 
 W. 462. 
 
 Death. — For still stronger reasons, 
 the evidence of a witness, since de- 
 ceased, given at a former trial is ad- 
 missible against the accused who then 
 confronted him. People r, Elliott, 
 172 X. V. 146, 64 X. E. $37. 60LE. 
 
593 
 
 Reasons toe Guaranty of Confrontation. 
 
 460 
 
 § 460. ( [5] Right to Confrontation); Reasons for the Limi- 
 tations. — The reason is plain, and has been stated above. 1 The 
 constitutional provision was not intended to introduce a new prin- 
 ciple into the law of evidence. It merely declared an old one. 2 
 The founders of the original constitutions justly deemed any pro- 
 cedure in opposition to this rule as being contrary to law. They 
 were apprehensive of the future, and sought to limit the power of 
 the executive in this* particular, for much the same reason that 
 
 A. 318 (1902) [judgment affirmed, 
 (N. Y. Suppl. 1901) 73 N. Y. Suppl. 
 279]; Porch v. State, (Tex. Cr. App. 
 1907) 99 S. W. 1122. The rule is 
 not varied where the deceased witness 
 was the victim of the alleged crime. 
 Porch v. State, (Tex. Cr. App. 1907) 
 99 S. W. 1122. In general, it may 
 be affirmed that where a witness has 
 since died or is absent from the state, 
 his evidence on a former trial may 
 be received. State v. Walton, (Or. 
 1909) 99 Pac. 431 [rehearing denied, 
 101 Pac. 389]. 
 
 Necessity for using secondary evi- 
 dence must be established. — In any 
 case, however, where evidence of this 
 class is received a sufficient predicate 
 must first be laid. Putnal v. State, 
 (Fla. 1908) 47 So. 864; Somers v. 
 State, (Tex. Cr. App. 1908) 113 S. 
 W. 533; Arnwine v. State, (Tex. Cr. 
 App. 1908) 114 S. W. 796, 802 
 ( stenographer's notes ) . Thus, for ex- 
 ample, to read from the stenograph- 
 er's minutes, without sufficient found- 
 ation, the evidence of a witness given 
 ir. a civil action is error. State v. 
 Woods, (Kan. 1905) 81 Pac. 184. 
 
 9. State v. Waldron, 16 R. I. 191, 
 192, 14 Atl. 847 (1888). See infra, 
 §§ 2739 et seq. 
 
 10. Presumptions of law. — It need 
 not be said that the rules of proced- 
 ure affecting presumptions of law 
 {infra, §§ 1085 et seq.) are not modi- 
 fied or affected by the constitutional 
 provisions regarding . confrontation. 
 For instance, statutes giving a prima 
 facie effect to certain facts, in a speci- 
 fied connection, are not in violation 
 of the right of an accused person to 
 confront the witnesses against him. 
 
 Vol. I. 38 
 
 Thus, an act making the possession 
 of an internal revenue tax receipt 
 for the sale of ardent spirits prima 
 facie evidence of a sale of liquor vio- 
 lates no constitutional privilege to 
 which a defendant is entitled. Clop- 
 ton v. Com., (Va. 1909) 63 S. E. 1022. 
 The same ruling has been made in 
 cases involving the possession of 
 illegally taken fish or game. State V. 
 Sheehan, 28 K. I. 160, 66 Atl. 66 
 (1907) (short lobsters). 
 
 1. Supra, § 458. 
 
 2. Campbell v. State, 11 Ga. 353 
 (1852); I,ambeth v. State, 23 Miss. 
 322 (1852); Jackson v. State, 81 
 Wis. 127, 51 N. W. 89 (1892). "The 
 right of a party accused of a 
 crime, to meet the witnesses against 
 him, face to face, is no new principle. 
 It is coeval with the common law. 
 Its recognition in the Constitution 
 was intended for the twofold pur- 
 poses of giving it prominence and 
 permanence." Campbell v. State, 11 
 Ga. 353, 374 (1852), per Lampkkin, J\, 
 " When the bill of rights was 
 adopted by the framers of our Con- 
 stitution, they were aware of this rule 
 of evidence of the common law. They 
 found it adopted into, and forming a 
 part of, the jurisprudence of the 
 country." Lambeth v. State, 23 Miss. 
 322, 357 (1852). "The right of the 
 accused to meet the witnesses face to 
 face was not granted, but secured, 
 by the constitutional clauses men- 
 tioned. It is the right, therefore, 
 as it existed at common law that 
 was thus secured. That right was 
 subject to certain exceptions." Jack- 
 son v. State, 81 Wis. 127, 131, 51 
 N. W. 89 (1892). 
 
§ 461 A. Protect Substantive Eights. 594 
 
 they forbade unreasonable searches or attached a sacramental 
 value to the " trial by jury." At the time when the drafters of 
 the original state or federal constitutions, from which subsequent 
 documents of a similar nature are copied, began their work these 
 established rules of evidence were in full operation as a recognized 
 and universally accepted part of the law, and no desire to change 
 them was manifested. 
 
 There was, however, a very real mischief, as to which they were 
 properly sensitive and which they earnestly desired to eliminate 
 by law, as being unjust and contrary to the fundamental rights 
 of Englishmen. They felt that in the conflict between the liber- 
 ties of the people and the prerogative of the crown, the latter had 
 found no instrument of oppression more serviceable than secret 
 tribunals, — like the courts of star chamber or high commission. 
 
 But no grievance or need for change was felt concerning the 
 ordinary and regular course of administering justice by the legally 
 constituted tribunals, although this included statements of per- 
 sons not before the court, and whom, therefore, the party could 
 not confront. 3 
 
 § 461. ( [5] Right to Confrontation); No New Kule of Evi- 
 dence. — The constitutional provision did not undertake to pre- 
 scribe that the only statements receivable in court should have 
 been originally made by one who, later on, should appear as a 
 witness. To make such a requirement, would be to limit the sub- 
 ject matter as to which the confronting witness, when produced, 
 should be permitted to testify. But to this, the constitutional 
 requirement did not purport to apply. The matter was left to 
 the established rules of law as the latter had already been, or 
 should hereafter be, formulated by the courts. 1 It may well be 
 doubted whether much of the reasoning on which the constitu- 
 tional privilege was based is valid at the present day, and whether 
 any lingering apprehension of danger that the executive power 
 will encroach, through the judicial machinery, upon popular 
 rights is anything more than morbid. 
 
 3. Lambeth v. State, 23 Miss. 322 new principle into the law of crim- 
 (1852). inal procedure, but to secure those 
 
 1. State v. McO'Blenis, 24 Mo. 416 that already existed as part of the 
 (1857) ; Summons v. State, 5 Ohio law of the land from future change 
 St. 341 (1856). See also State v. by elevating them into constitutional 
 Moore, 156 Mo. 204, 56 S. W. 883 law." State v. McO'Blenis 24 Mo. 416, 
 (1900). "The purpose of the people 435 (1857). See also State r. Moore, 
 was not, we think, to introduce any 156 Mo. 204, 56 S. W. SS3 (1900). 
 
595 
 
 Waiver of Eight to Confrontation. 
 
 462 
 
 § 462. C [5] Right to Confrontation); Waiver. — The consti- 
 tutional protection may be waived by a party, 1 as where he fails 
 to object to evidence offered in contravention of it ; 2 or, even more 
 clearly, where a party, who would otherwise be aggrieved ex- 
 pressly consents to its reception. 3 
 
 1. State v. Olds, 106 Iowa 110, 76 
 N. W. 644 (1898) ; State v. McNeil, 
 33 La. Ann. 1332, 1335 (1881) ; State 
 v. Mitchell, 119 N. C. 784, 25 S. E. 
 783 (1869). Thus, where, after a 
 trial has begun, accused voluntarily 
 absents himself therefrom, he has no 
 cause of complaint if the cause pro- 
 ceed to verdict in his absence. Collier 
 v. Com., 22 Ky. L. Rep. 1929, 62 S. 
 W. 4 (1901). Should a view be 
 ordered in a criminal case and de- 
 fendant consent to the view but says 
 that he does not care to be present 
 when it is taken, no right of con- 
 frontation is violated by the negleet 
 of the court to force the accused to 
 be present. State v. Mortensen, 26 
 Utah 312, 73 Pac. 562 (1903) [re- 
 hearing denied, 73 Pac. 633]. 
 
 Under a contrary ruling, it has 
 been held that on a trial for murder, 
 it is reversible error to proceed with 
 the examination of a witness in the 
 absence of the prisoner, although the 
 questions propounded and answered in 
 his absence are preliminary questions, 
 and upon the return of the prisoner 
 the same questions are reasked and 
 reanswered in exactly the same way, 
 and no exception is taken on the 
 grounds of such irregularity at the 
 time; for to be present at all stages 
 of the trial is a constitutional right 
 of the prisoner, which he cannot waive, 
 and of which he cannot be deprived. 
 State v. Sheppard, 49 W. Va. 582, 
 39 S. E. 676 (1901). 
 
 8. State v. Rogers, 119 N. C. 793, 
 26 S. E. 142. 
 
 3. Ruiz v. Terr., 10 N. M. 120, 61 
 Pac. 126 (1900). 
 
 Where an accused enters into a 
 written stipulation agreeing that an 
 absent witness would testify to a par- 
 
 ticular effect, he cannot claim that his 
 right of confrontation has been vio- 
 lated. State v. Mortensen, 26 Utah 
 312, 73 Pac. 562 (1903) [rehearing 
 denied, 73 Pac. 633] citing, 
 
 Arkansas. — Hurley V. State, 29 
 Ark. 17 (1874). 
 
 Illinois. — Bulliner v. People, 95 
 111. 394 (1880) ; Perteet v. People, 70 
 111. 171 (1873) ; McKinney v. People, 
 2 Gilman 540, 43 Am. Dec. 65 (1845). 
 
 Indiana. — Shular v. State, 105 Ind. 
 289, 4 N. E. 870, 55 Am. Rep. 211 
 (1885); Hancock v. State, 105 Ind. 
 289, 4 N. E. 870, 55 Am. Rep. 211 
 (1885). 
 
 Iowa. — State v. Poison, 29 Iowa 
 133 (1870). 
 
 Kansas.— State v. Adams, 20 Kan. 
 311 (1878). 
 
 Louisiana. — State %. Arbuno, 105 
 La. 719, 30 So. 163 (1901). 
 
 Missouri. — State v. Wagner, 78 Mo. 
 644, 47 Am. Rep. 131 (1883). 
 
 Montana. — U. S. v. Sacramento, 2 
 Mont. 239, 25 Am. Rep. 742 (1874). 
 
 New Hampshire. — State v. Albee, , 
 61 N. H. 423, 60 Am. Rep. 325* 
 (1881). 
 
 New York. — Conners v. People, 50 
 N. Y. 240 (1872). 
 
 Wisconsin. — Williams v. State, 61 
 Wis. 281, 21 N. W. 56 (1884). The 
 result is the same where the accused 
 makes a similar agreement in a less 
 formal way. Ruiz v. Territory, (N. 
 M. 1900) 61 Pac. 126. A party may 
 waive a right to confrontation by 
 agreeing that a written statement 
 shall be accepted in place of oral testi- 
 mony. Odell v. State, (Tex. Cr. App. 
 1902) 70 S. W. 964. See also People 
 r. Welsh, 84 N. Y. Suppl. 703, 88 
 App. Div. 65 (1903) (failure to ap- 
 pear). 
 
B. FuETHERANCE OF JUSTICE. 596 
 
 CHAPTER VII. 
 
 PRINCIPLES OF ADMINISTRATION; (B) FURTHERANCE OF JUSTICE. 
 
 Principles of administration, 463. 
 (B) furtherance of justice, 463. 
 
 (1) Primary evidence required, 464. 
 secondary evidence defined, 465. 
 grading of primary evidence, 466. 
 
 evidence by perception, 467. 
 
 written and oral evidence, 468. 
 
 maps, plans, etc., 469. 
 scope of the canon, 470. 
 not a question of probative force, 471. 
 extent of administrative action, 472. 
 necessity for using secondary evidence, 473. 
 
 grounds of necessity; witnesses or documents, 474. 
 
 necessity for establishing, 475. 
 
 necessity for corroboration, 476. 
 deliberative facts, 477. 
 a valuable principle, 478. 
 how objection is taken, 479. 
 " Best Evidence " as a rule of procedure, 480. 
 " Best Evidence Rule " at the present time, 481. 
 
 present scope of rule, 482. 
 
 a sole survival, 483. 
 
 a vanishing rule, 484. 
 
 a wider scope, 485. 
 
 hearsay, 486. 
 
 attesting tcitnesses, 487. 
 
 (2) Completeness demanded, 488. 
 oral statements, 489. 
 
 proponent, 489. 
 
 admissions and confessions, 490. 
 
 oral, 491. 
 confessions, 492. 
 independent relevancy, 493. 
 
 res gestae an exception, 494. 
 
597 Synopsis. 
 
 opponent, 495. 
 
 probative effect, 496. 
 right of initiative, 497. 
 former evidence, 498. 
 independent relevancy, 499. 
 documents, 500. 
 
 proponent, 500. 
 
 independent relevancy, 500. 
 judgment, 501. 
 notice to quit, etc., 50'2. 
 general practice, 503. 
 depositions, 504. 
 admissions, 505. 
 public records, 506. 
 executive, 507. 
 legislative, 508. 
 judicial, 509. 
 
 pleadings at law, 510. 
 pleadings in chancery, 511. 
 statutory interrogatories, 512. 
 judgments, 513. 
 verdicts, 514. 
 executions, 515. 
 wiZZs ami probate papers, 516. 
 private records, 517. 
 opponent, 518. 
 
 independent relevancy, 518. 
 
 pleadings, 519. 
 public records, 520. 
 incorporation by reference, 521. 
 entire transaction may be shown, 522. 
 incorporation by relation, 523. 
 
 obligation to introduce into evidence resulting from 
 demand and inspection, 524. 
 a contrary view, 525. 
 surplusage rejected, 526. 
 (3) Prevent surprise, 527. 
 
 action of appellate courts, 528. 
 protection against unfair treatment, 529. 
 
B. Furtherance of Justice. 598 
 
 protect witnesses from annoyance, 530. 
 cross-examination, 531. 
 
 a reasonable limitation, 532. 
 an anti-social attitude, 533. 
 
 (4) Judge may interrogate witnesses, 534. 
 to enable judge to charge the jury, 535. 
 magistrates, arbitrators, etc., 536. 
 
 in order to elicit material facts, 537. 
 range of inquiry, 538. 
 form of question, 539. 
 
 (5) Judge may call additional witnesses, 540. 
 
 (6) Judge should hold balance of indulgence even, 541. 
 
 (7) Judge should require full disclosure, 542. 
 
 (8) Judge may suggest proper amendments, 543. 
 Principles of administration, 544. 
 
 (C) Expedite trials, 544 
 Reason required, 545. 
 
 (1) Rulings as to prima facie case, 546. 
 
 (2) Range of examination, 547. 
 
 (3) Inquiry into collateral matters restricted, 54S. 
 
 (4) Introduction of cumulative evidence regulated, 549. 
 
 (5) Judge may limit number of witnesses, 550. 
 
 (6) Right to restrict repetition of questions, 551. 
 direct examination, 551. 
 cross-examination, 552. 
 
 repeating question asl-ed on cross-examination, 553. 
 
 (7) Right to restrict repetition of testimony, 554. 
 
 (8) Judge 1 may restrict length of arguments, 554a. 
 
 (9) Judge may restrict length of examination, 555. 
 number of counsel, etc., 555. 
 
 Principles of administration, 556. 
 
 (D) Judge should aim to give certainty to substantive law, 556. 
 use of reason, 556a. 
 
 r Action of appellate courts, 557. 
 
 judicial function of trial judge, 557. 
 substantive law, 557. 
 findings of fact. 558. 
 
 facts conditioning admissibiltu, 559. 
 capacity of witnesses, 560. 
 administrative function of trial judge, 561. 
 
599 Social Objects of Judicial Administeation. § 463 
 
 executive function of trial judge, 562. 
 
 all intendments made in favor of trial judge, 563. 
 
 error in law necessary for reversal, 564. 
 
 a contrary view, 565. 
 powers of an appellate court, 56G. 
 
 reversal of action, 567. 
 
 modification of action, 568. 
 
 other orders, 569. 
 
 § 463. Principles of Administration; (B) Furtherance of Justice. 
 Boni judicis est ampliare justitiam. 1 It is in furtherance of jus- 
 tice which constitutes the characteristic and essential quality 
 of the ideal judge. Only in proportion as any magistrate mani- 
 fests, effectuates or embodies justice does he become ideal. In 
 this way alone is the highest obligation of the judiciary to the 
 nation, state or the community fulfilled. The administrative 
 power of the court extends not only to protecting the dignity and 
 due regularity of judicial proceedings and so determining the 
 course of the trial as to protect the substantive legal rights of the 
 parties. It will go further and provide that litigation, as it affects 
 the parties, shall result in the attainment of substantial justice 
 and in as speedy a manner as is consistent with a careful attempt 
 to attain it. This attained, judicial administration may well con- 
 sider the wider influence of litigation upon society, as a whole. 
 
 1. Broom's Legal Maxims, Ch. Ill, est ampliare jurisdictionem, i. e., 
 
 § 1. justitiam." Colling v. Aron, 4 Bing. 
 
 There is, in reality, no substantial N. Cas. 233, 235 (1838). See Clem- 
 difference between the " ampliare jur- ent v. Weaver, 4 Scott N. R. 229 
 isdictionem" and the "ampliare jus- (1841), and cases cited Id., 231, n. 
 titiam." It is the highest jurisdiction (44). Sir R. Hutton, Arg. R. v. 
 of a judge to causa justice to abound. Williams, 13 St. Tr. 1430 (1695). 
 The true maxim of our law is " to And see per Cresswell, J., Dart v. 
 amplify its remedies, and without Dart, 32 L. J. P. D. & A. (N. S.) 
 usurping jurisdiction, to apply its 125 (1863). "The true text is, boni 
 rules to the advancement of substan- judAcis est ampliare justitiam, not 
 tial justice," per Ld. Abinger, Russell jurisdictionem, as it has been often 
 v. Smyth, 9 M. & W. 818 (1842), cited cited," per Ld. Mansfield, 1 Burr. 304 
 arg. Kelsall v. Marshall, 1 C. B. (X. S.) (1757). See also Chanc. Prec. 323; 
 255 (1856). See also per Ld. Mansfield Broom's Legal Maxims, Ch. III. "The 
 4 Burr. 2239 (1768). "As to the power administration of justice may there- 
 of the judge to tax costs," remarked fore be defined as the maintenance of 
 Vaughan, J., " if he is willing to do right within a political community 
 it, and can save expense, it is clear by means of the physical force of the 
 that what the officer of the court may state." Salmond, Jurisp. (2d ed.), 11. 
 do, the judge may do, and boni judicis 
 
§ 464 B. Furtherance of Justice. 600 
 
 Though seldom without its influence upon the minds of judges, 
 it is probable that the potency of this line of considerations is 
 increasingly effective of results in practical administration. 
 
 To secure substantial justice to the parties is avowedly the ob- 
 ject of the procedure under consideration and the motive or object 
 with which the court exercises its wide administrative powers. In 
 addition to its function of regulating the orderly course of the 
 trial itself, the judge may, in pursuance of these administrative 
 powers, intervene directly to secure the ends of justice. Certain 
 of the more prominent canons under which the presiding judge 
 exercises his powers may be stated. (1) He will insist that the 
 primary evidence of any probative or constituent fact in the pos- 
 session or control of the proponent shall be produced to the 
 tribunal. (2) He will demand for himself, or permit a party to 
 obtain on request, a complete presentation of the case as a whole, 
 or in respect to any particular branch of it. (3) He will protect 
 a party from surprise or other unfair advantage, and witnesses 
 from annoyance. (4) He may insist on bringing out any fact 
 deemed by him essential to a just decision; either by suggesting 
 its existence to counsel or by personally asking questions designed 
 to elicit the truth. (5) In certain jurisdictions, he will comment 
 if necessary on the evidence for the guidance of the jury; 2 and 
 may, in most cases, call additional witnesses to the same end. (6) 
 He will hold the balance of indulgence even between the parties ; 
 — according to both any privilege conferred upon either. (7) So 
 far as not restrained by substantive or procedural law, he will re- 
 quire that a party or witness make a full disclosure of all ma- 
 terial facts. (8) He will suggest amendments of pleadings or 
 changes in method of presentation calculated to bring the truth 
 into a clearer light. 
 
 § 464. (Principles of Administration; [B] Furtherance of 
 Justice); (1) Primary Evidence Kequired. — A fundamental and 
 far-reaching canon of administration is to the effect that primary 
 evidence will be preferred to secondary. 1 As will appear later, 2 
 
 2. This topic is considered else- arbitrary; and, as commonly drawn, 
 
 where. Supra, §§ 276 et seq. indicates a relation to the fact which 
 
 1. The distinction between primary is the immediate subject of the evi- 
 
 and secondary evidence is one in de- dence the factum prolans rather than 
 
 gree of closeness, in logical relation, to its effect on the truth of the ulti- 
 
 to the fact to he proved. The distinc- mate proposition. Tn other words, the 
 
 tion is necessarily in large measure evidence to establish x probative fact 
 
601 
 
 Dignity of Truth Requires Best Evidence. § 464 
 
 this canon of administration was, in its inception, treated as a 
 rule of procedure ; — which, to a limited extent, it still continues to 
 be. It has seemed convenient to consider, first, the general appli- 
 cations of the canon, and, subsequently, 3 the limited application of 
 the rule. As commonly phrased, the rule is stated by saying that 
 the best evidence must be produced which the nature of the case 
 admits. 4 The presiding judge will insist that, as between a pri- 
 mary and a secondary grade of proof, a party should produce the 
 primary. Where truth is to be ascertained by the use of reason 
 it is intolerable, in point of principle, that anything short of the 
 most probative and conclusive evidence — the " best " evidence, 
 so-called — should be used in the effort. The dignity of the search 
 demands this concession; the social interests involved require it. 
 
 may be primary, while that to prove 
 a constituent one may be secondary. 
 Speaking generally, it may be said 
 that evidence which a presiding judge 
 is required to admit as a. matter of 
 course, without calling on the pro- 
 ducer to explain the absence of any 
 other method of proving the fact, is 
 primary. Other evidence is secondary. 
 
 2. Infra, §§ 4S0 et seq. 
 
 3. Infra, § 481. 
 
 4. Alabama. — Patton v. Ramlbo, 20 
 Ala. 485 (1853). 
 
 Arkansas. — Taylor v. Auditor, 4 
 Ark. 574 (1842). 
 
 California. — Norris v. Russell, 3 
 Cal. 249 (1855). 
 
 Colorado. — Crane v. Andrews, 6 
 Colo. 353 (1882). 
 
 Florida. — Bellamy v. Hawkins, 17 
 Fla. 750 (1880). 
 
 Illinois. — Vigus 13. O'Bannon, 118 
 III. 334, 8 N. E. 778 (1886) [revers- 
 ing 19 111. App. 241]. 
 
 Louisiana. — Wood's Succession, 30 
 La. Ann. 1002 (1878). 
 
 Maryland. — Green v. Caulk, 16 Md. 
 556 (1860). 
 
 Massachusetts. — ■ Com. v. Kinison, 4 
 Mass. 646 (1808). 
 
 Michigan. — People v. Lambert, 5 
 Mich. 349, 72 Am. Dec. 49 (1858). 
 
 Mississippi. — Storm v. Green, 51 
 Miss. 103 (1875). 
 
 Missouri. — Bent v. Lewis, 88 Mo. 
 
 462 (1885) [reversing 15 Mo. App. 
 40, 578]. 
 
 Nebraska. — Bee Pub. Co. A World 
 Pub. Co., 59 Neb. 713, 82 N. W. 28 
 (1900). 
 
 New Hampshire. — Greely v. Quim- 
 by, 22 N. H. 335 (1851). 
 
 New Jersey. — Hoffman v. RoSman, 
 39 1ST. J. L. 252 (1877). 
 
 New York. — Kain v. Larkin, 131 
 N. Y. 300, 30 N. E. 105 (1892) [re- 
 versing 17 N. Y. Suppl. 223]. 
 
 North Carolina. — Scott V. Bryan, 
 73 N. C. 582 (1875). 
 
 Pennsylvania. — White's Estate, 11 
 Phila. 100 (1875). 
 
 South Carolina. — State v. Teague, 
 9 S. C. 149 (1878). 
 
 Tennessee. — Sims v. Sims, 5 
 Humphr. 370 (1844). 
 
 Texas. — Cotton v. Campbell, 3 Tex. 
 493 (1848). 
 
 United States. — Clifton v. U. S., 4 
 How. 242, 11 L. ed. 957 (1846). 
 
 England. — Williams v. East India 
 Co., 3 East 192, 6 Rev. Rep. 589 
 (1802). 
 
 " The judges and sages of the law 
 have laid it down that there is but 
 one general rule of evidence, the best 
 that the nature of the case will ad- 
 mit." Omychund v. Barker, 1 Atk. 
 21, 49, Willes 538, 26 Eng. Reprint 
 15, (1744), per Hardwicke, L. Ch. 
 
§§ 465, 466 B. Fuktheeaxce of Justice. 602 
 
 The success of the attempt is dependent upon it; for, as a stream 
 cannot rise higher than its source, any taint of unreality, or false 
 tendency in the facts upon which the tribunal is to exercise its 
 reasoning faculty must, of necessity, vitiate and tend to render in- 
 equitable and unjust the joint product of logic and fact. In the 
 light of reason few propositions seem more self-evident than that 
 a judicial tribunal should require that he who submits evidence to 
 it for the purpose of invoking its aid on his behalf should present 
 the best evidence he has to offer. 
 
 § 465. ( [1] Primary Evidence Required) ; Secondary Evi- 
 dence Defined. — In defining secondary evidence the circumstance 
 which has been usually treated as the point of differentiation is 
 as to the appearance on the face of the evidence of a substitution of 
 inferior proof for that which is superior in probative force. Thus, 
 Judge Eastman, in New Hampshire, 1 "all evidence which shows 
 upon its face that better remains behind is secondary." Conversely, 
 it is said that " evidence which carries on its face no indication 
 that better remains behind is not secondary but primary." 2 The 
 statement seems a favorite one. 3 But it may be doubted whether 
 this element of obviousness — carrying character on its face — is 
 an essential limitation upon the administrative power of the court 
 to draw distinctions between primary and secondary evidence. 
 The true test is not that between obviously superior evidence and 
 that clearly inferior ; but between evidence of a higher and a lower 
 grade, in probative force, whether the fact of the difference is 
 plain on presentation or becomes obvious after a hearing. 4 
 
 § 466. ( [1] Primary Evidence Required); Grading of Pri- 
 mary Evidence. — As an administrative matter, the enforcement 
 of many gradings into primary and 'Secondary evidence is rendered 
 easy by their obvious character. Unlike differences in probative 
 force between witnesses due to differences in intelligence and op- 
 portunities for observation which can only become apparent upon 
 an extended hearing, these distinctions between grades of evi- 
 dence are clear upon the slightest consideration. 
 
 1. Putnam v. Goodall, 31 N. H. 419 4. " The term secondary evidence is 
 (1855). applied to evidence not primary, but 
 
 2. 1 Gill. Ev., § 84. which, having some tendency to prove 
 
 3. Jelks v. Barrett, 52 Miss. 315 the fact, is received because the best 
 (1876) ; Shoenberger v. Hackman, 37 evidence cannot be obtained." 1 Ab- 
 Pa. St. 87 (1860) ; Capera p. MSgnon, bott L. Diet. 448. 
 
 (Tex. Civ. App.) 33 S. W. 882 
 (1896). 
 
603 Oeiginal Document Peimaey Evidence. § 466 
 
 Illustrations. — While it would not be true that the broad and 
 general administrative requirement — that the most probative evi- 
 dence which is within the control of the party should be furnished 
 to the tribunal — is limited to any particular instances of its ap- 
 plication, certain of the best recognized in practical administra- 
 tion and most powerful in shaping the present form of the law of 
 evidence, may, however, be given in this connection. 
 
 1. As between direct evidence of any fact and circumstantial 
 proof of that fact, the direct evidence is deemed primary. This 
 is the basis of the preference for direct as compared with circum- 
 stantial evidence. It is also the foundation, in part, upon which 
 the rules as to res inter alios actae 1 have been formulated. 
 
 2. As between the judicial evidence of one who knows or has 
 observed a fact, and proof of an extrajudicial statement by the 
 knower or observer, the judicial evidence is primary. This is the 
 administrative principle underlying the exceptions to the rule 
 against hearsay 2 and which ought, in principle, to apply to the 
 entire operation of the hearsay rule. 3 
 
 3. In proving the contents of a constituent document, the pro- 
 duction of the original writing for the inspection of the court is 
 deemed primary evidence as compared with proof by copy or any 
 verbal testimony as to its contents. This application of the prin- 
 ciple is apparently best regarded as part of the substantive law 
 relating to documents and will be considered in connection with 
 that important medium of proof. As is said elsewhere, 4 the pres- 
 
 1. Infra, §§ 3150 et seq. the other hand, the established eas- 
 
 2. Infra, §§ 2762 et seq. ceptions to the hearsay rule, pedigree, 
 
 3. The "hearsay rule" sustains an declarations against interest, and the 
 anomalous relation to that requiring like, present the administrative fea- 
 the " best " evidence. Like that re- ture of furnishing secondary evidence 
 quiring production of an original in the absence of the primary. As 
 constituent instrument, (infra, § 482), will be said elsewhere {infra, § 2574) 
 the rule excluding hearsay is a- reg- the hearsay rule becomes harmonious 
 ulation of substantive law relating to with the rest of the law of evidence by 
 procedure, or, if the phrase be pre- treating it as a requirement of prl- 
 ferred, a rule of procedure. Unlike mary evidence — analogous to that 
 the procedural rule as to documents, regulating proof of the contents of a 
 however, the hearsay rule presents the constitutent document — and, when so 
 unusual feature that, so far as given regarded, is essentially sane and bene- 
 full operation, it absolutely and arbi- flcial ; while, as a bar to the introduc- 
 trarily excludes the unsworn state- tion of relevant testimony, it has no 
 ments covered by it. No second- adequate justification in reason. 
 
 ary evidence is permitted, however 4. Infra, § 482. 
 
 great the proponent's necessity. On 
 
§§ 4G7, 468 B. Fcbtherance of Justice. 604 
 
 ent scope of the " best evidence rule," viewed as one of procedure, 
 is practically limited to proof of the contents or execution of con- 
 stituent documents. 
 
 4. As between evidence of the physical phenomena covered by 
 actual observation and the inference of an observer as to the exist- 
 ence of a fact which these phenomena appear to him to establish, 
 the phenomena themselves are the primary evidence. This admin- 
 istrative principle is at the basis of the so-called " opinion evi- 
 dence " rule, excluding the unnecessary use by a witness of the 
 reasoning faculty, 5 and will be considered more fully in that con- 
 nection. 
 
 § 467. ( [1] Primary Evidence Required; Grading of Pri- 
 mary Evidence); Evidence by Perception. — As has been said, 1 
 the establishment of a grade of primary evidence is more or less 
 arbitrary. It has been suggested, for example, that the evidence 
 gained by the direct perception of the tribunal is more cogent 
 than any other method of showing the same facts ; that, therefore, 
 so long as the person or object in question can be brought before 
 the court, no other inferior evidence should bo received. 2 This 
 has been repudiated. 3 
 
 § 468. ( [1] Primary Evidence Required; Grading of Pri- 
 mary Evidence) ; Written and Oral Evidence. — It is probable 
 that no distinct administrative principle regards written evidence 
 as primary, and oral evidence as secondary. As a question of 
 probative weight, it is not doubtful that the document is much 
 to be preferred. But it will, in most instances, probably be found 
 that the requirement of written evidence of a given fact is due 
 rather to the substantive law than to that of administration. The 
 substantive law has taken a very marked interest in requiring the 
 use of writing as proof of important transactions. Not only will 
 the positive law, when the parties have adopted writing as the 
 depositary of their intentions and agreements, protect and effectu- 
 ate the presumed intention of the parties by requiring (1) that 
 the language used shall not be varied, modified or contradicted 
 by extrinsic evidence (which is the " parol evidence rule") ; and 
 (2") by requiring that in any dispute between the parties to a 
 written agreement the document itself shall be the evidence of the 
 
 5. Infra, §§ 1791 et seq. 3. Q. v. Francis, L. It. 2, C. C. K. 
 
 1. Supra, § 466. 128 (1874) ; Lucas v. Williams, 66 L. 
 
 2. Glossford on Evid. T. R. 706 (1892). 
 
605 Maps, Plans, Etc., Not Peimaey Evidence. § 469 
 
 understanding between them (which is the best evidence rule 
 
 viewed as a rule of procedure). But substantive law goes much 
 further, regardless and independent of the assumed conventions 
 and even of the wishes of the parties. It prescribes that deeds, 
 wills, and other formal constituent documents shall be in writing. 
 Important contracts, such as those relating to the sale of interests 
 in land, for the sale of personal property of substantial value, 
 for the rendition of services extending over a period of a year, 
 and the like, must by substantive law relating to procedure be 
 evidenced by writing or equivalent guarantees for truth. 
 
 It is, of course, immaterial either to administration or pro- 
 cedure in general whether writing is made primary evidence by 
 the substantive law from its view of public policy expressed in a 
 Statute of Wills, Statute of Frauds, or the like; or whether the 
 requirement is made to carry out the assumed intention, the 
 implicit agreement, of the parties. In either event, where the 
 right exists, the production of the document is primary evidence, 
 and its absence must be satisfactorily justified if secondary evi- 
 dence is to be received. 
 
 But as between two alternative methods of proving a fact, 
 neither being forbidden by any act of law, there seems no prin- 
 ciple of administration to the effect that the one embodying the 
 use of writing must be regarded as primary. For example, while 
 the original agreement of the parties must by rule of substantive 
 law be produced in proof of any fact asserted, as primary evi- 
 dence of its contents, in any litigation between the parties on the 
 document, no such requirement is made in an action between a 
 party and a stranger. 1 So while ownership of a chattel may be 
 established by exhibition of a document, it may also be shown by 
 oral testimony. 2 The lading of goods may be proved by oral testi- 
 mony though a bill of lading exist. 8 
 
 § 469. ( [1] Primary Evidence Required; Grading ot Prh 
 mary Evidence); Maps, Plans, etc — Whether maps, plans and 
 the like be regarded as documents or as seems more appropriate, 
 be treated as real evidence, they are not a primary grade of evi- 
 dence in relation to oral testimony as to the existence of the 
 
 1. See Doctjmentaby Evidence. 3. Giraudel v. Mendiburne, 3 Mart. 
 
 2. Fay v. Davidson, 13 Minn. 523 N. 8. (La.) 509 (1825). 
 (1868) (steamboat); McMahon V. 
 
 •DavidBon, 12 Minn. 357 (1867). 
 
§ 470 B. FuETHERA^CE OF JUSTICE. 606 
 
 same facts. Thus, it may be shown by oral evidence that a certain 
 piece of land is not included within the description of a deed, 
 although the plan annexed to the deed of conveyance is not proved 
 or its absence explained. 1 
 
 § 470. C [1] Primary Evidence Required); Scope of the 
 
 Canon. — While the "best evidence rule" viewed as one of pro- 
 cedure, is, so far as valid at all, of very limited application, it has, 
 when taken as a canon of administration, a wide sphere of judicial 
 usefulness. No reasonable doubt exists but that the mind intui- 
 tively recognizes certain differences in probative force between 
 alternative ways of proving the same fact. That one, for example, 
 called upon to act in an important matter would more readily 
 credit the statement of a percipient witness, than the report, even 
 at first hand, of what someone has heard the latter say ; that such 
 a .person should prefer to see important letters rather than be 
 informed, in a general way, as to their substance ; that he would 
 be sooner and more completely convinced of the truth of a fact 
 by the statement of one who saw it, than by a detail of other facts 
 which suggest an inference, more or less probable, that it must 
 have occurred. These, and similar propositions, are self-evident. 
 In such cases, the varying probative effect of these classes of evi- 
 dence is not so much one of degree as of kind. In essence, such 
 distinctions are based upon fundamental qualities inherent in the 
 nature of the human mind, its responsiveness to varying grades 
 of suggestiveness in outside facts. But a further consideration 
 is at once apparent. The intrinsic importance of these differences 
 is, in case of judicial administration, greatly enhanced by the 
 presence in court, as part of the tribunal, of a fortuitous aggrega- 
 tion of persons temporarily clothed with judicial power, selected 
 by chance from the general mass of the community, and whose 
 minds are entirely untrained for the careful sifting of testimony. 
 Judicial administration must sedulously, at every step, consider 
 the peculiar mentality of this conditioning factor in the ascertain- 
 ment of truth; — its constant liability to be misled, its tendency 
 to yield to the play of emotion or the plausible appeal of passion 
 or prejudice. 
 
 Certain of these more obvious distinctions judicial administra- 
 tion has seen fit to recognize ; — regarding, in each case, the higher 
 grade of evidence as primary, and any subordinate, weaker or 
 1. Hiestand r. Forsyth, 12 Itob. (La.) 371 (1845). 
 
'607 " Best Evidence " Deals With Admissibility. § 471 
 
 substitutionary evidence in proof of the same fact as secondary. 
 The administrative canon requires that the primary proof must 
 he presented or its absence satisfactorily explained. In them- 
 selves, they are sage maxims of experience — counsels of pru- 
 dence. The peculiarity presented by the English law of evidence 
 is that certain of these counsels have by intrinsic value and con- 
 stant use hardened into rules of procedure under what would 
 seem a mistaken impression that the binding force of precedent 
 attaches to the exercise of administrative prudence.' 
 
 § 471. ( [1] Primary Evidence Required); Not a Question of 
 Probative Force. — The fact that other primary evidence is more 
 probative than the primary evidence offered, is no ground for 
 excluding that actually produced. The " best evidence " rule 
 relates rather to admissibility than to weight. 1 In other words, 
 the rule of administration does not attempt to distinguish, in point 
 of admissibility, between different classes of relevant facts ; — pro- 
 vided it regards them as primary. 2 To be rejected under this rule, 
 
 1. Much mischief to the scientific 
 symmetry in development and to suc- 
 cess in practical administration has 
 ht«>n thus caused. The hearsay rule, 
 for example, as a counsel of prudence, 
 as a canon of administration, is ad- 
 missible. Regarded as a hard and 
 fast rule of procedure it is highly 
 mischievous to the end which judicial 
 administration seeks to reach. 
 
 1. Indiana. — Hewitt v. State, 121 
 Ind. 245, 23 N. E. 83 (1889). 
 
 Massachusetts. — Com. v. Merrell, 99 
 Mass. 542 (1868). 
 
 New Hampshire. — Roberts v. Dover, 
 72 N. H. 147, 55 Atl. 895 (1903). 
 
 New York. — People v. Gonzales, 35 
 N. Y. 49 (1866). 
 
 Pennsylvania. — Canfield v. Johnson, 
 144 Pa. St. 61, 22 Atl. 974 (1891). 
 
 Vermont. — Whitney Wagon Works 
 0. Moore, 61 Vt. 230, 17 Atl. 1007 
 (1888). 
 
 2. Alabama. — McCreary v. Turk, 29 
 Ala. 244 (1856). 
 
 Connecticut. — Barnum v. Barnum, 
 9 Conn. 242 (1S32). 
 
 Illinois. — Vigus v. O'Bannon, 118 
 111. 334, 8 N. E. 778 (1886). 
 
 Indiana. — Hewitt v. State, 121 Ind. 
 245, 23 N. E. 83 (1889). 
 
 Kentucky. — Grubbs v. Pickett, 1 A. 
 K. Marsh. 253 (1818). 
 
 Maryland. — Richardson v. Milburn, 
 17 Md. 67 (1860). 
 
 Massachusetts. — Chamberlain v. 
 Carter, 19 Pick. 188 (1837) [dis- 
 tinguishing Williams v. East India 
 Co., 3 East 192, 6 Rev. Rep. 589]. 
 
 Michigan. — Robinson v. Mulder, 81 
 Mich. 75, 45 N. W. 505 (1890). 
 
 Missouri. — Austin v. Boyd, 23 Mo. 
 App. 317 (1886). 
 
 New Hampshire. — Roberts v. Dover, 
 72 N. H. 147, 55 Atl. 895 (1903). 
 
 New York. — People v. Gonzales, 35 
 N. Y. 49 (1866) ; Pry v. Bennett, 3 
 Bosw. (N. Y.) 200 (1858). 
 
 North CaroKna. — Clements v. Hunt, 
 46 N. C. 400 (1854). 
 
 Pennsylvania. — Crozer v. New 
 Chester Water Co., 148 Pa. St. 130, 
 23 Atl. 1123 (1892). 
 
 Texas. — Holmes v. Coryell, 58 Tex. 
 680 (18S3). 
 
 Vermont. — Whitney Wagon Works 
 v. Moore, 61 Vt. 230, 17 Atl. 1007 
 (1888). 
 
§ ill B. FURTHERANCE OF JUSTICE. 608 
 
 whether treated as one of procedure or of administration, the 
 evidence offered must not only be of inferior probative force, but 
 the inferiority must arise from the circumstance that the evidence 
 offered is of a lower grade of proof, 3 one so obviously inferior as 
 to suggest that its employment by the proponent could not have 
 been in good faith, or that the interests of public justice would 
 suffer by its use. For example, an admission, by a rule of pro- 
 cedure, is made primary evidence. 4 It follows, so far as this 
 canon is concerned, that such a statement is equally admissible, 
 though often not so probative, as the direct evidence of a per- 
 cipient witness to the fact stated by the admission. Thus, the 
 book of deposits kept by a bank, though made from slips kept 
 by another clerk is quite as much primary evidence as to the 
 state of a depositor's account, as is the depositor's pass book kept 
 by the bank's officers receiving his money. The evidence, there- 
 fore, is equally admissible. 5 One who saw an occurrence from a 
 distance though but little of it, is equally competent, if not quite 
 as credible, as a witness who with excellent powers of observation 
 and a retentive memory, is able to state, with absolute indifference 
 between the litigants, the entire set of happenings in his imme- 
 diate proximity. The distinction is not between the probative 
 
 West Virginia. — State v. Cain, 9 North Carolina. — Clements v. Hunt, 
 
 W. Va. 559 (1876). 46 N. C. 400 (1854). 
 
 Wisconsin. — Althouse v. James- Pennsylvania. — Canfield «'. Johnson, 
 town, 91 Wis. 46, 64 N. W. 423 144 Pa. St. 61, 22 Atl. 974 (1891). 
 (1895). South Carolina .— Thomasson !>. Ken- 
 United States.— V. S. v. Reyburn, nedy, 3 Rich. Eq. 440 (1851). 
 6 Pet. 352, 8 L. ed. 424 (1832). Tennessee. — MeCully v. Malcom, 9 
 
 3. Alabama. — McCaskle V. Amarine, Humphr. 187 (1848). 
 
 12 Ala. 17 (1847). Texas. — Bledsoe v. Gonzales County, 
 
 Connecticut. — Barnum v. Barnum, 31 Tex. 636 (1869). 
 
 9 Conn. 242 (1832). Vermont. — Whitney Wagon Works 
 
 Illinois. — Vigus v. O'Bannon, 118 V. Moore, 61 Vt. 230, 17 Atl. 1007 
 
 111. 334, 8 N. E. 778 (1886). (1888). 
 
 Kentucky. — Buckwalter v. Arnett, West Virginia. — State v. Cain, 9 
 
 34 S. W. 238, 17 Ky. L. Rep. 1233 W. Va. 559 (1876). 
 
 (1896). United States.— V. S. v. Gilbert, 
 
 Maryland. — Richardson v. Milburn, 25 Fed. Cas. No. 15,204, 2 Sumn. 19 
 
 17 Md. 67 (1860) ; Oelrichs v. Ford, (1834). 
 
 21 Md. 489 (1863). 4. Infra, §§ 1232 et seq. 
 
 Michigan.— Elliott v. Van Buren, 5. Zang v. Wyant, 25 Colo. 551, 
 
 33 Mich. 49, 20 Am. Rep. 668 (1875). 56 Pac. 565, 71 Am. St. Rep. 145 
 
 Neio Jersey. — Patton v. Freeman, 1 (1898). 
 K. J. L. 113 (1791). 
 
 Neu> York. — People v. Gonzales, 35 
 N. Y. 48 (1866). 
 
609 Fobensic Necessity and Secondaey Eroof. §§ 472, 473 
 
 force of facts or witnesses but is between certain primary methods 
 of proving facts and substitutionary or secondary proof for 
 establishing them. 
 
 § 472. ( [1] Primary Evidence Required); Extent of Admin- 
 istrative Action. — That the court is justified, unless a suitable 
 necessity 1 for receiving it is shown, in rejecting the secondary 
 evidence tendered, in refusing a continuance for the purpose of 
 securing the primary, seems clear. That the judge may further 
 properly call the attention of the jury to any unfavorable infer- 
 
 . ences which arise from the fact of suppressing the truth, i9 
 equally unquestioned. Here it would seem that the court must 
 stop. It cannot dismiss the case itself without hearing on the 
 merits and as unprejudiced a consideration of the substantial 
 equities of the party's case as is possible to persons upon whom 
 an imposition has been attempted. Fraud and trickery practiced 
 on the court by one of the parties during the progress of the trial 
 does not justify the dismissal of the action. 2 Administrative 
 favors, a judge may properly reserve for those who have earned 
 them. But justice is not a question of administrative indulgence, 
 given to meritorious suitors. Rather it is a matter of right, con- 
 ceded by society for its own social purposes. A party should 
 have a hearing ex debito justitim. 
 
 § 473. ( [1] Primary Evidence Required) ; Necessity for Using 
 Secondary Evidence. — It may be suggested that an obvious con- 
 flict exists between the present principle of administration and 
 that which proposes to itself the protection of the substantive 
 right of a party to prove his case by the most probative evidence 
 in his power. 1 The conflict certainly exists, as frequently happens 
 between opposing canons of administration, — a just balancing of 
 which constitutes juridical success, as the adjusting of opposing 
 duties constitutes sound ethical conduct. It is not difficult to 
 notice the reconciling element which must be the determining 
 factor with the court in deciding upon the admissibility of any 
 particular piece of evidence of a secondary grade. The pro- 
 ponent must show an adequate necessity for proving the fact 
 and a practical inability to prove it in any other way than by 
 
 .'secondary evidence. Unless a litigant is able to show, to the 
 
 1. Infra, § 473. 1. Supra, §§ 334 et seq. 
 
 2. Fitch v. Martin, (Neb. 1907) 
 113 N. W. 796. 
 
 Vol. I. 39 
 
§ 473 B. Furtherance of Justice. 610 
 
 reasonable satisfaction of the judge, that it is necessary for him 
 to use secondary evidence, he will be required to produce the 
 primary. Wherever such a necessity is shown, he will be per- 
 mitted to use the secondary, 2 if otherwise competent. 3 Hearsay, 
 nevertheless, will not be received as secondary evidence; 4 — the 
 most startling anomaly in the English law of evidence. 
 
 This necessity may arise at either of two stages of the pro- 
 ponent's case: (1) that of establishing a prima facie case, or, if 
 the proponent is not also the actor, 5 in creating an equilibrium 
 in a civil or a reasonable doubt in a criminal case; or (2) at the 
 stage when it is necessary for the proponent to maintain the situa- 
 tion, either of proof or doubt which he has succeeded in estab- 
 lishing. The necessity arising at the former stage may properly 
 be designated as the necessity for establishing; that arising at 
 the latter stage seems more properly called the necessity for 
 corroboration. 
 
 Scope of Necessity. — It is essential that the proponent should 
 show that he cannot prove the same ultimate facts by an entirely 
 different class of evidence. It is not, as an invariable rule, in- 
 sisted that in order to introduce secondary evidence of a particular 
 factum prdbans the proponent should show that this particular 
 factum probans is absolutely necessary to proof of a particular 
 
 2. Alabama. — Adams v. Governor, Rhode Island. — Inman v. Potter, 18 
 
 1 Ala. 627 (1840). R. I. Ill, 25 Atl. 912 (1892). 
 
 California. — Walsh v. Harris, 10 South Carolina. — Rigby v. Logan, 
 
 Cal. 391 (1858). 45 S. C. 651, 21 S. E. 56 (1895). 
 
 Georgia. — Woodruff v. Woodruff, 22 Tennessee. — Teil v. Roberts, 3 
 
 Ga. 237 (1857). Hayw. 139 (1818). 
 
 Kentucky. — Louisville Bridge Co. United States. — U. S. v. Reyburn, 
 
 v. Louisville, etc., R. Co., 75 S. W. 6 Pet. 352, 8 L. ed. 424 (1832). 
 
 285, 25 Ky. L. Rep. 405 (1903). England.— Ornychund v. Barker, 1 
 
 Louisiana. — Montgomery r. Routh, Atk. 21, Willes 538, 26 Eng. Reprint 
 
 10 La. Ann. 316 (1836). 15 (1744). 
 
 Maryland. — Cloherty v. Creek, 3 3. Prince v. Smith, 4 Mass. 455 
 
 Harr. & J. 428 (1813). (1S0S); Niles i\ Totman, 3 Barb. 
 
 Masso.chusetts. — Binney v. Russell, (N. Y.) 594 (1848). 
 
 109 Mass. 55 (1871). 4. Nichols v. Kingdom Iron Ore Co., 
 
 Minnesota. — Wilson r. Minneapolis, 56 N. Y. 618 (1S74) ; Reeves r. State, 
 
 etc., R. Co., 31 Minn. 481, 18 N. W. 7 Tex. App. 276 (1879). See also 
 
 291 (1884). Domschke i\ Metropolitan El. R. Co., 
 
 New York.— Langdon v. New York, 148 N. Y. 337, 42 N. E. 804 (1896) 
 
 133 N. Y. 628, 31 N. E. 98 (1892) [reversing 74 Hun 442, 26 N. Y. 
 
 [affirming 59 Hun 434, 13 N. Y. Suppl. 840]. 
 
 Suppl. 864]. 5. Infra, § 361. 
 
 Pennsylvania. — McGarr v. Lloyd, 3 
 Pa. St. 474 (1846). 
 
611 Secondary Evidence of Facts Hard to Prove. § 474 
 
 constituent fact. He may be permitted to prove a fact by second- 
 ary evidence, though he could prove the same fact, in another way 
 by primary. If the party desires to establish a probative fact, 
 the factum probans, he may do so by the best evidence he can, 
 although he need not use that particular probative fact to prove 
 the factum probandum which the factum probans tends to estab- 
 lish. So of a witness. A party may be permitted to introduce 
 the secondary testimony of a witness, although he has another 
 witness to the same effect to whose testimony no objection can 
 be taken that it is not primary. In like manner, a deposition 
 could be received as to the contents of papers, though oral testi- 
 mony to the same effect was procurable. 
 
 § 474. ( [1] Primary Evidence Required; Necessity for 
 Using Secondary Evidence) ; Grounds of Necessity; Witnesses or 
 Documents. — Reasons for resorting to secondary evidence are 
 numerous. 
 
 A witness may be dead, sick, insane, he may be a resident of 
 parts unknown beyond the reach of legal process. In case of a 
 document the primary evidence may have been lost, destroyed 
 or be beyond the reach of process. 
 
 Difficulty of Proof, Subject-Matter. — Other reasons may jus- 
 tify the court in employing secondary evidence. The necessity 
 for using it may be inherent in the nature of the subject-matter; 
 — as where the facts are ancient. 1 It is naturally assumed, under 
 such circumstances, that the living witnesses of the actual trans- 
 actions are unavailable. Any evidence, though less probative, such 
 as historical works, fragmentary documents, reputation, rumor, 
 tradition or the like, will be received, ex necessitate rei. The 
 necessity for using such evidence closely resembles that which 
 requires the employment of circumstantial evidence instead of 
 direct. Indeed, the secondary proof may fairly be regarded as 
 circumstantial in its nature. 2 The same administrative indul- 
 gence will be extended where, for any reason, the direct evidence 
 of witnesses is unavailable. For example, where evidence of 
 actual reception of rents cannot be used to establish the revenues 
 of an estate in a large city, both owners and tenants being either 
 
 * G. Altham v. Anglesea, 11 Mod. 210 2. Supra, § 15. 
 
 (1709). 
 
 1. Bogardus v. Trinity Church, 4 
 Sandf. Ch. (N. Y.) 633 (1847). 
 
§§ 475, 476 B. Furtherance of Justice. 612 
 
 scattered or dead, proof of rental value by means of the inferences 
 of witnesses may be received. 3 
 
 § 475. ( [1] Primary Evidence Required; Necessity for 
 Using Secondary Evidence) ; Necessity for Establishing. — The 
 
 necessity in using secondary evidence for establishing a case, 
 either as actor or nonactor, 1 arises when evidence is needed and 
 in proportion as primary evidence is not available. Thus, for 
 example, whenever in discharge of his burden of evidence at a 
 particular time, a litigant finds it incumbent upon him to prove 
 certain facts of which the primary evidence is a letter, and he 
 cannot for some reason procure the primary evidence of the letter 
 itself, he will usually, should his reason for not producing the 
 letter be satisfactory to the presiding judge, be permitted to show 
 its contents in some secondary way, the recollection of one who 
 has seen it, a press copy of it or the like. 2 So cogent an adminis- 
 trative force is the party's substantive right to prove his case by 
 the best evidence in his power 3 that even where a statute requires 
 a certain kind of evidence to establish a given fact it will not 
 be assumed that proof of good faith and a necessity for using 
 secondary evidence will not justify the judge in receiving substi- 
 tuted evidence of the fact in question. 4 
 
 § 476. ( [1] Primary Evidence Required; Necessity for 
 Using Secondary Evidence); Necessity for Corroboration. — In 
 
 connection with the use of secondary evidence for the purpose of 
 corroboration the impelling administrative necessity is not, as 
 where necessity for using secondary evidence arises in connection 
 with the duty of the actor or nonactor to establish his original 
 
 3. Griswold v. Metropolitan El. E. relates to the logical burden of evi- 
 
 Co., 14 Daly (N. Y.) 484 (1888). dence which, while it does not deter- 
 
 1. Burden of proof and burden of mine by its position at any given 
 evidence. — While the distinction be- time who is actor and who is non- 
 tween actor and nonactor is men- actor, is naturally affected, in ex- 
 tioned in this connection, it may not tension at least, by the different ob- 
 ■be amiss to notice that this necessity jects which actor and nonactor have 
 for itsing secondary evidence is one in mind ; — the actor, to prove and 
 which has no direct relation to the maintain a prima facie case, the non- 
 forensic or procedural burden of proof, actor to prevent him from succeeding 
 the position of which is the point of in this effort, 
 differentiation between actor and non- 2. See Documentary Evidence. 
 actor. The necessity for producing 8. Supra, §§ 334 et seq. 
 secondary evidence under consideration 4. Kendall v. Kingston, 5 Mass. 524 
 concerns itself with and exclusively (1809). 
 
G13 Delibebative Facts Used in Cobeoboeation. § 477 
 
 case, the fact that primary evidence is not available at all, but 
 rather the circumstance that it is no longer available. Corrobora- 
 tion of a case once established may be effected by the use of sec- 
 ondary, deliberative, cumulative or otherwise inferior proof when, 
 the primary evidence has become exhausted. The administrative 
 situation here presented is, from the standpoint of the court, 
 which, as usual, is that of society, resembles an attempt to deter- 
 mine a preponderance by a pair of scales, an old and yet almost 
 inevitable simile in this connection. In such an effort, should 
 the heavier weights placed on either side of the scale be found to 
 balance in equilibrio, or one scale be found to preponderate with 
 less than the requisite certainty, smaller weights, not in them- 
 selves necessary while it seemed probable that the matter could be 
 determined by the more decisive weights, may properly be added 
 to bring about, if possible, the ultimate tip of the scale. It is 
 even conceivable that the process should be continued so long as 
 any of these smaller weights remained available. 
 
 From the viewpoint of the parties, that of the personal, non- 
 social element in litigation, the administrative situation here 
 presented is more closely analogous to the mediaeval combat 
 a Voutrance. When the spears of the tilting were shivered with- 
 out a decisive issue, the combatants might well dismount and 
 attempt a settlement with swords or battle-axes. Should the issue 
 still remain in doubt, victory might be gained, or even the coup 
 de grace given, with the dagger. "Whether the standpoint of 
 deliberation or that of controversy be adopted, as the physical 
 analogy for the psychological process of creating the mental cer- 
 tainty required for affirmative action, it cannot be regarded but 
 as excellent, indeed, as necessary, administration that when the 
 supply of primary facts and arguments is exhausted the parties 
 be allowed to introduce less conclusive evidence or reasoning. 
 Under this principle, where direct evidence is equally balanced, 
 circumstantial proof may be shown ; although it would have been 
 rejected, if offered at an earlier stage. 
 
 § 477. ( [1] Primary Evidence Required; Necessity for 
 Using Secondary Evidence; Necessity for Corroboration); 
 
 Deliberative Facts. — Deliberative facts 1 may be given a promi- 
 nence not customarily accorded them. Under such circumstances 
 of equilibrium or indecision primary evidence hitherto rejected 
 
 1. Supra, § 52. , 
 
§ 47S B. Furtherance of Justice. 614 
 
 as cumulative or as having but little probative force may, upon 
 being again tendered, be received. Tests and experiments not 
 usually employed, may be devised or acquiesced in by the presid- 
 ing judge. 
 
 Facts Inferior in Probative Force. — It will be noted that this 
 administrative principle requiring that the best evidence should 
 be submitted to the court which is within the power of the party 
 to produce is by no means so extended in application as might b& 
 gathered from the earlier authorities whereby the principle was 
 at first announced as a rule of substantive or procedural law. 
 
 § 478. ( [1] Primary Evidence Required) ; A Valuable Prin- 
 ciple. — "While the administrative principle of requiring the best 
 evidence is at present applied chiefly to what are practically pro- 
 cedural rules, i. e., the established grades of primary and second- 
 ary evidence, 1 probably no sufficient reason exists why the normal 
 exercise of the court's administrative function should not properly 
 be so extended as to cover other cases as they arise, not as rulings 
 on points of procedure governed by precedent, but as examples 
 of administrative action, valuable as suggestions, and not revised 
 on appeal except where sound reason has not been exercised bv the 
 presiding judge. The discreet exercise of such a power would be 
 available as a potent preventative of suppression, concealment or 
 general bad faith to the tribunal. Certainly, the present system, 
 or lack of it, is highly anomalous. In this connection the scope 
 of the principle is limited, at the present time, to an extent for 
 which no valid reason can probably be assigned. Good faith is 
 sporadically insisted upon, as it were ; — much being permitted to 
 a litigant as sanctioned by the ethics of war and by these only. 
 
 The mechanism by which the administrative power of the court 
 may be applied will be found to vary ; — according as the suppress- 
 ing party is seeking relief as actor; or is, on the contrary, as revs 
 or nonactor, trying to prevent the court from taking affirmative 
 action in favor of his opponent. 
 
 As regards the former, i. e., the actor, the inference of fact 
 against the spoliator may clearly be stated by the judge. 2 This 
 may be adequate protection to all personal interests involved in 
 the litigation. But those interests are not all or even the most 
 important interests affected. There seems some confusion on the 
 subject, involving a doubt as to the proper function of the presid- 
 
 1. Supra, § 466. 2. Infra, §§ 1070 et seq. 
 
615 Preventing Suppression by Kon-Actoe. § 478 
 
 ing justice. May the judge go further? When made 'aware that 
 a fraud has been attempted on justice as administered by him, is 
 he warranted in refusing to allow the actor to produce even the 
 best evidence penalizing the offending party by summarily 
 dismissing his case % 3 Keason apparently suggests a negative 
 answer. That justice is entitled to the best available evidence in 
 any and all cases seems clear. As against the party seeking relief, 
 an order for continuance until that evidence is furnished, would 
 seem to enable the judge to enforce this reasonable requirement 
 effectively. But he may properly go further. In the exercise of 
 his administrative function, he may decline to receive the evi- 
 dence offered; and, in the interest of justice, refuse to allow a 
 decision to be rendered except upon a full presentation of all the 
 facts. But when the demand of justice is satisfied and the most 
 probative evidence available is before the tribunal; when, not- 
 withstanding the inevitable logical inferences against one who 
 has sought to pervert justice by suppressing the proper evidence 
 on which to request judicial action, it still appears, by the requisite 
 preponderance of the evidence, that the offending party has a just 
 claim to relief, upon what theory of judicial administration shall 
 the law decline to listen to his demand for justice? Personally 
 the litigant has shown himself unworthy of favors. But justice 
 is not accorded by society as a favor, but as a duty which the com- 
 munity owes to itself, i. e., to all its members. By the lex talionis, 
 it is conceivable that he who has sought to do injustice, should 
 suffer injustice. But the lex talionis has been repealed by a 
 higher law, the reciprocal obligation of the citizen to society and 
 of society to the citizen. It seems both infra dignatatem and the 
 height of folly for society to teach injustice. It may, more prop- 
 erly, lift the offender to its own higher plane of thought and 
 action. 
 
 Where the suppressing party seeks no relief, a more difficult 
 administrative problem is presented. Delay has no constraining 
 power over the conduct of such a party. Continuing the case 
 until the probative evidence be produced will be regarded with 
 indifference, if not satisfaction by the party whose forensic posi- 
 tion is that of seeking to prevent the court from acting. More 
 
 8. A somewhat analogous case is contents by parol, subsequently asks 
 
 presented where a party who has re- leave to produce the primary evidence, 
 
 fused to produce a document and his See Docttmentaby Evidence. 
 antagonist has thereupon proved the 
 
§ 479 B. Furtherance of Justice. 616 
 
 drastic measures are required. At once, two administrative ex- 
 pedients present themselves ; (1) an order to produce, enforced 
 by contempt proceedings; (2) ordering judgment for the op- 
 ponent. The former is clearly preferable ; — the latter, except as a 
 penalty for disobedience to an order to produce, seems objection- 
 able. That a party may be compelled to afford discovery is a 
 well-recognized power of equity jurisprudence. Modern statutory 
 substitutes ratify, simplify and enforce satisfactory substitutes 
 which attain by easier and less expensive methods the same result. 
 That wherever this method of reaching truth through the use of 
 the best evidence fails to 'apply or proves inadequate, the lack 
 may be supplied by a judicious exercise of the administrative 
 power of the court seems fairly clear. That he who contumaciously 
 refuses to produce evidence under his control may properly be 
 defaulted and judgment ordered against him appears tolerably free 
 from doubt. If, however, the suppressing party should desire to 
 produce the evidence in his control he should be permitted to do 
 so, though previous to the order to produce, he may have refused 
 to afford the adversary the assistance which the evidence in his 
 .power would furnish. The inferences from suppression are seri- 
 ous. But if, notwithstanding these, the party not seeking relief 
 can persuade the court that the relief should not be granted, it 
 would seem beneath the dignity of justice to punish a citizen 
 who has sought to prevent justice being done by doing him an 
 injustice. For example, where the party in possession of an 
 original document refuses to produce it upon notice and the party 
 seeking relief incorrectly proves it by the recollection of witnesses, 
 the common ruling that the party in whose possession the docu- 
 ment is cannot prove the actual contents seems erroneous. Society 
 does not do justice alone for the sake of the recipient. It does it, 
 still more truly, for its own benefit and advantage. 
 
 § 479. ( [1] Primary Evidence Required); How Objection is 
 Taken. — The party objecting that the evidence offered is not 
 primary, must affirmatively show that the evidence produced by 
 the proponent is secondary, that there is primary evidence in 
 existence and that it is within the power of the proponent to 
 produce it. 1 The objecting party is bound to show not only the 
 
 1. Alabama. — Scarborough v. ttey- Indiana. — Terre Haute, etc., R. Co. 
 
 nolds, 12 Ala. (N. S.) 252 (1847). v. Stockwell, 118 Ind. 98, 20 N. E. 
 
 Georgia. — May v. Dorsett, 30 Ga. 650 (1888). 
 116 (1860). 
 
617 
 
 No General Rule of Pbopeduee. 
 
 480 
 
 existence of primary evidence within the control of the proponent 
 of the secondary, but also that this primary evidence is material 
 and relevant to the truth of the proposition in issue; 2 and that 
 the exclusion sought will assist in the just determination of the 
 cause. 3 For the administrative or procedural requirement of the 
 test evidence applies only to probative or constituent facts. It 
 does not cover those that are deliberative 4 or what may be called 
 collaterally relevant facts, 5 i. e., circumstances which are not in 
 the direct line of proof of the constituent facts. 
 
 § 480. f [1] Primary Evidence Required); "Best Evidence" 
 as a Rule of Procedure. — The insistence upon the primary grade 
 of evidence in proving probative or constituent facts is by no 
 
 Iowa. — Arnold v. Arnold, 20 Iowa 
 273 (1866). 
 
 Louisiana. — Eastin v. Eastin, 10 
 La. 194 (1836). 
 
 Maine. — Bryer v. Weston, 16 Me. 
 261 (1839). 
 
 Maryland. — Hadden v. Linville, 86 
 Md. 210, 38 Atl. 37, 900 (18971. 
 
 Michigan. — Kalamazoo Novelty Mfg. 
 Works v. Macalister, 40 Mich. 84 
 (1879). 
 
 Missouri. — Gilbert v. Boyd, 25 Mo. 
 27 (1857). 
 
 New Hampshire. — Roberts v. Dover, 
 72 N. H. 147, 55 Atl. 895 (1903). 
 
 New York. — Imperial Bldg. Co. v. 
 John H. Woodbury Dermatological In- 
 stitute, 29 Misc. 617, 61 N. Y. Suppl. 
 129 (1899). 
 
 Pennsylvania.-— Lee v. Lee, 9 Pa. 
 St. 169 (1848). 
 
 South Carolina. — Ingram v. Sumter 
 Music House, 51 S. C. 281, 28 S. E. 
 936 (1897). 
 
 Texas. — ■Missouri, etc., B. Co. v. 
 Milan, 20 Tex. Civ. App. 688, 50 S. 
 W. 417 (1899). 
 
 Vermont. — Curtis v. Ingham, 2 Vt. 
 287 (1829). 
 
 United States. — U. S. v. Beyburn, 
 6- Pet. 352, 8 L. ed. 424 (1832). 
 
 Canada. — Taggart v. Boss, 13 U. C. 
 Q. B. 611 (1856). 
 
 2. Ware v. Morgan, 67 Ala. 461 
 (1880); Lamb V. Moberly, 3 T. B. 
 Mon. (Ky.) 179 (1826); Clifton v. 
 
 Litchfield, 106 Mass. 34 (1870) ; Doe 
 V. Morris, 12 East 237 (1810). 
 
 3. Alabama. — O'Neal v. Brown, 20 
 Ala. 510 (1852). 
 
 Arkansas. — Greenfield v. Wright, 16 
 Ark. 186 (1855). 
 
 Connecticut. — Edgerton v. Edger- 
 ton, 8 Conn. 6 (1830). 
 
 Indiana. — Lee v. Hills, 66 Ind. 474 
 (1879). 
 
 Iowa.— -Donahue v. McCosh, 70 Iowa 
 733, 30 N. W. 14 (1886). 
 
 New Hampshire. — 'Caldwell v. Went- 
 worth, 16 N. H. 318 (1844). 
 
 New Jersey. — Den v. Hamilton, 12 
 N. J. L. 109 (1830). 
 
 North Carolina. — Dail v. Sugg, 85 
 N. C. 104 (1881). 
 
 South Carolina. — Simmons Hard- 
 ware Co. v. Greenwood Bank, 41 S. C. 
 177, 19 S. E. 502, 44 Am. St. Rep. 
 700 (1893). 
 
 England. — Doe t>. Morris, 12 East 
 237 (1810). 
 
 4. Supra, § 52. 
 
 5. New Jersey Zinc, etc., Co. v. 
 Lehigh Zinc, etc., Co., 59 N. J. L. 
 189, 35 Atl. 915 (1896); Gilbert v. 
 Duncan, 29 N. J. L. 133 (1861); 
 McFadden v. Kingsbury, 11 Wend. 
 (N. Y.) 667 (1834) ; Carrington v. 
 Allen, 87 N. C. 354 (1882) ; Dail v. 
 Sugg, 85 N. C. 104 (1881) ; Schoen- 
 berger v. Hackman, 37 Pa. St. 87 
 (1860). See also Holt v. Weld, 140 
 Mass. 578, 5 N. E. 506 (1886). 
 
§480 
 
 B. Furtherance of Justice. 
 
 618 
 
 means a universal procedural rule applicable as a general test to 
 all questions as to the admissibility of evidence. A rule of this 
 nature was much favored during the formative 1 period of the law 
 of evidence. Its effects, however, still linger; and the existence 
 of a so-called " best evidence rule " is frequently raised as an 
 objection to the admissibility of all grades of evidence in cases 
 to which it has no present application. 2 
 
 But the attempt of English judges 5 and text-writers, 4 in the 
 eighteenth century to formulate a scientific procedural rule, that 
 
 1. " After much study of the law 
 of evidence my opinion is that the 
 greater part of the present law came 
 into definite existence, after being for 
 an unascertainable period the practice 
 of the courts (differing by the way 
 to some extent on different circuits), 
 just about one hundred years ago." 
 Sir James Fitz James Stephen, Nun- 
 comar & Impey, i 121n. (1888). 
 
 2. More serious than this, such an 
 objection at times prevails with the 
 court. " No rule of law is more fre- 
 quently cited and more generally mis- 
 conceived than this. It is certainly 
 true when rightly understood; but it 
 is very limited in its extent and ap- 
 plication. It signifies nothing more 
 than that, if the best legal evidence 
 cannot possibly be produced, the next 
 best legal evidence shall be admitted. 
 Evidence may be divided into primary 
 and secondary; and the secondary evi- 
 dence is as accurately defined by the 
 law as the primary." 3 Christian's 
 Blackstone, p. 368. 
 
 3. Villiers v. Villiers, 2 Atk. 71 
 (1740), per Lord Hardwicke. "That 
 all eommon-law courts ought to pro- 
 ceed upon the general rule, namely, 
 the best evidence that the nature of 
 the case will admit, I perfectly agree." 
 Grant v. Gould, 2 H. Bl. 104 (1792), 
 per Lord Loughborough. " The judges 
 and sages of the law have laid down 
 that there is but one general rule of 
 evidence, the best that the nature of 
 the case will allow." Omychund v. 
 Barker, Willes Hep. 550 (1744), per 
 Willes, J. " The rule of evidence is 
 
 that the best evidence that the cir- 
 cumstances of the case will allow 
 must be given. There is no rule of 
 evidence to be laid down in this court 
 but a reasonable one, such as the 
 nature of the thing to be proved will 
 admit of." Llewellin r. Mackworth, 2 
 Atk. 40 (1740), per Lord Hardwicke. 
 " The best proof that the nature of 
 the thing will afford is only required." 
 Ford v. Hopkins, 1 Salk. 283 (1699), 
 per Holt, C. J.; Thayer's Cases on 
 Evidence, 732. 
 
 4. " The one general rule, that runs 
 through all the doctrine of trials is 
 this, that the best evidence the nature 
 of the case will admit of shall always 
 be required, if possible to be had; but 
 if not possible, then the best evidence 
 that can be had shall be allowed." 
 3 Black Comm. 368. "It seems in 
 regard to evidence to be an uncon- 
 testable rule that the party who is to 
 prove any fact, must do it by the 
 highest evidence the nature of the 
 thing is capable of." Bacon's Abridg- 
 ment. " The first, therefore, and most 
 signal rule in relation to evidence is 
 this, that a man must have the ut- 
 most evidence the nature of the fact 
 is capable of The true meaning 
 
 of the rule of law that requires the 
 greatest evidence that the na,ture of 
 the thing is capable of is this, that 
 no such evidence shall be brought 
 which ex natura rei supposes still a 
 greater evidence behind in the partie's 
 own possession and power." Gilb. 
 Evid. (2d ed.), 4, 15-17. 
 
619 Limitations on Procedural Rule. § 481 
 
 the best evidence of which a case was capable was in all instances 
 to be required, and, if produced, received as sufficient, necessarily 
 failed and was abandoned f — for reasons which, in part, appear 
 hereafter. 6 
 
 § 481. C [1] Primary Evidence Required); "Best Evidence 
 Rule " at the Present Time. — It is not difficult to understand why 
 the " best evidence rule " as a rule of evidence, failed to attain 
 the vogue which its advocates hoped and apparently anticipated. 
 As qualified by the words " within his power " a requirement that 
 the proponent of evidence produce the most probative proof, is 
 really a precept of caution, a canon of administration. Regarded 
 as a rule of procedure, it is unworkable. As each case arises, 
 what shall be deemed the most probative evidence in proponent's 
 power must be decreed upon the special facts, effect must be 
 accorded to certain considerations which is denied to others, the 
 wealth of the parties, their opportunities for securing information, 
 the seriousness of the matter in controversy, all should be exam- 
 ined. No procedural rule could adjust such details. Only a pre- 
 cept of administration could be effective under these circum- 
 stances. On attempting to apply the precept as a rule of evidence, 
 it has accordingly, and of necessity, broken down. " Regarded 
 as a general rule, the trouble with it is that it is not true to the 
 facts, and does not hold out in its application." 1 
 
 Viewed as a rule of indulgence or permission, the " best evi- 
 dence rule " is not of general application. Certain relevant facts 
 are not received in evidence though they may be not only the 
 most probative but the only evidence on the point. Exclusionary 
 procedural rules may at any time intervene with an effect over 
 which the " best evidence rule " exercises no control. As Professor 
 Christian says: 2 "In general the want of better evidence can 
 never justify the admission of hearsay, interested witnesses, 
 copies of copies, etc." 
 
 No general procedural rule obtains in the English law of evi- 
 dence to the effect that a party is required to exercise good judg- 
 ment in the selection of witnesses, that he should choose and 
 maintain the strongest position of law or fact open to him, or that 
 he must in all cases correctly ascertain and properly present to 
 
 5. Queen v. Francis, L. R. 2 C. C. 6. Infra, § 481. 
 
 R. 128 (1874) ; Lucas v. Williams, 1. Thayer, Prelim. Treat. 497. 
 
 66 L. T. Rep. 706. 2. 3 Christian's Blackstone, p. 368. 
 
§ 481 B. FURTHERANCE OF JtTSTICE. 620 
 
 the court the most probative and forceful evidence at his disposal. 
 Folly, ignorance, superficial " smartness," poor judgment and 
 the like carry in litigation much the same consequences that they 
 do elsewhere in human affairs. A party has, in many instances, 
 the right to present illogical and inconclusive facts. Even as a 
 matter of judicial administration, any requirement that a pro- 
 ponent should produce the superior grade of evidence is aimed not 
 so much at bad judgment as at bad faith. To this extent, at least, 
 Gilbert's qualification upon the rule seems to be sound ; — although, 
 as will be" observed, his consideration attaches rather to the canon 
 of administration than to any procedural rule. 
 
 It is by no means invariably required, as a rule of procedure, 
 that a party should not suppress testimony of a higher probative 
 force than that which he presents ; — that he should conceal noth- 
 ing of help to the tribunal in its search for truth. Except in the 
 limited cases, shortly to be mentioned, 3 he may do as he pleases 
 about keeping back from the tribunal, not only the best evidence he 
 has but the best possible evidence, if he is content to pay the pen- 
 alty established for doing so. The judge does not, as he well might 
 under his administrative powers, block his way in so doing. The 
 " rules of the game " of litigation in general permit concealment, 
 both in civil and criminal cases, if the litigant prefers to 1 pay the 
 price for doing so. In many cases the only penalty is a logical 
 one; — the presumptio contra spoliatorem, as it is occasionally 
 called.* An inference arises, as a matter of logical necessity, that 
 he who thus refuses to produce the decisive evidence undertakes to 
 defraud justice because the more conclusive testimony, if produced, 
 would operate less favorably upon his contention than does the 
 less probative proof on which he prefers to rely. 5 Should this in- 
 
 3. Infra, § 482. which the facts sought to be estab- 
 
 4. Infra, §§ 1070 et seq. lished is susceptible, is the prevention 
 Omnia prsesumuntur contra spolia- of fraud; for, if a party is in pos- 
 
 torem — as is the common adage, session of this evidence, and withholds 
 
 Broom's Legal Maxims (7th ed.), p. it, and seeks to substitute inferior 
 
 717. evidence in its place, the presumption 
 
 5. Mordecai v. Beal, 8 Port. (Ala.) naturally arises, that better evidence 
 529 (1839); Fitzgerald v. Adams, 9 is withheld for fraudulent purposes 
 Ga. 471 (1851); U. S. v, Reyburn, 6 which its production would expose 
 Pet. (U. S.) 352, 8 L. ed. 424 (1832); and defeat." Bagley v. McMickle, 9 
 Tayloe v. Biggs, 1 Pet. (U. S.) 591, Cal. 430, 446 (1858), per Field, J. 
 
 7 L. ed. 275 (1S28). "The object of Statutory provision has been made 
 
 the rule of law which requires the to the same effect. Hudson v. Spence, 
 production of the best evidence of 49 Ga. 479 (1873); Anglo-American 
 
621 Reasons foe Retaining Rule, § 482 
 
 ference be so violent as to render the evidence actually produced 
 devoid of probative force to such an extent that a jury could not 
 rationally act in accordance with it, the judge may exclude the 
 evidence or order a verdict against the proponent, under his gen- 
 eral power to enforce the use of reason. 6 Should the inferences 
 arising from suppression abate probative force without destroying 
 it, the party guilty of concealment may proceed to prove his case 
 with the inferior evidence and take his chance of winning, not- 
 withstanding the logical handicap that he has imposed upon him- 
 self. 7 
 
 Nor is it even inevitable that concealment of truth should, in the 
 eye of the law, carry with it any penalty whatever. In oases of 
 suppression where there is no active participation by the party 
 but merely a nonfeasance permitted by law, as where the possessor 
 of an important document declines to produce it on notice from 
 his adversary, 8 or a person accused of crime declines to answer 
 pertinent questions on the ground that so doing might incriminate 
 him. In such cases, while, logically, an unfavorable deduction 
 may be difficult to prevent, the law itself prescribes none and even 
 directs that the minds of the tribunal shall not draw such an 
 inference. 
 
 § 482. ( [1] Primary Evidence Required; " Best Evidence 
 Rule " at the Present Time) ; Present Scope of Rule. — As a rule 
 of procedure the requirement of the best evidence never was en- 
 forced to its full extent as stated by its f ormulators ; nor, for the 
 reasons just given, could it have been thus applied with any ad- 
 vantage to the cause of justice. As a rule definitely regulating 
 the admissibility of a class or species of evidence, the present scope 
 of the mandatory portion * of the " best evidence rule " is limited 
 to proof of the contents of constituent documents in actions be- 
 tween the parties thereto. Here, as in many other connections, 
 not only of procedure but of substantive law, a rule adopted for 
 reasons whose validity has vanished under changed conditions, is 
 retained from motives of practical convenience or effectiveness in 
 
 Packing, etc., Co. v. Cannon, 31 Fed. party to conceal the truth and seek to 
 
 313 (1887). obtain a victory which he frankly con- 
 
 6. Supra, §§ 385 et seq. fesaes by his conduct could not bo 
 
 7. From the standpoint of the social gained on a full disclosure. 
 
 as distinguished from the personal in- 8. See Documentaey Evidence. 
 
 terests involved in litigation, the 1. Supra, § 464. 
 
 peculiarity lies in permitting either 
 
§ 482 B. Furtherance of Justice. 622 
 
 the attainment of justice. Historically, the procedural rule that 
 if a litigant desires to prove the contents of a document he must 
 produce the document itself, is part of and a necessary incident in 
 a form of trial, analogous to the trial by witnesses, 2 trial by jury, 3 
 trial by record, 4 and the like; — which may properly be termed 
 " trial by document." On such a form of trial the only question 
 was as to whether a given genuine document, usually of the con- 
 stituent order, in fact existed. If it did, the legal results were 
 established. " If a man said he was bound, he was bound." 5 " The 
 use of documents, in pleading and proof, long antedates the use of 
 ordinary witnesses to the jury. The vast majority of documents 
 used in trials in early times were no doubt of the solemn, consti- 
 tutive and dispositive kind, instruments under seal, records, certifi- 
 cates of high officials, public registers and the like. Such docu- 
 ments, if the authenticity of them were not denied, ' imported 
 verity,' as the phrase was, fixed liability and determined ' rights.' " 6 
 Naturally, on a trial by document it was essential that the docu- 
 ment should be present in court. " Of course, therefore, who- 
 ever would use a document of this character must produce it, just 
 as the court had to have the jury in court, in trial (or proof) by 
 jury, and the record, in trial (or proof) by record." 7 At a later 
 stage of legal growth, the requirement of the presence of the 
 actual document in court revealed its continued effect in the rules 
 of pleading relating to profert and oyer 8 in case of such con- 
 stituent instruments in pursuance of which a pleader relying upon 
 the existence of such a document must produce it or account satis- 
 factorily for its absence. In a still later stage of judicial develop- 
 ment, where the formal document is relied on in evidence rather 
 than in pleading, the requirement of production to the jury is still 
 one of procedure; — but its application to a case comes through 
 the law of evidence, rather than through that of pleading. This 
 modern survival at present is best rested upon the conventional 
 agreements of the parties to a formal instrument. The best evi- 
 dence rule as a present rule of procedure provides that in proving 
 the contents of a document, especially of the constituent nature, 
 
 2. See Documentary Evidence. 5. Holmes, Com. Law, 262. 
 
 See also Thayer, Prelim. Treat., 205, 6. Thayer, Prelim. Treat., p. 504. 
 
 504; supra, § 269b. 7. Thayer, Prelim. Treat., p. 504. 
 
 3. Supra, §§ 269 et seq. 8. Stephen, Pleading (Tyler's ed.), 
 
 4. Supra, § 152. 3 and note 86. 
 
623 Peocedueal Rule oe Administeative Canon § 483 
 
 the writing itself is the primary evidence. 9 It must, therefore, be 
 produced or satisfactory reasons assigned why it is not done. This 
 is the modern survival of the best evidence rule as a rule of pro- 
 cedure. It is, indeed, sadly shrunken as a pretension to con- 
 trol the entire field of evidence which its founders appear to 
 have claimed for it; for this is the rule which was glorified by 
 Burke in the closing days of the eighteenth century : 10 "At length 
 Lord Hardwicke, in one of the cases the most solemnly argued that 
 has been in man's memory, with the aid of the greatest learning 
 at the bar, and with the aid of all the learning on the bench, both 
 bench and bar being then supplied with men of the first form, de- 
 clared from the bench, 'and in concurrence with the rest of the 
 judges and with the most learned of the long robe, and able 
 counsel on the side of the old restrictive principles making no 
 reclamation that the judges and sages of the law have laid it down 
 that there is but ONE general rule of evidence — the best that the 
 nature of the case will admit. This, then, the master rule that 
 governs all the subordinate rules, does, in reality, subject itself 
 and its own virtue and authority to the nature of the case, and 
 leaves no rule at all of an independent abstract and substantive 
 quality." 
 
 § 483. ( [1] Primary Evidence Required; " Best Evidence 
 Rule " at the Present Time) ; A Sole Survival. — He who is to 
 prove the contents of a writing must produce the writing itself or 
 account satisfactorily to the court for his failure to do so ; — as a 
 condition precedent to permission to use any less probative form 
 of proof. 
 
 It is probable that the survival of this solitary application of 
 the best evidence rule as a rule, is due to a controlling influence 
 entirely extrinsic to itself ; — the existence of a substantive conven- 
 tional right in each party to a constituent document of insisting 
 not only that its ascertained purport should not be varied by out- 
 side evidence (which is the nucleus of the " parol evidence 
 rule ") 1 , but also that in ascertaining this purport the actual docu- 
 ment should be the sole evidence of its contents; — which is the 
 present form of the " best evidence " rule viewed as one of pro- 
 cedure rather than as a principal of administration. This subject, 
 
 9. See Documentary Evidence. (Little & Brown's edition), XI, 77 
 
 10. Burke, Lords' Journal, Trial (1794). 
 
 Warren Hastings, Works of Burke 1. Ree Pakol Evidence. 
 
§ 484 B. Furtherance of Justice. 624 
 
 however, seems most conveniently considered in connection with 
 proof by documents; — 2 the same proposition being also stated in 
 this connection, i. e., in respect to the " best evidence rule " viewed 
 as a canon of administration. 3 
 
 § 484. ( [1] Primary Evidence Required; " Best Evidence 
 Rule " at the Present Time); A Vanishing Rule While, there- 
 fore, the broad principle of the " best evidence rule," in the sense 
 that primary evidence will be required wherever attainable, is 
 operative and gaining force and extension, the line of operation of 
 the " best evidence rule " as a rule of procedure, has dwindled to 
 very narrow proportions. Even the situation announced by Gil- 
 bert 1 as the sure guaranty of the operation of the rule — that the 
 evidence offered should be substitutionary, i. e., presuppose the 
 concealment by the proponent of more probative evidence — no 
 longer suffices to extend the rule to additional cases beyond the 
 single instance of proving the contents of a document. Even as 
 thus restricted, the rule, as one of procedure, is by no means vital 
 or firmly established. A procedural rule which is enforced only 
 until a judge is satisfied, in the exercise of administrative power, 
 that a reasonable excuse has been given for not complying -with it, 
 is, in reality, covered by the administrative principle, if any, by 
 which its operation is conditioned. 2 In this connection, the con- 
 trolling consideration is the administrative principle of the best 
 evidence to which reference has above been made. 3 As the sole 
 survival of the procedural rule is this moribund requirement that 
 in proving the contents of a written instrument between the parties 
 to it, the original must be produced or its absence accounted for, 
 the requirement itself may well be regarded from the standpoint 
 of the modern law of evidence, as is elsewhere suggested, 4 as but an 
 instance of the general administrative canon that primary evi- 
 dence is to be preferred to secondary. This principle, in prac- 
 tical operation, is itself conditioned by the paramount adminis- 
 
 2. See Documentaby Evidence. procedure and hence its anomalous 
 
 3. Supra, §§ 464 et seq. nature. The rule excluding evidence 
 1. Gilbert, Evid. (2d ed.), 4, 15-17. of character stands in the same anom- 
 S. For this reason, it can scarcely alous position as does the rule against 
 
 with propriety be said that there is hearsay ; though, of course, for reasons 
 
 any rule of procedure which excludes peculiar to itself. Infra, §§ 3265 et 
 
 opinion, res inter alios or circum- seq. 
 
 etantial evidence in favor of direct. 3. Supra, § 464. 
 
 The hearsay rule is one strictly of 4. Supra, § 464. 
 
625 Mediaeval Conception of a Witness. §§ 485, 486 
 
 trative canon that a party has a right to prove the substance of his 
 contention by the most probative evidence in his power. 
 
 § 485. ( [1] Primary Evidence Required; " Best Evidence 
 Rule " at the Present Time) ; A Wider Scope. — Professor James 
 Bradley Thayer thus states the position of those who claimed for 
 the " best evidence rule " as one of procedure, a wider scope than 
 that of a regulation as to proving the contents of constituent 
 documents 'above 1 assigned to it : 2 " Let us therefore look at the 
 best evidence rule, in its character as a specific rule forbidding 
 substitutionary evidence, i. e., such as shows on its face that there 
 is something direct and better behind it. In this sense it is a 
 phrase which has been thought to group under one name at least 
 three other specific rules, namely (1) If you would introduce be- 
 fore a jury the statements of a witness, you must produce the wit- 
 ness in person; (2) If you would introduce to a jury the contents 
 of a writing, you must produce the writing itself; (3) If you 
 would prove to a jury the execution of an attested document, you 
 must produce the -attesting witnesses." But, as Professor Thayer 
 points out, if the rule against hearsay, that requiring production of 
 the original constituent document and the presence of the attesting 
 witness to prove the execution of an attested document be regarded 
 as procedural rules furnishing present instances of a general 
 " best evidence " rule, the peculiarity is presented that each of 
 these three separate rules has had a different origin and has de- 
 veloped entirely apart from any more general rule. It would, 
 therefore, seem that while such rules might, in some just sense, 
 be considered as having grown up in accordance with a general 
 principle, or canon of administration, they can scarcely, in the 
 nature of things, present as separate rules instances of any more 
 general rule of procedure. 
 
 § 486. ( [1] Primary Evidence Required; "Best Evidence 
 Rule" at the Present Time); Hearsay. — The rule against hear- 
 say, in its inception at least, constituted a prohibition attaching to 
 a witness rather than to the derivative character of what he said. 
 Under the early procedure a person who could not state something 
 to the jury which he had seen or heard simply did not come within 
 the class, of persons designated as witnesses. Two branches of the 
 law of evidence come from this single root — the rule against 
 
 1. Supra, § 482. 2. Thayer, Prelim. Treat. 497. 
 
 Vol. I. 40 
 
§ 486 B. FuETHE.EANCE OF JUSTICE. 626 
 
 hearsay 1 and that excluding " opinion " evidence. 2 Neither he 
 who could state only what some one had told him nor the person 
 who could say merely what he inferred were witnesses, as the term 
 was then understood. The witness was required to swear that he 
 would testify to what he had seen and heard quod vidi et audivi, 
 de visu suo et auditu? The witness must be voyant et oyant, by 
 the Norman phrase of the year books.* He could not infer, he 
 could not report another's observations. Hearsay and inference 
 were alike excluded. The short reason for this was that it was for 
 the ancient jury, 6 acting still partly upon their own information, 
 to do what reasoning was deemed necessary and to use hearsay, 
 reputation, rumor, tradition or whatever else might seem good in 
 their eyes, as the basis of their verdict. Inference and hearsay 
 were denied to the witness because these things were within the 
 exclusive province of the jury. The results of his perception alone 
 the witness could properly bring to that body as originally con- 
 stituted. All the rest they themselves were to furnish ;• — such as 
 general knowledge, 6 hearsay, their own private knowledge, includ- 
 ing hearsay and inferences from it, and the reasoning and con- 
 clusions involved in comparing and digesting all that they knew 
 or had heard from others. 7 This entirely intelligible, though 
 now obsolete, relation between witnesses and jury throws light on 
 the expression " Hearsay is not evidence," which appeai-s so to 
 have puzzled Mr. Justice Stephen. 8 
 
 The anomalous nature of the hearsay rule is shown in its wide 
 divergence from principle, as compared with its fellow offshoot 
 from this common root of the ancient restriction of the early wit- 
 ness to facts of perception, thereby equally excluding " opinion " 
 and "hearsay." The opinion rule has developed along rational 
 and fairly scientific lines. It establishes the sense perception of 
 the original observer as a primary grade of evidence. "Where the 
 original phenomena cannot, with satisfactory clearness, be placed 
 before the jury or co-ordinated by them into a reasonable inference, 
 the effect of these phenomena upon the mind of the witness may 
 
 1. Infra, §§ 2698 et seq. that all statements to the jury must 
 
 2. Infra, §§ 1791 et seq. be made in public. With this proced- 
 
 3. Liber Albus, 1 Mun. Gild. Lon. ural requirement the declarant, in 
 62 (1220). See also Y. B. 20 H. case of hearsay, would not comply. 
 VI. 20, 16. See also Bushell's Case, 5. Supra, § 270i. 
 
 Vaughan, 135 (1670) ("what hath G. Infra, §§ 691 et seq. 
 
 fallen under his senses"). 7. Thayer, Prelim. Treat. 500. 
 
 4. Connected with this -thought of 8. Law of Evid., Pref. (3d ed.), 
 the witness's restricted function was May's Amer. ed., p. 23. 
 
627 " Best Evidence " and Subscribing Witnesses. § 487 
 
 be introduced, under suitable conditions of necessity and relevancy, 
 as secondary evidence. 9 Tbis is sensible and fairly scientific. 
 Tbe bearsay rule, on the contrary, bas been made to develop into 
 one wbicb, except in certain enumerated instances, presents tbe 
 peculiar and from a scientific point of view, tbe startling, feature 
 of an absolute procedural rule of exclusion. " Neither tbe original 
 speaker's deatb, alone, nor tbe highly probative character of the 
 circumstances under which he spoke, alone, .are enough ; and not 
 the two together except in special cases. This sort of circum- 
 stantial evidence is separated from all others in the English law 
 of evidence, is classified as hearsay, and as -such is condemned." 10 
 This is absolutely unscientific. The fact that in certain so-called 
 exceptions, as pedigree, matters of public and general interest and 
 the like, the hearsay rule comes within the operation of tbe true 
 administrative principle by deeming the declarant's statement pri- 
 mary evidence, and yet receiving, under suitable conditions of 
 necessity and relevancy, a report of it as secondary evidence, merely 
 accentuates the anomalous character of the rule. It is interesting 
 to notice, however, that the anomaly, like tbe unanimity of tbe 
 jury, 11 and other striking peculiarities of English procedural law, 
 was not an intentional or reasoned result ; but merely an incidental 
 consequence of doing something else — perhaps quite intelligent in 
 itself — which involved results which no one foresaw or has cared 
 to remedy, so long as conditions were endurable. While a jury 
 could and did proceed on hearsay, a witness might with reason be 
 forbidden to produce it to them. When tbe jury could proceed 
 only upon evidence, hearsay, however necessary or relevant, be- 
 came unusable, and has so remained. 
 
 § 487. ( [1] Primary Evidence Required; " Best Evidence 
 Rule " at the Present Time) ; Attesting Witnesses. — : For reasons 
 similar to those affecting proof of the contents of documents, 1 it 
 may fairly be assumed that the rule of procedure which requires 
 that where the execution of an instrument is attested by the sig- 
 nature of a subscribing witness in any proceedings based on 
 the instrument, its execution must be proved by the evidence of 
 such subscribing witness, is not so much an example of the best 
 
 9. Infra, §§ 1803 et seg. See also an interesting article on the 
 
 10. Thayer, Prelim. Treat. Evid., present necessity oi calling subscrib- 
 501. ing witnesses to prove attested in- 
 
 11. Supra, § 270g. struments in 35 L. R. A. 321. 
 1. See Doctjmentaet Evidence. 
 
§§ 488, 489 B. Furtherance of Justice. 628 
 
 evidence rule as an independent regulation of substantive law, 
 ratifying the assumed convention of the parties. However this 
 rule of procedure should be regarded at the present day, it is, his- 
 torically considered, a survival of a once numerous class of oases 
 in which figures the preappointed evidence of which Bentham 
 speaks, the transaction-witnesses of the Teutonic tribes. These 
 witnesses joined the business then in hand upon the express un- 
 derstanding and implied agreement that in case of any difference 
 between the parties as to it, they were to be called upon to state 
 the truth as to the matter. Here, as in cases of other witnesses, 
 the testimony of the person as to individual knowledge was the 
 thing sought. 2 Each witness who sees or hears a fact must 
 himself state it. 
 
 § 488. Principles of Administration; (B) Furtherance of Justice; 
 (2) Completeness demanded. — Fairness may mean completeness. 
 The preservation of good faith by the parties frequently as- 
 sumes the form of a requirement by the court that the complete 
 meaning of an oral statement or the entire purport of a document 
 should be placed before the jury. Such a requirement by no means 
 implies that all that is said at a given time must be stated ; or that 
 the document as a whole necessarily becomes competent in its en- 
 tirety. 1 The canon of administration is directed against the use 
 of mutilated, imperfect and, therefore, misleading evidence in 
 either oral or written form. In practice, this requirement takes 
 one of two phases, as the matter is viewed from the standpoint of 
 the proponent of the evidence or from that of his opponent. 
 
 § 489. C [2] Completeness Demanded); Oral Statements; Pro- 
 ponent. 1 — From the standpoint of the proponent of the evidence, 
 the party taking the initiative, this canon of administration is 
 simple. Whatever he shall offer to the tribunal must be pre- 
 sented with sufficient fulness to place it in a true light. 
 Speaking generally, the proponent of evidence is entitled to de- 
 
 2. Brunner, Schw. 54. See also su- stage, by either party has introduced 
 
 pro, § 269c. certain differences in practice in case 
 
 1. While the general principles of ad- of written statements. Infra, §§ 503 
 
 ministration dealing with the matter et seg. 
 
 of completeness are the same whether 1. A litigant in his aspect of offer- 
 
 the statements are oral or in writing, ing evidence of ai\y kind is called the 
 
 the ease with which a document can proponent ; in his capacity of resist- 
 
 be introduced in evidence as a whole ing the admissibility of such evidence 
 
 and referred to, at any subsequent he will be spoken of as the opponent. 
 
629 Completeness in Oeal Statements. § 48& 
 
 termine how much he shall present and for what purpose he shall 
 offer it. This is essential to the strategic handling of a cause. 2 
 The court does not affect to order a litigant to offer evidence 
 which he does not desire to present or to compel him to tender it 
 for a different or additional purpose. The judge, indeed, may well 
 bring out facts, sua sponte, as is elsewhere seen. 3 But the party is 
 in control of his own litigation so far as his handling of it is con- 
 cerned. He is litis magister. He may offer such evidence and 
 only such evidence as he sees fit and for such purposes alone as he 
 wishes. The function of the court is, therefore, confined in this 
 respect, to insisting that the proponent shall guide and not mislead. 
 He is left free to choose his evidence and limit the purpose of it. 
 But he must not arbitrarily select isolated portions of an entire 
 statement which produce, when divorced from their context and 
 qualifications, a false impression, unduly favorable to himself. He 
 must, if he produces 'anything on a given subject, present so much 
 of it as will represent it fairly and as it is. It is the clear right 
 of the tribunal to have for its consideration an entire oral utter- 
 ance where any part of such statement has been offered in evi- 
 dence. This fundamental prerequisite to the ability to adjudicate 
 justly is not in dispute. 
 
 The administrative problem is rather as to what portion of the 
 entire utterance is it fair that the proponent, i. e., the party offer- 
 ing the evidence, should be required to produce in the first in- 
 stance; and how much may properly be left to be supplied by the 
 other side, if they desire to do so. The proper solution is, as 
 the phrase goes, largely a matter of discretion. It may well 
 vary with the combination of circumstances presented in any in- 
 dividual instance; or with the respective amounts of knowledge in 
 possession of the particular parties, which the court cannot fail 
 to regard, 4 requiring of the proponent, having the initiative, only 
 such evidence as is fairly within his power to produce. 5 Apart 
 from the administrative matter, the question of how far to de- 
 mand completeness in an oral utterance is one of relevancy. So 
 much of the entire series of individual statements must be pro- 
 
 2. It is necessary, for the operation v. Latham, 6 Cow. (N. Y.) 682, 684 
 
 of the canon of completeness, that (1827). 
 the proponent of the evidence should 3. Infra, §§ 535 et seq. 
 
 have intended the statement which 4. Infra, § 978. 
 
 it is sought to complete. Winchell 5. Ritpra, § 334. 
 
§ 4S9 B. FURTHERANCE OF JUSTICE. 630 
 
 duced as is fair in view of the purpose for which it is offered, and 
 the knowledge of the party with regard to it. 
 
 hi general, the distinction in the scope of the verbal utter- 
 ance required in the first instance will be in accordance with 
 whether the offering litigant relies on the fact or on the effect of 
 the statement. 
 
 Independent Relevancy. — "Where the mere making of the state- 
 ment is independently relevant, 6 the party offering it need go no 
 further, as a matter of principle, than to introduce the precise 
 statement on which he relies, with substantial fullness and accu- 
 racy, together with such connecting facts as establish its bearing 
 upon the issue. The balance of a conversation, speech or other 
 oral utterance may be entirely irrelevant to show that a given 
 statement was not made, and if it is claimed that other statements 
 made at the same time tend to show that the language used did not 
 convey the meaning asserted, no hardship is imposed in leaving 
 to the other side the opportunity of showing that such is the case. 
 The proponent should not be called upon to obscure the dramatic 
 effect of his point by involving it in a mass of conflicting details. 
 This is more properly the work of rebuttal and the proponent is 
 fairly entitled to ask, if he is stating the declaration fairly and 
 fully, that he be permitted to build up his own case as strongly 
 and connectedly as possible before exposing it to a rebuttal. 
 
 Statement as Proof of Facts Asserted. — The situation is ma- 
 terially altered where the proponent relies upon the probative 
 effect of a verbal utterance. He is depending on the result of the . 
 entire utterance. It is, therefore, obviously unfair that the party 
 intending such an object should content himself with offering a 
 portion of the utterance which is not a correct resume of the whole 
 statement upon the relevant point. The court will seek to prevent 
 the cause from resting before the jury in this misleading condi- 
 tion. It will, in substance, be required by the judge that the pro- 
 ponent should show all statements or parts of statements 
 which are reasonably necessary to produce the same logical 
 meaning as was originally created; i. e., without omis- 
 sion of any essential modification or qualification. But 
 the court will not go so far as unnecessarily to curtail the 
 proponent's right to submit a clean-cut, effective case from his 
 own point of view. All which is called for is substantial accu- 
 G. Infra, §5 2574 et seq. 
 
631 Inference of Truth From Statement. § 4&0 
 
 racy and fullness of all the statements as the proponent under- 
 stands they were made. He is not to be compelled to confuse his 
 case by the introduction of details of doubtful or controversial 
 nature. He is not to be obliged to submit to interpolations of 
 adverse constructions either directly from his opponent or indi- 
 rectly through the court. This method of qualifying or modifying 
 the force of oral statements, is appropriate only at the stage of re- 
 buttal or that of argument. At this earlier stage, the proponent 
 is litis magister and the court will exercise its power to call for 
 completeness only to the extent of providing that it shall not 
 be misled through the omission of confessedly material qualifi- 
 cations. Any additional parts of the oral statement which is 
 deemed relevant to the inquiry must be supplied by the other 
 party. 
 
 § 490. ( [2] Completeness Demanded; Oral Statements; 
 Proponent); Admissions and Confessions. — In the majority of in- 
 stances, the question as to completeness arises with regard to ad- 
 missions or confessions, including statements made by a third 
 person in the presence of the party. The special reason for the 
 truth of this fact is, that a party whose statements are relied upon 
 as admissions frequently seeks, under the guise of completing his 
 statement to introduce in evidence his self-serving and otherwise 
 incompetent declarations. 
 
 Admissions and confessions are anomalous; — occupying an in- 
 termediate position between utterances independently relevant 1 
 and those relied on as proof of the facts asserted. Drawing its evi- 
 dentiary force from procedure rather than from logic, 2 the mere 
 fact that the statement was made is the sole condition of admissi- 
 bility. In this sense, the utterance is one independently relevant. 
 The statement is, however, deemed competent evidence of the facts 
 asserted. 3 Such utterances, will, therefore, be most conveniently 
 treated in connection with probative statements. As is to be else- 
 where* pointed out, this anomaly is itself due to the antecedent 
 anomaly of the " hearsay rule," which serves to conceal the fact 
 that in all cases, equally with that of an admission or confession, 5 
 it is the fact that the statement is made by the person in question 
 
 1. Infra, §§ 2574 et seq. 5. For the distinction between ad- 
 
 2. Infra, § 1721. missions and confessions, see infra, 
 
 3. Infra, §§ 1332 et seq §§ 1472 et seq. 
 
 4. Infra, § 258o. 
 
§ 491 B. IYetheraxce of Justice. 632 
 
 under the circumstances attending the occurrence, which in reality 
 constitutes the ground for believing it. What actually has occurred 
 is this: In promulgating the hearsay rule the law has caused 
 certain requirements of procedure — the administration of an 
 oath and an opportunity for cross-examination — to supplant the 
 fundamental logical rule of evidence that " all relevant facts are 
 competent." In connection with admissions and confessions pro- 
 cedure repairs the breach which itself has made in the symmetry 
 of the logical basis of the law of evidence, by providing that in 
 case of a party the basic rule of all reasoning that the fact that a 
 given statement was made under a particular set of circumstances 
 furnishes a ground for believing it to be true. 
 
 § 491. C [2] Completeness Demanded; Oral Statements; 
 Proponent; Admissions and Confessions) ; Oral. — Oral admis- 
 sions should be proved in their entirety, 1 the complete declaration 
 made at one time being taken as a whole. 2 This includes all con- 
 versations upon a relevant topic in which a party participates, 3 or 
 which takes place in his presence 4 under conditions conferring 
 relevancy upon his conduct with regard to it. 5 Thus, if a party 
 admits that he has owed certain money, or been under a given 
 obligation, but, at the same time, alleges that he has paid the 
 inoney or discharged the debt, 6 or that it is different than was 
 claimed, 7 both branches of the declaration, the self-serving as well 
 as the self-incriminating, 8 should be introduced in evidence to- 
 
 1. Wilson v. Calvert, 8 Ala. 757 of payment. The creditor cannot sepa- 
 (1S45) ; Brown v. Upton, 12 Ga. 505, rate the two and must accept the sug- 
 507 (1853) ; Quick v. Johnson, 6 gestion of payment, if he relies on 
 Mart. (N. S.) (La.) 532 (1828); the more favorable part of the declara- 
 Johnson v. Powers, 40 Vt. 611 tion. Oliver v. Gray, 1 Har. & G. 
 (1868). Infra, § 1296. (Md.) 204,219 (1827). But see Bar- 
 
 2. Johnson r. Powers, 40 Vt. 611 ber r. Anderson, 1 Bail. (S. C.) 358, 
 (1868). 360 (1830). 
 
 3. Barnum v. Barnum, 9 Conn. 242, 7. Hopkins v. Smith, 11 Johns. (N. 
 247 (1832). Y.) 161 (1814) (liability as surety 
 
 4. Gillam v. Sigman, 29 Cal. 637. only) ; Jacobs i\ Farrall, 2 Hawks 
 641 (1866). (N. C.) 570, 571 (1823) (offsetting 
 
 5. Infra, § 1418. account) ; Arthur v. Wells, 1 Mill. 
 
 6. Smith v. Jones, 15 Johns. (N. Const. (S. C.) 314 (1818) (did not 
 Y.) 229 (1818) (purchase of land) ; mean to kill). 
 
 Methodist Ep. Church v. Jaques, 2 8. Arkansas. — Adkins r. Hershy, 14 
 
 Johns. Ch. (N. Y.) 543 (1817). Ark. 442 (1854). 
 
 An acknowledgment of indebtedness Maryland. — Oliver r. Gray, 1 H. & 
 
 relied upon to remove the bar of the G. 204, 219 (1S27). 
 
 statute of limitations is useless for New York. — ■ Gough *'. St. John, 16 
 
 the purpose if accompanied by a claim Wend. 646, 652 (18371. 
 
633 
 
 Confession Proved as an Entirety. 
 
 492 
 
 gether. This is obviously fair, 9 for the declaration, as a whole, 
 claims an absence of liability. 10 It is equally clear that a party 
 offering an admission is not concluded by the self-serving portion 
 of the declaration ; but may control it by other evidence. 11 
 
 For some consideration of the canon of completeness, as applied 
 to admissions in written form, see infra, § 1296. 
 
 § 492. ( [2] Completeness Demanded; Oral Statements; 
 Proponent) ; Confessions. — A confession must be proved as a 
 whole. In case of such a statement, the whole declaration must, as 
 the phrase is, " be taken together," ] as well for as against the ac- 
 cused, 2 it being obviously impossible to ascertain what the accused 
 has admitted without knowing what qualifications, if any, he has 
 placed upon the prima facie meaning of the inculpatory phrases. 
 Should the confession have been reduced to writing the practice 
 
 North Carolina. — Byrnes v. Kelly, 
 2 Hayw. 45 (1797). 
 
 Pennsylvania. — Shaller V. Brand, 6 
 Biim. 435, 438 (1814). 
 
 South Carolina. — Smith V. Hunt, 1 
 McC. 449 (1821). 
 
 England. — Randle r. Blackburn, 5 
 Taunt. 245 (1813). 
 
 " Prima facie an inculpatory admis- 
 sion must be viewed in connection 
 with matter in exculpation which 
 comes out in the same conversation." 
 Gough v. St. John, 16 Wend. (N. Y.) 
 646, 652 (1837). 
 
 9. Randle v. Blackburn, 5 Taunt. 
 245 (1813). 
 
 10. Carver v. Tracy, 3 Johns. (N. 
 Y.) 427 (1808). 
 
 11. Newman v. Bradley, 1 Dall. (U. 
 S.) 240 (1788). 
 
 1. Alabama. — Webb v. State, 100 
 Ala. 47, 51, 14 So. 865 (1893). 
 
 Arkansas. — Williams v. State, 69 
 Ark. 599, 65 S. W. 103 (1901). 
 
 California. — People v. Keith, 50 
 Cal. 137 (1875). 
 
 Georgia. — Myers v. State, 97 Ga. 
 76, 25 S. E. 252 (1895). 
 
 Illinois. — Comfort V. People, 54 111. 
 404, 406 (1870). 
 
 Iowa. — State v. Novak, 109 Iowa 
 717, 79 N. W. 465 (1899). 
 
 Kentucky. — Berry r. Com., 10 Bush 
 15 (1873). 
 
 Massachusetts. — Com. v. Russell, 
 160 Mass. 8, 10, 35 N. E. 84 (1893) ; 
 Com. v. Trefethen, 157 Mass. 180, 197, 
 31 N. E. 961 (1892). 
 
 Mississippi. — Coon v. State, 13 
 Smedes & M. 248 (1849). 
 
 Missouri. — State v. Carlisle, 57 Mo. 
 102 (1874). 
 
 North Carolina. — State v. Worth- 
 ington, 64 N. C. 594, 595 (1870). 
 
 Tennessee. — Tipton i\ State, Peck. 
 308, 314 (1824). 
 
 Texas. — Conner v. State, 34 Tex. 
 659, 661 (1871). 
 
 Vermont. — • Stale v. Mahon, 32 Vt. 
 241 (1859). 
 
 Virginia. — Brown's Case, 9 Leigh 
 633 (1838). 
 
 Wisconsin. — Griswold v. State, 24 
 Wis. 144 (1S69). 
 
 England. — King v. Paine, 5 Mod. 
 163 (169G). 
 
 The entire confession may require 
 for its narration more than one wit- 
 ness, as where it is given partly in 
 one language and partly in another. 
 People v. Ah Wee, 48 Cal. 236 (1874) 
 ( Chinese and English ) . See also Peo- 
 ple v. Keith, 50 Cal. 137 (1875). 
 
 2. Eiland v. State, 52 Ala. 322 
 (1875) ; R. v. Steptoe, 4 C. & P. 397 
 (1S30); People v. Gelabert, 39 Cal. 
 663 (1870); King v. Paine, 5 Mod. 
 163 (1696). 
 
§ 492 
 
 B. FUKTHEHAXC'E OF J L'STICE. 
 
 634 
 
 applicable to other documents may well be extended to it, and the 
 written confession introduced, as a whole, without being read, each 
 party being at liberty to use such portions as may be deemed ma- 
 terial. 3 This practice is especially commendable for the protection 
 of the interests of third persons whom the statement may tend 
 to incriminate. As the confession, in the absence of conspiracy or 
 other agency, is competent against no one but the declarant, there 
 is danger lest third persons mentioned in the statement may be 
 prejudiced by it, if the entire document were read. 
 
 The English practice reads the entire written confession pro- 
 tecting the rights of third persons by directing that the name of 
 any such person mentioned in it be not read ; i or with a caution 
 to the jury to disregard the irrelevant name if it is read in their 
 hearing. 8 
 
 The American practice follows the second branch of the English 
 rule. It allows the confession to be read as a whole, cautioning 
 the jury that it is not evidence as against third persons mentioned 
 in it. 6 
 
 In either civil 7 or criminal 8 cases it is within the province of 
 
 3. Webb v. State, 100 Ala. 47, 52, 
 14 So. 865 (1893). 
 
 4. " The practice has been, in read- 
 ing confessions, to omit the names of 
 other accused parties, and, where they 
 are used, to say ' another person,' 
 ' a third person,' etc., where more than 
 one other prisoner was named; and 
 some judges have even directed wit- 
 nesses, who came to prove verbal dec- 
 larations to omit the names of those 
 persons in like manner." E. v. Clewes, 
 4 C. & P. 231, 224 (1830), note. 
 
 5. E. v. Hearne, 4 C. & P. 215 
 (1830) ; E. v. Fletcher, 4 C. & P. 250 
 (1829). See also E. >;. Walkley, 6 C. 
 & P. 175, (1833). 
 
 6. Louisiana. — State v. Sims, 106 
 La. 453, 31 So. 71 (1901). 
 
 Massachusetts. — Com. v. Bishop, 
 165 Mass. 148, 42 N. K. 560 (1896). 
 
 North Carolina. — State v. Collins, 
 121 JSf. C. 667, 28 S. E. 520 (1897). 
 
 South Carolina. — State v. Dodson, 
 16 S. C. 453, 460 (1881). 
 
 Vermont. — ■ State v. Fournier, 68 
 Vt. 262, 35 Atl. 178 (1896). 
 
 United States.— V. S. v. Ball, 163 
 U. S. 662, 16 Suppl. 1192 (1896). 
 
 As the actual prejudice to a code- 
 fendant of permitting an incriminat- 
 ing mention of his name to be made 
 in presence of a jury may greatly ex- 
 ceed the theoretic, it is but fair to 
 require that the confessing party 
 should give the guaranty of good 
 faith implied in actually accusing 
 himself. A statement which really 
 amounts to throwing the blame on 
 the declarant's associates, should not 
 be received. State v. Mitchell, 49 S. 
 C. 410, 27 S. E, 424 (1897); State 
 v. Green, 48 S. C. 136, 26 S. E. 234 
 (1896). 
 
 7. Johnson v. Powers, 40 pt. 611 
 (1868). 
 
 8. Alabama. — • Burns v. State, 49 
 Ala. 370, 374 (1873). 
 
 Arkansas. — • Frazier v. State, 42 
 Ark. 70 (1883). 
 
 California. — People l>. Navis, 3 Cal. 
 106 (1853). 
 
 Georgia. — Long v. State, 22 Ga. 40, 
 42 (1857). 
 
635 Independent Relevancy of Statement. § 493 
 
 the jury to credit any portion of the entire declaration, or set of 
 declarations before them, discarding the rest. The utterances are 
 presented as a whole; they need not be believed as a whole. 
 
 No general rule of requirement has been formulated for the 
 guidance of the court as to whether, in case of an oral admission 
 or confession, it is the duty of the proponent, in the first instance, 
 to put in the entire statement ; or whether the party having the 
 initiative may introduce such portion, not obviously garbled or 
 otherwise misleading as he may see fit, and then leave the declar- 
 ant to correct and supplement, in turn, as he may deem judicious. 
 The question seems purely one of judicial administration. It 
 might be reasonable, however, to expect that the prosecution in 
 offering a confession should* give, at once and in full detail, the 
 statements on which the government relies, 9 with a particularity 
 and fullness which would not be demanded of a proponent of an 
 admission in a civil suit between individuals. It is, however, 
 universally conceded, as appears passim, that justice demands that 
 before the tribunal is called upon to act it should have a completed 
 statement before it; that, consequently, such portion of an entire 
 admission, 10 confession, or other inculpatory utterance as the pro- 
 ponent is not required to produce may be supplied by his 
 adversary. 
 
 § 493. ( [2] Completeness Demanded; Oral Statements; 
 Proponent) ; Independent Eelevancy. — Where, as in case of ad- 
 missions, contradictory declarations 1 or statements independently 
 relevant 2 for some other reason, 3 the object is merely to show that 
 a given statement was made, it will, in general, be sufficient for 
 the proponent of the evidence to prove the statement itself in its 
 fullness, 4 leaving any modification of its effect to his opponent." 
 
 England. — R. e. Higgins, 3 C. & P. vant (infra, §§ 2574 et seq.) , are 
 
 603 (1829). considered as constituting evidence 
 
 9. R. V. Jones, 2 C. & P. 629 of the facts asserted. Infra, §§ 2698 
 (1827). et seq. 
 
 10. Hartman Steel Co. v. Hoag, 104 4. Sylvester v. State, (Fla. 1903) 
 Iowa 269, 73 N. W. 611, (1897) (con- 35 So. 142; State v. Lawhorn, 88 N. 
 versation). C. 634, 637 (1883); Davis v. Smith, 
 
 1. Infra, § 1779. 75 N. C. 115 (1876). 
 
 2. Infra, §§ 2574 et seq.; Drake r. 5. Hudson v. State, 137 Ala. 60, 34 
 State, 110 Ala. 9, 20 So. 450, (1895) So. 854 (1902) ; Halifax Banking Co. 
 (threats). v. Smith, 29 N. Brunsw. 463, 465, 18 
 
 3. Admissions" and confessions, Can. Suppl. 710 (1890) (admis- 
 though, in a sense, independently rele- sions). 
 
§§ 494, 495 B. Fdrtiiekaxce of Justice. 636 
 
 Where the proponent uses a statement as independently relevant 
 his antagonist is not at liberty to use the balance of the entire con- 
 versation in its probative capacity, i. e., as evidence of what is 
 asserted. A witness may be asked, for example, as to a particular 
 statement in a conversation to identify a third person ; the other 
 side is not permitted to put in evidence the balance of the conver- 
 sation as proof of what it asserts. 6 His right is limited to intro- 
 ducing such portions of the conversation, and such additional 
 facts, as fairly supplement, condition and explain the identifying 
 statement. 7 
 
 § 494. C [2] Completeness Demanded; Oral Statements; 
 Proponent; Independent Relevancy); Kes Gestae an Exception. — 
 
 There is, however, one important qualification of this rule. Where 
 the independently relevant statements constitute or assist to con- 
 stitute the res gestae 1 of a transaction, the entire matter must be 
 stated by the proponent in the first instance. The reason is plain ; 
 — that the statements cannot be divorced from their context. 
 Thus, in case of the declarations forming an oral contract, 2 the 
 statements accomplish the legal result involved in the inquiry. 
 What is being sought is the legal effect of all that is said ; all the 
 declarations of the parties, all that was written by them, 3 at the 
 time and on the subject must be therefore proved by the pro- 
 ponent. 
 
 The practice is the same where it is neither the fact of a state- 
 ment, nor its legal effect, but its logical and probative meaning 
 which is involved in the inquiry. 
 
 § 495. ( [2] Completeness Demanded; Oral Statements) ; 
 
 Opponent. — From the standpoint of the party who does not offer 
 the evidence in the first instance, the canon of completeness oper- 
 ates to permit a reasonable amount of supplementing on his part 
 of the evidence after his opponent has presented it to the court 
 with the required degree of fairness and fullness. It is this power 
 
 G. Com. !■. Keyes, 11 Gray (Mass.) 1. Snpra, § 47. 
 
 323 (1858). S. Flood v. Mitchell, 68 N. Y. 507, 
 
 7. The giving in evidence by one 511 (1877). 
 
 party of part of a conversation en- 3. For a consideration of the extent 
 
 titles the other party to introduce so to which completeness is demanded in 
 
 much of the rest of it only as re- the proof of contents of constituent or 
 
 lates to the same subject. Com. v. other documents, se£ supra. §§ 3-11 
 
 Keyes, 11 Gray 323, 325 (1858), per et seq. 
 Merrick, J. 
 
637 Opponent's Advance of a Counter-Theoby. § 495 
 
 on the part of his opponent which imposes the careful discretion 
 as to substance and purpose which the proponent should exercise 
 in opening up a given topic. When once he has opened the door, 
 it is open for his antagonist as well. It cannot well be shut in his 
 face. What may fairly be termed supplemental, in this connec- 
 tion, lies largely within the administrative function of the court 
 — matter of discretion, as it is frequently called — whatever may 
 be the right of the party to introduce evidence on the same subject 
 on his own initiative. The reasons on which the opposing party 
 may demand the right to complete the statements introduced by 
 the other side in general, are of two kinds. 
 
 The party may claim, in the first place that, on the whole, the 
 oral statements on the occasion referred to or the declarations of 
 a particular document on a given subject have not been fully and 
 correctly stated. In other words, he may contend that while cer- 
 tain portions may seem to support the point which they are said 
 to sustain, that still, on the whole, they fail to do so. He cannot 
 introduce, under the guise of completing his adversary's evidence, 
 statements of the same persons on other occasions, or irrelevant 
 parts of a document. He may, however, show, if he can, that 
 other statements made on the same occasion, or other parts of a 
 document, so limit, modify, explain or qualify, the statement, al- 
 ready in evidence as, in reality, to deprive it of the effect alleged 
 by the proponent. 
 
 In the second place, the opposing party may claim and exercise 
 the right to insist, not only that the extracts offered by his antag- 
 onist do not, when the proper contemporaneous qualifications are 
 made, support the latter's contention, but that, when taken as a 
 whole, they actually sustain his own inconsistent claim. In other 
 words, he need not content himself with taking the position that 
 the statements do not sustain the theory of the case which they are 
 said by the proponent to support; he may go a step further and 
 assert that the theory itself is wrong; and that the entire set of 
 relevant oral statements or the document as a whole, sustains a 
 different one. He may take this advanced position for one of two 
 alternative purposes. He may deem the plausible suggestion of 
 a counter-theory, the most complete method of destroying the origi- 
 nal hypothesis ; but may have no further interest in the establish- 
 ment of the counter-theory itself; or, in the second place, the 
 
§ 496 B. Furtherance of Justice. 638 
 
 counter-theory which he may use to explain the completed set of 
 statements may be an integral part of his affirmative case. 
 
 When the point is reached that the additional oral statements 
 or the further declarations of a document are to be used by an 
 opponent as part of his own case, the right to complete for the 
 purpose of supplementing logically ceases. The evidence is com- 
 petent, indeed ; but as to it the opposing party has the initiative, 
 i. e., the burden of evidence. 1 He is, in turn, the proponent, 2 up 
 to this point, within the limits prescribed by reason, the court may 
 permit, by virtue of its administrative power, as expressed through 
 the canon under consideration, that the statements offered should 
 be made full and complete. 
 
 § 496. ( [2] Completeness Demanded; Oral Statements; 
 
 Opponent) ; Probative Effect All that is said concerning any 
 
 given topic at any one time should be received, if any portion of it 
 is admitted. 1 
 
 But one point remains in dispute. Is opponent confined to such 
 statements in the conversation, or other oral utterance, as are rele- 
 vant to the portions already introduced in evidence, by modifying, 
 qualifying or otherwise affecting the portion already in evidence, 
 or is he, on the other hand, entitled, as of right, to have the entire 
 set of declarations made at that same time received in evidence 
 
 1. Infra, §§ 967 et seq. Louisiana. — Bean v. Evans, 9 La. 
 
 2. What may be the stage at which Ann. 163 (1854 j. 
 
 this initiative may be exercised; Maryland. — Turner v. Jenkins, 1 
 
 whether it may be taken up on cross- Har. & G. 161, 163 (1827). 
 
 examination of his adversary's wit- Massachusetts. — Cusick v. Whit 
 
 ness [supra, § 378) or only by mak- comb, 173 Mass. 330, 53 X. E. 815 
 
 ing him his own witness, is dependent (1899); Com. v. Armstrong, 158 
 
 upon the practice of the particular Mass. 78, 32 X. E. 1032 (1893). 
 
 jurisdiction. Missouri. — Burghart V. Brown, 51 
 
 1. Connecticut. — Bristol v. Warner, Mo. 600 (1873). 
 
 19 Conn. 7, 19 (1848); Barnum t. flew Hampshire.— Barker V. Barker. 
 
 Barnum, 9 Conn. 242 (1832). 16 X. H. 333, 338 (1844). 
 
 Florida. — Fields r. State, (Fla. New Jersey. — Somerville & E. E. 
 
 1903) 35 So. 185; Thalheim v. State, Co. r. Doughty, 22 N. J. L. 495, 500 
 
 38 Fla. 169, 20 So. 938 (1896). (1850). 
 
 Georgia. — Cox r. State, 64 Ga. 374. yew York. — Fleischman V. Toplitz, 
 
 383, 411, 414 (1879). 134 X. Y. 349, 355, 31 X. E. 1089 
 
 Illinois. — Jamison v. People, 145 (18921. 
 
 111. 357, 378, 34 X. E. 486 (1893). Wisconsin.— Paulson v. State, 118 
 
 Iowa.— Hess v. Wilcox, 58 Iowa WiB. 89, 94 X. W. 771 (1903). 
 380, 382, 10 N. W. 847 (1882). 
 
639 
 
 Opponent's Right of Supplementation. 
 
 § 49(i 
 
 whether relevant or irrelevant to the same matter on which the 
 portion already received was admitted ? As intimated elsewhere, 2 
 the right of supplementing is fully satisfied when such additional 
 statements made on the same occasion as explain, control or modify 
 utterances already received regarding the matter in hand, or at a 
 different time on the same subject 3 have been introduced in evi- 
 dence. The tribunal is entitled to receive the whole of what 
 was said at the same time on the same subject. 4 But what was 
 said at the same time on a different subject, as to which the judge 
 will determine, 5 cannot be added by way of supplementation, un- 
 less, indeed, the matter is still pending. 6 This is the limit of the 
 opponent's right, so far as relates to utterances which are not ad- 
 
 2. Supra, § 495. 
 
 3. Alabama. — Lee r. Hamilton, 3 
 Ala. 529, 533 (1842). 
 
 Connecticut. — Robinson v. Ferry, 
 11 Conn. 460, 462 (1836) ; Stewart v. 
 Sherman, 5 Conn. 244, 245 (1824). 
 
 Iowa. — State c. Vance, 17 Iowa 138. 
 140 (1864). 
 
 Louisiana. — State e. Jones, 47 La. 
 Ann. 1524, 18 So. 515 (1895). 
 
 Massachusetts. — Adam v. Eames, 
 107 Mass. 275 (1S71) ("another in- 
 terview " ) . 
 
 United States. — Blight v. Ashley, 1 
 Pet. C. C. 15, 20 (1808) (another 
 day). 
 
 England. — Sturge v. Buchanan, 10 
 A. & E. 598 (1839). -'The law never 
 intends that a party may make evi- 
 dence for himself from his own decla- 
 ration, but merely that the meaning 
 of a conversation shall not be per- 
 verted by proof of a part of it only." 
 
 4. Alabama. — Wefel v. Stillman, 44 
 So. 203 (1907). 
 
 Colorado. — Bailey v. Carlton, 95 
 Pac. 542 (1908). 
 
 Connecticut. — Stewart v. Sherman, 
 5 Conn. 244, 245 (1824). 
 
 Illinois. — Chicago City By. Co. v. 
 Bundy, 210 111. 39, 71 N. E. 28 
 (1904) [judgment affirmed, 109 111. 
 App. 637 (1903)]. 
 
 Iotca. — State v. Rutledge, 135 Iowa 
 581, 113 N. W. 461 (1907). 
 
 Xebraska. — Pettis v. Green River 
 Asphalt Co., 99 :N T . W. 235 (1904). 
 
 Texas. — Underwood v. State, (Cr. 
 App. 1909) 117 S. W. 809. 
 
 Wisconsin. — Earley v. Winn, 129 
 Wis. 291, 109 N". W. 633 (1906); 
 Smith r. Milwaukee Electric Ry. & 
 ■Light Co., 127 Wis. 253, 106 N. W. 
 829 (1906). 
 
 United States. — Stanley v. Beck- 
 ham, 153 Fed. 152, 82 C. C. A. 304 
 (1907). The rule is the same in 
 criminal cases. Lowry v. 'State, (Tex. 
 Cr. App. 1908) 110 S. W. 911. It 
 is to be understood that in all cases 
 the additional evidence is relevant to 
 that which was originally offered. 
 All that two parties say at a single 
 interview on whatever subject is not 
 admissible because what is said on 
 some one or more subjects is testi- 
 fied to. Thomas v. Young, 81 Conn. 
 702, 71 Atl. 1100 (1909). It is not, 
 however, objectionable that the re- 
 butting evidence contains self-serving 
 declarations. Olson v. Brundfcige, 139 
 111. App. 559 (1908). Infra, § 2734. 
 
 5. Robinson v. Ferry, 11 Conn. 460, 
 463 (1836). 
 
 6. " The question is merely this, 
 whether a particular conversation is 
 part of a preceding conversation be- 
 cause a negotiation begun was still 
 pursued." Stewart v. Sherman, 5 
 Conn. 244, 245 (1824). 
 
497 
 
 B. FURTHERANCE OF JUSTICE. 
 
 640 
 
 missible on any other principle than that of completeness ; 7 — 
 though earlier decisions extended a broader indulgence. 8 The 
 form in which the rule is stated — that when a party sees fit to 
 introduce his opponent's statements, the entire conversation there- 
 upon becomes admissible, is misleading. 9 
 
 § 497. ( [2] Completeness Demanded; Oral Statements; 
 Opponent) ; Right of Initiative — It will be observed also that the 
 part added, by way of supplementation, is not independent evi- 
 dence, but is a component part of the otherwise imperfect and 
 fragmentary statement which it completes and is governed as to 
 its purpose and effect in evidence by those of the main fact to 
 which it is, in a way, ancillary. But the opponent has other rights 
 than that of supplementing. He has also the right of initiative in 
 offering evidence. Utterances irrelevant to any issue connected 
 
 7. Illinois. — Young v. Bennett, 5 
 111. 43, 47 (1842). 
 
 Massachusetts. — Com. v. Keyes, 11 
 Gray 323 (1858). 
 
 Michigan. — Atherton v. Defreeze, 
 129 Mich. 364, 88 N. W. 886 (1902). 
 
 New York. — ■ Platner v. Plainer, 78 
 N. Y. 90, 103 (1879). 
 
 Rhode Island. — Sherman v. Stafford 
 Mfg. Co., 23 R. I. 529, 51 Atl. 26 
 (1902). 
 
 Tennessee. — Colquit v. State, 107 
 Tenn. 381. 64 S. W. 713 (1901). "At 
 least so far as it may materially tend 
 to impeach, rebut, explain or qualify 
 the portion introduced by his adver- 
 sary," the whole is admissible. Diehl 
 t\ State, 157 Ind. 549, 62 N. E. 51, 
 (1901). "There is an important 
 limitation to the rule, in giving evi- 
 dence of conversations or of oral state- 
 ments and declarations. The proof in 
 such case is to be confined to what 
 was said upon or concerning those 
 matters which are made subjects of 
 inquiry or investigation. Every re- 
 mark or observation made upon those 
 topics is to be received as competent 
 evidence, because they may essentially 
 modify the character and purport of 
 the whole conversation, and vitally 
 affect what might otherwise appear 
 
 to be explicitly asserted or denied." 
 Com. v. Keyes, 11 Gray (Mass.) 323, 
 325 (1858). A witness, who has 
 been cross-examined as to what plain- 
 tiff said in a particular conversa- 
 tion, cannot, on that ground, be re- 
 examined as to other assertions, made 
 by the plaintiff in the same conversa- 
 tion, but not connected with the as- 
 sertions to which the cross-examina- 
 tion related, although the assertions, 
 as to which it is proposed to re-ex- 
 amine, be connected with the subject- 
 matter of the present suit. Prince v. 
 Samo, 7 A. & E. 627 (1838'), per 
 Denman, C. J. 
 
 8. Clark v. Smith, 10 Conn, 1, 5 
 (1833) ; Kelsey v. Bush, 2 Hill (N. 
 
 Y.) 440 (1842); The Queen's Case, 
 2 Br. & B. 297 (1820). 
 
 9. Com. v. Vosburg, 112 Mass. 419 
 (1873) ; Rice V. Withers, 9 Wend. (N. 
 Y.) 13S, 141 (1832). 
 
 As a jury must, almost of necessity, 
 consider any evidence before them for 
 any purpose indicated by the reason- 
 ing faculty {supra, § 59), a corre- 
 sponding tendency has developed on 
 the part of the court to permit what 
 it cannot prevent. Bristol v. Warner, 
 19 Conn. 7, 19 (1848). 
 
641 
 
 Ojppoxent's Eight of Initiative. 
 
 497 
 
 with the case, 1 as conversations upon another subject, 2 do not be- 
 come competent merely because made at the same time as a state- 
 ment which the opposing party has introduced. But it is not so 
 clear that the court may not properly permit the opponent of a 
 party who has given part of a specific utterance in support of a 
 given proposition to put in evidence other parts of the same utter- 
 ance so far as relevant on any issue in the case. This may be 
 permitted for one of two purposes additional to the mere supple- 
 menting of the parts already in evidence, (a) He may put in 
 other parts to sustain an independent theory of his own as to the 
 effect of entire declaration, or (b) he may use such additional 
 matter to establish a disconnected fact as to which he himself has 
 the initiative. Having a right to introduce this evidence at some 
 stage of the trial, whether it shall be done at one point or another, 
 is a question of the order of evidence, and entirely within the ad- 
 ministrative function of the judge — a matter of discretion. 3 In 
 
 1. Hathaway v. Tinkham, 148 Mass. 
 85, 87, 19 N. E. 18 (1888). "In 
 an action of replevin, a witness for 
 plaintiff testified to a conversation 
 with defendant in which the latter 
 made statements tending to rebut his 
 claim of title to the property in con- 
 troversy. On cross-examination the 
 witness testified that defendant also 
 said that he was so blind he could 
 not see, and that, if he should lose 
 the suit, he would go to the poor- 
 house. Held, that the last-mentioned 
 testimony was inadmissible, though 
 relating to the same conversation, 
 since it had no connection with the 
 issue involved." Atherton v. De- 
 freeze, 129 Mich. 364, 88 N. W. 886 
 (1902). "Where a party on the 
 trial of a cause avails himself of an 
 admission of his adversary to sustain 
 his action or defence, the opposite 
 party is entitled to prove such other 
 parts of the conversation had on his 
 part as tend to explain, modify or 
 even destroy the admission made by 
 him ; but it is not at liberty to call 
 for such parts of the conversation 
 had by him, as relate to assertions 
 made operating in his favor upon the 
 general merits of the case, but hav- 
 VOL. I. 41 
 
 ing no connection with the admission 
 made." Garey v. Nicholson, 24 
 Wend. (N. Y.) 350, 351 (1840). 
 
 Irrelevant statements have been ad- 
 mitted in the exercise of the court's 
 discretion. See Carlson v. Holm, 
 (Neb. 1901) 95 N. W. 1125. 
 
 2. Atherton v. Defreeze, 129 Mich. 
 364, 88 N. W. 886 (1902) ; Garey v. 
 Nicholson, 24 Wend. (N. Y.) 350, 
 352 (1840). "But there is an im- 
 portant limitation to the rule [that 
 all parts of an entire conversation 
 9hould be considered together], in 
 giving evidence of conversations or 
 of oral statements and declarations. 
 The proof in such case is to be con- 
 fined to what was said upon or con- 
 cerning those matters which are made 
 subjects of inquiry or investigation. 
 Every remark or observation made 
 upon those topics is to be " received 
 as competent evidence, because they 
 may essentially modify the character 
 and purport of the whole conversa- 
 tion, and vitally affect what might 
 otherwise appear to be explicitly as- 
 serted or denied." Com. v. Keyes, 
 11 Gray (Mass.) 323, 325 (1858). 
 
 3. See Witnesses. 
 
§§ 498, 499 B. Furtherance of Justice. 642 
 
 jurisdictions where a party is at liberty to develop his own case 
 upon cross-examination, 4 it will occur with especial frequency that 
 all parts of an entire conversation, or other oral utterance^ which 
 can be relevant for any purpose will be received at the instance of 
 the opponent. But under any practice in this particular a judge 
 may well find that the balance of convenience and fair play would 
 lie in receiving the entire set of declarations at one time, following 
 the analogy of a document, leaving each party to point out and 
 rely upon what they may deem relevant on any issue in the case, 
 rather than accept extracts at different times for different pur- 
 poses. Such a course has frequently been followed. 
 
 The trial judge may well require that upon the stage at which 
 supplementing is appropriate, every party be limited to the proof 
 of such further statements as relate to, or in some way qualify 
 the declaration originally put in evidence. 
 
 § 498. ( [2] Completeness Demanded; Oral Statements; 
 
 Opponent); Former Evidence. — The requirement regarding former 
 evidence, 1 to the effect that the reporting witness should be able 
 to state, in extension, the entire oral utterance, 2 is exceptional. 
 The general practice is to receive the statements of a witness as 
 to so much of the relevant parts of the conversation 3 or other utter- 
 ance, 4 as he heard ; — failure to hear the entire conversation being 
 a consideration properly affecting the weight. 6 
 
 § 499. ( [2] Completeness Demanded ; Oral Statements; 
 .Opponent) ; Independent Relevancy. — This consideration would 
 
 4. See Witnesses. Georgia. — Woolfolk r. State, 85 Ga. 
 
 1. Infra, § 1675. 69, 99, 11 S. E. 814 (1890). 
 
 2. If part of tie former testimony Louisiana. — State r. Spillers, 105 
 of a witness is admitted the whole is La. 163, 29 So. 480 (1900). 
 competent. Aulger r. Smith, 34 111. North Carolina. — State v. Robert- 
 534 (1864). Such additional evidence son, 121 N. C. 551, 28 S. E. 59 
 may, however, he properly limited to (1897). 
 
 statements which may fairly be said South Carolina. — State r. Gossett. 
 
 to qualify the evidence already re- 9 Rich. L. 428, 436 (1856). "That 
 
 ceived. Siberry v. State, 149 Ind. 684, which is heard may be given in evi- 
 
 39 N. E. 937 (1895) ; Re Chamber- dence, but that which is not heard 
 
 lain, 140 N. Y. 390, 393, 35 N. E. 602 cannot, of necessity." State r. Coving- 
 
 (1893). ton, 2 Bail. (S. ('.) 569, 570 (1S32): 
 
 3. State v. Elliott, 15 Iowa 72, 74 Shifflet's Case, 14 Gratt. (Va.) 652, 
 (1863) ; State v. Daniels, 49 La. Ann. (1858) (confession). 
 
 954, 22 So. 415 (1897). 5. Mays r. Deaver, 1 Iowa 216, 222 
 
 4. California. — People r. Daniels, (1855). 
 105 Cal. 262, 38 Pac. 720 (1894). 
 
643 INDEPENDENT RELEVANCY OE DOCUMENTS. § 500 
 
 be, for obvious reasons, of less importance in dealing with state- 
 ments independently relevant, 1 than where the statement shown is 
 relied upon as proof of the facts asserted in it. In either case, 
 however, the weight may be reduced below the point of relevancy. 2 
 It is no ground for excluding a statement that the declarant made 
 other disconnected statements at another time which are in con- 
 flict with it. 3 
 
 Rules relating to incorporation hy reference apply equally to 
 oral statements as to documents. Where an oral declaration is 
 made with such reference to a document, by whomever made, 4 or 
 a verbal statement, 5 by whomever uttered, as to be unintelligible, 
 or otherwise incomplete without it, the document or statement 
 will be received or required, according to its obvious necessity to 
 the case of the proponent. If the part admitted is reasonably 
 intelligible in the first instance, without the document or state- 
 ment to which reference is made, the opponent will be allowed to 
 supply it at a stage where he has the initiative. 
 
 § 500. ( [2] Completeness Demanded); Documents; Propo- 
 nent ; Independent Kelevancy — In case of a document used, not to 
 the end of proving a proposition but of establishing the exist- 
 ence of the document, or some statement contained in it, all 
 that need be proved is the existence of such a document or state- 
 
 1. People v. Dice, 120 Cal. 189, 52 Illinois. — Morris v. Jamieson, 205 
 Pac. 477 (1898) (threats); State V. 111. 87, 68 X. E. 742 (1903). 
 Moelchen, 53 Iowa 310, 314, 5 X. Ioioa. — Brayley v. Ross, 33 Iowa 
 W. 186 (1880) (foreign language; 505,508 (1871) ; Collins v. Bane, 34 
 one word — "knife" — recognized); Iowa 385, 389 (1872). 
 
 Shifflet's Case, 14 Gratt. (Va.) 652, Massachusetts. — Buffum v. York 
 
 657 (1858) (confession). Mfg. Co., 175 Mass. 471, 56 N. E. 599 
 
 2. William v. State, 39 Ala. 532 (1900) ; Trischet v. Ins. Co., 14 Gray 
 (1865) (confession interrupted before 457 (1860). 
 
 completion; excluded) ; People r. Gel- Oregon. — ■ Sturgis v. Baker, 39 Or. 
 
 abert, 39 Cal. 663 (1870) (confession 541, 65 Pac. 810 (1901). 
 
 partly in Spanish which the witness South Carolina. — McGrath r. Isaacs, 
 
 did not understand; excluded) ; State 1 Nott. & McO. (S. C.) 563, 573 
 
 v. Gilcrease, 26 La. Ann. 622 (1874). (1819). 
 
 3. Com. v. Chance, 174 Mass. 245, United States.— Mutual Benefit L. 
 54 N. E. 551 (1899); State v. Cowan, Ins. Co. v. Higginbotham, 95 U. S. 
 7 Ired. (N. C.) 239, 242 (1847); 380,390 (1877). See also Ingoldsby 
 State r. Gossett, 9 Rich. L. (S. C.) v. Juan, 12 Cal. 564, 577 (1859). 
 437 (1856) ; Jones v. State, 13 Tex. 5. Judd v. Brentwood, 46 X. H. 430 
 168, 177 (1854). (1866); Barker is. Barker, 16 X. H. 
 
 4. Alabama. — Amos v. State, 123 333, 339 (1844); Insurance Co. v. 
 Ala. 50, 26 So. 524 (1898) (postal Newton, 22 Wall. (U. S.) 32, 35 
 card; by third person). (1874). 
 
§ 501 B. FCETHEEAXCE OF JUSTICE. 644 
 
 ment. Proof is accordingly complete when this is done; 1 and the 
 extension of the evidence is limited in consequence. Where the 
 document is intended and offered for the purpose of showing 
 merely the fact of its existence and not for that of establishing 
 the truth of what it asserts, even the proponent is not at liberty 
 to read or use before the jury statements of alleged fact not ger- 
 mane to the document in its independently relevant capacity. 
 
 Pleadings at Law. — - Thus, a pleading may be offered as proof 
 of its existence, as formative of the issue, or otherwise. This 
 may be deemed to be its aspect of independent relevancy, 2 as 
 where, in case a deposition were tendered in evidence the plead- 
 ings of the cause in which it was taken are required to establish 
 the identity of the parties, the nature of the issue and the like. 3 
 
 § 501. ( [2] Completeness Demanded; Documents; Propo- 
 nent; Independent Relevancy); Judgment. — Thus, in case of a 
 judgment, all that need at times be proved is that, in point of fact, 
 such a judgment was rendered. Evidence of preliminary, subse- 
 quent or subordinate matters need be produced only so far as is 
 necessary to show that the judgment was rendered and specialize 
 as to what it covers. 1 But however circumscribed the purpose 
 for which the evidence is offered all of the record needed for this 
 limited purpose must be produced. 2 Xaturally, the minimum of 
 requirement as to what parts of a judgment should be produced 
 
 1. Milne r. Leisler, 7 H. & N. 786, Dickinson, 47 Ark. 120, 124, 14 S. W. 
 803 (1862) (notice to quit). 477 (1886). And, in general, the 
 
 2. Infra, §§ 257$ et seq. proof of contents of a judgment, when 
 An answer may he received in evi- disputed, is, whore inspection is not 
 
 dence without the other pleadings. convenient, by the use of full tran- 
 
 Edwards v. Mattingly, (Ky. 1899) 53 scripts rather than by the considera- 
 
 S. W. 1032. tion of extracts, though certified, or 
 
 3. Gordon v. Gordon, 1 Swanst. 165, even by the sworn testimony con- 
 170 (1818) ; iCorbett v. Corbett, 1 Ves. tained in a deposition. Mandeville v. 
 & B. 335, 336 (1813); Palmer r. Ay- Stockett, 28 Hiss. 398, 408 (1854); 
 lesbury, 15 Yes. Jr. 176 ( 1808 ) ; Bay- Carrick f. Armstrong, 2 Coldw. 
 ley i>. Wylie, 6 Esp. 85 (1807). (Tenn.) 265 (1865). But see also 
 
 1. Little Rock C. Co. v. Hodge, 112 White v. Clay, 7 Leigh (Va.) 68, 73 
 Ga. 521, 37 S. E. 743 (1900) ; Gibson (1836). Recitals in prior proceedings 
 v. Robinson, 90 Ga. 756, 763, 16 S. E. will not be accepted as «, substitute 
 969 (1892) ; McGuire v. Kouns, 7 T. for copies. Wilson v. Conine, 2 Johns. 
 B. Monr. 386 (1828); Lee Adm'x v. (N. Y.) 280 (1807). See also Winana 
 Lee, 21 Mo. 531, 534 (1855); Rainey v. Dunham, 5 Wend. (N. Y.) 47 
 r. Hines, 131 N. C. 318, 28 S. E. 410 (1830) ; McNeel-y t. Pearson, (Tenn. 
 (1897). 1897) 42 S. \V. 165 (probate of 
 
 2. On an issue of nul tiel record, will) ; White v. Clay, 7 Leigh (Va.) 
 extracts are not sufficient. Hallum r. 68, 78 (1836). 
 
645 
 
 Independent Eelevancy of Judgments. 
 
 501 
 
 is reached where the only object to be shown is that such a judg- 
 ment exists, 3 i. e., where the judgment is independently rele- 
 vant. 4 In the average case, where the final action of a court is 
 to be established as a fact, the limits of the proposition whose 
 truth has been passed upon must be made to appear with satis- 
 factory certainty. Thus, where a decree in chancery is offered 
 in evidence, the tender should be accompanied by the bill and 
 answer, 5 which may serve to particularize and render specific the 
 meaning of the decree. Similarly, in an action at law, the judg- 
 ment and the declaration and answer or other defensive pleading 
 are mutually necessary, each to the other, in determining what is 
 the precise force and effect of the judgment. The pleadings alone, 
 without the judgment book, 6 would be insufficient for the purpose 
 of formulating the precise point covered by it. The civil judg- 
 ment 7 and criminal conviction, 8 or atoquittal ° stand, in this re- 
 spect, in the same position. 
 
 Range of Proof Limited. — Where the only fact to be shown is 
 the existence of the judgment — in its independently relevant 
 capacity — the extension of the proof by record will, as a rule, 
 
 3. " It is a general rule, that rec- 
 ords, when used in evidence, must 
 be produced entire. But this rule ia 
 laid down with some exceptions and 
 limitations. The reason assigned for 
 it is, that the part of the record 
 which is lacking, may give (.he rest 
 a different meaning. Where a record 
 is used as evidence to prove the facts 
 therein contained, the rule well ap- 
 plies. But where it is only used aa 
 it is here, to shew the fact that there 
 was such judgment, then, so much 
 of the record as is relevant, is fre- 
 quently permitted to be used." Me- 
 Guire v. Kouns, 7 T. B. Monr. (Ky.) 
 386 (1828). 
 
 4. Infra, §§ 2574 et seq. 
 
 5. Leake v. Westmeath, 2 M. & Rob. 
 394 (1841). 
 
 Should the decree alone be procur- 
 able, on account of the destruction of 
 the other proceedings, it has been 
 deemed sufficient. Wilson v. Spring. 
 38 Ark. 181, 186 (1881). 
 
 6. Nims v. Johnson, 7 Cal. 110 
 (1857). Each part of a record should 
 
 not be certified. But the fact does 
 
 not furnish ground for exclusion. 
 Goldstone v. Davidson, 18 Cal. 41 
 (1861). The clerk's general certifi- 
 cate as a copy will be deemed a certifi- 
 cate of every part of the record pur. 
 porting to be under his certificate and 
 it will he assumed that the entire 
 record has been certified. Coffee v. 
 Neely, 2 Heisk. (Tenn.) 304, 307 
 (1871). 
 
 7. Campbell t'. Ayres, 6 Iowa 339. 
 344 (1858) ; Lewis v. Bullard. 3 
 Humph. (Tenn.) 207 (1842). But see 
 Lowry v. McDurmott, 5 Ycrg. (Tenn.) 
 225 (1833). 
 
 Where execution is relied on, the 
 judgment should also be submitted. 
 Richards v. Pearl, D. Chip. (Vt.) 113 
 (1797). 
 
 8. Doggett v. Sims, 79 iGa. 253, 257, 
 4 S. E. 909 (1877) ; McCully v. Mal- 
 com, 9 Humph. (Tenn.) 187, 192 
 (1848). See also Ocean S. S. Co. v. 
 Wilder, 107 Ga. 220, 33 S. E. 179 
 (1899). 
 
 9. Winemiller v. Thrash, 125 Ind. 
 353, 25 N. E. 350 (1890). 
 
§ 501 
 
 B. Furtherance of Justice. 
 
 646 
 
 be found to be much restricted, with especial readiness on the 
 part of the court where the part produced recites or indicates the 
 proper taking of constituent steps. 1 " But a copy of the " docket 
 entries " is not sufficient. 11 "Where the sole object of the evidence 
 is to show the appointment of a receiver, it will only be neces- 
 sary to prove the mere entry making the appointment. 12 The 
 fact to be shown being that a judgment was rendered, all that need 
 be produced is a record of the entry, provided the court had 
 jurisdiction. 13 On this principle, where a decree is used simply 
 for purposes of corroboration no need exists to introduce evidence 
 of the prior steps in the proceedings. 14 Where an indictment is 
 brought for an escape, the original sentence of imprisonment and 
 its execution may be proved by a transcript of the judgment with- 
 out attempting to show the entire proceedings. 16 In general, 
 where the sole object of the evidence is to show the existence of 
 the judgment, all that will be needed is to offer the judgment 
 entry or judgment roll rather than the entire record. 16 A common 
 instance of the situation is presented where a purchaser relies 
 
 10. Phillips r. Webster, 85 111. 146 
 (1877); McGuire i\ Kouns, 7 T. B. 
 Mon. (Ky.) 386, 18 Am. Dec. 187 
 (1828); Lee v. Lee, 21 Mo. 531, 64 
 Am. Dec. 247 (1855). 
 
 11. Ingham r. Crary. 1 Peru-. & 
 W. (Pa.) 389 (1830). 
 
 12. Ocean Steamship Co. r. Wilder, 
 107 Ga. 220, 33 S. E. 179 (1899). 
 
 13. Alabama. — Adams v. Olive, 62 
 Ala. 418 (1878). 
 
 Florida. — Watson r. Jones, 41 Fla. 
 241, 25 So. 678 (1899). 
 
 Georgia. — Stringfellow r. String- 
 fellow, 112 Ga. 494, 37 S. E. 767 
 (1900). See also Bush r. Lindsay, 24 
 Ga. 245, 71 Am. Dec. 117 (1S58). 
 
 Illinois. — Phillips, r. Webster, 85 
 111. 146 (1877). See also Turner r. 
 Hause, 199 111. 464, 65 X. E. 445 
 (1902). 
 
 Louisiana. — Baudin r. Roliff, 1 
 Mart. (X. S.) 165, 14 Am. Dec. 181 
 (1823). 
 
 Missouri. — Jones r. Talbot, 9 Mo. 
 121 (1845). 
 
 Vrip York. — Gardere r. Columbian 
 Ins. Co., 7 Johns. 514 (1811). 
 
 Xorth Carolina. — Rainey v. Hines, 
 121 N. C. 318, 28 S. E. 410 (1897). 
 
 Virginia. — Wynn p. Harman, 5 
 Gratt. 157 (1848). 
 
 England. — Jones i*. Randall, 1 
 Cowp. 17, Lofft, 383, 428 (1774), 
 
 14. Droop r. Ridenour, 11 App. Cas. 
 (D. C.) 224 (1898) (decree of di- 
 vorce ) . 
 
 15. Sanford r. State, 11 Ark. 328, 
 (1850) ; Hudgens r. Com., 2 Duv. 
 (Ky.) 239 (1865). 
 
 16. A rkansas. — Wilson v. Spring, 
 38 Ark. 181 (1881). 
 
 Kansas. — Haynes r. Cowen, 15 Kan. 
 637 (1875). 
 
 Kentucky.— Francis r. Hazlerig, 1 
 A. K. Marsh. 93 (1817); Chinn r. 
 Caldwell, 4 Bibb. 543 (1817). 
 
 Massachusetts. — Rathbone r. Rath- 
 bone, 10 Pick. 1 (1S30). 
 
 Virginia. — Wynn . r. Harman, 5 
 Gratt. 157 (1848). 
 
 West Virginia. — Guinn r. Bowers, 
 44 W, Va. 507, 29 S. E. 1027 (1898) ; 
 Waggoner v. Wolf, 28 W. Va. 820, 1 
 S. E. 25 (1886). See also Masters r. 
 Varner, 5 Gratt. (Va.) 168, 50 Am. 
 Dec. 114 (1S48). 
 
647 
 
 Self-Serving Statements ix Xotice. 
 
 § 502 
 
 on a sale under an execution as his muniment of title to -prop- 
 erty, 17 though the whole record has been required to determine, 
 as is said, the question of the jurisdiction of the court out of 
 which the execution issues. 18 For, should it appear that the j udg- 
 ment is that of an inferior court, or under a limited jurisdiction, 
 sufficient of the entire record must be shown to make it affirma- 
 tively appear that the court was acting, in the case in question, 
 within its jurisdiction. 19 
 
 § 502. ( [2] Completeness Demanded; Documents; Propo- 
 nent; Independent Relevancy); Notice to Quit, etc. — Sp, also, 
 to illus-trate, one who offers a notice to quit is not at liberty to 
 use, in any way likely to be regarded as evidence of their truth, 
 the self-serving statements of the writer as to why he is giving 
 the notice. 1 In view of the limited purpose for which the writing 
 is offered, such statements are irrelevant. 2 
 
 17. Indiana. — Woolen v. Rockafel- 
 ler, 81 Ind. 208 (1881). 
 
 Kentucky. — ■ McGuire v. Kouns, 7 
 T. B. Mon. 386, 18 Am. Deo. 187 
 (1828). 
 
 Sfississippi. — Cockeral v. Wynn, 13 
 6m. & M. 117 (18-49). 
 
 Missouri. — Lee v. Lee, 21 Mo. 531, 
 64 Am. Dec. 247 (1855). 
 
 Tennessee. — Lowry v. McDurmott, 
 5 Yerg. 225 (1833). 
 
 Texas. — Maverick v. Salinas, 15 
 Tex. 57 (1855). 
 
 18. Harper v. Rowe, 53 Cal. 233 
 (1878) ; McGehee v. Wilkins, 31 Fla. 
 83, 12 So. 228 (1893): Ashmead v. 
 Wilson, 22 Fla. 255 (1886) ; Kenyon 
 p. Baker, 16 Mich. 373, 97 Am. Dec. 
 158 (1868). ■Recitals, including those 
 concerning jurisdiction, may as they 
 appear on the face of the judgment tie 
 accorded "by the presiding judge con- 
 siderable weight in determining 
 whether he shall require the pro- 
 ponent to produce in the first instance 
 more than the judgment itself. Sim- 
 mons v. Threshour, 118 'Cal. 100, 50 
 Pac. 312 (1897) ; Dogan v. Brown, 44 
 Miss. 235 (1870) ; Monk v. Home, 38 
 Miss. 100, 75 Am. Dec. 94 (1859) ; 
 Blackburn v. Jackson, 26 Mo. 308 
 (1858). See also Downer P. Shaw, 22 
 N. H. 277 (1851); Buford v. Hick- 
 
 man, 4 Fed. Cas. No. 2,114a, Hempst. 
 232 (1834). 
 
 19. Florida. — Donald v. McXinnon, 
 17 Fla. 746 (1880). 
 
 Indiana. — Brown v. Eaton, 98 Ind. 
 591 (1884). 
 
 Kentucky. — Adams v. Tiernan, 5 
 Dana 394 (1837). 
 
 New York. — Simons v. -De Bare, 4 
 Bosw. 547 (1859). 
 
 Wisconsin. — Wells v. American Ex- 
 press Co., 55 Wis. 23, 11 N. W. 537, 
 12 N. W. 441, 42 Am. Rep. 695 
 (1882). 
 
 1. "As the Lord Chief Barcn 
 [Pollock, C. B.] reminds me, there is 
 a forcible instance in the case of 
 letters written by attornies before 
 action brought, which often contain 
 matter almost defamatory; but 
 though they might be admissible as 
 against the panties to whom they 
 were written, they would not be ad- 
 missible as evidence of all the facts 
 stated in them. Therefore it is 
 plain, that a document may be ad- 
 missible and yet not proof of all the 
 facts stated in it." Milne v. Leisler, 
 7 H. & N. 786, 803 (18612), per 
 Wilde. B. 
 
 2. Milne v. Leisler, 7 H. & N. 786, 
 803 (1862). 
 
§ 503 B. Furtherance of Justice. 64$ 
 
 § 503. ( [2] Completeness Demanded; Documents; Propo- 
 nent) ; General Practice. — Documents, viewed in their probative 
 capacity, i. e., as evidence of facts which their statements assert, 
 invite from their very nature, to an administrative practice fair 
 to both parties and also to tbe court, while avoiding unnecessary 
 loss of time. The practice is to require the proponent to produce, 
 in evidence, the entire document and then, the document being 
 in evidence as having been offered by the proponent, to permit 
 each party to read, at any appropriate stage, such portions of the 
 document as may be deemed material. The administrative prac- 
 tice, indeed, is perhaps especially applicable to cases in which a 
 voluminous mass of written statements is presented. Where, 
 indeed, an extensive document, as, e. g., a book claimed to be 
 libelous, is involved, oo- the written or printed report of an 
 extended oral statement, such as a speech said to have been cal- 
 culated to excite to crime, 1 is under consideration, the court may 
 from motives of practical convenience adopt the expedient of 
 allowing the party putting in the document to be assumed to have 
 put it all in evidence but to read only such portions as the party 
 deems material to his case. The other side, in turn, are allowed, 
 at an appropriate stage, to read and point out such other portion 
 as impresses them as important from their point of view. The 
 same practice may properly be applied to any other document, 2 
 
 1. It has, however, been held that S. Parnell] can on cross-examination 
 
 it is improper to offer en masse a refer to other portions which lie may 
 
 large number of exhibits. Dowie v. consider, and, if necessary, the cross- 
 
 Priddle, 116 111. App. 184 (1904). examination can be postponed until he 
 
 Thus, on hearing before the Parnell has had an opportunity of seeing the 
 
 Commission, when the speeches of cer- full speeches." Parnell Commission's 
 
 tain leaders of the Irish Land League Proceedings, Times' Rep. I, pp. 28, 
 
 were under investigation as calcu- 104 (188S). 
 
 lated to incite to criminal outrages, 2. Crawford r. Roney, 126 Ga. 763, 
 
 President Hannen ruled as follows: 55 S. E. 499 (1906). In an action 
 
 " The only regular course is this ( and for a libel contained in a newspaper, 
 
 whatever it leads to, it must be fol- the defendant has a right to have 
 
 lowed) : You, Sir Henry, [Sir Henry read, as part of the plaintiff's case, 
 
 James, Attorney General] will call another part of the same newspaper 
 
 attention to what you consider the referred to in the libel complained of. 
 
 material parts of the speech, and Sir Thornton »\ Stephen, 2 Md. & Rob. 46 
 
 C. Russell [Counsel for Hon. Charles note (1837). 
 
649 
 
 Entire Document Should be Read. 
 
 § 5 OC- 
 
 as the verbatim report of former evidence, 3 letters, 4 and other 
 documents not of record. 5 
 
 General Considerations. — In general the proponent of a docu- 
 ment produced in evidence cannot, it is said be required to read 
 the entire instrument on its presentation. 6 There is, however, as 
 in case of depositions, authority to the contrary effect, that the 
 proponent may be compelled to read the entire document before 
 proceeding with other evidence. 7 
 
 3. Waller v. State, 102 Ga. 684, 28 
 S. E. 284 (1897) (prosecution need 
 read only direct examination) ; Wal- 
 ler v. State, 102 Ga. 684, 28 S. E. 284 
 (1897). Infra, § 1700. 
 
 4. Georgia. — Lester V. Ins. Co., 55 
 Ga. 475 (1875). 
 
 Illinois. — Slingloff v. Bruner, 174 
 111. 561, 51 N. E. 772 (1898). 
 
 Massachusetts. — Robinson v. Cut- 
 ter, 163 Mass. 377, 40 N. E. 112 
 (1895). 
 
 New York. — Grattan v. Life Ins. 
 Co., 92 N. Y. 274, 284 (1883); Til- 
 ton v. Beecher, N. Y., Abbott's Rep. 
 II, 270 (1875). 
 
 United States. — Wright v. Bragg, 
 96 Fed. 729, 37 C. C. A. 574 (1899). 
 
 Letters written at another time 
 are not rendered competent by way of 
 supplementing a statement merely be- 
 cause they relate, in a general way, 
 to the same subject-matter. Thus, 
 where a defendant had produced, 
 upon notice, certain specified letters 
 written by defendant to his partner 
 and a letter book kept by him, con- 
 taining copies of the above letters, 
 it was held that defendant had no 
 right to read, in his own behalf, 
 other letters upon the same subject, 
 copied in the same book, but not 
 referred to in those read by the 
 plaintiff. In connection with this 
 ruling the court say: "Defendant 
 now says, ' as you prove the letters 
 by my book, I have a right to read 
 in evidence the whole of that book; 
 or at least the whole correspondence 
 on the subject, as it is found in the 
 same book. You produce a document 
 
 of my writing, and must read the 
 whole,' But how can this be called 
 a document?" Sturge v. Buchanan, 
 10 A. & E. 598 (1839). 
 
 5. Todd v. Crail, (Ind. 1906) 77 
 N. E. 402 ; Trustees v. Hogg, 2 Hawks 
 (N. C.) 370, 374 (1823) (petition). 
 
 G. Lester v. Ins. Co. 55 Ga. 475, 479 
 (1875) (letter); Slingloff v. Bruner, 
 174 111. 561, 51 N. E. 772 (1898); 
 Wright v. Bragg, 96 Fed. 729, 37 C. 
 C. A. 574 (1899) ; Eaton's Trial, 23 
 How. St. Tr. 1030 (1794). 
 
 7. Milne v. Leisler, 7 H. & N. 786, 
 795 (1862). If one party reads a 
 portion of a written document in 
 evidence in his behalf, the other 
 party is entitled to the reading of 
 the remaining portions thereof, be- 
 fore the intervention of other testi- 
 mony. Spanagel v. Dellinger, 38 Cal. 
 279, 283 (1869) (former pleadings). 
 
 The question is one entirely of ad- 
 ministration and the attempt to ele- 
 vate this small matter of practice into 
 a rule of evidence results chiefly in 
 confusion and impediment to the or- 
 derly course of judicial proceedings. 
 Against the obvious fairness of plac- 
 ing the entire matter immediately be- 
 fore the triers, — preventing at once 
 any possible misconception from an 
 unfair selection of extracts, — must 
 be placed the practical danger that 
 time may be wasted in reading what 
 nobody cares to put in as part of his 
 case. The danger from garbled ex- 
 tracts is apt to be overestimated, as 
 the inevitable reaction in the minds 
 of the jury outweighs, in most in- 
 stances, any temporary advantage to 
 
B. Furtherance of Justice. 
 
 650 
 
 For obvious reasons the same opportunity of inspection and 
 consequent optional use is not afforded in case of oral statements. 
 An increased stringency of requirement as to completeness in the 
 first instance is therefore made in oral as compared with written 
 declarations. 
 
 § 504. ( [2] Completeness Demanded; Documents; Pro- 
 ponent); Depositions. — The party who has taken a deposition 
 or given his own, 1 need, in the first instance, read only the direct 
 examination, 2 or such portion of it as he deems material, 3 sub- 
 ject to immediate correction by the judge, in case of obvious 
 unfairness, 4 or for other cause. This he may do of his own 
 accord ° or at the instance of opposing counsel, and subject also 
 
 be gained, while few courts or counsel 
 would fail to yield at once to a de- 
 mand for the correction of a palpable 
 mi srepresentation. 
 
 1. Thomas r. Miller, 151 Pa. 482, 
 486, 25 Atl. 127 (1892). 
 
 2. The practice, which seems a con- 
 venient one, has not been adopted in 
 England. Temperley v. Scott, 5 C. 
 & P. 341 (1832). Nor is it accepted 
 in a majority of American jurisdic- 
 tions. 
 
 California. — Orland t". Finnell, 65 
 Pac. 976 (1901). 
 
 Georgia. — MeArdle v. Bullock, 45 
 Ga. 89, 92 (1872). 
 
 Kansas. — Grant r. Pendery, 15 
 Kan. 236, 243 (1875). 
 
 Missouri. — Hill r. Sturgeon, 28 Mo. 
 323, 329 (1859). 
 
 yebraska. — ■ Converse r. Meyer, 14 
 Neb. 190, 15 X. W. 340 (1883). 
 
 See also Alexander v. Grand Lodge, 
 119 Iowa 519, 93 N. W. 508 (1902). 
 
 It is, however, necessary to read 
 only such portions as are relevant or 
 material. Walkley v. Clark, 107 Iowa 
 451, 78 N. W. 70 (1899) ; Kilbourne 
 r. Jennings, 40 Iowa 473, 474 (1875). 
 The requirement of completeness in 
 this respect has been carried so far 
 as to make it necessary that the party 
 introducing the deposition should read 
 the whole, though the only purpose 
 is one of independent relevancy, e. g., 
 to show inconsistent statements. 
 Hamilton r, People, 29 Mich. 195, 198 
 
 (1874) ; Lightfoot r. People, 16 Mich. 
 507, 511, 516 (1868). Infra, § 1779. 
 The stringency of the rule is some- 
 what relaxed where the party who 
 tqok the deposition declines to use it 
 and his opponent sees fit to do so. 
 Under these circumstances, it is, as a 
 rule, sufficient if he read all that per- 
 tains to any given subject. 
 
 Iowa. — Citizens' Bank v. Ehutasel, 
 67 Iowa, 316, 319, 25 N. W. 261 
 (1SS5). 
 
 Minnesota. — Watson r. St. P. C. 
 R. Co., 76 Minn. 358, 79 X. W. 303 
 (1899). 
 
 Nebraska. — Hamilton B. S. Co. r. 
 Milliken, 62 Xeb. 116, 86 X. W. 913 
 (1901). 
 
 North Dakota.— First Xat'l Bank 
 r. Minneapolis & X. E. Co., 11 X. D. 
 280, 91 X. W. 436 (1902). 
 
 Pennsylcania. — Calhoun v. Hays, 8 
 W. & S. 127, 130 (1844). 
 
 Even this indulgence is not univer- 
 sally accorded. Hill v. Sturgeon, 28 
 Mo. 323, 329. 
 
 3. Bunzel r. Maas, 116 Ala. 68, 22 
 So. 563 (1897). 
 
 The entire direct examination must, 
 it is said, be read in the original in- 
 stance. Southwark Ins. Co. r. Knight. 
 6 Whart. (Pa.) 327, 330 (1841). 
 
 4. The whole of any particular 
 answer must be read. Perkins r. Ad- 
 ams, 5 Mete. (Mass.) 44, 4S (1842). 
 
 5. Watson r. R. Co.. 76 Minn. 358, 
 79 X. W. 308 (1899). 
 
651 
 
 COMPLETENESS OF WkITTEX ADMISSIONS. 
 
 § 505 
 
 to subsequent supplementing by the opposing side as shall appear 
 to them to be in their interest. 6 The subsequent answers, read by 
 way of supplementation, are the evidence of the taker of the 
 deposition, though not read by him. 7 
 
 § 505. ( [2] Completeness Demanded; Documents; Pro- 
 ponent) ; Admissions. — Where an admission is in writing it is 
 particularly appropriate, as in case of oral admissions, that the 
 self-serving portion go to the jury at the same time as the portion 
 more favorable to the proponent, providing the two are needed to 
 give the effect of the statement as a whole. This is the practice 
 not only where the statements are made at or about the same time, 
 o. g., were parts of a single transaction; but where, as in case of 
 an account, 1 the entries, both of charge and discharge are made 
 
 6. This is optional with them. Wil- 
 liams v. Kelsey, 6 Ga. 365, 375 
 (1849) ; Byers v. Orensstein, 42 Minn. 
 386, 44 N. W. 129 (1890). But 
 should the cross-examining party 
 decline to take advantage of the 
 option, the proponent of the evidence 
 may still himself introduce the cross- 
 examination. Williams v. Kelsey, 6 
 Ga. 365, 375 (1849). 
 
 7. Reed v. Ins. Co., 117 Ga. 116, 43 
 S. E. 433 (1903). 
 
 1. Georgia. — Bridges v. State, 110 
 Ga. 246, 34 S. E. 1037 (1900) (entire 
 book introduced). 
 
 Illinois. — Boudinot v. Winter, 190 
 111. 394, 60 N. E. 553 (1901). 
 
 Ioioa. — Veiths v. Hagge, 8 Iowa 
 163, 189 (1859) (items in entire 
 book). 
 
 Louisiana.—' Wakeman v. Mar- 
 quand, 5 Mart. La. (N. S.) 265, 272 
 (1826). 
 
 Maryland. — King v. Maddux, 7 H. 
 & J. 467 (1824) (all items between 
 same parties in same book). 
 
 New York. — Dewey v. Hotchkiss, 30 
 N. Y. 497, 502 (1864); Pendleton v. 
 Weed, 17 N. Y. 73, 76 (1858) ("the 
 whole relating to same matter"). 
 
 Xorlh Carolina. — Turner v. Child, 
 1 Dev. 133 (1826). 
 
 Pennsylvania. — Thommon v. Kal- 
 bach, 12 S. & R. 238 (1834). 
 
 Vermont. — State v. Powers, 72 Vt. 
 168, 47 Atl. 830 (1900) ; Mattocks v. 
 Lyman, 18 Vt. 98, 103 (1846). 
 
 Virginia. — Jones v. Jones, 4 Hen. & 
 M. 447 (1909). See also Robertson 
 v. Archer, 5 Rand. (Va.) 319, 324 
 (1827). 
 
 West Virginia. — Rowan v. Cheno- 
 weth. 49 W. Va. 287. 38 S. E. 544 
 (1901). 
 
 United States. — Bell v. Davidson, 3 
 Wash. C. C. 328, 333 (1818) ; Morris 
 V. Hurst, 1 Wash. C. C. 433 (1806). 
 
 England. — Rowland v. Blaksley, 1 
 Q. B. 403 (1842). But see, 
 excluding entries in other parts 
 of the book, Oatt v. Howard, 3 
 Stark. 6 (1820) ; Kilbee v. Sneyd, 2 
 Molloy Chan. 186, 193 (1828); 
 O'Brien v. O'Brien, 27 N. Br. 145, 
 156, Can. Sup., in Cassels 5 Dig. 1893, 
 p. 297 (1888); Palmer v. Gilbert, 1 
 All. N. Br. 505 (1849). 
 
 After a defendant has availed him- 
 self of the plaintiff's books of ac- 
 count, to establish certain credits in 
 his favor, it is competent for the 
 plaintiff to read from the same 
 books charges and entries which 
 show that those credits have been ex- 
 hausted by counter charges of debit, 
 made at about the same time and 
 afterwards. The defendant cannot 
 use the books to establish credits in 
 
§ 506 
 
 B. Furtherance of Justice. 
 
 652 
 
 at different times. If the proponent claims the advantage of the 
 concessions, he must take it cum onere, subject to the offsetting 
 claims which the declarant makes, in this particular matter, in 
 his own favor. 2 
 
 § 506. ( [2] Completeness Demanded; Documents; Pro- 
 ponent) ; Public Records. — Public record as a rule is afforded to 
 instruments constituent of legal results. The interdependence of 
 parts being especially marked in instruments, of this, nature, a 
 full copy of the original record, which itself, is usually irremov- 
 able, alone demonstrates whether a particular conclusion is justi- 
 fied by the instrument; or whether, on the contrary, some minor 
 and perhaps disconnected clause may modify and indeed control 
 the alleged meaning and effect. Such a full copy being as readily 
 obtained as a partial one, the court is justified in so discharging 
 its administrative function as to require that it be done. The liti- 
 gant offering any part of a public record puts in evidence a copy 
 of the whole of that record 1 and, thereupon, reads or otherwise 
 states the portion on which he actually relies. 2 While reasonable 
 
 his favor, and uno flalu deny to 
 the plaintiff the full benefit of the 
 charges therein against him. He 
 must take the whole or none; and 
 having elected to put the hooks in 
 evidence, for his own henefit, he can- 
 not afterward be permitted to de- 
 prive the plaintiff of the benefit of 
 any charges therein in his favor. In 
 such a case it is wholly, unimportant 
 whether the whole or any portion of 
 the entries are in the handwriting of 
 the plaintiff. Dewey v. Hotchkiss, 30 
 N. Y. 497, 502 (1864). When books 
 are produced on notice, and entries 
 are read in evidence by the party 
 calling for them, the party producing 
 them may read other entries neces- 
 sarily connected with the former en- 
 tries, if made prior to the commence- 
 ment of the suit. Withers v. Gil- 
 lespy, 7 S. & R. (Pa.) 10, 14 (1821). 
 Entries made after suit lack the 
 element of good faith essential to rele- 
 vancy and are excluded. Withers v. 
 Gillespy, 7 S. & R. (Pa.) 10, 15 
 (1821). An entirely different book 
 cannot be placed in evidence by vir- 
 tue of the principle. Doolittle v. 
 
 Stone, 136 N. Y. 613, 616, 32 N. E. 
 639 (1892). 
 
 The rule is the same in equity as 
 at law. If one side of an account 
 produced by the adversary is used, 
 both must be taken. The account 
 must be adopted altogether, or re- 
 jected in toto. Kilbee v. Sneyd, 2 
 Moll. 186, 193 (1828). 
 
 2. Infra, § 2734. 
 
 1. Smith v. Rich, 37 Mich. 549 
 (1877) ; State v. Clark, 41 N. J. L. 
 486 (1879) ; Wood v. Knapp, 100 N. 
 Y. 109, 2 N. E. 632 (1885). See also 
 Garrish v. Hyman, 29 La. Ann. 28 
 (1877). 
 
 So far as the copy is proved by the 
 certificate of the custodian of the rec- 
 ord, as is the common statutory prac- 
 tice, it would be difficult to offer an 
 extract, or the substance or effect of 
 the record ; — as the authority of the 
 custodian is, as a rule, limited to the 
 certification of copies, i. e., entire 
 copies. The fact does not affect copies 
 established by the evidence of an ex- 
 amining witness. 
 
 2. Davis r. Mason, 4 Pick. (Mass.) 
 156 (1826). 
 
653 Extracts From Record Not Received. § 506 
 
 exactness in the copy will be required, no objection can be raised 
 to a copy that blanks have been left in it where the original docu- 
 ment cannot be deciphered. 3 The canon of completeness does not 
 require that where a record is contained in a book, that the whole 
 volume should be offered; copies sufficiently extensive to cover 
 the entire relevant fact or transaction satisfies the rule. 4 
 
 Extracts will not be received, e. g., from letters addressed to 
 public officials. 5 A leaf out of a public record will not be accepted 
 in evidence, while the whole of a book from which it has been 
 torn can be presented. 6 Should the entire volume, thus mutilated, 
 be offered, the question is one of administration. Standing alone, 
 without additional circumstances generating a feeling of suspicion, 
 the loss of the leaves, though unexplained, would probably not 
 be cause for rejecting the book. 7 
 
 Bucli a course is not only in the interest of fair play but cal- 
 culated to assist in the attainment of justice. 8 The party who 
 proposes to prove a fact by the introduction of a public record, 
 must produce a copy of the entire record. The record being 
 accessible to the public in its entirety, no reason, as a rule, exists 
 why the tribunal should submit to the risk of being misled by 
 garbled extracts, selected by the respective parties in their own 
 (assumed) interest. 9 Selection of extracts easily gives rise to an 
 
 3. Willey v. Portsmouth, 35 N. H. 9. "At common law, the copy of a 
 303 (1857). paper writing could not be given in 
 
 4. Woods v. Banks, 14 N. H. 101 evidence when the original was in 
 (1843) ; Wallace v. Douglas, 114 N. existence and in the power of the 
 C. 450, 19 S. E. 66<3 (1849). The party; hut the act of the legislature 
 copy must fairly represent the entire of 1731 (P. L. 117, 1 Brev. 315) 
 transaction or set of transactions authorizes attested copies of all 
 relevant to the inquiry. Thus while records certified by the clerks of the 
 every account between the parties Courts, to be given in evidence, 
 need not be produced, a copy of an When an act of the legislature is in 
 account will not be received if that abrogation of the Common Law, it 
 part is imperfect or misleading — is to be strictly construed, and even 
 as by stating debits and omitting without the aid of this rule it ap- 
 credits. U. S. v. Gaussen, 19 Wall. pear3 to me obvious that the legis- 
 (U. S.) 198, 22 L. ed. 41 (1873). lature never intended by the term 
 
 5. Hammatt v. Emerson, 27 Me. 308, copies, to make extracts evidence ; 
 46 Am. Dec. 598 (1847). the terms themselves are of different 
 
 G. U. S. v. Cummings, 25 Fed. Cas. import, and besides the mischiefs of 
 
 No. 14,900 (1855). confounding them appear to me too 
 
 7. People v. Hancock County, 21 manifest to need exposure.'' Vance 
 111. App. 271 (1886). v. Reardon, 2 N. & McO. (S. C.) 
 
 8. Vance v. Reardon, 2 N. & McO. 299, 303 (1820). 
 (S. C.) 299 (1820). 
 
§ 506 B. Fvrthebaxce of Justice. 654 
 
 inference of suppression. 10 Abstracts of n or extracts from 12 a 
 record cannot be introduced in evidence, even in the statements 
 of a deposition. 13 
 
 litis principle of administration correlates readily with the 
 usual statutory regulation that an official in charge of a public 
 record may certify the accuracy of a verbatim copy of the records 
 in his charge but not as to their substance or effect. Sworn or 
 examined copies are, however, still competent. 14 What shall be 
 deemed to constitute the entire record, within the meaning of 
 this rule of practice depends largely upon the nature and form 
 of the record itself;- — due scope being given to the assumption 
 ("presumption") of regularity in postulating former propriety 
 of procedure in preliminary steps from the existence of a definite 
 result to which these prior steps were necessary. 10 
 
 Deeds, ^Yills, etc. — Records, as those of deeds,, wills, and the 
 like which are customarily copied in extenso are proved by ver- 
 batim copies, duly certified by an official or proved, under oath, 
 by an examining witness. 
 
 Other records consist, in most jurisdictions, of a series of single 
 entries frequently consisting of one or more lines, each relating 
 to a single subject. Proof is necessarily restricted to the single 
 entry, however syncopated or fragmentary. 16 This is equally 
 
 10. When the party offering a so full and complete as to be sub- 
 record in evidence, alleges it to be stantially a copy." is the standard of 
 incomplete, and offers a transcript of requirement. Eaton v. Hall, 5 Mete, 
 the part omitted, the court may re- CMass.) 287, 290 (1842). 
 ceive both as proof of the whole 15. Infra, §§ 1193 et scq; McXeely 
 record. "As he apprised the op- r. Pearson, (Tenn. 1897) 42 S. W. 
 posite party of the defect, it was 165 (will) ; Newman t: T. C. S. & 
 proper to give him the means of I. Co., 80 Fed. 228, 25 C. C. A. 382 
 curing it." Dismukes v. Musgrove, (1897) (probate of will). 
 8 Mart. (N. S.) (La.) 375, 381 16. "An extract is evidence, if it 
 (1829). appears on its face to contain all 
 
 11. Mercier r. Harnan, 39 La. Ann 
 
 94, 1 So. 410 (1887) (marriage con 
 tract) ; Atkins r. Lewis, 14 Gratt, 
 (Va.) 30, 34 (1S57) (land patent) 
 
 12. Such extracts have been re 
 ceived, under special circumstances 
 
 that relates to the subject in con- 
 troversy. It cannot be deemed neces- 
 sary for a party to go to the expense 
 of copying large plots and maps con- 
 taining irrelevant matter." Farr v. 
 Swan, 2 Pa. St. 245, 256 (1845). 
 
 Robinson r. Gillman, 3 Vt. 163, 164 The complete entry must be 
 
 (1831) (land warrant). proved. — Thus, where a clerk's certifi- 
 
 13. Hamilton v. Shoaff, 99 Ind. 63, cate of a marriage failed to contain 
 65 (1884) (deed). the minister's name, it was rejected. 
 
 14. See Documentary Evidence. State r. Colby, 51 Vt. 291, 295 (1878). 
 " Proof of a copy, or of the contents 
 
65."i C'ojipij;tk Pkoof of Statutes. §§ 507, 508 
 
 true whether the record is one connected with the executive, legis- 
 lative or judicial branches of the government. 
 
 § 507. ( [2] Completeness Demanded ; Documents; Pro- 
 ponent; Public Records); Executive. — The executive depart- 
 ment of government affords numerous instances of records to 
 which the requirement of completeness is constantly being ap- 
 plied; — whether these public documents are those made in ex- 
 tenso, or consist of what may be called " single entry " records. 
 Of this latter class are parish registers of births, marriages and 
 deaths, 1 and municipal official records covering the same data, 2 
 plats of lots, 3 tax lists. 4 
 
 Other public executive documents, such as official bonds* which 
 are not usually extended upon a permanent record, but kept on 
 file, are subject, in their proof, to the same rule. A complete 
 copy will reproduce the marginal comments, entries 8 or references, 
 if any, made by official authority. Where a record is incon- 
 veniently voluminous, it may be summarized ; 7 but mere length 
 does not apparently suspend the operation of the rule. 8 
 
 § 508. C [2] Completeness Demanded; Documents; Pro- 
 ponent; Public Records) ; Legislative. — Where proof is required 
 of a statute, only such .portions need be introduced in evidence 
 as are material, 1 and relate to the proposition in issue, 2 whether 
 the proof is by deposition 3 or otherwise, and whether the statute 
 be domestic 4 or foreign. 5 
 
 1. American Life Ins. Co. v. Rosen- 8. Nelthrop v. Johnson, Clayt. 143 
 agle, 77 Pa. 507, 515 (1875). (1650). 
 
 2. State v. Potter, 52 Vt. 33, 38 1. Swift v. Fitzhugh, 9 Port. (Ala.) 
 (1879); State V. Colby, 51 Vt. 891, 39, 54 (1839). 
 
 295 (1878); Blair v. Sayre, 29 W. 2. Chamberlain v. Maitland, 5 B. 
 
 Va. 604, 606, 3 S. E. 97 (1887). Monr. (Ky.) 448 (1845) (law as to 
 
 3. Farr v. S>wan, 2 Pa. St. 245, 255 holidays) ; Adle v. Sherwood, 3 Whart. 
 (1845). ( Pa -) 481 > 483 (1838). 
 
 4. Job v. Tebbetts, 10 111. 376, 380 The title of a statute is not suffi- 
 
 (1848) ; State V.Howard, 91 Me. 396, cient to establisn Hs effect. State t>. 
 
 40 Atl. 65 (1898) (liquor tax pay- We,9h ' 3 . Hawks < N - C > 404 ' 407 
 H v " (1824) (incorporation). 
 
 .'-,,, tt i • o, t j , M 3- Biesenthall r. Williams, 1 Duv. 
 
 5. State v. Hawkins, 81 Ind. 486, ._ „ 0Q /10 ,., _, ' . 
 , 1aa9 . (Ky-) 339 (1864); Chamberlain v. 
 
 4S ' < 1B(W >- Maitland, 5 B. Monr. (Ky.) 448 
 
 6. Rice V. Cunningham, 29 Cal. 492, (lg4B) (foreign notary) _ 
 
 497 (1866) (official grants; "not 4. Grant's Succession, 14 La. Ann. 
 
 taken"); Cary v. Cary, 189 Pa. 65, 795 (1859). 
 
 42 Atl. 19 (1899) (satisfaction of a 5. Chamberlain v. Maitland, 5 B. 
 
 mortgage). Monr. (Ky.) 448 (1845); Grant V. 
 
 7. Infra, § 2709. Coal Co., 80 Pa. 208, 216 (1876). 
 
§ 509 B. Furtherance of Justice. 656 
 
 § 509. ( [2] Completeness Demanded; Documents; Pro- 
 ponent; Public Records); Judicial. — In no connection is the ap- 
 plication of the principle of completeness at once so difficult and 
 so important as in regard to judicial records. The requirement 
 is strongly insisted upon by the presiding judge, in the interest 
 of public justice. 1 The opponent may object to the reception of 
 any judicial document on the ground that it is not complete. 
 Such an objection, however, will receive no consideration where 
 the proponent would have completed his tender had the opponent 
 permitted him to do so. 2 The question of what shall be deemed 
 a complete record for proof of a given fact is, in any case, a ques- 
 tion of administration. No precise rule, other than the necessity 
 for the use of reason, can, in the nature of the case, be formu- 
 lated. 3 Some consideration as to what other judges have done 
 may, perhaps, assist to suggest what is reasonable administration 
 in a similar case. 
 
 Irrelevancy, if Separable, Rejected. — Where an entire record 
 cannot, by any possibility, ever become material on an issue, but 
 a line of clear demarkation may be traced between relevant and 
 irrelevant parts of the record, the proponent may rest content 
 upon offering the former portions of the writing. For example, 
 where the only object in using a record is to show an admission. 4 
 
 1. Florida. — Walls v. Endel, 20 Fla. Virginia. — White v. Clay, 7 Leigh 
 
 86 (1883). 68 (1836). 
 
 Illinois. — Vail v. Iglehart, 69 111. 2. Diamukes v. Musgrove, 8 Mart. 
 
 332 (1873). (N. S.) (La.) 375 (1828). 
 
 Kentucky. — McGuire <o. Kouna, 7 3. Kansas. — Haynes v. Cowen, 15 
 
 T. B. Mon. 386, 18 Am. Dee. 187 Kan. 637 (1875). 
 
 ( 1828 ) . Kentucky. — McGuire v. Kouna, 7 
 
 Louisiana. — Diamukes v. Musgrove, T. B. Mon. 386, 18 Am. Dec. 187 
 
 8 Mart. (N. S.) 375 (1829). (1828). 
 
 Maine. — Jay v. East Livermore, 56 Maine. — Hammatt v. Emerson, 27 
 
 Me. 107 (1868). Me. 308, 46 Am. Dec. 598 (1847). 
 
 Maryland. — Orendorff v. Mumma, 3 New Hampshire. — Newbury Bank r. 
 
 Harr. & J. 70 (1810). Eastman, 44 N. H. 431 (1862). 
 
 Michigan. — Piatt v. Stewart, 10 New York. — Packard r. Hill, 7 
 
 Mich. 260 (1862). Cow. 434 (1827). 
 
 Missouri. — Philipson v. Bates, 2 Vermont. — Robinson v. Gillman, 3 
 
 Mo. 116, 22 Am. Dec. 444 (1829). Vt. 163 (1831). 
 
 Pennsylvania. — Tngham v. Crary, 1 4. Gay v. Rogers, 109 Ala. 624, 20 
 
 Penr. & W. 389 (1830). So. 37 (1895); Clayton v. Clayton, 
 
 South Carolina. — Wilson t>. Harper, 4 Colo. 410 (1878) ; Henderson r. 
 
 5 S. C. 294 (1874). Cargill, 31 Miss. 367 (1856) ; Gregory 
 
 Tennessee.— Phipps v. Caldwell, 1 V. Pike, 94 Me. 27; 46 Atl. 793 (1900). 
 
 Heisk. 349 (1870). So of an admission in the pleadings 
 
657 Proof of Equity Pleadings. §§ 510, 511 
 
 Part Complete in Itself Sufficient. — It has been ruled that a 
 party may be permitted to produce only that portion of a docu- 
 ment which establishes the fact on which he relies; 5 — provided 
 the proof is complete in itself, and may, for that reason, be sepa- 
 rated readily from the remainder of the record. 8 To prove, for 
 example, naturalization it is not necessary to prove the existence 
 of preliminary facts essential to the validity of the decree. 7 
 
 It is assumed that the other side is at liberty to produce any 
 other portion of the record which he deems material to his side 
 of the controversy. 8 
 
 § 510. C [2] Completeness Demanded; Documents; Pro* 
 ponent; Public Records) ; Pleadings at Law. — In connection with 
 the pleadings themselves, whether in equity or at law, substantially 
 the same canons of administration are adopted; — the existence 
 of rules of substantive law or procedure very properly furnishing, 
 as in other connections, factors of no slight importance in deter- 
 mining the exercise of the discretion, even where they are not 
 controlling in their operation. Pleadings may be offered for 
 either of two purposes. In the first place, as is shown elsewhere, 
 the statement may be independently relevant, i. e., by reason of 
 its own existence regardless of the truth of the facts asserted. Or, 
 on the other hand, the pleading may, as where it contains an 
 admission, be used as constituting evidence of something asserted 
 by it, i. e., in what may be called its probative or assertive ca- 
 pacity. 
 
 § 511. ( [2] Completeness Demanded; Documents; Pro* 
 ponent; Public Records); Pleadings in Chancery. — In dealing 
 
 with pleadings in chancery causes the bill, as a whole, should be 
 
 of another case. German- American United States. — O'Hara v. Mobile, 
 
 Ins. Co. v. Paul, 2 Indian Terr. 625, etc., R. Co., 76 Fed. 718, 22 C. C. A. 
 
 53 S. W. 442 (1899). 512 (1896). 
 
 5. Illinois. — Walker v. Doane, 108 6. Haynes v. Cowen, 15 Kan. 637 
 
 III. 236 (1883). (1875). 
 
 Indiana. — Anderson v. Ackerman, 7. The Acorn, 1 Fed. Cas. No. 29, 
 
 88 Ind. 481 (1883). Compare Brown 2 Abb. 434 (1870). See also Ritchie 
 
 v. Eaton, 98 Ind. 591 (1884). v. Putnam, 13 Wend. (N. Y.) 524 
 
 Texas. — Maverick v. Salinas, 15 (1835) ; Stark v. Chesapeake Ins. Co., 
 
 Tex. 57 (1855). 7 Cranch (U. S.) 420, 3 L. ed. 391 
 
 West Virginia. — McClaugherty v. (1813). 
 
 Cooper, 39 W. Va. 313, 19 S. E. 415 8. Walker V. Doane, 108 111. 236 
 
 (1894). See also Dickinson v. Chesa- (1883). 
 peake, etc., R. Co., 7 W. Va. 390 
 (1874). 
 
 Vol. I. 42 
 
§ 511 B. Furtherance of Justice. (358 
 
 produced by the opponent; and so much of it read by him, subject 
 to supervision by the court and correction by his antagonist, as 
 fairly covers, to a reasonable extent, 1 the particular aspect or 
 portion of the bill which be deems relevant to the truth of a propo- 
 sition in issue. 2 In equity causes where the answer is treated as 
 a pleading, e. g., when used in the cause in which it was filed, the 
 same rule as to completeness is applied. 
 
 An answer in chancery stands in a somewhat different position 
 from the bill, in this, that it is not only, like the bill, a pleading, 
 but is, in a special sense, the personal statement competent as an 
 admission. It follows that, in its aspect of a pleading, i. e., as 
 assisting to formulate the issues, the same rules as are applicable 
 to the bill, regulate also the completeness of the answer. The 
 proponent is entitled to read in proof of any fact in his case so 
 much of the answer as he deems to be fairly necessary to enable 
 him to prove it in this way; — subject to supplementing by the op- 
 posing interest. Such is also the rule when an answer in equity 
 is used in an action at law as an admission. 3 The same course 
 has been adopted as to documents produced as part of the answer : 4 
 the plaintiff may use such portions of the defendant's answer in 
 
 1. To introduce in evidence part of 4. " The uniform opinion of the 
 ' a writing, such as a bill in equity, judges of the courts of common law 
 
 and withhold from the jury the bal- is, that when a bill of discovery has 
 ance of the instrument, it is at least been filed, to which an answer has 
 necessary to point out definitely the been put in, and documents are pro- 
 part offered, that is, the pages, para- duced at the trial, as part of the 
 graphs, sentences or words. When answer, in which character alone the 
 this is not done, the whole or none plaintiff in equity is entitled to use 
 should go to the jury. Jones v. them, the whole answer must be 
 Grantham, 80 Ga. 472, 477, 5 S. E. read; but, on the other hand, when a 
 764 (1888). court of equity has interfered, and 
 
 2. Jones v. Grantham, 80 Ga. 472, has ordered the documents to be pro- 
 476, 5 S. E. 764 (1888). duced and read, the court of law, 
 
 3. Benedict v. Nichols, 1 Boot sitting at Nisi Prius, pays such re- 
 (Conn.) 434 (1792) ; Lawrence v. Ins. spect to the order of the court of 
 
 Co., 11 Johns. (N. Y.) 241, 260 (1814); equity, that it allows the documents 
 
 Hoffman v. Smith, 1 Caines (N. Y.) to be read alone, without inquiring 
 
 157 (1803) ; Brown v. Thornton, 1 into the grounds of the order. That 
 
 Myl. & C. 243, 246 (1836) ; Butter- is the rule established by law, and it 
 
 worth V. Bailey, 15 Ves. Jr. 358, 362 is consistent with what is the situa- 
 
 ( 1808 ) ; Ormond v. Hutchinson, 13 tion of the parties.'' Brown v. 
 
 Ves. Jr. 47, 53 (1806). See also Thornton, 1 ilyl. & Cr. 243, 248 
 
 Roberts r. Tennell, 3 T. B. Mon. (Ky.) (1836). 
 247 (1826) ; Duncan i: Gibbs, 1 Yerg. 
 (Tenn.) 256 (1829). 
 
659 
 
 Use of Answer Undeb, English Practice. § 511 
 
 the cause as he may deem favorable to himself, 5 preserving only 
 essential grammatical construction, 6 and so incorporating matters 
 to which reference is made, or which are necessary in explanation, 7 
 as will render the extracts used complete, 8 so far as relates to the 
 particular subject-matter of which it treats, 9 while the defendant 
 ia not at liberty to offer his own assertions, as contained in his 
 answer, in his own favor. 10 
 
 Where the answer in an equity cause is used in its probative 
 capacity, as setting forth a party's admissions, e. g., when the 
 answer is used in a cause other than that in which it was given, 
 the rule varies as between England and America. In English 
 chancery practice an answer to a bill in equity is treated in an 
 equitable cause as it would be in an action at law, viz., the pro- 
 
 5. Blount v. Burrow, 1 Ves. Jr. 546 
 ( 1792 ) ; Hart v. Ten Eyck, 2 Johns. 
 Ch. (N. Y.) 62, 90 (1816). 
 
 6. Boardman v. Jackson, 2 Ball & 
 B. 382 (1813) ; Miller v. Gow, 1 Y. 
 & C. Ch. 56, 59, V. C. Bruce (1841) ; 
 Rude r. Whitechurch, 3 .Sim. 562 
 (1830) ; Ridgeway v. Darwin, 7 Ves. 
 Jr. 404 (1802) (same sentence). 
 
 Formal connection without real 
 linking in meaning — as where "and" 
 or " but " are used between ideas 
 not in logical relation, is not within 
 the rule. Davis v. Spurling, 1 Russ. 
 & M. 64, 68 (1829). The test of 
 necessity for reading is where there 
 is : " Such a connection between the 
 passages as to render it necessary 
 to read the latter with the former." 
 Connop v. Hayward, 1 Y. & C. 33, 34 
 (1841). 
 
 7. Nurse v. Bunn, 5 Sim. 225 (1832). 
 
 8. Robinson v. Scotney, 19 Ves. Jr. 
 582 (1816). Where a passage read 
 by a plaintiff from an answer refers 
 to another passage, that other pas- 
 sage is to be read only for the pur- 
 pose of explaining or qualifying the 
 thing in respect of which the ref- 
 erence is made, and not for the pur- 
 pose of introducing new facts, which 
 do not explain or qualify that thing, 
 though such new facts be connected, 
 in grammatical construction, with 
 that which must be read. Bartlett v. 
 
 Gillard, 3 Russ. 149, 157 (1826). 
 " When a document is produced 
 from the custody of the clerk in 
 court, under a bill for relief, the 
 plaintiff is, I apprehend, entitled to 
 use it, without reading that part of 
 the answer which precedes the ad- 
 mission of the possession of the 
 document. I cannot conceive this 
 rule to be likely in any case to pro- 
 duce practical inconvenience, because 
 the court may look at the whole 
 answer, if not as evidence, yet as 
 that which may regulate its dis- 
 cretion with respect to the further 
 investigation of particular facts." 
 Miller v. Gow, 1 Y. & C. Ch. 56, 59 
 (1841). 
 
 9. Thompson v. Lambe, 7 Ves. Jr. 
 587 (1802); Ormond v. Hutchinson, 
 13 Ves. 47, 53 (1806). Where the 
 answer to a bill for discovery only 
 is used as evidence, the whole must 
 be read. Where relief is prayed, and 
 the answer replied to, the plaintiff, 
 reading admissions, must proceed to 
 the completion of the immediate sub- 
 ject, to which the defendant is answer- 
 ing; according to the course of evi- 
 dence at law; but this does not 
 apply to a distinct matter. Ormond 
 V. Hutchinson, 13 Ves. 47, 53 (1806). 
 
 10. Awdley v. Awdley, 2 Vern. 192 
 (1690). 
 
§ 511 
 
 B. FuBTHERANCE OF JUSTICE. 
 
 660 
 
 ponent must read the whole answer, 11 and should also read any 
 document incorporated in it, 12 by reference or otherwise. 
 
 American- Anomaly. — In America the anomalous doctrine, 
 first, apparently, formulated in New York, prevails. The de- 
 fendant's answer of -affirmative matter, made under oath, 13 respon- 
 sive to the 'charges and allegations of the bill, 14 has a prima facie 
 effect as evidence, requiring the plaintiff to produce two wit- 
 nesses in disproof. 15 
 
 This view overrules the earlier 16 and sounder 17 doctrine, to the 
 
 11. Hart v. Ten Eyck, 2 Johns. Ch. 
 (N. Y.) 62, 90 (1816); Jacobs v. 
 Farrall, 2 Hawks (N. C.) 570 (1823); 
 Ormond v. Hutchinson, 13 Ves. 47, 53 
 (1806). At law a party producing a 
 letter, or other document in evidence 
 cannot use it partially, but makes the 
 entire evidence. Board-man t. Jack- 
 son, 2 Ball & B. 382 (1813). 
 
 12. When the answer of a party in 
 another cause is resorted to as evi- 
 dence, the whole of it is admissible, 
 both at law and in equity. Boardman 
 V. Jackson, 2 Ball & B. 382 (1813). 
 
 13. An unsworn answer is no evi- 
 dence at all for the defendant. Bart- 
 lett v. Gale, 4 Paige (N. Y.) 503, 508 
 (1834). An unsworn answer while 
 refused the effect of requiring the evi- 
 dence of two witnesses to refute it, 
 has been conceded the effect of ordi- 
 nary evidence. Heard *. Russell, 59 
 Ga. 25, 51 (1877). 
 
 14. An unresponsive answer is not 
 evidence against the complainant. 
 Bartlett v. Gale, 4 Paige (N. Y.) 503, 
 508 (1834). Methodist Episcopal 
 Church V. Wood, 5 Ohio 383 (1831) j 
 McCoy v. Rhodes, 11 How. (U. S.) 
 131, 140 (1850). 
 
 As such a denial imposed upon the 
 plaintiff under the rules of equity 
 practice the necessity of producing 
 two witnesses in order to substantiate 
 the allegation so denied, the erroneous 
 notion arose that an answer which 
 could thus nullify as it were, the 
 plaintiff's oath must be evidence, in 
 itself for the- defendant. Lampton v. 
 Lampton's Ex'rs, 6 T. B. Mon. (Ky.) 
 
 616, 620 (1828). From the negative 
 in sense, to the affirmative veiled in 
 negative form proved an easy transi- 
 tion. Ringgold v. Ringgold, 1 Har. & 
 G. (Md.) 11, 81 (1826) ; Paynes v. 
 Coles, 1 Munf. (Va.) 373, 393, 395 
 (1810); Maupin V. Whiting, 1 Call 
 (Va.) 195 (1798) ; Russell v. Clark's 
 Ex'rs, 7 Cr. 69, 93 (1812). From 
 the affirmative in substance to the af- 
 firmative in form was the next step ; 
 until the rule, as announced in New 
 York, was to the effect that " It is 
 an undeniable rule in chancery that 
 the answer to » bill for discovery, 
 being under oath, must be taken as 
 true, unless disproved by two wit- 
 nesses." Clason v. Morris, 10 Johns. 
 (N. Y.) 524, 542 (1812). 
 
 15. Georgia. — Armstrong v. Lewis, 
 61 Ga. 680, 688 (1878). 
 
 New York. — Bartlett v. Gale, 4 
 Paige (N. Y.) 503 (1834). 
 
 Ohio. — Methodist Ep. Ch. r. Wood, 
 5 Ohio 283, 285 (1831). 
 
 Tennessee. — Beech v. Haynes, 1 
 Tenn. Ch. 569 (1874). 
 
 Virginia. — Clinch River M. Co. v. 
 Harrison, 91 Va. 122, 129, 21 S. E. 
 660 (1895). See also Branch Bank 
 v. Black, 2 McCord (S. C.) 344, 
 350 (1827) ; Fant v. Miller, 17 Gratt. 
 (Va.) 187, 206, 211 (1867). 
 
 16. Ringgold t. Ringgold, 1 Har. & 
 G. (Md.) 11, 82 (1820) ; Hart v. Ten 
 Eyck, 3 Johns. Ch. (N. Y.) 62, 90 
 (1816). 
 
 17. An answer in chancery ( though, 
 in form, responsive to a question put 
 in the bill) is not evidence, where it 
 
661 Completeness in Statutory Answers. § 512 
 
 effect that only a direct denial of matter charged by the plaintiff 
 places the burden of evidence as to it upon him. This is the rule 
 in England, 18 in the Federal courts, 19 and in a minority of state 
 jurisdictions. 20 
 
 Either at law or in equity, to show what is admitted, it will be 
 necessary to know what is charged. Accordingly, so much of the 
 bill must also be read as renders intelligible the portion of the 
 answer which is submitted. The proponent is then, logically, at 
 liberty to produce the precise statement upon which he relies, 
 being careful only to violate no grammatical construction, or fair 
 continuity of expression. 
 
 § 512. ( [2] Completeness Demanded; Documents; PtO' 
 ponent; Public Records); Statutory Interrogatories. — In regulat- 
 ing the use to be made by litigants of the answers obtained in 
 response to interrogatories addressed to an adversary filed by 
 virtue of a statutory provision, the courts apply, as a rule, in any 
 particular jurisdiction, the same requirements as to completeness 
 which obtain in that individual jurisdiction to analogous state- 
 ments for which these interrogatories are a substitute. 
 
 Where these statutory interrogatories take the place of the dis- 
 covery previously obtained by means of a bill in equity, it is the 
 duty of the proponent to put in evidence the entire set of answers, 
 so far as relates to the same subject-matter. 1 The rule is the 
 same as when the answer in chancery is used as evidence in an 
 action at law rather than when used as a pleading in equity. 
 
 In general, however, the analogy followed has been that of depo- 
 sitions. It has, accordingly been held that the proponent may 
 
 asserts a right, affirmatively, in op- of a defendant in equity stating facts 
 
 position to the plaintiff's demand; which are not inquired of in the bill, 
 
 but the defendant is as much bound is not evidence of such facts. New 
 
 to establish such assertions by inde- England Bank v. Lewis, 8 Pick, 
 
 pendent testimony, as the plaintiff is (Mass.) 113, 120 (1829). 
 to sustain his bill. Paynes v. Coles, 1. Southern R. Co. v. Hubbard, 116 
 
 1 Munf. (Va.) 373, 395 (1810). Ala. 387, 22 So. 541 (1897). 
 
 18. Attwood v. Small, 6 CI. & F. In Louisiana, following the analo- 
 232, 297 (1838). gies of the civil law, each answer is 
 
 19. Clements v. Moore, 6 Wall. to be deemed complete in itself and 
 (U. S.) 299, 315 (1867). may be relied upon by the proponent 
 
 20. Lampton r. Lampton's Ex'rs, 6 as a whole. McLear r. Hunsicker 29 
 T. B. Mon. (Ky.) 616, 620 (1828); La. Ann. 540 (1377). The latter, 
 New England Bank v. Lewis, 8 Pick. however, is not at liberty to separate 
 (Mass.) 113,120 (1829). The answer a statement from its qualifying parts. 
 
§ 513 B. Furtherance of Justice. 663 
 
 offer such portions of his adversary's statements in sworn answers 
 as he deems material and helpful to himself 2 not being 1 obviously 
 unfair and misleading, and subject at all times to the power of 
 the court to order that other portions of the adversary's statement, 
 necessary to fairness 3 or essential to a complete understanding 4 
 should also be read. The rights of the proponent are subject also 
 to the further qualification that, while he is at liberty to decide 
 on what topic, if any, he will interrogate his opponent, he will 
 be required, having selected his subject and asked his questions, 
 to introduce in evidence all that his opponent has to answer as 
 to it. 8 The matter is one frequently regulated by a " rule of 
 court." 
 
 § 513. ( [2] Completeness Demanded; Documents; Pro- 
 ponent; Public Records); Judgments. — It is not, in the absence 
 of exceptional circumstances, as where the inquiry is as to the 
 nature of a claim which has been placed in a judgment, 1 or the 
 effort is made for the enforcement of the judgment itself, 4 the 
 practice to require that the whole record, in all its extension, to 
 whatsoever matter relating, should be produced. The record of a 
 litigated cause is, in the average instance, partly constituted by 
 the original papers; and the balance is extended in book form, 
 upon a judgment roll. It will rarely be found that the entire 
 record is needed for purposes of proof in any single connection. 3 
 The successive steps of the litigation, the institution of proceedings 
 by the service of process, the relative positions of the parties as 
 defined by their pleadings, the various motions preliminary or 
 preparatory to trial, the course of hearing as to law and fact, the 
 adjudication, all culminating in the rendition of a judgment; — 
 these, and the steps, if any, taken subsequent or supplementary 
 to the judgment, appear with greater or less fullness, upon the 
 record. While these proceedings are, in a sense, interdependent, 
 
 Auge r, Variol, 31 La. Ann. 865, 869 5. Demelman v. Burton, 176 Mass. 
 
 (1879). 363, 57 N. E. 665 (1900). 
 
 2. Van Horn V. Smith, 59 Iowa 142, 1. Jones v. Hopkins, 32 Iowa 503, 
 148, 12 N. W. 789 (1882); Lyon v. 504 (1871). 
 
 Marriott, 5 Brit. Col. 157 (1896) ; 2. Willis v. Louderhaek, 5 Lea 
 
 Wunderlich v. Ins. Co., 104 Wis. 382, (Tenn.) 561 (1880). 
 
 80 N. W. 467 (1899). 3. It has, however, been held that 
 
 3. Hammatt v. Emerson, 27 Me. " a record is an entire thing, and if 
 308, 335 (1847). admissible for any purpose, all its 
 
 4. Allend v. R. Co., 21 Wash. 324, parts are received." Miles r. Wingate, 
 58 Pac. 244 (1899). 6 Ind. 458 (1855) (hill of exceptions). 
 
663 
 
 How Fab Entire Recoed is Reqiubed. 
 
 § 513 
 
 it has very reasonably been required that the record in its entirety 
 be produced by its proponent, 4 only so far as the same is fairly 
 relevant to the proposition on which it is offered. What is 
 demanded, is the whole record relating to the particular proposi- 
 tion; 5 — all that which establishes by judicial hearing the ex- 
 istence of the fact which it is sought to prove. 6 
 
 Extracts are not deemed sufficient. 7 The course generally 
 adopted facilitates a correct interpretation 8 without unduly im- 
 
 4. "'It is a general rule, that rec- 
 ord, when used in evidence, must be 
 produced entire." McGuire v. Kouns, 
 7 T. B. Mon.. (Ky.) 386 (1828). 
 
 5. Illinois. — People v. Pike, 197 111. 
 449, 64 N. E. 393 (1902) (county 
 court records) ; McMillan v. Lovejoy, 
 115 111. 498, 4 N. E. 772 (1886). 
 
 Indiana. — Brown v. Eaton, 98 Ind. 
 591, 595 (1884) ; Anderson v. Acker- 
 man, 88 Ind. 481, 490 (1883). 
 
 Iowa. — Latterett v. Cook, 1 Iowa 
 1, 5 (1855). 
 
 Kentucky. — -Grebbin v. Davis, 2 A. 
 K. Marsh. 17 (1819). 
 
 Massachusetts. — Eaton r. Hall, 5 
 Mete. 287, 290 (1842) (order of ref- 
 erence ) . 
 
 Michigan. — Drosdowski v. Chosen 
 Friends, 114 Mich. 178, 72 N. W. 169 
 (1897). 
 
 Mississippi.— Shirley v. Fearne, 33 
 Miss. 653, 667 (1857). 
 
 Missouri. — Philipson v. Bates, 2 
 Mo. 116 [95] (1829). 
 
 New York. — Packard v. Hill, 7 
 Cow. 434. 443, on app. 2 Wend. 411, 
 5 Cow. 375, 384 (1827); Griffith v. 
 Ketchum, 12 Johns. 379, 380 (1815) 
 ( sheriff's return ) . 
 
 Pennsylvania. — Hampton v. Speck- 
 enagle, 9 S. & R. 212, 221 (1823). 
 
 Tennessee. — Garner v. State, 5 Lea 
 213, 217 (1880). 
 
 Virginia. — White v. Clay, 7 Leigh 
 68, 78 (1836). 
 
 The probate of a will follows the 
 same course. Vail v. Rinehart, 105 
 Ind. 6, 12, 4 N. E. 218 (i885) ; Loy 
 v. Kennedy, 1 W. & S. (Pa.) 396 
 (1841); Smith v. Neilson, 13 Lea 
 
 (Tenn.) 461, 467 (1884); Ex parte 
 Todd, 3 Leigh (Va.) 819 (1831). 
 The requirements necessary for com- 
 pleteness are, however, frequently 
 regulated by statute. Hankinson r. 
 R. Co., 41 S. C. 1, 17, 19 S. E. 206 
 U893). 
 
 6. Alabama. — Farley v. Whitehead, 
 63 Ala. 295 (1879). 
 
 Arkansas. — Denton v. Roddy, 34 
 Ark. 642 (1879). 
 
 California. — Wickersham v. John- 
 ston, 104 Cal. 407, 38 Pac. 89, 43 
 Am. St. Rep. 118 (1S94). 
 
 Georgia. — Kerchner v. Frazier^ 106 
 Ga. 437, 32 S. E. 351 (1898). 
 
 Indiana. — Brown v. Eaton, 98 Ind. 
 591 (1884). Compare Anderson v. 
 Ackerman, 88 Ind. 481 (1883). 
 
 Kentucky. — Macauley v. Elrod, 27 
 S. W. 867, 16 Ky. L. Rep. 291 (1894). 
 
 Louisiana. — ■ Mayo v. Brittan, 34 
 La. Ann. 984 (1832). See also Con- 
 way v. Erwin, 1 La. Ann. 391 (1846). 
 
 North Carolina. — Rainey v. Hines, 
 121 N. C. 318, 28 S. E. 410 (1897). 
 
 Tennessee. — Willis v. Louderback, 
 5 Lea 561 (1880). See also American 
 Emigrant Co. v. Fuller, 83 Iowa 599, 
 50 N. W. 48 (1891); Calkins v. 
 Packer, 21 Barb. (N. Y.) 275 (1855) ; 
 Warren v. Fredericks, 76 Tex. 647, 
 13 S. W. 643 (1890) ; Elwell v. Pres- 
 cott, 38 Wis. 274 (1875). 
 
 7. Bellamy v. Hawkins, 17 Fla. 750, 
 756(1880) (probate of will). 
 
 8. " The reason assigned for it is, 
 that the part of the record which is 
 lacking may give the rest a different 
 meaning." McGuire v. Kouns, 7 T. 
 B. Mon. (Ky.) 386 (1828). 
 
§§ 514, 515 B. Furtherance of Justice. G64 
 
 peding the course of the trial. But part of a record may be 
 received to show that a suit is pending, 9 that a divorce 10 has been 
 granted; or other isolated fact exists. The time when a suit 
 began may be shown by a simple endorsement on certain of the 
 pleadings. 11 
 
 § 514. C [2] Completeness Demanded; Documents; Pro- 
 ponent; Public Records); Verdicts. — The general rule is that a 
 record of a verdict standing alone, i. e., without the judgment, is 
 not admissible, because, otherwise, non co?istat but that the verdict 
 may no longer be in force. It may have been set aside or for 
 some other reason no judgment have issued on it. 1 Clearly, how- 
 ever, the production of a verdict is independently relevant to the 
 effect that there was a suit which progressed so far as to reach 
 a verdict. 2 
 
 § 515. ( [2] Completeness Demanded; Documents; Pro- 
 ponent; Public Records); Executions. — In its probative capacity 
 as establishing the facts adjudicated, an execution is not complete 
 without the judgment on which it was issued ; 1 and, usually, other 
 portions of the record. Should a third person sue the officer in 
 trespass for conversion of the goods levied on under his execution, 
 the officer should produce not only the writ but the. judgment. 2 
 
 9. Adams r. Olive, 62 Ala. 418 1. California. — Vassault r. Austin, 
 (1878); Peck v. Land, 2 Ga. 1, 46 32 Cal. 597 (1867). 
 
 Am. Dec. 368 (1847) ; White v. Clay, Delaware.— State t". Records, 5 
 
 7 Leigh (Va.) 68 (1836). See also Harr. 146 (1844). 
 
 White r. Clay, 7 Leigh (Va.) 68 Missouri. — Ramsey r. Waters, 1 Mo. 
 
 (1836). 406 (1S23). 
 
 10. Alexander r. Grand Lodge A. O. New York. — Townshend r. Wesson, 
 TJ. W., 119 Iowa 519, 93 N. W. 508 4 Deur 342 (1855). 
 
 (1903). Pennsylvania. — Gaskell r. Morris, 
 
 11. Opperman r. McGown, (Tex. 7 Watts & S. 32 (1844) . 
 
 Civ. App. 1899) 50 S. W. 1078. South Carolina. — McCall v. Boat- 
 
 1. Mitchell v. Mitchell, 40 Ga. 11 wright, 2 Hill 438 (1834). 
 (1869); Donaldson v. Jude, 2 Bibb United States. — Campbell ('.Strong, 
 (Ky.) 57 (1810) ; Pitton v. Walter, 4 Fed. Cas. No. 2,367a, Hempst. 265 
 1 Str. 162 (1623). See also Kip v. (1835). 
 
 Brigham, 7 Johns. (N. Y.) 168 England. — Britton v. Cole, 1 Salk. 
 
 (1810). 408 (1822). See also Carlton r. 
 
 2. Waldo v. Long, 7 Johns. (N. Y.) King. 1 Stow. & P. (Ala.) 472, 23 
 173 (1810) ; Kip V. Brigham, 7 Johns. Am. Dec. 295 (1832) ; Deloach v. My- 
 (X. Y.) 168 (1810) ; Fisher r. Kitch- rick, 6 Ga. 410 (1849). 
 
 enman, 7 Mod. 451, Willes 367 (1796); 2. Martin r. Podger, 2 W. Bl. 701, 
 
 Pitton i\ Walter, 1 Str. 162 (1623). 5 Burr. 2631 (1768) ; Lake c. Billers, 
 
 See also McLeod v. Crosby, 128 Mich. 1 Ld. Raym. 733 (1698). See also 
 
 641, 87 N. W. S83 (1901) ; Garland Deloach v. My rick, 6 Ga. 410 (1849). 
 V. Scoones, 2 Esp. 648 (1796). 
 
665 Proviso Gbant of Administration. § 516 
 
 If tlie execution is independently relevant, e. g., where an officer 
 in possession of goods under an execution proceeds against a third 
 person acting without claim or right, 3 or where the owner of the 
 goods sues the officer for seizing them under his writ, 4 mere pro- 
 duction of the execution is sufficient. 
 
 § 516. C [2] Completeness Demanded; Documents; Pro- 
 ponent; Public Records); Wills and Probate Papers. — It is es- 
 sential that the. copy of a will be full and complete. The admin- 
 istrative demand will be urgent in proportion to the importance 
 and complexity of the interests involved, and the probability that 
 an adequate construction can be given to a particular provision 
 only in view of the existence of a number of other clauses in the 
 instrument. In several states of the American Union it is re- 
 quired, in order that a copy of a will should be admissible, that 
 it be accompanied by a record of its probate. 1 Elsewhere, a cer- 
 tificate of the register of probate or other suitable official that the 
 accompanying will has been duly proved will be accorded a prima 
 facie effect. 2 Completeness is conditioned, however, in all cases, 
 by the object of the offer. The court cannot judge whether evi- 
 dence is sufficiently full for a given purpose until informed what 
 that purpose is. Thus, where the only object is to prove the 
 issuance of letters testamentary — nothing turning on the con- 
 tents of the will itself — a certificate is sufficient if it give a 
 copy of the letters without annexing a copy of the will. 3 
 
 Administration. — Appointment as administrator of the estate 
 of a decedent should be proved, in the ordinary case, by produc- 
 tion of the original papers, or record books, or else by a copy of 
 them, sworn or certified. It has been established (by statute) 
 
 3. Spoor t'. Holland, 8 Wend. (N. Mississippi. — Fotheree v. Lawrence, 
 Y.) 445, 24 Am. Dec. 37 (1832); 30 Misa. 416 (1855). 
 
 Blackley v. Sheldon, 7 Johns. (N. Y.) New Jersey. — Allaire v. Allaire, 37 
 
 32 (1810) ; Barker r. Miller, 6 Johns. N. J. L. 312 (1875). 
 
 (N. Y.) 195 (1810). New York.— Hill v. Crockford, 24 
 
 4. Deloach v. Myrick, 6 Ga. 410 N. Y. 128 (1861). 
 
 (1849) ; Hunter r. McElhany, 2 Brev. North Carolina.— Sutton v. West- 
 
 S. C. 103 (1806); Britton v. Cole, cott, 48 N. C. 283 (1856). 
 
 Salk. 408 (1795). 2. Logan v. Watt, 5 Serg. & R. 
 
 1. Florida. — Coffee v. Groover, 20 (Pa.) 212 (1819). See alao Thursby 
 
 Fla. 64 (1883). v. Myers, 57 Ga. 155 (1876). 
 
 Kentucky. — Kentucky Land, etc., 3. Beach v. Pears, 1 N. J. L. 288 
 
 Co. v. Crabtree, 113 Ky. 922, 70 S. (1796).. 
 W. 31, 24 Ky. L. Rep. 743 (1902). 
 
§§ 517, 518 B. Fdiitiieeaxce of Justice. 
 
 666 
 
 that production of the letter of administration will be deemed 
 sufficient.* 
 
 Guardianship may, in like manner, be established by produc- 
 tion of the letter of guardianship. 5 
 
 § 517. ( [2] Completeness Demanded; Documents; Pro* 
 
 ponent); Private Records. — The records of a corporation in any 
 suit in which they are relevant and competent may be proved by 
 a certificate from the proper officer, an examined and sworn copy, 1 
 by production of the books properly authenticated, 2 or in any 
 other legal manner, as an admission. 3 While the proponent puts 
 in evidence everything which appears upon the record relating 
 to the transaction which he is seeking to prove, 4 and it is all, con- 
 structively at least, in evidence as proof submitted by him, 5 — he 
 may content himself, in the first instance, with reading such por- 
 tion of the whole as he sees fit, 6 leaving his opponent to read 
 such other portions as may seem to him advisable. 
 
 § 518. ( [2] Completeness Demanded; Documents) ; Op- 
 ponent ; Independent Relevancy. — When proof of the independent 
 
 4. Hankinson v. Charlotte, etc., R. 
 Co., 41 S. C. 1, 19 S. E. 206 (1893). 
 
 5. Prescott v. Cass, 9 N. H. 93 
 (1837). 
 
 1. " Proprietors' records " of com- 
 mon lands, etc., are treated in the 
 same manner. Pike v. Dyke, 2 Greenl. 
 (Me.) 213 (1823); Woods v. Banks, 
 14 K. H. 101, 109 (1843). 
 
 2. Banks v. Darden, 18 Ga. 318, 
 341 (1855). 
 
 3. Sinking Fund Com'rs v. Bank, 
 1 Mete. (Ky.) 174, 185 (1858) (re- 
 cital of corporation's doings contained 
 in a mortgage). 
 
 4. When books are admitted in evi- 
 dence, they are testimony before the 
 jury as to all entries appertaining 
 to the same transaction; still, the 
 party offering them may select and 
 read to the jury such portions as 
 answer the purpose for which they 
 were introduced by him, leaving it to 
 the opposite party to submit any other 
 parts that he may see fit. Banks v. 
 Darden, 18 Ga. 31S. 341 (1855). A 
 copy of the record of the votes of the 
 proprietors of common and undivided 
 
 lands in this state, duly certified by 
 the clerk of said corporation, is ad- 
 missible as evidence thereof. Where 
 the proof may be a copy, an examined 
 copy, duly made and sworn to by any 
 competent witness, is always admis- 
 sible. A copy of so much of the 
 record as relates to the subject-matter 
 of the suit, is allowable. Whitehouse 
 r. Bickford, 29 N. H. 471, 481 (1854). 
 " Records are usually in parts, and 
 there should be a copy of all the mat- 
 ter made up and attested as a record 
 at any particular time, so that the 
 jury may have the whole evidence, 
 and the courts be enabled to give the 
 right construction to what was done. 
 But where what relates to the matter 
 in question is a distinct and inde- 
 pendent record, a copy of that is 
 sufficient." Woods v. Banks, 14 X. H. 
 101,109 (1843) (proprietors' records). 
 
 5. Vischer V. R. Co., 34 Ga. 536, 
 539 (1866) ("already before the 
 jury"). 
 
 6. Fouche v. Bank, 110 Ga. 827, 36 
 S. E. 256 (1900); Banks v. Darden, 
 18 Ga. 318, 341 (1855). 
 
66.7 Right to Supplement Documents. §§ 51 9-52 Oa 
 
 relevancy of a document has been made, the opponent is at liberty 
 to read so much of the remainder of its statements as pertains to 
 the same subject and tends to qualify, limit or explain the por- 
 tion already read. 1 
 
 § 519. ( [2] Completeness Demanded; Documents; Op' 
 ponent; Independent Relevancy) /Pleadings. — At an appropri- 
 ate stage, the opposing party is at liberty to read to the jury any 
 portion of the remainder of the bill produced and not read by the 
 proponent -which may reasonably be expected to have either a 
 logical bearing on the part read x or upon some proposition at 
 issue in the case. 2 
 
 When the proponent offers part of an answer the opponent is 
 limited to further statements, made in the same instrument which 
 fairly qualify, to the average appreciation, the effect of the part 
 used by the proponent. 3 
 
 § 520. ( [2] Completeness Demanded; Documents; Op- 
 ponent); Public Records. — The same is true of public documents. 
 The copy of a public document being in evidence the opportunity 
 is afforded to the opposing side, either on cross-examination, re- 
 examination or some other appropriate stage of the proceedings, 1 
 to point out other of its parts which he deems favorable to his 
 contention. 
 
 Judgments. — The foregoing rules of administration relating 
 to completeness in proof of judgments apply merely to the duty, 
 in the first instance, of the proponent. The right of his adversary 
 to introduce any further parts of the record which he may feel - 
 are necessary to supplement or explain the parts already offered, 2 
 is not affected by them. 
 
 § 520a. ( [2] Completeness Demanded; Documents; Op* 
 ponent); Private Writings. — The opponent's right of supple- 
 mentation to complete a document already placed in evidence by 
 
 1. Whitman v. Morey, 63 N. H. 448, subject which tend to qualify or even 
 
 454, 2 Atl. 899 (1885) (deposition). to contradict the extracts upon which 
 
 1. Davies v. Flewellen, 29 Ga. 49 reliance is placed. Such a procedure 
 (1859). has nothing to do with the adminis- 
 
 2. Sciple v. Northcutt, 62 Ga. 42, trative principle under consideration. 
 45 (1878) (amendment to bill). 1. Fairness may require that com- 
 
 3. As part of his own case or in ment should not be withheld until the 
 rebuttal (Munroe v. Phillips, 64 Ga. final argument. 
 
 32, 40 [1879]), the adverse interest 2. Rule v. State, (Miss. 1898) 33 
 
 may produce evidence of other state- So. 872. 
 ments of the declarant on the same 
 
520a 
 
 B. Furtherance of Justice. 
 
 668 
 
 the proponent applies not only to public documents 1 but to pri- 
 vate writings as well. The general administrative rule is that 
 he against whom a document of any grade of probative force has 
 been given in evidence may prove, in some proper way, and at an 
 appropriate stage, the balance of the writing. 2 
 
 In criminal matters of serious consequence such as prosecutions 
 for seditious libel, 3 or the delivery of incendiary speeches, 4 a 
 somewhat unusually wide range of quotation from the significant 
 writings is properly permitted ; — even to the extent of receiving 
 an independent speech delivered on another occasion, or another 
 article on a similar topic. 5 
 
 1. Supra, § 520. 
 
 2. Georgia. — Stone v. Town of Tal- 
 lalah Falls, 131 Ga. 452, 62 >S. E. 
 592 (1908) (ordinance book). 
 
 Montana. — McConnell v. Combina- 
 tion Min. & Mill. Co., 76 Pac. 194 
 (1904). 
 
 New Hampshire. — Page v. Hazel- 
 ton, 74 N. H. 252, 66 Atl. 1049 (1907) 
 (entries in a book of account). 
 
 Texas. — Corpus v. State, (Cr. App. 
 1907) 102 S. W. 1152. 
 
 Wyoming. — Bosler v. Coble, 84 
 Pac. 895 (1906) (letters). 
 
 An obvious limitation upon the ap- 
 plication of this practice is to be 
 observed. The rule that, where one 
 party introduces in evidence a part 
 •of a writing, his adversary can in- 
 troduce the whole means the whole of 
 the writing relating to the same sub- 
 ject-matter and necessary to explain 
 it, and does not include parts con- 
 taining immaterial or irrelevant mat- 
 ter. T. A. Robertson & Co. v. 
 Russell, (Tex. Civ. App. 1908) 111 
 S. W. 205. 
 
 Where part of a correspondence has 
 been introduced in evidence, the court 
 will usually receive any relevant ad- 
 ditional portion of the same. Hogg- 
 son & Pettis Mfg. Co. v. Sears, 77 
 Conn. 687, 60 Atl. 133 (1905); Gos- 
 nell v. Webster, (Keb. 1904) 97 N. W. 
 1060; Buedingen Mfg. Co. r. Royal 
 Trust Co., 181 N. Y. 563, 74 N. E. 
 1115 (1905) [judgment affirmed, S5 
 
 N. Y. Suppl. 621, 90 App. Div. 267 
 (1904)]; Buedingen Mfg. Co. v. 
 Royal Trust Co., 85 N. Y. Suppl. 621, 
 90 App. Div. 267 (1904). 
 
 Letters subsequent in point of time 
 to parts of a correspondence admitted 
 in evidence are not, as a rule, sup- 
 plementary to such prior portions. 
 Collins v. Todd, 17 Mo. 537, 540 
 (1853). Under certain circumstances, 
 they may be explanatory, and so ad- 
 missible. Burlington C. R. & N. R. 
 Co. v. Sherwood, 62 Iowa 309, 314, 
 17 N. W. 564 ( 1883 ) ; Roe v. Day, 
 7 C. & P. 705 (1836) (meaning of 
 phrase " entrap " used in earlier letter 
 by same writer). See also Bradley r. 
 Gardner, 10 Cal. 371 (1858). 
 
 3. R. v. Lambert, 2 Camp. 398, 400 
 (1810) Thus, paragraphs "of the 
 same paper upon the same topic with 
 the libel, or fairly connected with it, 
 although locally disjoined from it," 
 have been held entitled to be read by 
 defendant, " to show the intention and 
 mind of the defendant with respect to 
 this specific paragraph." R. v. Lam- 
 bert, 2 Camp. 398, 400 (1810). 
 
 4. Finney's Trial, 3 State Tr. n. s. 
 11, 464 (1832). 
 
 5. R, v. O'Connell, 5 State Tr. n. s. 
 1, 289 ( 1843 ) . Another article, with- 
 out value as explaining the utterances 
 drawn in question, is, however, in- 
 competent. Darby v. Ouseley, 1 H. 
 & X. 1, 7, 11 (1856) ; R. r. Martin, 
 6 State Tr. n. s. 925, 998 (1848). 
 
669 Extiek Tkaxsactiox Should Be Given. §§ 521, 522 
 
 § 521. ( [2] Completeness Demanded; Documents); Incor- 
 poration by Reference. — The administrative requirement of com- 
 pleteness calls for introduction in evidence of documents referred 
 to in the writings already before the court. The greater the 
 relative importance of the document in the case, the more its 
 precise shades of meaning are significant, the more strenuously 
 will the judge insist that all writings incorporated in it by refer- 
 ence should be produced for inspection. 1 On an action for libel 2 
 or in one involving an order for sale with accompanying guar- 
 anty, 3 the writings embodied by reference in the important docu- 
 ments must be read at the same time. But incorporation in docu- 
 ments of less critical meaning does not of necessity involve read- 
 ing the writings referred to at the same time. 4 Thus, for example, 
 a written contract may refer to a schedule 5 and still it be en- 
 tirely proper to omit reading the latter ; — allowing the adversary 
 to produce and read items if he desires to do so. 8 In accordance 
 with this principle, a reference in the letters which form part of 
 a correspondence admitted in evidence to prior letters in the 
 series, or the mention in it of other papers 7 necessary to be in- 
 corporated with the body of the letter in order to make it intelli- 
 gible, or the sense complete, requires the production of the papers 
 to which reference has been made. 
 
 § 522. ( [2] Completeness Demanded; Documents) ; Entire 
 Transaction May Be Shown. — A somewhat different application 
 of the same administrative principle of completeness is presented 
 when a document is so connected with a certain transaction as to 
 be unintelligible or even misleading in the absence of evidence as 
 to the transaction itself. Under these circumstances, the presid- 
 ing judge is justified in requiring that the matter be presented as 
 a whole. If, for example, the examination of a bankrupt and the 
 inspection of his books are in reality " all one transaction," evi- 
 dence as to both should be submitted at the same time. 1 If two 
 
 1. East Coast lumber Co. v. Ellis- 5. Barber v. International Co., 73 
 Young Co., (Fla. 1908) 45 So. 826 Conn. 587, 48 Atl. 758 (1901). 
 (deed) ; Stone r. Sanborn, 104 Mass. 6. Dowling v. Peeley, 72 Ga. 557, 
 319,324 (1870) (contract). 567 (1884) (probate vouchers). 
 
 2. Thornton v. Stephen, 2 Mo. & 7. Johnson t\ Gilson, 4 Esp. 21 
 Rob. 45 (1837). (1801). 
 
 3. Cordray v. Mordecai, 2 Rich. 1. Yates v. Camsew, 3 C. & P. 99 
 Law, (S. C.) 518, 525 (1846) (ship). (1838). 
 
 4. Elmore v. Overton, 104 Ind. 548, 
 555, 4 N. E. 197 (1885). 
 
§ 523 B. Fuetheraxce of Justice. 670 
 
 documents are produced during and as part of the same original 
 transaction, and one of them is introduced in evidence, the proof 
 of the other may be required by the judge, should he feel that the 
 two writings are so connected with each other that reading of 
 both is essential to the understanding of the one originally intro- 
 duced in evidence. 2 But the mere fact that there were other docu- 
 ments made at or about the same time is not in itself a sufficient 
 reason for requiring that each be produced if one is admitted. 3 
 Receiving a document in evidence entails usually the reception of 
 writings or other facts which are required in order fully to un- 
 derstand that which is admitted. 
 
 A closely analogous principle is that which admits verbal dec- 
 larations as part of the res gestae* whether considered as inde- 
 pendently relevant 5 or as constituting evidence of the facts as- 
 serted in the statement. 6 When a transaction is to be placed 
 before a tribunal in its entirety, it is at once obvious as a matter 
 of logic that a verbal act differs in no essential particular from 
 any other. That belief or disbelief in the truth of the proposi- 
 tion asserted flows as logically from its being made as any other 
 indirect consequence is disguised merely by the anomalous " rule 
 against hearsay." 7 
 
 § 523. C [2] Completeness Demanded; Documents) ; Incor- 
 poration by Eelation. — Completeness may demand. the production 
 of documents so related to those already in evidence as to be 
 essential to their adequate understanding. An answer to a ques- 
 tion, for example, is not fully intelligible without knowledge of 
 that question. 1 Should a statement in an answer in chancery be 
 offered as constituting an admission, the portion of the bill to 
 which it is in reply should also be produced. 2 
 
 2. Stuckey v. O'Neal, 86 Ark. 145, are lost, the answers are, none the 
 
 109 S. W. 1164 (1908) ; State v. Bly- less, received. Rowe v. Brenton, 8 B. 
 
 denburg, (la. 1907) 112 N. W. 634; & C. 737, 765 (1828). 
 
 Grabowski v. State, 126 Wis. 447, 105 2. Pennell V. Meyer, 8 C. & P. 470 
 
 N. W. 805 (1905). Hewitt v. Pig- (1838). On the trial of an action, 
 
 gott, 5 C. & P. 75 (1831) (letter pro- when it is proposed on one side to 
 
 duced with an answer in chancery in read an answer to a bill in chancery, 
 
 other proceedings). if the other side insist upon it tht 
 
 4. Infra, § 2581. whole of the bill, and not the inter- 
 
 5. Infra, §§ 2581 et seq. rogatory parts merely, must be read 
 
 6. Infra, §§ 2698 et seq. in evidence. Pennell v. Meyer, 8 C. 
 
 7. Infra, §§ 2700 et seq. & P. 470 (1838). 
 1. Where ancient interrogatories 
 
671 
 
 Eeceiving Prior Letters in Evidence. 
 
 § 523 
 
 If a letter is introduced that to which it is in reply is rendered 
 competent; 3 and, indeed, will be required, 4 as in eases of oral 
 conversation, 5 whenever available ; G — extracts from it not being 
 deemed a sufficient compliance with the rule. 7 Where, however, 
 the letter originally offered is intelligible 8 and not obviously in- 
 complete 9 as it stands and it further appears that the letter to 
 which it is in answer 10 or the documents enclosed or referred to 
 are in the possession of the adverse party, the balance of con- 
 venience may well be found in receiving the letter as offered, 
 leaving the work of supplementing or amplifying it to the opposite 
 side at a subsequent stage. 
 
 3. Security Trust Co. v. Robb, (N. 
 J. 1906) 73 C. C. A. 302, 142 Fed. 
 78 ; Tilton v. Beecher, N. Y., Abbott's 
 Rep. II, 270 (1875). Where a letter 
 offered in evidence is in reply to one 
 received by the writer, the earlier 
 letter is as a rule admissible, both be- 
 cause of the fact that the letter in 
 reply is frequently unintelligible with- 
 out it but also because the writer of 
 the reply by referring in it to the 
 previous letter impliedly makes the 
 latter, to this extent at least, part of 
 his own communication. Trischet v. 
 Ins. Co., 14 Gray (Mass.) 457 (1860). 
 
 4. Walson v. Moore, 1 C. & K. 626 
 (1844). "We can perceive no just 
 distinction between oral conversation 
 and written correspondence in this 
 respect." Trischet v. Ins. Co., 14 
 Gray (Mass.) 457 (1860). 
 
 5. Parts of a correspondence or 
 conversation necessary to the complete 
 understanding of such conversation or 
 correspondence are, as a rule, admis- 
 sible by way of supplementation, if 
 any portion of the correspondence or 
 conversation is received. Trischet v. 
 Ins. Co., 14 Gray (Mass.) 457 (1860). 
 " If we have the sermon, let us have 
 the text." Tilton v. Beecher, N. Y., 
 Abbott's Rep. II, 270 (1875). 
 
 6. Hayward R. C. ». Duncklee, 30 
 Vt. 29, 39 (1856). 
 
 7. Coats v. Gregory, 10 Ind. 345, 
 346 (1858). 
 
 8. Brayley v. Ross, 33 Iowa 505 
 (1871); New Hampshire T. Co. v. 
 Korsmeyer, etc., Co., 57 Neb. 784, 78 
 N. W. 703 (1899). 
 
 9. Stone v. Sanborn, 104 Mass. 319, 
 324 (1870). 
 
 10. Illinois. — Barnes v. Trust Co., 
 169 111. 112, 48 N. E, 31 (1897). 
 
 Iowa. — Brayley v. Ross, 33 Iowa 
 505, 508 (1871). 
 
 Massachusetts. — Stone v. Sanborn, 
 104 Mass. 319, 324 (1870). 
 
 Nebraska. — New Hampshire T. Co. 
 v. Korsmeyer P. & H. Co., 57 Neb. 
 784, 78 N. W. 303 (1899). 
 
 England. — ■ DeMedina v. Owen, 3 
 C. & K. 72 (1850); Barrymore v. 
 Taylor, 1 Esp. 326 (1795). "In 
 either case, whether the communica- 
 tions are by successive letters or by 
 distinct conversations, the party in- 
 troducing the second in evidence may, 
 if he pleases, introduce the first also, 
 and if he does not, the other party 
 may. The actual custody of the 
 papers does not affect the question 
 which party shall introduce them, but 
 only the steps to be taken to compel 
 their production." Stone v. Sanborn, 
 104 Mass. 319, 924 (1870). The 
 practice is the same even in crim- 
 inal cases. U. S. v. Doebler, 1 Baldw. 
 (U. S.) 519, 522 (1832) (forgery). 
 
§ 524 B. Furtherance of Justice. 672 
 
 § 524. ( [2] Completeness Demanded; Documents) ; Obli- 
 gation to Introduce into Evidence Besulting from Demand and In- 
 spection. — Under a certain set of circumstances, the law of pro- 
 cedure itself overrides the option of the party to produce a docu- 
 ment in his power and compels him to put it in evidence. This 
 occurs where he who subsequently is obligated to become the pro- 
 ponent of the document has given notice to his adversary requiring 
 the latter to produce the writing, and the latter has in fact .pro- 
 duced it. The demanding party has now availed himself of the op- 
 portunity so secured of inspecting the document. He is no longer 
 at liberty to decline to keep the examined document out of evi- 
 dence ; he must, by the rule originally laid down in England, offer 
 the whole writing 1 "if at all material to the issue." 2 The docu- 
 ment is thereby made evidence for both parties. 3 The object 
 which -the court in so ordering had in view was to punish and 
 thereby discourage " fishing " for the adversary's evidence. 
 Should a litigant so far receive the benefit of the court's procedure 
 as to obtain information, he must use it, when obtained. 4 If his 
 original demand for the document has been made hona fide he 
 must have had some reason for supposing the information con- 
 tained in it would be beneficial to his side of the case. If it should 
 turn out when the document comes into his possession that he has 
 been mistaken as to the value of it to him, there .is no unfairness 
 in requiring that he should abide by the result of the hazard which 
 he has himself voluntarily taken. 5 Otherwise, he could pry with- 
 
 1. Calvert f. Flower, 7 C. & P. 386 that he cannot have it in his power 
 (1836) ; Wharam v. Routledge, 5 Esp. to compel a previous inspection." 
 235 (1805). Lawrence v. Van Home, 1 Caines 
 
 2. Wilson v. Bowie, 1 C. & P. 8, 10 (jf_ Y .) 276, 285 (1803). 
 
 (1823). 5. A paper produced upon notice 
 
 3. Com. r. Davidson, 1 Cush. at a tria ] > an( j received and examined 
 (Mass.) 33, 44 (1848). by the part y ca ni ng f or it, may be 
 
 4. " The notice to produce a paper, put in evi( J el j Ce by t he party pro- 
 requires it to be produced in evidence, ducing jt . f the pa ; tv who caUed for 
 and when once called for and pro- ^ ^^ ^ ^ H> alth h it was 
 
 called for under a misapprehension of 
 its contents. " The party seeking for 
 
 duced, it is of course in evidence, and 
 I think it cannot be called for on any 
 other terms . . And in addition 
 to what has been said, I think the ]t > ^ P a P« re 1 mred to \ P r ?" 
 alternative that the party giving the *iced] «*" ° n the supposition that it 
 notice, if the paper be not produced, contains matter favorable to his side 
 may go into evidence of its contents, of the case. He therefore assumes the 
 shows not only that he must be sup- risk of making it evidence; and can- 
 posed to be apprized of them, but not be heard to say, after he has 
 
673 Putting in Evidence Aftee Inspection. § 525 
 
 out penalty. If Ms notice to produce has been given merely to 
 see how matters stand as a sort of gambling venture, the demand- 
 ant has fully deserved to be punished in the event of ill success. 
 In such an event, no injury could happen to the interests of sub- 
 stantial justice by enforcing the application of the rule. For 
 ■while the proponent of the evidence is punished for endeavoring 
 to do what he should in the interests of justice be permitted and 
 aided to do, viz., ascertain the truth, the ultimate effect of the 
 rule is to prevent the proponent from suppressing it merely be- 
 cause he has, upon examination, found the truth to be different 
 from what he expected or, .perhaps, hoped to find it to be. 
 
 § 525. ( [2] Completeness Demanded; Documents; Obliga- 
 Hon to Introduce into Evidence Resulting from Demand and 
 Inspection); A Contradictory View — The value of this rule of ad- 
 ministration and the legal validity of the reasoning on which it is 
 based have been vehemently questioned by courts of high standing. 
 The ground of objection is partly the anomaly of refusing the 
 party notifying for production the same option of inspecting the 
 documents produced before deciding whether to offer them in evi- 
 dence which he would have had if he had obtained possession of 
 them in equity through the process for obtaining discovery; 1 
 partly because it is the litigant producing upon notice who is, in 
 reality, he who is juggling with the court. He has the remedy in 
 his own hands so far as any hardship to himself is concerned. All 
 he need do, if he thinks it will injuriously affect him to produce 
 the document is not to produce it, when asked to do so. 2 If, on 
 the other hand, he sees fit to produce, it is because he thinks 
 that so doing helps him ; and he is enabled to insist on getting the 
 benefit of this advantage under the rule which compels the de- 
 mandant to offer it in evidence. 3 In England, this early practice 
 
 ascertained its contents by inspection, 1. Lawrence v. Van Home, 1 Caines 
 
 that he intended to call for a different (N. Y.) 276, 286 (1803). 
 
 paper, or, in other words, that its 2. Lawrence v. Van Home, 1 Caines 
 
 contents were not such as he expected. (N. Y.) 276, 286 (1803). 
 
 If there is no doubt as to the identity 3. Austin v. Thomson, 45 N. H. 113 
 
 of the document, the party who pro 117 (1863) ; Huckins V. Ins. Co., 31 
 
 duces it has the right to insist on its N. H. 238, 240, 247 (1855). "The 
 
 being read to the jury; and the court plaintiff was not obliged to produce 
 
 cannot, in the exercise of their dis- his ledger, and could attach to it the 
 
 cretion, deny him this privilege." condition which he did." Huckins v. 
 
 Clark v. Fletcher, 1 Allen (Mass.) 53, Ins. Co., 31 N. H. 238, 340, 247 
 
 57 (1861). (1855). 
 
 Vol. I. 43 
 
526 
 
 B. FURTHEEANCE OF JUSTICE. 
 
 674" 
 
 has been abandoned. 4 It has, however, been adopted and persists 
 in a majority of American jurisdictions 5 while repudiated in 
 others. 6 If statutory enactments and the comments of the courts 
 applying are accepted as guides to the future, the rule is rather 
 discredited even in the house of its friends. 7 
 
 On principle, both parties should be required to produce their 
 documents and put them in evidence or neither should be so com- 
 pelled. The fairer rule, from an administrative point of view, 
 would require that production, in all cases, should be compulsory. 
 The right of counsel to inspect documents used in the cross-exam- 
 ination of his witnesses has, of course, no relation to the principle 
 under consideration. 8 
 
 § 526. ( [2] Completeness Demanded) ; Surplusage Rejected. — 
 
 While the court may properly require, in the interest of truth, 
 
 4. Parnell Commission's Proceed- 
 ings, Times' Rep. pt. 26, p. 169 
 (1888). 
 
 5. Delaware. — Read v. Randel, 2 
 Har. 500 (1839). 
 
 Georgia. — Cushman v. Coleman, 92 
 Ga. 772, 19 S. E. 46 (1893). 
 
 Maine. — Blake v. Russ, 33 Me. 360 
 (1851). 
 
 Massachusetts. — Long v. Drew, 114 
 Mass. 77, 80 ( 1873 ) ; Clark v. 
 Fletcher, 1 Allen 53, 57 (1861). 
 
 Mississippi. — Anderson v. Root, 8 
 Sm. & M. 362, 364 (1847). 
 
 Pennsylvania. — Withers v. Gillespy, 
 7 S. & R. 10, 14 (1821). 
 
 Texas. — Saunders v. Duval, 19 Tex. 
 467, 472 (1857). 
 
 United States. — U. S. v. Mitchell, 
 2 Wash. C. C. 478 (1811) ; Edison El. 
 L. Co. v. U. S. El. L. Co., 45 Fed. 55, 
 59 (1891); Jordan v. Wilkins, 2 
 Wash. C. C. 482 (1811). 
 
 Production on notice is not suffi- 
 cient. — Inspection must have been had 
 by the party calling for it. Randel 
 v. Chesap. & Del. Canal Co., 1 Har. 
 (Del.) 233, 284 (1832); U. S. V. 
 Mitchell, 2 Wash. C. C. 478 (1811). 
 Inspection granted as a matter of 
 courtesy and not in pursuance of a 
 formal demand does not invoke the 
 operation of the rule. Farmers' & M. 
 
 Bank v. Israel, 6 S. & R. (Pa.) 293, 
 296 (1820). Documents inspected on 
 -a former trial need not be produced in 
 evidence on a second. Cushman v. 
 Coleman, 92 Ga. 772, 19 S. E. 46 
 (1893). See also Wooten v. Nail, 18 
 Ga. 609, 614 ( 1855 ) . " Merely calling 
 for the books, although in answer to 
 such call they are produced, will not 
 make them evidence. It would not 
 by the English rule as stated 1 Phill. 
 Ev. 440, where it is said, if one party 
 calls for books in the possession of 
 another, but declines to use them 
 when produced, the mere calling for 
 them will not make them evidence; 
 but if the party calling for them 
 inspects them, he thereby does make 
 them evidence, although he does not 
 introduce them." Com. v. Davidson, 1 
 Cush. (Mass.) 33, 45 (1848). 
 
 6. Laufer v. Traction Co., 68 Conn. 
 475, 37 Atl. 379 (1897); Carradine 
 v. Hotchkiss, 120 N. Y. 608, 611, 24 
 N. E. 1020 (1890) ; Austin v. Thom- 
 son, 45 N. H. 113, 116 (1863). 
 
 7. Withers v. Gillespy, 7 S. & R. 
 (Pa.) 10, 14 (1821). "With the 
 wisdom of the rule we have nothing 
 to do." Wooten v. Nail, 18 Ga. 609, 
 614 (1855). 
 
 8. R. v. Ramsden, 2 C. & P. 603 
 (1827), 
 
675 Dramatic Incidents of a Trial. § 527 
 
 that any statement, oral or documentary, should go to the jury in 
 a completed form, the same interests require that any excess over 
 a reasonable completeness should not be permitted to injure the 
 proper effect of that which is necessary. That improper matter is 
 joined with that properly in the document, will not, in itself, re- 
 quire that all should be rejected. 1 Where, however, the inad- 
 missible and objectionable is so joined with the admissible that it 
 cannot be separated all may properly be rejected. 2 
 
 § 527. Principles of Administration; (B.) Furtherance of Jus- 
 tice; (3) Prevent Surprise. — It is the duty of the presiding judge 
 to prevent surprise upon a litigant; — that his substantive rights 
 shall not suffer by unforeseen developments in the case which 
 could not have been anticipated and prevented by the exercise of 
 ordinary prudence. The judge's solicitude that there be no mis- 
 carriage of justice will be proportionate to the importance of the 
 consequences of the untoward event to the party affected by it; 
 and also to the degree of culpability of the respective parties for 
 the existence of the situation which is presented. It may be 
 the duty of the court to adjourn the hearing or continue the case, 
 or even to award a new trial, 1 according to circumstances. An ex- 
 ample of surprise is furnished where material evidence becomes 
 unavailable by reason of some subtle technicality not likely to 
 have occurred to a party or his counsel. 2 So the unexpected con- 
 tradiction or impeachment of a material witness may authorize a 
 continuance. 3 
 
 Dramatic incidents of a trial, which cannot be prevented and 
 for which no one is responsible, cannot be, of course, made the 
 basis of a successful application for a continuance or motion for 
 
 1. Gunn v. Howell, 35 Ala. 144, 73 deceased had made insulting remarks 
 Am. Dec. 484 (1859) ; Halliburton v. about defendant's wife, which had 
 Fletcher, 22 Ark. 453 (1861) ; Adams been communicated to him on the day 
 l\ Lee, 82 Ind. 587 (1882). of the killing, and the credibility of 
 
 2. Pike v. Crehore, 40 Me. 503 the witnesses testifying to the re- 
 (1855). See also Tibbetts V. Baker, 32 marks is attacked, a continuance 
 
 Me. 25 (1850). should be granted to defendant to 
 
 1. Norfolk & W. By. Co. v. Coffey, procure other witnesses, to whom 
 (Va. 1905) 51 S. E. 729. similar remarks had been made by de- 
 
 2. Birrung v. Supreme Council of ceased at different times, although 
 Catholic Mut. Ben. Ass'n, 93 N. Y. they had not been communicated to 
 Suppl. 575, 104 App.Div. 571 (1905). defendant. Fossett v. State, (Tex. 
 
 3. Where defendant, charged with Crim. App. 1900) 55 S. W. 497. 
 murder, defended on the ground that 
 
§§ 528, 528a B. Fukthebance of Justice. 676 
 
 a new trial, although it is easy to infer that by arousing the emo- 
 tions of the jury, or otherwise, they may be highly prejudicial to 
 one of the parties. Of this nature is the sudden giving way of 
 over strained nerves by witnesses or parties, 4 the fainting in court 
 of persons who are interested as relatives 5 or witnesses more 
 intimately concerned with the litigation. 
 
 A fortiori, a reasonable apprehension by a party that on account 
 of the hysterical condition of a necessary witness, 6 or for some 
 other reason, his interests may be exposed to the effects of such 
 an occurrence, furnishes no ground for a continuance. 
 
 § 528. ( [3] Prevent Surprise) ; Action of Appellate Courts. — 
 
 Adjournment or continuance on the ground of surprise is a ques- 
 tion of administration. When, therefore, reason has been em- 
 ployed, the exercise of the power will not be reviewed on appeal. 
 Where, however, its action is unreasonable the ruling of the trial 
 court may be reversed. 1 
 
 § 528a. ( [3] Prevent Surprise; Action of Appellate Courts); 
 
 Amendment of Pleadings — Prominent among causes assigned for 
 surprise warranting a stay of proceedings is in connection with a 
 change in the pleadings. Where the allowance of an amendment 
 to a pleading so alters the forensic position of the opposite party 
 that he is not able to proceed without delay except by impairing 
 the chances for a successful issue in his favor, 1 he will ordinarily 
 
 4. Western Union Telegraph Co. V. Colorado. — Denver & K. G. R. Co. 
 
 Shaw, (Tex. Civ. App. 1905) 90 S. W. v. Loveland, (App. 1901) 64 Pac. 381. 
 
 58 Georgia. — Craddock v. Kelly, 129 
 
 S.Graves v. Rivers, (Ga. App. Ga. 818, 60 S. E. 193 (1908) ; Sparks 
 
 1908) 60 S. E. 374 (mother). Imp. Co. v. Jones, 4 Ga. App. 61, 60 
 
 6. Rucker v. State, (Ark. 1905) 90 S. E. 810 (1908) ; Gurr v. Carter, 2 
 
 S. W. 151 (prosecutrix in seduction). Ga. App. 268, 58 S. E. 488 (1907). 
 
 1. Pirrung v. Supreme Council of Iowa. — Flint v. Atlas Mut. Ins. 
 
 Catholic Mut. Ben. Ass'n, 93 N. Y. Co., 134 Iowa 531, 112 N. W. 1 (1907). 
 
 S. 575, 104 App. Div. 571 (1905). Kansas.— Vale v. Trader, (App. 
 
 For some further consideration of the 1897). 48 Pac. 458. 
 
 allowance of adjournments or con- Minnesota. — Despatch Laundry Co. 
 
 tinuances, see supra, § 180. Proper r. Employers' Liability Assur. Corp., 
 
 administrative indulgence of a party 105 Minn. 384, 118 N. W. 152 
 
 in the matter of continuance is ob- (1908) (raising new issues) [rehear- 
 
 viously conditioned by the operation ing granted, 105 Minn. 384, 117 N. W. 
 
 of the canon for expediting trials. 506]. 
 
 Infra, §§ 544 et seq. Nebraska. — Bliss v. Beck, 114 N. W. 
 
 1. California.— Murr v. Rhodes, 131 162 (1907); Dunn v. Bozarth, 59 
 
 Cal. 267, 03 Pac. 364 (1900). Neb. 244, 80 N. W. 811 (1899). 
 
677 Surprise Due to Amendment of Pleadings. 
 
 528a 
 
 be given the benefit of a continuance on the ground of surprise. 2 
 The rule is enforced with particular strictness in criminal cases. 3 
 In either class of action the matter is one of administration. 4 
 Should the amendment be a formal one, 5 as the substitution of 
 
 South Dakota. — Kennedy v. Agri- 
 cultural Ins. Co. of Sioux Palls, 110 
 N. W. 116 (1906). 
 
 Texas. — Horwitz v. La Roche, (Civ. 
 App. 1908) 107 S. W. 1148; Witliff 
 v. Spreen, (Civ. App. 1908) 112 
 S. W. 98 (alleging other conspirators). 
 
 Washington. — Wright v. Northern 
 Pac. Ry. Co., 38 Wash. 64, 80 Pac. 197 
 (1905) ; Eldridge v. Young America 
 & C. Consol. Min. Co., (Wash. 1902) 
 67 Pac. 703. 
 
 2. Action of others. — The same 
 forensic situation is presented where 
 the unexpected action of a co-party to 
 ■a. cause or of one connected in such 
 a way with the proceedings as to 
 affect the other, surprises the latter 
 and puts him in a position from 
 which time alone affords 1 a reasonable 
 opportunity for extricating himself. 
 Vaught v. Murray, 24 Ky. L. Rep. 
 1587, 71 S. W. 924 (1903). For 
 reverse reasons, a party who proceeds 
 against several whose legal position is 
 the same and who has received an 
 answer from certain of them cannot 
 well claim to be surprised by the 
 filing of a similar pleading by one 
 of the others. Slingluff v. Hall, 
 (N. C. 1899) 32 S. E. 739. 
 
 3. Foreman v. State, (Miss. 1909) 48 
 So. 611 (embezzlement from another 
 society ) . The accused may, however, 
 be required to show that he intends 
 in good faith a defense to the amended 
 complaint. Williams v. State, (Tex. 
 Or. App. 1905) 87 S. W. 1155. 
 
 Adding new witnesses without 
 notice. — The mere fact that the state 
 has added new witnesses to the in- 
 formation without notice to accused 
 does not necessarily entitle him to a 
 continuance. State v. Myers, (Mo. 
 1906) 94 S. W. 242. Similarly, 
 other formal irregularities in the list 
 of jurors served on a criminal de- 
 
 fendant do not constitute prejudicial 
 surprise. State v. Duperier, 115 La. 
 478, 39 So. 455 (1905) (names by 
 initial; non-existent persons). The 
 subject may be regulated by statute. 
 State v. McClain, (Iowa 1906) 106 
 N. W. 376. 
 
 4. American Ins. Co. v. Bailey & 
 Musgrove, 6 Ga. App. 424 ( 1909 ) ; 
 Georgia, F. & A. Ry. Co. V. Sasser, 
 
 (Ga. App. 1908) 61 S. E. 505; 
 Chicago, R. I. & G. Ry. Co. v. Groner, 
 
 (Tex. Civ. App. 1906) 95 S. W. 1118. 
 
 5. Georgia. — Morrison v. Morrison, 
 29 S. E. 125 (1897) (claiming in- 
 terest on note). 
 
 Illinois. — B. Shoninger Co. v. Mann, 
 219 111. 242, 76 N. E. 354 (1905) ; 
 Franklin v. Krum, 70 111. App. 649 
 (1897) (increasing ad damnum) ; Coz- 
 zens v. Chicago Hydraulic Press Brick 
 Co., 166 111. 213, 46 N. E. 788 (1897) 
 [judgment affirmed, 64 111. App. 569 
 (1895)]. 
 
 Indian Territory. — Purcell Mill & 
 Elevator Co. v. Kirkland, 47 S. W. 
 311 (1898). 
 
 Indiana. — Mitchelltree 'School Tp. 
 of Martin Co. v. Hall, (App. 1903) 
 58 N. E. 919; North British & Mer- 
 cantile Ins. Co. v. Rudy, 26 Ind. App. 
 472, 60 N. E. 9 (1901). 
 
 Kansas. — Chandler v. Parker, 65 
 Kan. 860, 70 Pac. 368 (1902) (alleg- 
 ing higher value) ; Union Pac. Ry. 
 Co. v. Motzner, (Kan. App. 1898) 55 
 Pac. 670. 
 
 Kentucky. — Sterns Coal Co. v. Ev- 
 ans' Adm'r, 33 Ky. L. Rep. 755, 111 
 S. W. 308 (1908). 
 
 Michigan. — Milliken v. City of St. 
 Clair, 99 N. W. 7, 10 Detroit Leg. N. 
 1030 (1904). 
 
 New Mexico. — Ross v. Carr, 103 
 Pac. 307 (1909) (raising ad damnum 
 to meet the evidence). 
 
 Texas. — El Paso & S. W. R. Co. v. 
 
§ 528a 
 
 B. FuETHEBANCE OF JUSTICE. 
 
 678 
 
 the name of one use-plaintiff for that of another, 6 in order 
 to make the allegations correspond to the proof, 7 or the like, 8 
 nothing in the situation requires the presiding judge to award 
 a continuance to avoid surprise. This is especially true where 
 the party asking for it makes no showing that he could not 
 safely proceed at the present time. 9 In the same way, it will be 
 felt by a presiding judge that no continuance is required unless 
 
 Harris & Liebman, (Civ. App. 1908) 
 110 S. W. 145; Ft. Worth & D. C. Ey. 
 Co. i\ Partin, (Civ. App. 1903) 76 
 S. W. 236; Texas & N. O. R. Co. v. 
 Bancroft, (Tex. Civ. App. 1900) 56 
 S. W. 606 (filling blanks). Where 
 only the same evidence is needed to 
 meet an amended pleading as an 
 original one the amendment may be 
 regarded as formal. Shiner v. Shiner, 
 (Tex. Civ. App. 1897) 40 S. W. 439. 
 If the party have been informed that 
 the amendment would be allowed, suf- 
 ficiently early to enable him to pre- 
 pare for trial he can scarcely claim 
 to be surprised by its actual allow- 
 ance. Amos v. Stockert, (W. Va, 
 1899) 34 S. E. 821. See Kessler v. 
 Bank, 21 Tex. Civ. App. 98 (1899). 
 See also Jordan v. Schuerman, (Ariz. 
 1898) 53 Pac. 579. 
 
 6. Bracken v. Pennsylvania E. Co., 
 222 Pa. St. 410, 71 Atl. 926 (1909). 
 
 7. Georgia. — Fraser v. State, 112 
 Ga. 13, 37 S. E. 114 (1900). 
 
 Illinois. — Wabash E. Co. v. Camp- 
 bell, 219 111. 312, 76 N. E. 346 (1905) 
 [judgment affirmed, 117 111. App. 630]. 
 
 Iowa. — Tyler v. Bowen, 100 N. W. 
 505 (1904). 
 
 Michigan. — Crane Lumber Co. v. 
 Bellows, 74 N. W. 481 (1898). 
 
 Montana. — Montana Ore-Purchasing 
 Co. v. Boston & M. Consol. Copper & 
 Silver Min. Co., 27 Mont. 288, 70 Pac. 
 1114 (1902) [decree modified on re- 
 hearing 71 Pac. 1005 (1903)]. 
 
 New York. — Bosenberg v. Third 
 Ave. E. Co., 61 N. Y. Suppl. 1052, 47 
 App. Div. 323 (1900) [citing Thomp- 
 son v. Hicks, 37 N. Y. Suppl. 340, 1 
 App. Div. 275 (1896) ; Davis v. Eail- 
 road Co., 110 N. Y. 646, 17 N. E. 733 
 
 (1888) ; distinguishing Patterson t. 
 Eailroad Co., 49 N. Y. Suppl. 796, 
 26 App. Div. 336 (1898) ; Anderson v. 
 Eailway Co., 55 N. Y. Suppl. 290, 36 
 App. Div. 309 (1899) ; Hoffman v. 
 Eailroad Co., 61 N. Y. Suppl. 5U0 
 (1899)]. 
 
 An immaterial variance between the 
 evidence and the allegations will not 
 constitute a surprise which will be the 
 proper basis of a continuance. Nie- 
 berg v. Greenberg, 91 N. Y. Suppl. 83 
 (1904). 
 
 8. Merrielees v. Wabash E. Co., 163 
 Mo. 470, 63 S. W. 718 (1901) (speci- 
 fications of negligence) ; Houston & 
 T. C. E. Co. v. Cluck, (Tex. Civ. App. 
 1904) 84 S. W. 852 (amplified original 
 grounds) ; Lampe v. Jacobsen (Wash. 
 1907) 90 Pac. 654. 
 
 9. Georgia. — Atlanta Land & Loan 
 Co. v. Haile, 106 Ga. 498, 32 S. E. 606 
 (1899). 
 
 Indiana. — Brandt v. State, (App. 
 1897) 46 N. E. 682. 
 
 Iowa. — Foote v. Burlington Gas- 
 light Co., 103 Iowa 576, 72 N. W. 755 
 (1897). 
 
 Michigan. — Crane Lumber Co. r. 
 Bellows, 74 N. W. 481 (1898). 
 
 Texas. — Missouri, K. & T. Ey. Co. 
 of Texas v. Brantley, (Civ. App. 1901) 
 62 S. W. 94. 
 
 Washington. — Lampe c. Jacobsen, 
 90 Pac. 654 (1907). 
 
 West Virginia. — Bank of Ravens- 
 wood v. Hamilton, 27 S. E. 2% (1897). 
 The party claiming to be surprised by 
 an amendment may properly be re- 
 quired to show that he has at least a 
 plausible defence to the pleading as 
 amended. Cirwithin v. Mills, 2 Marv. 
 232, 43 Atl. 151 (1896). 
 
679 Surprise at Unexpected Testimony. §§ 528b, 528c 
 
 there is a reasonable prospect that the party asking for it can 
 procure additional evidence, or that an investigation into the 
 facts is needed or would probably prove beneficial. 10 
 
 The party entitled to a continuance on the ground of surprise 
 caused by the allowance of an amendment is, as a rule, the oppo- 
 site party. In the absence of exceptional circumstances, the 
 party moving the amendment will not be entitled to a continu- 
 ance upon that ground. 11 
 
 § 528b. ( [3] Prevent Surprise; Action of Appellate Courts); 
 
 Decisions on Dilatory Fleas. — In case of decisions by the court 
 upon dilatory pleas 1 or other formal matters, 2 the nature of 
 which might reasonably have been anticipated, some proof of 
 threatened prejudice other than the party's allegation or state- 
 ment that he is surprised at the result, will be required to war- 
 rant a continuance. On the other hand, it may be equally clear 
 that where the result of the court's action is to place a party in a 
 situation different from what he could fairly have foreseen, the 
 continuance is not only reasonable, 3 but may even be necessary 
 to the ends of justice. A ruling other than a party has expected 
 or even than the court has intimated, will not, however, neces- 
 sarily constitute unfair treatment, where a reasonable oppor- 
 tunity for protecting his interests is afforded the party against 
 whom the court finally decides. 4 
 
 § 528c. ( [3] Prevent Surprise; Action of Appellate Courts); 
 
 Testimony. — Where the testimony given at a trial is such that 
 it could not reasonably have been anticipated by the party against 
 whom it is offered, he will, if it is material to the decision of 
 the case, 1 be entitled to an opportunity of meeting it, by adjourn- 
 
 10. International & G. N. It. Co. v. 3. Crotty v. City of Danbury, 79 
 Howell, (Tex. 1908) 111 S. W. 142 Conn. 379, 65 Atl. 147 (1906). 
 [judgment affirmed, (Tex. Civ. App. 4. Sparks v. Green, ©9 S. C. 198, 
 1907) 105 S. W. 560]. 48 S. B. 61 (1904) ; Fidelity & De- 
 ll. McDonald v. Holbrook, Cabot & posit Co. of Maryland v. L. Buck! & 
 Daly Contracting Co., 93 N. Y. Suppl. Son Lumber Co., 189 U. S. 135, 23 S. 
 920, 105 App. Div. 90 (1905). Ct. 582, 47 L. ed. 744 (1903). 
 
 1. St. Louis, I. M. & S. Ry. Co. v. 1. Dempsey v. Taylor, 4 Tex. Civ. 
 Smith, (Ark. 1907) 100 S. W. 884 App. 126, 23 S. W. 220 (1893). Coun- 
 (plea in abatement). sel cannot fairly claim to be surprised 
 
 2. Vulcan Ironworks, v. Burrell because the opposing party has failed 
 Const. Co., (Wash. 1905) 81 Pac. 836 to afford a favorable opportunity for 
 {motions for non-suit). contradiction as was anticipated. 
 
528d 
 
 B. FuETHEKANCE OF JUSTICE. 
 
 680 
 
 ment, 2 or continuance, 3 if this be the only adequate means of 
 facing the situation. 4 Such an order may be of especial import- 
 ance in a criminal case. 5 
 
 § 528d. ( [3] Prevent Surprise; Action of Appellate Courts) ; 
 
 Testimony) ; Failure in own Evidence. — A party may reasonably 
 be surprised by the unexpected failure in his own evidence/ 
 documentary 2 or oral, 3 as well as by an unlooked for assault from 
 his opponent. Thus where a party has reasonably relied upon 
 secondary evidence and the reception of this is objected to, with- 
 
 Branch v. Du Bose, 55 Ga. 21 (1875) ; 
 Woodcock v. Sutton, 8 Ky. L. Rep. 
 616 (1887). See also Missouri Pac. 
 Ry. Co. v. Kuthman, 2 Willson (Tex.) 
 Civ. Cas. Ct. App., § 463 (1884). 
 
 2. Heyman v. Singer, 99 N. Y. 
 Suppl. 942, 51 Misc. 18 (1906). 
 
 Absence of judge from courtroom. 
 — The fact that the presiding justice 
 left the courtroom during a trial, 
 while the jury was out, does not ad- 
 journ, the court. Chichester v. Win- 
 ton Motor Carriage Co., 96 N. Y. 
 Suppl. 10O6, 110 App. Div. 78 (1905). 
 Where, however, the jury are present 
 in court during the temporary absence 
 of the judge a somewhat different 
 question is presented. If objection to 
 the judge's absence from the court- 
 room during the argument of a case 
 to the jury is seasonably made and 
 properly presented such conduct should 
 be regarded as unreasonable, except 
 where, in a civil case or misdemeanor, 
 it plainly appears to the reviewing 
 court that the cause of the objecting 
 party was not prejudiced by what oc- 
 curred doiring the judge's absence. 
 Wells v. O'Hare, 209 111. 627, 70 N. 
 E. 1056 (1904) [judgment reversed, 
 110 111. App. 7 (1903)]. See also 
 Smith v. Sherwood, (Wis. 1897) 70 
 N. W. 682. A litigant is not preju- 
 diced by the action of the judge in 
 sitting at a table among the members 
 of the bar in presence of the jury. 
 Sea well v. 'Carolina Cent. R. Co., 132 
 N. C. 856, 44 S. E. 610 (1903) [re- 
 hearing denied, 45 S. E. 850]. 
 
 3. Louisville & N R. Co. v. Bell, 
 (Ky. 1909) 119 S. W. 782; Johnson 
 v. Com. 32 Ky. L. Rep. 1117, 107 
 S. W. 768 (1908). 
 
 4. Louisiana. — Davis v. Millau- 
 don, 14 La. Ann. 808 (1859). 
 
 Mississippi. — Garrett v. Carlton, 65 
 Miss. 188, 3 So. 376 (1887). 
 
 New York. — Freeland v. Brooklyn 
 Heights R. Co., 66 N. Y. Suppl. 321, 
 54 App. Div. 90 (1900). 
 
 Texas. — Collins v. Boyd, (Civ. App. 
 1900) 59 S. W. 831. 
 
 Washington. — Straw-Ellsworth Mfg. 
 Co. v. Cain, 55 Pac. 321 (1898). 
 
 United States. — Le Roy v. Dela- 
 ware Ins. Co., Fed. Cas. No. 8,270 
 [2 Wash. C. C. 223] (1808). Neces- 
 sity for the adjournment must, how- 
 ever, be affirmatively shown. Alabama 
 Steel & Wire Co. v. Wrenn, 136 Ala. 
 475, 34 So. 970 (1903). 
 
 5. Lindle i\ Com., 23 Ky. L. Rep. 
 1307, 64 S. W. 986 (1901) ; Lowry v. 
 Com., 23 Ky. L. Rep. 1240, 63 S. W. 
 977 (1901). 
 
 1. Threadgill v. Bickerstaff, 7 Tex. 
 Civ. App. 406, 26 S. W. 739 (1894) ; 
 Texas & P. Ry. Co. v. Boggs, (Tex. 
 Civ. App. 1895) 30 S. W. 1089 (fail- 
 ure of counsel to comply with stipu- 
 lation). 
 
 2. Infra, § 5287s. 
 
 3. Shipp v. Suggett, 48 Ky. (9 B. 
 Monr.) 5 (1848) (drunken witness). 
 Infra, § 528g. 
 
681 No Supkise if Ixtimation is Given. § 528e 
 
 out sufficient notice, he may be given a short adjournment in 
 which to procure the primary grade of proof. 4 In the same 
 way, if an important witness should abandon the trial without 
 leave from a party an adjournment until a bench warrant can 
 be served upon him may reasonably be demanded from the court. 5 
 In the same way, where a witness produced by one of the parties 
 unexpectedly shows hostility to him and testifies to the contrary 
 effect of that which was to have been anticipated from him, a 
 continuance may be granted. 6 When material testimony is sup- 
 pressed by the court, without which the party in whose favor it 
 was taken cannot safely proceed to trial, the court, upon the 
 application of such party, and upon such terms as may be just, 
 may reasonably grant a continuance. 7 
 
 § 528e. ( [3] Prevent Surprise; Action of Appellate Courts); 
 
 Testimony) ; Due Diligence Must be Shown In general, a court 
 
 is not reasonably to be required to suspend the trial of a cause 
 to enable a party to procure additional evidence, 1 if he could 
 have obtained it for himself in sufficient season by due diligence f 
 and the same rule may properly be applied even in a criminal 
 case. 3 
 
 A fortiori, there is no surprise where the testimony actually 
 given has been clearly foreshadowed by the nature of the issue 4 
 
 4. Reiss v. Pfeiffer, 103 N. Y. Suppl. Chicago, 221 111. Ill, 77 N. E. 539 
 478, 117 App. Div. 880 (1907) (1906) (measuring a sewer); St. 
 (records). And see Borland v. Chi- Louis, W. & W. R. Co. v. Ransom, 29 
 cago, M. & St. P. Ry. Co., 78 Iowa 94, Kan. 298 ( 1883 ) . One having full 
 42 N. W. 590 (1889) (deposition); means for acquiring knowledge as to 
 Moore v. Smith, 88 Ky. 151, 10 S. W. what testimony will be used against 
 380 (1889) (deposition). him, who goes to trial without tak- 
 
 5. Blasland-Parcels-Jordan Shoe Co. ing measures to ascertain what it is 
 v. Hicks, 70 Mo. App. 301 (1897). to be, is not entitled to » continuance 
 
 6. Maynard v. Cleveland, 76 Ga. 53 on the ground of surprise, in the 
 (1885). absence of any misleading act or 
 
 7. Spielman v. Flynn, 19 Neb. 342, declaration of the adverse party. 
 27 N. W. 224 (1886). Burrow v. Brown, 59 Tex. 457 (1883). 
 
 1. Zipperer v. City of Savannah, 128 3. Eatman v. State, (Ala. 1904) 36 
 Ga. 135, 57 S. E. 311 (1907) ; Block So. 16. 
 
 v. Sherry, 87 N. Y. Suppl. 160, 43 4. Ellis v. U. S., (Ind. Terr. 1906) 
 
 Misc. 342 (1904) ; Silver v. Elias, 68 97 S. W. 1013; El Paso Southwestern 
 
 N. Y. Suppl. 851 (1901); Turner v. R. Co. v. Barrett, (Tex. Civ. App. 
 
 State, (Tex. Cr. App. 1905) 89 S. W. 1907) 101 S. W. 1025 (deposition) ; 
 
 975 (motion for change of venue). Texas & P. Ry. Co. v. Buckelew, 3 
 
 2. Pinson v. Bass, 114 Ga. 575, 40 Tex. Civ. App. 272, 22 S. W. 994 
 S. E. 747 (1902); Sheedy v. City of (1893) (deposition). 
 
§§ 5-2 Sf , 528g B. Furtherance oe Justice. 682 
 
 or the previous evidence in the case. 5 The same rule may reason- 
 ably be applied to evidence of any facts which a litigant would 
 naturally be called upon to meet. 6 
 
 § 528f. ( [3] Prevent Surprise; Action of Appellate Courts); 
 Testimony) ; Change of Testimony — On the other hand, a change 
 of testimony from that given at a former trial 1 or from what was, 
 for some other reason, fairly to be expected at a later stage, 2 
 may well furnish sufficient ground for a motion for a continuance 
 on account of surprise. 3 Much, in any case, may properly de- 
 pend upon the substantial merits and relative skill of the parties. 
 Should it appear, for example, that the party claiming a sur- 
 prise has been actually the victim of oppression 4 and was at the 
 trial put at a disadvantage by reason of his own stupidity 5 or the 
 unskillfulness of his counsel, a continuance will be the more 
 readily ordered in an appellate court. 
 
 § 528g. ( [3] Prevent Surprise; Action of Appellate Courts); 
 Testimony); Absence of Witnesses. — "Where the testimony of a 
 witness becomes material by reason of unforeseen evidence which 
 a party, without fault of his own, is unexpectedly called upon to 
 meet, 1 a continuance may properly be granted upon the principles 
 
 5. Hopkins v. State, (Tex. Cr. App. W. 17. Should the prima facie scope 
 1901) 64 S. W. 933; Gulf, C. & S. F. and object of the claim be unex- 
 Ry. Co. v. Brown, (Tex. Civ. App. pectedly amplified in the evidence a 
 1897) 40 S. W. 608; Bailey v. State, continuance may be granted if the 
 (Tex. Cr. App. 1897) 40 S. W. 281; other side is lona fide surprised. 
 Merrill v. O'Bryan, (Wash. 1908) 93 Kessler v. First Nat. Bank, (Tex. 
 Pac. 917 (affidavit). Civ. App. 1899) 51 S. W. 62. 
 
 6. Impeaching evidence not ground 3. Day v. Com., (Ky. 1909) 120 
 of surprise.— The fact that the de- S. W. 296; Sheldon v. Bahner, 4 Pa. 
 fendant is taken by surprise, by evi- Co. Ct. R. 16 (1887) (unexpected 
 tlence impeaching his credibility, is construction of rule of court). The 
 no ground for a continuance or a change of evidence should, to have 
 new trial. Every man is supposed the effect of constituting a surprise 
 to be able to support his general warranting a continuance be upon a 
 character for truth and veracity in material and controverted point. Du- 
 the community in which he lives, pree v. State, 56 Tex. Cr. R. 206, 119 
 especially when he has lived in that S. W. 685 (1909). 
 
 community for several years. Lynes 4. Whitaker v. Whitaker, (Ky. 
 
 v. Reed, 40 Ga. 237 (1869). 1S97) 43 S. W. 464. 
 
 1. McDonald v. Holbrook, Cabot & 5. Whitaker j;. Whitaker, (Ky. 
 Daly Contracting Co., 93 N. Y. Suppl. 1897) 43 S. W. 464. 
 
 920, 105 App. Div. 90 (1905). 1. Schwarzschild & Sulzberger Co. 
 
 2. A continuance on this ground v. New York City Ry. Co., 90 N. Y. 
 may be refused where many witnesses Suppl. 374 (1904) (gone home at 
 are prepared to testify on the point. 6 p. m.). 
 
 Blair v. State, (Neb. 1904) 101 N. 
 
683 Natural Production no Surprise. § 528h 
 
 above stated. The rule is otherwise where a litigant has reason 
 to know that the testimony of the absent witness would be needed 
 at the trial and has neglected to secure it. It may fairly be said 
 that in the absence of a showing of diligence in procuring the 
 attendance of a witness as to his probable whereabouts, and as to 
 what efforts, if any, have been made to procure his attendance 
 after the necessity for having his testimony became obvious, the 
 court does not abuse its discretion in refusing a postponement, 
 even for a short period of time. 2 Should it appear, in any case, 
 that the party is directly responsible for the absence of which he 
 complains, as where he has neglected to subpoena the witness, 3 or 
 has voluntarily excused him, 4 any claim to a continuance may 
 fairly be regarded as having been waived. 
 
 § 528h. ( [3] Prevent Surprise; Action of Appellate Courts); 
 
 Production of Documents — The rule is the same with regard to 
 the production of papers. The court has full power to protect a 
 party from surprise due to the introduction of documents by the 
 opposite party under circumstances not reasonably to have been 
 anticipated by him. 1 If necessary for doing justice, the judge 
 may continue the case. 2 A motion for a continuance should be 
 promptly made. On the other hand, the fair diligence of counsel 
 may properly be stimulated by a rule that where a party might 
 reasonably have anticipated that a certain paper would be needed 
 in connection with a trial, counsel will not be awarded an adjourn- 
 ment in which to procure it. 3 Nor will the party against whom 
 papers are offered which he might reasonably have foreseen, from 
 the nature of the action, or other cause, would probably be ten- 
 dered in evidence, be regarded as surprised upon their actual 
 
 2. Midland Valley E. Co. v. Hamil- (interrogatories) ; Strass v. Marine 
 ton, 84 Ark. 81, 104 S. W. 540 (1907) Ins. Co., Fed. Cas. No. 13,518 [1 
 (three hours). Cranch. C. C. 343] (1806) (deposi- 
 
 3. Kozlowski v. City of Chicago, tion). 
 
 113 111. App. 513 ( 1904) ; Missouri, 2. Leverett v. Tift, 6 Ga. App. 90, 
 
 K. & T. Ey. Co. of Texas v. Price, 64 S. E. 317 (1909). A motion for 
 
 (Tex. Civ. App. 1908) 106 S. W. 700. a continuance should be promptly 
 
 4. Missouri, K. & T. Ey. Co. of made. McLear v. Hapgood, 85 Cal. 
 Texas v. Price, (Tex. Civ. App. 557, 24 Pac. 788 (1890). 
 
 1908) 106 S. W. 700. 3. Wilcox v. Mims, 95 Ga. 564, 20 
 
 1. Leverett v. Tift, 6 Ga. App. 90, S. E. 382 (1894) (interrogatories) ; 
 
 64 S. E. 317 (1909) ; Dare 1>. McNutt, Knapp v. Order of Pendo, 36 Wash. 
 
 1 Ind. (1 Cart.) 148 (1848); Bro- 601, 79 Pac. 209 (1905). 
 naugh v. Bowles, 3 La. 120 (1831) 
 
§§ 52 8i, 528 j B. Furtherance of Justice. 
 
 684 
 
 production. 4 In any event, the right of a court to continue a 
 ease that a party to it may procure additional documentary evi- 
 dence, 5 or in order that he may lay a foundation for the receipt 
 of secondary proof of unavailable papers, 6 is beyond question. 
 Xor is the rejection of immaterial documents a suitable ground 
 for claiming surprise. 7 
 
 § 528i. ( [3] Prevent Surprise; Action of Appellate Courts); 
 
 Time and Place of Hearing — Where a party, without his fault, 
 is surprised as to the time or place of holding court, the trial 
 judge will be justified in granting a continuance. 1 A rearrange- 
 ment of cases on the court's docket may have this effect. 2 
 
 § 528j. ( [3] Prevent Surprise; Action of Appellate Courts); 
 
 Surprise Must be Prejudicial — The surprise against which the 
 presiding judge is bound, so far as consistent with his other 
 administrative duties, to protect a litigant is one which clearly 
 impairs the latter's chances of success, i. e., is prejudicial to him. 1 
 
 4. Robinson v. Francis, 8 Miss. (7 
 How.) 458 (1843) ; E. Frank Coe Co. 
 v. Eichenberg, 22 Pa. Super. Ct. 287 
 (1903); Morrison v. State, (Tex. Cr. 
 
 4 App. 1899) 51 S. W. 358 (letters). 
 A motion for continuance will be less 
 readily allowed if seasonable notice 
 have been given that objection would 
 be made to the admission of the evi- 
 dence which was subsequently ex- 
 cluded. Allen v. Hoxey, 37 Tex. 320 
 (1872). 
 
 5. Doe v. Doe, 37 N. H. 268 (1858) ; 
 Griffin i\ McKinney, (Tex. Civ. App. 
 1901) 62 S. W. 78 (copies of foreign 
 law) ; 'Grigsby v. May, 57 Tex. 255 
 (1882); Waskern v. Diamond, Fed. 
 Cas. No. 17,248 (1855) (depositions). 
 
 G. State v. Cooper, (Tenn. Ch. App. 
 1899) 53 & W. 391. See E. F. Kir- 
 wan Mfg. Co. v. Truxton, 1 Penne- 
 will 409 (1898); Slingluff v. Hall, 
 124 N. C 397 (1899); Straw-Ells- 
 worth Mfg. 'Co. v. Cain, 20 Wash. 
 351 (1898). 
 
 7. Lyons & E. P. Toll Road Co. v. 
 People, 29 Colo. 434, 68 Pac. 275 
 (1902). 
 
 1. Ross v. Austill, 2 Cal. 183 
 (1852). 
 
 2. Elliott v. Cadwallader, 14 Iowa 
 67 (1862). 
 
 1. The exclusion of inadmissible 
 evidence furnishes no ground for sur- 
 prise. McCutchin v. Bankston, 2 Ga. 
 244 (1847) ; Simpson v. Johnson, 
 (Tex. Civ. App. 1898) 44 S. W. 1076. 
 The fact that the same evidence was 
 admitted without objection at a 
 former trial does not constitute the 
 subsequent exclusion a surprise. Tur- 
 ner v. Tubersing, 67 Ga. 161 (1881). 
 Nor does the fact that the opposing 
 witnesses testify differently than they 
 have told the objecting party they 
 would, constitute such a threatened 
 prejudice as will be deemed a sur- 
 prise. Brock v. Com., 33 Ky. L. Rep. 
 630, 110 S. W. 878 (1908). See also 
 Texas Cent. Ry. Co. v. Brock, (Tex. 
 Civ. App. 1895) 30 S. W. 274. 
 
 Improper conduct on the part of the 
 judge which takes place after verdict 
 rendered can scarcely be deemed 
 prejudicial. Central of Georgia Ry. 
 Co. v. Perkerson, 115 Ga. 547, 41 
 S. E. 1018 ( 1902 ) ; Perkerson v. Cen- 
 tral of Georgia Ry. Co., 115 Ga. 547, 
 41 S. E. 1018 (1902). 
 
685 TJnfaie Tkeatment by Judge. §§ 529, 529a 
 
 Some right of the party claiming to be aggrieved must have been 
 violated. Thus, for example, if a litigant is merely deprived by 
 correction of an erroneous ruling of the right to favorable action 
 by an appellate tribunal, upon the original ruling, he is in no 
 way prejudiced. Thus, the withdrawal, before argument, of 
 incompetent evidence previously admitted 2 is not, in itself, a 
 surprise of which a party is entitled to complain. So a defendant 
 cannot claim a surprise when the plaintiff merely discontinues 
 as to a portion of his demand. 3 In like manner, should the evi- 
 dence for which the court is asked to continue the case be prac- 
 tically cumulative 4 or relevant only upon an immaterial issue 5 
 no error has been committed for which reversal should be had. 
 
 § 529. ( [3] Prevent Surprise) ; Protection against Unfair 
 Treatment — A broad canon of administration, so inclusive that 
 but occasional instances can, here and there, be given of its 
 application, is that the court will, in furtherance of justice, pro- 
 tect each party from unfair treatment. This may be threatened 
 either from the opposite party or from the judge himself. In 
 whichever guise the danger may present itself, the administrative 
 duty of the court to remove it is clear. The parties have pro- 
 cedural rights, granted under rules of law, which bind the 'action 
 of the court. The observance of the present canon of adminis- 
 tration constitutes, in a similar way, a necessary conditioning 
 limitation upon judicial discretion 1 as this term is understood in 
 the modern English law of evidence. Any act, or omission, on 
 the part of judge or opposing counsel which tends unreasonably 
 to place one of the parties at a disadvantage compared to his 
 opponent regarding the issue of the litigation other than that 
 due to his own conduct or the substantial merits of his cause, 
 constitutes unfair treatment. 
 
 § 529a. ( [3] Prevent Surprise; Protection Against Uniair 
 Treatment); Unfair Comment — The rules of procedure, fre- 
 quently constitutional or statutory, which, in a majority of Ameri- 
 can states, forbid a presiding judge to comment upon the evidence 
 
 2. Mitchell v. Edeburn, 37 Pa. 4. Norfolk & W. Ry. Co. v. Spears, 
 Super. Ct. 223 (1908). (Va. 1909) 65 S. E. 482. 
 
 3. Crandall v. Lynch, 20 App. D. 5. Lindsley v. Parka, (Tex. Civ. 
 C. 73 (1902) ; Smith v. Sullivan, 20 App. 1897) 43 S. W. 277. 
 
 App. D. C. 553 (1902). 1. Supra, § 177. 
 
529a 
 
 B. Furtherance of Justice. 
 
 686 
 
 given in a cause, have been elsewhere stated. 1 As a matter of 
 administration, however, as an effort to promote the abounding 
 of justice in the results of litigation, a trial judge will carefully 
 seek to avoid any comment, whether or not strictly forbidden by 
 law, which may in the least work injustice to the cause of a liti- 
 gant. The weight which the jury attach to the utterances of the 
 judge, their anxiety to seek a clue from him which may, in a case 
 of bewildering uncertainty, relieve them from their own duty 
 will make him extremely cautious that his prejudice shall not 
 supplant the orderly administration of law. The trial judge will, 
 therefore, at all times, carefully refrain from interpolating re- 
 marks which indicate to the jury the opinion which he has formed 
 on a material point in dispute, 2 or as to what facts are 3 or are 
 not 4 proved. 5 He may even refrain from stating as to what facts 
 there is evidence. 6 The judge will not, for example, permit him- 
 self to say to a defendant, regarding a telegram which the latter 
 claims was not delivered, " You are responsible for it." 7 It 
 
 1. Supra, § 281. 
 
 2. Georgia Ry. & Electric Co. v. 
 Baker, 1 Ga. App. 832, 58 S. E. 88 
 (1907); Thomson v. Kelley, (Tex. 
 Civ. App. 1906) 97 S. W. 326. 
 
 3. Ficken v. City of Atlanta, 114 
 Ga. 970, 41 S. E. 58 (1902); In re 
 Knox's Will, (Iowa 1904) 98 N. W. 
 468; Paxton r. Knox, (.Iowa 1904) 
 98 N. W. 468; Selley v. American 
 Lubricator Co., (Iowa 1903) 93 N. 
 W. 590; Texas & Louisiana Lumber 
 Co. v. Rose, (Tex. Civ. App. 1907) 
 103 S. W. 444; Hynes r. Winston, 
 (Tex. Civ. App. 1897) 40 S. W. 1025. 
 
 4. Atlantic Coast Line R. Co. v. 
 Powell, 127 Ga. 805, 9 L. R. A. (N. 
 S.) 769, 56 S. E. 1006 (1907); Cold"- 
 ren r. Le Gore, (Iowa 1902) 91 N. 
 W. 1066. 
 
 5. The demeanor of a judge may be 
 as unfair to a party as his verbal 
 expressions. City of Newkirk v. Dim- 
 mers, 17 Okl. 525, 87 Pac. 603 
 (1906). 
 
 6. Patten v. Town of Auburn, 
 (Wash. 1906) 84 Pae. 594. He will 
 be especially careful not to do this 
 when the evidence is but partially in 
 and he is liable to announce merely 
 
 a prejudgment injurious to one of 
 • the parties: Chicago City Ry. Co. v. 
 Wall, 93 111. App. 411 (1901); Mc- 
 Bane v. Angle, (Tex. Civ. App. 1902) 
 69 S. W. 433 (attempt at bribery). 
 
 7. Western Union Telegraph Co. v. 
 Northcutt, (Ala. 1909) 48 So. 553. 
 
 Comment on facts. — Such a prac- 
 tice may, at times, be obviously neces- 
 sary to compliance on the part of a 
 judge with the procedural rules which 
 direct him to refrain from comment 
 upon the facts. Howeth i>. Carter, 
 (Tex. Civ. App. 1900) 56 S. W. 539. 
 Citing Smith v. Dunman, (Tex. Civ. 
 App. 1895) 2-9 S. W. 432; Hynes r. 
 Winston, (Tex. Civ. App. 1897) 40 
 S. W. 1025; Sargent v. Lawrence, 
 (Tex. Civ. App. 1897) 40 S. W. 1075; 
 McMinn r. Whelan, 27 Cal. 300 
 (1865). In the federal courts no 
 error is committed by a trial judge 
 in commenting upon the facts where 
 no material rule of law is incorrectly 
 stated by him. Union Pac. R, Co. v. 
 Thomas, 152 Fed. 365, 81 C. C. A. 
 491 (1907). A corresponding free- 
 dom of collateral observation is. as 
 a consequence, permitted to such a, 
 judge. It has even been ruled that 
 
687 
 
 Unfaie Comment not Addkessed to Jury. 
 
 529a 
 
 has been rather sophistically held that a statement calculated to 
 indicate the judge's opinion as to the weight of the evidence is 
 not prejudicial to a party if the observation is not addressed 
 
 provisions prohibiting the court from 
 commenting on the evidence refer 
 only to instructions given after the 
 case has been closed and the argu- 
 ments of counsel concluded, and do 
 not apply to remarks made by the 
 judge during the examination of wit- 
 nesses. Partelow v. Newton & B. St. 
 Ry. Co., (Mass. 1907) 81 N. E. 894. 
 On the contrary, comments by the 
 judge as to the credibility of various 
 witnesses may well be prejudicial. 
 Florida Cent. & P. R. Co. v. Lucas, 
 110 Ga. 121, 35 S. E. 283 (1900); 
 Swenson v. Erickson, 90 111. App. 358 
 (1900). See also Roberson v. State, 
 40 Fla. 509, 24 So. 474 (1898) ; State 
 v. Hughes, 33 Kan. 23, 5 Pac. 381 
 (1885) ; Williams v. West Bay City, 
 119 Mich. 395, 78 N. W. 328 (1899). 
 Whether an instruction to the jury 
 to disregard an objectionable com- 
 ment of the court will cure the evil 
 effect of what has been done, will 
 vary with the circumstances of each 
 case. Mere flippancy and impropriety 
 may have trivial consequences which 
 may be obviated in this way. St. 
 Louis & S. W. Ry. Co. v. Elgin Con- 
 densed Milk Co., 175 111. 557, 51 N. 
 E. 911 (1898) [judgment affirmed, 
 74 III. App. 619 (1898)]; Reilly v. 
 Eastman's Co. of New York, 57 N. Y. 
 Suppl. 825, 27 Misc. 322 (1899). 
 A clear glimpse into the mind of the 
 court, revealing to the jury the de- 
 liberate judgment of an experienced 
 trier of causes, assumed to be indif- 
 ferent between the parties, may leave 
 effects which cannot be obliterated in 
 this way. Swan v. Keough, 54 N. Y. 
 Suppl. 474, 35 App. Div. 80 (1898); 
 Davison v. Herring, 48 N. Y. Suppl. 
 760, 24 App. Div. 402 (1897). 
 
 Mere ejaculations by the judge, 
 made on his own motion, and not 
 in response to a request for rulings, 
 are theoretically improper even if 
 
 sound in point of law. Houston & 
 T. C. R. Co. v. Shapard, (Tex. Civ. 
 App. 1909) 118 S. W. 596. The prac- 
 tice, however, is inveterate, and, in 
 the absence of actual prejudice, may 
 be regarded as an unavoidable if not 
 justifiable incident of a trial at law. 
 
 Illinois. — Hill v. Montgomery, 184 
 111. 220, 56 N. E. 320 (1900) [judg- 
 ment affirmed, 84 111. App. 300 
 (1899)]. 
 
 Iowa. — Gross v. Feehan, 81 N. W. 
 235 (1899). 
 
 Kentucky. — American Fire Ins. Co. 
 v. Bland, 40 S. W. 670 (1897) 
 
 Missouri. — Crossan v. Crossan, 169 
 Mo. 631, 70 S. W. 136 (1902) ; Bot- 
 tom v. Croal, 89 Mo. App. 613 (1901). 
 
 ~New York. — Devlin v. New York 
 City Ry. Co., 102 N. Y. Suppl. 430, 
 116 App. Div. 894 (1907); Conti- 
 nental Nat. Bank v. Tradesmen's Nat. 
 Bank, 173 N. Y. 272, 65 N. E. 1108 
 (1903); Baker v. Riedel, 52 N. Y. 
 Suppl. 832, 24 Misc. 119 (1898). 
 
 Pennsylvania. — McFeaters ■;;. Pat- 
 tison, 188 Pa. St. 270, 41 Atl. 609 
 (1898). 
 
 South Carolina. — Egan v. Bissell, 
 32 S. E. 1 (1898). 
 
 Wisconsin. — Doan v. Town of Wil- 
 low Springs, 76 N. W. 1104 (1898). 
 No objection exists to questions by 
 the judge calculated merely to make 
 evidence more clear and specific. Mil- 
 ler v. Dumon, 24 Wash. 648, 64 Pac. 
 804 (1901). Infra, § 537. Tt is to 
 be remembered moreover that it is 
 not necessary that the court should 
 give its ruling in a formal rather 
 than in a colloquial manner. 
 
 Arkansas. — Southwestern Tele- 
 graph & Telephone Co. v. Myane, 86 
 Ark. 548, 111 S. W. 987 (1908). 
 
 Connecticut. — Fuller v. Johnson, 80 
 Conn. 493, 68 Atl. 977 (1908). 
 
 Georgia. — Boswell v. Gillen, 131 
 Ga. 310, 62 S. E. 187 (1908). 
 
§ 529b 
 
 B. Furtherance of Justice. 
 
 688 
 
 to the jury, 8 though made in their hearing. 9 However this may 
 be, it has been decided that the error, if any, may be cured by 
 appropriate instructions as to the absolute right of the jury to 
 judge as to the existence of the facts themselves. 10 
 
 § 529b. ( [3] Prevent Surprise; Protection Against Unfair 
 Treatment; Unfair Comment) ; Incidental Comment Permitted 
 
 A certain incidental comment by the court is not unreasonable, 
 especially where the jury are distinctly instructed that questions 
 of fact in issue are to be decided by them. It is not, for example, 
 unreasonable for the judge in discussing with counsel the admis- 
 sibility of evidence, 1 the propriety of a nonsuit, 2 the direction of 
 
 Missouri. — Barney v. Spangler, 131 
 Mo. App. 58, 109 S. W. 855 (1908). 
 
 South Dakota. — Palmer v. Schurz, 
 117 N. W. 150 (1908). 
 
 Texas. — Kaack v. Stanton, (Civ. 
 App. 1908) 112 S. W. 702; Alexander 
 v. MeGaffey, (Civ. App. 1905) 88 
 S. W. 462. 
 
 Jocularity. — A jocular remark by 
 a presiding judge is not, as a rule, 
 prejudicial, if correctly understood. 
 City of Americus v. Tower, 3 Ga. 
 App. 159, 59 S. E. 434 (1907) ; City 
 of Columbus v. Ogletree, (Ga. 1897) 
 29 S. E. 749; City of Frankfort v. 
 Coleman, (Ind. App. 1898) 49 N. E. 
 474 (speaking of certain witnesses 
 as " saloon keepers and gentlemen of 
 elegant leisure") ; Texas- Midland R. 
 R. v. Byrd, (Tex. Civ. App. 1908) 
 110 S. W. 199. Accordingly, such 
 an observation when it cannot reason- 
 ably lead to a wrong inference will 
 not constitute error. Halley v. Tich- 
 enor, (Iowa 1903) 94 N. W. 472; 
 Lee v. Dow, (N. H. 1904) 59 Atl. 
 374; Webb v. Atlantic Coast Line 
 R. Co., 76 S. C. 193, 56 S. E. 954, 
 9 L. R. A. (N. S.) 1218 (1907). 
 Per contra, where a humorous sug- 
 gestion from the court reflects injuri- 
 ously upon a party or his counsel, the 
 administrative action may be unreas- 
 onable and reversal follow. Chicago 
 City Ry. Co. o. Enroth, 113 111. App. 
 285 (1904); Perkins v. Knisely, 204 
 111. 275, 68 N. E. 486 (1903) [judg- 
 
 ment reversed, 102 111. App. 562 
 (1902)]; Chicago City Ry. Co. v. 
 Cooney, 196 111. 466, 63 N. E. 1029 
 (1908) [judgment affirmed, 95 111. 
 App. 471 (1901)]. 
 
 8. McFeat v. Philadelphia, W. & B. 
 R.'Co., (Del. 1908) 69 Atl. 744. 
 
 9. Where the jury do not hear the 
 objectionable remark, no prejudice 
 has been suffered. Gracz v. Ander- 
 son, 104 Minn. 476, 116 N. W. 1116 
 ( 1908 ) ; Coulter v. Barker's Estate, 
 (Minn. 1906) 107 N. W. 823. 
 
 10. McFeat v. Philadelphia, W. & 
 B. R. Co., (Del. 1908) 69 Atl. 744. 
 
 1. California. — Bradbury v. Mc- 
 Henry, 57 Pac. 999 (1899). 
 
 Georgia. — Hampton v. City of Ma- 
 con, 113 Ga. 93, 38 S. E. 387 (1901) 
 (view). 
 
 Illinois. — St. Louis & S. W. Ry. 
 Co. v. Elgin Condensed Milk Co., 175 
 111. 557, 51 N. E. 911 (1898) [judg- 
 ment affirmed, 74 111. App. 619 
 (1898)]. 
 
 Iowa. — Herrstrom v. Newton & N. 
 W. R. Co., 105 N. W. 436 (1905); 
 Wissler v. City of Atlantic, 94 N. W. 
 131 (1904). 
 
 Missouri. — Fullerton v. Fordyce, 44 
 S. W. 1053 (1897). 
 
 New York. — Lederman v. Rahaim, 
 102 N. Y. Suppl. 526 (1907). 
 
 South Carolina. — Heiden v. At- 
 lantic Coast Line R. Co., 84 S. C. 
 117, 65 S. E. 987 (1909); Miles r. 
 
689 
 
 Incidental Comment on Evidence. 
 
 § 529b 
 
 a verdict, or other similar questions, 3 to refer to the evidence. 4 
 
 Postal Tel. Cable Co., (S. C. 1899) 
 33 S. E. 493. 
 
 Tennessee. — Continental Nat. Bank 
 v. First Nat. Bank, 1 Tenn. Ch. App. 
 449 (1902). 
 
 Texas. — The Oriental v. Barclay, 
 (Civ. App. 1897) 41 S. W. 117. 
 
 West Virginia. — State v. Prater, 
 43 S. E. 230 (1903). 
 
 Wisconsin. — Lightfoot V. Winne- 
 bago Traction Co., 102 N. W. 30 
 (1905). Where a judge directs a 
 verdict, his reasons for so doing are 
 immaterial. Central Guarantee Trust 
 & Safe Deposit Co. v. White, 206 Pa. 
 611, 56 Atl. 76 (1903). It is proper 
 for a judge, when objections to testi- 
 mony are being persistently made, to 
 inform counsel what he considers is 
 or is not proper testimony on an 
 issue. D. H. Fleming & Son. v. Pul- 
 len, (Tex. Civ. App. 1906) 97 S. W. 
 109. Such a ruling tends materially 
 to expedite » trial. Infra, § 544. 
 
 The obvious limitation is to be 
 observed that the judge cannot usurp, 
 in this way, the functions of the 
 jury. Kleinert v. Federal Brewing 
 Co., 95 N. Y. Suppl. 406, 107 App. 
 Div. 485 (1905) ; Bath v. Houston & 
 T. C. Ry. Co., (Tex. Civ. App. 1904) 
 78 S. W. 993; Davis r. Dregne, (Wis. 
 1903) 97 N. W. 512. Nor can he 
 properly use the opportunity for at- 
 tacking a counsel's good faith to the 
 court. Kleinert v. Federal Brewing 1 
 Co., 95 N. Y. Suppl. 406, 107 App. 
 Div. 485 (1905) ; Dallas Consol. Elec- 
 tric St. Ry. Co. v. McAllister, (Tex. 
 Civ. App. 1905) 90 S. W. 933. He 
 should not in this way assert, ex- 
 pressly or by necessary implication, 
 that a party has been guilty of fraud 
 or other illegality. Morrison v. 
 Dickey, 119 Ga. 698, 46 S. E. 863 
 (1904) (fraud); Kramer v. North- 
 western Elevator Co., (Minn. 1904) 
 98 N. W. 96 (stealing). Testimony 
 should be admitted without any 
 comment calculated to effect its 
 
 weight with the jury. Lewter v. 
 Lindley, (Tex. Civ. App. 1905) 
 89 S. W. 784. In such a con- 
 nection, it may be essential to 
 identify the contention of counsel. 
 Prescott v. Fletcher, 133 Ga. 404, 65 
 S. E. 877 (1909). In any case, it is 
 worth while to observe that no preju- 
 dice will be assumed to arise where 
 the fact mentioned by the presiding 
 judge is one about which there can 
 be no dispute. Louisville & E. R. Co. 
 v. Vincent, 29 Ky. L. Rep. 1049, 96 
 S. W. 898 (1906) ; Lyles v. Western 
 Union Telegraph Co., 84 S. C. 1, 65 
 S. E. 832 (1909). 
 
 2. Continental Ins. Co. v. Wickham, 
 110 Ga. 129, 35 S. E. 287 (1900) ; 
 Cave v. Anderson, 50 S. C. 293, 27 
 S. E. 693 (1897). It is unreasonable, 
 however, for a trial judge to enter 
 upon an extended and argumentative 
 discussion of the merits of the case, 
 and in so doing practically intimate 
 his opinion as to what the verdict 
 should be. Louisville & N. R. Co. v. 
 Tift, 100 Ga. 86, 27 S. E. 765 (1896). 
 Where, however, the rulings are based 
 upon a theory of the law which is 
 subsequently changed in the instruc- 
 tions with no opportunity to the 
 party to remedy the injury so created, 
 prejudicial error may arise. Harki- 
 son v. Harkinson, 101 Fed. 71, 41 C. 
 C. A. 201 (1900). 
 
 3. Elgin, J. & E. Ry. Co. v. Lawlor, 
 132 111. App. 280 (1907) [judgment 
 affirmed, 229 111. 621, 82 N. E. 407] ; 
 Stoebier v. St. Louis Transit Co., 203 
 Mo. 702, 102 S. W. 651 (1907) (mo- 
 tion to strike out evidence) ; Fidelity 
 Mut. Fire Ins. Co. v. Murphy, (Neb. 
 1903) 95 N. W. 702 (overruling dila- 
 tory motions ) . 
 
 4. Where a trial judge, on reject- 
 ing evidence, sees fit to comment upon 
 its materiality or value, the action 
 may well be justified. In re City of 
 Seattle, 52 Wash. 226, 100 Pac. 330 
 (1909) ; Manhattan Bldg. Co. v. City 
 
 Vol. I. 
 
 44 
 
529c 
 
 B. FuETHEKANCB OP JUSTICE. 
 
 690 
 
 In explaining his rulings, 5 the court may properly touch upon 
 the facts involved or point out the statements of witnesses, pro- 
 vided he does not go out of the line of legitimate discussion on 
 the topics presented, or use such language as to indicate apparent 
 or actual judicial approval or disparagement of any witness or 
 of any part of the evidence. 6 
 
 § 529c. ( [3] Prevent Surprise; Protection Against Unfair 
 Treatment; Unfair Comment) ; Unreasonable Comment On the 
 
 other hand, to characterize the statement of a witness as " very 
 fair and unhiased," * or to suggest that certain evidence, if be- 
 lieved, is or is not 2 conclusive, that other facts are or are not very 
 material, 3 may well be regarded as objectionable. 4 As a general 
 
 of Seattle, 53 Wash. 226, 100 Pac. 330 
 (1909). 
 
 5. Alabama. — Birmingham Ry. & 
 Electric Co. v. Ellard, 135 Ala. 433, 
 33 So. 276 (1903). 
 
 Georgia. — Central of Georgia Ry. 
 Co. v. Harper, 124 Ga. 836, 53 S. E. 
 391 (1906) (motion to dismiss). 
 
 Iowa. — Fritz v. Chicago Grain & 
 Elevator Co., 114 N. W. 198 (1907). 
 
 New York. — Diamond v. Planet 
 Mills Mfg. Co., 89 N. Y. Suppl. 635, 
 97 App. Div. 43 (1904). 
 
 South, Carolina. — J. C. Stevenson 
 Co. v. Bethea, 79 S. C. 478, 61 S. E. 
 99 (1908) ; Tucker v. Charleston & 
 W. C. Ry. Co., (S. C. 1898) 28 S. 
 E. 943. 
 
 Washington. — Nunn v. Jordan, 31 
 Wash. 506, 72 Pac. 124 (1903). In- 
 forming the jury that certain in- 
 structions are given at the request of 
 a particular party is not reversible 
 error, though the practise is bad. 
 Meyer v. Milwaukee Electric Ry. & 
 Light Co., (Wis. 1903) 93 N. W. 6. 
 
 Prima facie case. — It is not error 
 for the court to decide at the close 
 of plaintiff's direct examination that 
 he has made out a prima facie case. 
 Whitaker v. Engle, (Mich. 1896) 69 
 N. W. 493. 
 
 6. Realty Co. t\ Ellis, 4 Ga. App. 
 402, 61 S. E. 832 (1908). 
 
 Characterizing the proceedings.— A 
 
 certain warmth of color in character- 
 izing pending proceedings may be con- 
 ceded to the zeal of counsel. Even 
 the judge may properly indulge in 
 comment upon the effect of admitted 
 or not controverted facts, without 
 prejudice to the rights of either 
 party. Sperry v. Seidel, 218 Pa. 16, 
 66 Atl. 853 (1907) (abusive legal 
 process). 
 
 1. Edwards v. City of Cedar Rap- 
 ids, (Iowa 1908) 116 N. W. 323 (ex- 
 pert physician). A judge should not, 
 in the hearing of a jury, compliment 
 a witness. Alexander v. State, 114 
 Ga. 266, 40 S. E. 231 (1901). See 
 also McMinn v. Whelan, 27 Cal. 300 
 (1865). 
 
 2. Haynes v. City of Hillsdale, 
 (Mich. 1897) 71 N. W. 466; St. 
 Louis & S. F. R. Co. v. Lane, (Tex. 
 Civ. App. 1908) 110 S. W. 530. 
 
 3. Howland v. Oakland Consol. St. 
 Ry. Co., 115 Cal. 487, 47 Pac. 255 
 (1896); Ruppert v. Wolf, 4 App. 
 D. C. 556 (1896) Levels v. St. Louis 
 & H. Ry. Co., 196 Mo. 606, 94 S. W. 
 275 (1906) (insinuation was an ugly 
 one unless explained) ; Schneider v. 
 Great Northern Ry. Co., (Wash. 
 1907) 91 Pac. 565. 
 
 4. McKissick v. Oregon Short Line 
 Ry. Co., 13 Idaho 195, 89 Pac. 629 
 (1907). 
 
691 Display of Emotion Checked. §§ 529d, 529e 
 
 rule, it is unreasonable for a presiding judge to intimate, in 
 connection with a ruling upon the admissibility of evidence, his 
 opinion as to the validity of the claim advanced by either party, 5 
 or regarding the credibility of the evidence by which the litigant 
 is seeking to support it. 6 
 
 § 529d. ( [3] Prevent Surprise; Protection Against Unfair 
 Treatment; Unfair Comment); Comments on Law — ■ Whatever 
 may be thought of the good judgment of a trial court who shall 
 undertake to criticize unfavorably the rule of law which he is 
 announcing to the jury, such a course does not, in itself, consti- 
 tute unfair treatment of the party for whom the rule operates. 
 Even the disgust of a judge who has been overruled in an appel- 
 late court on being compelled to state the law otherwise than he 
 himself has done in an earlier case may be regarded as nothing 
 more than an exhibition of bad taste. 1 That a certain decision 
 does not apply to the case in hand 2 or that given instructions ten- 
 dered by counsel do not represent the court's view of the law, 3 
 and similar observations 4 are. remarks which a judge is prima 
 facie entitled to make. On the contrary, observations of the trial 
 judge in the presence of, and calculated to mislead, the jury as 
 to the law governing the case on trial, constitute reversible error. 5 
 
 § 529e. ( [3] Prevent Surprise; Protection Against Unfair 
 Treatment) ; Influence of Spectators — Aware of the psychic influ- 
 ence of the dramatic features of a trial, to which reference is 
 elsewhere made, 1 the presiding judge will seek to prevent the 
 issue of the trial from being affected by applause, 2 or other mani- 
 festation of feeling, on the part of the audience. 
 
 5. Swan v. Keough, 54 N. Y. of this case, as I understand it, to 
 Suppl. 474, 35 App. Div. 80 (1898) ; be laid down by the superior court." 
 Marcom v. Adams, (N. €. 1898) 29 Lee v. Williams, 30 Pa. Super. Ct., 
 S. E. 333; The Oriental v. Barclay, 349, 357 (1906). 
 
 (Tex. Civ. App. 1897) 41 S. W. 117. 2. Martin v. Peddy, 120 Ga. 1079, 
 
 6. P., C, C. & St. L. Ry. Co. v. 48 S. E. 420 (1904). 
 Burroughs, 6 Ohio Dec. 527, 5 Ohio 3. Lake Shore & M. S. Ry. Co. v. 
 N. P. 12 (1897). Ford, 18 Ohio Cir. Ct. R. 239 (1899). 
 
 1. Where, a case is retried after 4. Kreuger v. Sylvester, (Iowa 
 
 a reversal by the superior court, it 1897) 69 N. W. 1059. 
 
 is not prejudicial error for the trial 5. Brinckerhoff v. Briggs, 92 111. 
 
 judge to say to the jury: "What- App. 537 (1900). 
 
 ever regret I may personally feel, as 1. Supra, § 184. 
 
 a judge, that any such doctrine 2. Central of Georgia Ry. Co. v. 
 
 should have crept in the books, it is Mote, 131 Ga. 166, 62 S. E. 164 
 
 none of my business. That is the law ( 1908 ) . 
 
§§ 529f, 529g B. Fuetherastce of Justice. 692 
 
 § 529f. ( [3] Prevent Surprise; Protection Against Unfair 
 Treatment) ; Misquoting Evidence. — To misquote the evidence of 
 a witness upon a material point may be a form of unfair treat- 
 ment against which a party is reasonably entitled to the protec- 
 tion of the judge. Against the action of a litigant so offending 
 the court will promptly afford his assistance to the injured party. 
 Naturally, moreover, he will be careful that his own quotations 
 from the evidence shall be correct, or so modified by a reference 
 to the power and duty of the jury to judge of the testimony 1 that 
 any inexactness is calculated to do but little harm. On the con- 
 trary, a double injury may be done a litigant by reprimanding 
 his counsel 2 on account of an alleged misquotation by him of the 
 evidence when he has, in point of fact, stated it correctly. 3 
 
 Refusal to quote evidence. While it is the duty of the judge 
 to protect from misquotation of evidence, it may be equally his 
 duty to cause proper and accurate extracts from it to be received. 
 In other words, it may be unfair treatment of a party to refuse 
 his reasonable request that a portion of the evidence be read to 
 the jury.* 
 
 § 529g. ( [3] Prevent Surprise; Protection Against Unfair 
 Treatment); Reprimanding Counsel — The interests of parties 
 may be injuriously affected at times, by reprimands addressed by 
 the judge to their counsel. 1 For example, the parties are entitled 
 to employ the rules of law as they stand. If certain of these are 
 regarded by the judge with disfavor, he must still refrain from 
 making adverse comment upon the course of counsel 2 who is 
 merely endeavoring to enforce a rule of law to the benefit of 
 which his client is entitled. In like manner, the judge will not 
 intimate that objecting to incompetent evidence is an effort on 
 the part of counsel to suppress the truth; 3 — even where such 
 may well be the natural result of the counsel's course. In much 
 
 1. Prescott v. Fletcher, 133 >Ga. 1. Woodson v. Holmes, 117 Ga. 19, 
 404, 65 S. E. 877 (1909); Lee v. 43 S. E. 467 (1908). 
 
 Williams, 30 Pa. Super. Ct. 349, 357 2. It is improper for the court 
 
 (1906). to refer to expert testimony as 
 
 2. Infra, § 529g. '"boughten testimony." People v. 
 
 3. Rose r. Kansas City, 1S5 Mo. Jennings, (Mich. 1903) 94 N. W. 216, 
 App. 231, 102 S. W. 578 (1907). 10 Detroit Leg. N. 39. 
 
 4. MoLoughlin v. Syracuse Rapid 3. Adams v. Fisher, 83 Neb. 686, 
 Transit Ry. Co., 101 N. Y. Suppl. 120 N. W. 194 (1909). 
 
 196, 115 App. Div. 774 (1906). 
 
693 Eepeimand of Counsel oe Witness. § 529h 
 
 the same way, a party has a legal right to pursue his lawful 
 claims or defenses as he may see fit and the court will not inti- 
 mate that his refusal to adjust a matter in suit by a particular 
 form of compromise was obstinate or spiteful. 4 Still less will a 
 judge suffer his action to be swayed by personal hostility to 
 counsel of one of the parties. 6 !Nor is it reasonable administra- 
 tion for a presiding judge to exhibit an impatience calculated to 
 suggest that exceptions taken by one of the parties are ground- 
 less or made in bad faith, 8 that an examination is being stupidly 
 conducted, 7 or the like. 
 
 It is equally clear, however, that the court is not only permitted 
 but at times required to reprimand counsel for any acts calcu- 
 lated to impair the dignity of the court or bring the administra- 
 tion of justice into contempt. 8 A judge may, for example, speak 
 sharply to an attorney who shall persist in asking questions which 
 the judge has repeatedly excluded, 9 or attempt to read to (he 
 jury a document which has been ruled out. 10 
 
 § 529h. C [3] Prevent Surprise; Protection Against Unfair 
 
 Treatment) ; Reprimanding a Party or His Witnesses Nothing 
 
 unfair to a party is done where the judge, in reasonable dis- 
 
 4. Allen v. Kidd, 197 Mass. 256, want to) ; Knox v. Fuller, (Wash". 
 84 N. E. 122 (1908). It is improper 1900) 62 Pac. 131; McLeod v. Wil- 
 for the court, in tEe hearing of the son, 108 Ga. 790 (1899). 
 
 jury, to remark that he regards the 7. Williams v. City of West Bay 
 
 defense of usury, on which defendant City, (Mich. 1899) 78 N. W. 328. 
 
 relies, as an unconscionable one. 8. Dallas Consol. Electric St. Ry. 
 
 Jennings v. Kosmak, 45 N. Y. Suppl. Co. v. Broadhurst, (Tex. Civ. App. 
 
 802, 20 Misc. Rep. 300 (18971 [judg- 1902) 68 S. W. 315 (calling more 
 
 ment reversed, 43 N. Y. Suppl. 1134 witnesses than agreed). The judge 
 
 (1897)]. may take the same course where a 
 
 5. A manifestly hostile attitude by lawyer improperly interferes with his 
 the judge toward defendant's coun- adversary's examination. Laporte v. 
 sel, both during trial and in instruc- Cook, 22 R. I. 554, 48 Atl. 798 
 tions, was necessarily prejudicial. (1901). 
 
 Tuchfeld i\ Plattner, 116 N. Y. 9. Chicago City Ry. Co. v. Shaw, 
 
 Suppl. 693 (1909). It is almost 220 111. 532, 77 N. E. 139 (1906); 
 
 equally improper for the judge to in- Crowell v. MoGoon, (Iowa 1898) 76 
 
 timate that the course of counsel is N. W. 672; Hein v. Mildebrandt, 
 
 dictated by personal animosity to (Wis. 1908) 115 N. W. 121; infra, 
 
 himself. McLeod v. Wilson, (Ga. § 551. 
 
 1899) 33 S. E. 851. 10. Finan p. New York Cent. & 
 
 G. Landers v. Quincy, O. & K. C. H. R. R. Co., 97 N. Y. Suppl. 859, 
 
 R. Co., 134 Mo. App. 80, 114 S. W. Ill App. Div. 383 (1906). 
 543 (1908) (you can except all you 
 
§ 529i B. Furtherance of Justice. 694: 
 
 charge of his executive or police powers, 1 has occasion to repri- 
 mand one of his witnesses or even to commit him for contempt. 2 
 
 A fortiori, no injury is done a party by a mere prohibition of 
 smoking in the court room, though the action then on trial in- 
 volves the effects of tobacco fumes in nauseating a lady passenger 
 on the defendant's train. 3 Should it happen, however, that a 
 remark of this nature is made in presence of the jury it may well 
 be deemed irrational administration warranting a reversal of the 
 judgment. 4 Where the misconduct of the party which is brought 
 to the attention of the court is official, the judge, as part of the 
 administration of government 5 may properly exercise greater 
 freedom of reprimand. 6 In much the same way, it may be un- 
 reasonable for a trial judge to rebuke a witness in such a way 
 as to suggest lack of credibility. 7 
 
 A party may be reprimanded or even threatened 8 by the pre- 
 siding judge where the fact is not brought to the attention of 
 the jury. 9 
 
 § 529i. ( [3] Prevent Surprise; Protection Against Unfair 
 Treatment) ; Effect of Waiver — A party who might otherwise be 
 prejudiced by the action of a judge may place himself in a posi- 
 tion where he is not justly entitled to take advantage of it in an 
 appellate court. 1 This may happen, for example, where the party 
 claiming to be aggrieved declines to avail himself of a reasonable 
 offer on the part of the judge to repair the consequences of the 
 latter's erroneous action. 2 Where, moreover, a litigant consents 
 
 1. Supra, § 204. 7. Kane v. Kinnare, 69 HI. App. 
 
 2. Marcum v. Hargis, 31 Ky. L. 81 (1897) (" she talks and talks but 
 Rep. 1117, 104 S. W. 693 (1907) I can>t see that anything she has 
 (drunkenness in court) Seawell v. said is evidence in this case"). 
 Carolina Cent. R. Co., 133 N. C. 856, 8. Zing v. Lahart, (N. D. 1907) 
 44 S. E. 610 (1903) [rehearing 110 N. W. 931 (criminal prosecution). 
 denied, 45 S. E. 850] (laughing). 9. Zink v. Lahart, (N. D. 1907) 
 
 3. International & G. N. R. Co. v. 110 N. W. 931. That the judge 
 Duncan, (Tex. Civ. App. 1909) 121 erroneously supposes that his preju- 
 S. W. 362. dicial remark was not overheard by 
 
 4. Wilson v. White, (Tex. Civ. the jury is of no consequence. Riddle 
 App. 1902) 69 S. W. 989. The court V. Riddle, (Tex. Civ. App. 1901) 62 
 should protect a party against un- S. W. 970. 
 
 fair comments upon his failure to 1. Richardson v. State, (Tex. Cr. 
 
 produce a witness. McKim v. Foley, App. 1906) 94 S. W. 1016. 
 
 170 Mass. 426, 49 N. E. 625 (1898). 2. Richards v. City of Ann Arbor, 
 
 5. Infra, §§ 637 e't seq. 153 Mich. 15, 115 N. W. 1047, 15 
 
 6. Sallade v. Schuylkill County, 19 Detroit Leg. N. 142 (1908). 
 Pa. Super. Ct. 191 (1902) (poor- 
 board). 
 
695 Jtjey Compensate Pabty foe Insult. § 530 
 
 that the trial shall take a certain course, 3 e. g., that questions of 
 law should be argued in presence of the jury 4 or that talesmen 
 should be added to a jury without waiting for the arrival of the 
 regular panel, 5 he cannot complain of the legitimate consequences 
 flowing from the adoption of the procedure. Waiver and estoppel 
 are, it may be observed, often merely alternative statements of 
 the same rule of law. For example, one who introduces a new 
 issue into a case cannot claim that it furnishes ground for a con- 
 tinuance by reason of surprise. 6 Nor can a party ordinarily 
 claim to be surprised by acts of his own agents. 7 Where a sur- 
 prise has actually been caused to a party, he will be required 
 to take immediate steps for his own prStection. He will not be 
 given the benefit of the alleged surprise as the basis of a motion 
 for a new trial. 8 
 
 § 530. ( [3] Prevent Surprise); Protect Witnesses from Annoy- 
 ance. — The furtherance of justice requires that its administration 
 should be made to press with as little of hardship as possible upon 
 witnesses. The judge may, therefore, reasonably so exercise his 
 administrative powers as to protect the witness from all avoidable 
 annoyance. The sacrifices of time and convenience usually 
 exacted as the price of testifying at all, he cannot well control. 
 But the insult, innuendo and gibes of counsel may, by a vigilant 
 judge be, in large measure, averted from their victim. In view 
 of the administrative powers at his command, 1 it would be im- 
 possible, even were it desirable, for the presiding justice to escape 
 responsibility in this matter. 2 Where a party becomes a witness 
 there is a compensation in the resentful action of the tribunal for 
 
 3. Farley V. Gate City Gaslight 1. Supra, § 174. 
 
 Co., (Ga. 1898) 31 S. E. 193; Span- 2. " In the presence of the judge any 
 
 gehl v. Spangehl, 57 N". Y. Suppl. 7, misbehavior, which, being witnessed 
 
 39 App. Div. 5 (1899) (call but five at the time by the judge, is regarded 
 
 witnesses). by him without censure, becomes in 
 
 4. Moore v. Rose, 130 Mo. App. effect the act, the misbehavior, of the 
 668, 108 S. W. 1105 (1908). judge. On him more particularly 
 
 5. Rice v. Dewberry, (Tex. Civ. should the reproach of it lie; because, 
 App. 1906) 93 S. W. 715. for the connivance (which is in effect 
 
 6. Houston & T. C. R. Co. v. Le- the authorization) of it, he cannot 
 mair, (Tex. Civ. App. 1909) 119 ever possess any of those excuses, 
 S. W. 1162. which may ever and anon present 
 
 7. Aetna Ins. Co. v. Sparks, 62 Ga. themselves on the part of the advo- 
 187 (1879). cate." Bentham, Jud. Ev., vol. II, 
 
 8. Smith v. State, (Tex. Cr. App. bk. Ill, c. V. 
 1899) 51 S. W. 358. 
 
§ 530 B. FuBTHJEEANCE OF JUSTICE. 696 
 
 this sort of treatment. The witness who is not a party, and to 
 whom the verdict makes no recompense, may reasonably hope to 
 be spared from insult, where he himself is free from fault. It is 
 much against the public interest, moreover, that the practical 
 position of one who gives testimony in court should be made so 
 irksome, annoying and even, at times, torturing, that persons hav- 
 ing knowledge of material circumstances should make, as they at 
 present are forced to do, every effort to prevent the fact of such 
 knowledge from becoming known, in order to escape what they 
 feel is likely to prove a trying ordeal. JSTor is this all. The social 
 loss consists not only in the removal of evidence from the use of 
 justice; it lies also in {he greatly impaired moral quality and 
 credibility of the evidence of witnesses who cannot thus escape 
 giving their testimony. It is no more reasonable to expect that 
 a witness perturbed, irritated or even terrified by the assaults of 
 a brutal examination should give clear, accurate and consistent 
 testimony than it would to anticipate that a muddy stream will 
 furnish pellucid water. 3 Judge Lowrie, of Pennsylvania, puts 
 the embarrassing position of a witness and the corresponding duty 
 of the presiding judge none too strongly : 4 " Witnesses often 
 
 3. " Add to this that a mind rudely be judged from the utterances of the 
 assailed naturally shuts itself against great novelists whose ideas are mould- 
 its assailant, and reluctantly com- ers of public opinion to an extent 
 municates the truths that it pos- which it is difficult for intelligent ad- 
 sesses." Eliott r. Boyles, 31 Pa. 66 ministration to overcome. A sample 
 (1857), per Lowrie, J. "Witnesses, instance indeed may be taken from 
 and particularly illiterate witnesses, Anthony Trollope, The Three Clerks, 
 must always be liable to give imper- Chap. XL (857). See also Dickens, 
 feet or erroneous evidence, even when Pickwick Papers, Chap. XXXV. 
 orally examined in open Court. The 4. Eliott v. Boyles, 31 Pa. St. 66 
 novelty of the situation, the agitation (1837). Where a witness on the 
 and hurry which accompanies it, the stand is wantonly attacked by the 
 cajolery or intimidation to which the attorney of the opposite party with- 
 witness may be subjected, the want of out any provocation whatever, the act 
 questions calculated to excite those of the trial judge in reproving such 
 recollections which might clear up attorney is proper. Heffernan r. 
 every difficulty, and the confusion oc- O'Neill, (Neb. 1901) 96 N. W. 244. 
 casioned by cross-examination, as it is In like manner, the judge upon being 
 too often conducted, may give rise to appealed to by a witness for further 
 important errors and omissions." time in which to answer the questions 
 Johnston v. Todd, 5 Beav. 601 (18431, of counsel, is justified in directing 
 per Lord (Langdale), M. R. that sufficient time be allowed her for 
 
 A popular view. — The manner in the purpose. Birmingham Ry. & 
 
 which such sorry exhibitions affect Electric Co. v. Ellard, 135 Ala. 433, 
 
 the public appreciation of justice may 33 So. 276 (1903). 
 
697 Abuse on Ckoss-Examination. § 531 
 
 suffer very unjustly from this undue earnestness of counsel, and 
 they are entitled to the watchful protection of the court. In the 
 court they stand as strangers, surrounded with unfamiliar circum- 
 stances, giving rise to an embarrassment known only to them- 
 selves; and in mere generosity and common humanity they are 
 entitled to be treated, by those accustomed to such scenes, with 
 great consideration — at least until it becomes manifest that they 
 are disposed to be disingenuous." 
 
 A more striking inversion of the natural and fitting in the re- 
 lation between parties and witnesses it would be difficult to im- 
 agine than that system of administration which puts an innocent 
 witness absolutely at the mercy of a trained advocate whose sole 
 chance of success in defending a criminal consists perhaps in this 
 opportunity to break down the probative force of his testimony 
 by inquiries into every act of his almost forgotten past or by so 
 confusing, browbeating or jeering at him as to introduce contra- 
 diction; while, at the same time, it prevents any officer of justice 
 from asking the criminal himself a single question which may in 
 the least degree incriminate him and which, in general, surrounds 
 him with such safeguards that only in the clearest case can a final 
 conviction be obtained. It is, for example, by no means ideal 
 administration of justice to permit a burglar's counsel to ask the 
 unfortunate man whose plate has been stolen and whose only con- 
 nection with the case is to identify the marks on it, " whether or 
 not," when a very young man he had not eloped with a friend's 
 wife; while it declines to allow the prosecuting officers of public 
 justice to ask the alleged burglar where he was on the night that 
 the silver was stolen. 
 
 § 531. ( [3] Prevent Surprise; Protect Witnesses from An- 
 noyance); Cross-examination. — The principal occasion for the ob- 
 jectionable and offensive treatment of witnesses is upon cross- 
 examination. Here the zeal of counsel has been most frequently 
 betrayed into excesses. If this enthusiasm is honest, an intima- 
 tion from the court usually suffices for its control. 1 A cross- 
 examination in any way abusive is improper, and can only, so 
 
 1. " When the presiding judge is want of respect for the rights of 
 
 respected and prudent, a hint kindly others and for the order of public 
 
 given is generally all that is needed business." Eliott v. Boyles, 31 Pa. 66 
 
 to restrain such ardor, when it does (1857). 
 not arise in any degree from habitual 
 
§ 532 B. FuETHEKANCE OF JUSTICE. 698 
 
 far as the witness is concerned, be repressed by the presiding 
 judge. In the same way, it may be proper for the court to inti- 
 mate to counsel that the cross-examination of a particular witness 
 is being unduly protracted. 2 
 
 § 532. ( [3] Prevent Surprise; Protect Witnesses from An- 
 noyance; Cross-examination) ; A Seasonable Limitation. — It by 
 
 no means follows that the course of a judge in allowing a witness 
 to be intimidated or otherwise annoyed is, in all oases, bad admin- 
 istration. The abject of this treatment may richly merit such an 
 experience; the interests of justice may demand that he be so 
 treated. In undertaking to limit the rights of counsel, as to tone, 
 gesture, manner as well as substance of examination, the possible 
 existence of fraud, bad faith, perjury must not be overlooked. 
 It may well be that advocates are too ready to assume the exist- 
 ence of these elements in testimony which bear against them. 1 
 Or it may be that the course which assumes bad faith may be 
 injudicious for the counsel himself; — that he who adopts the 
 harsher mode of dealing, is taking desperate chances for his 
 client; that if he succeeds, it will probably be in spite of the 
 sympathy which the jury feel for the badgered witness; that if 
 he fail, it will be with a force of resentment which the client is 
 fairly sure to have strongly brought home to him. 2 But none of 
 
 2. Crane Lumber Co. v. Bellows, excessive until its fault has been 
 
 (Mich. 1898) 74 N. W. 481. proved by the discovery of the truth 
 
 1. "It is entirely natural that in in the opposite direction; and possi- 
 
 the public trial of causes the earnest- bly its very excess may have contrib- 
 
 ness of counsel should often become uted to the discovery." Eliott v. 
 
 unduly intense; and it is not possible Boyles, 31 Pa. 66 (1857). 
 
 to prevent this without such an attri- 2. " The heart of the Court and 
 
 bution and exercise of power as would jury, and all disinterested manliness, 
 
 be entirely inconsistent with that spontaneously recoil at a harsh and 
 
 freedom of thought that is necessary unfair treatment of them, and the 
 
 to all thorough investigation. The cause that adopts such treatment is 
 
 remedy for it is to be found in inner very apt to suffer by it. It is only 
 
 rather than in outer discipline. Those where weakness sits in judgment that 
 
 who are zealously seeking the truth it can benefit any cause." Eliott v. 
 
 cannot always be watchful to measure Boyles, 31 Pa. 66 (1857). " Consider- 
 
 their demeanor and expressions in ac- ing the subject merely as a matter of 
 
 cordance with the feelings or even discretion, the adoption of an unfair 
 
 with the rights of others. This zeal, conduct in cross-examination has often 
 
 even when inordinate must be excused, an effect repugnant to the interests 
 
 because it is necessary in the search which it professes to promote." 3 
 
 of truth; and generally it is not pos- Evans' Pothier, 268 (1806). 
 sible to condemn it as misguided or 
 
699 Statutory Regulation of Cboss-Examination. § 532 
 
 these infinnative considerations affect the administrative duty of 
 the presiding judge, except so far as they bear upon the ques- 
 tion whether there is reasonable ground for thinking that the 
 cause of truth requires the rough handling of a witness. None 
 of them preclude a counsel, who has ground for suspecting bad 
 faith on the part of the witness, from resorting to any forensic 
 means he may deem expedient for its exposure. Fraud is pro- 
 tean ; there is no specific for its detection. 3 Where, therefore, it 
 is plausibly claimed by counsel, expressly or by necessary impli- 
 cation, that the witness is perjuring himself, either actively or by 
 suppression, intimidation or other drastic treatment may be en- 
 tirely justified as an instrument in the ascertainment of truth. 4 
 
 The Statutory Regulation. — As a rule, the action of the legis- 
 lature is in accordance with the sentiments of excellent judicial 
 administrators. Thus, the statute of Arkansas 5 provides that " the 
 court shall exercise a reasonable control over the mode of inter- 
 rogation, so as to make it rapid, distinct, as little annoying to the 
 witness and as effective for the extraction of the truth as may be." 
 The legislature of California, after using the same language, as 
 the Arkansas statute just quoted, proceeds as follows : 6 " But, 
 subject to this rule, the parties may put such pertinent and legal 
 questions as they see fit." The California code of civil procedure 
 adds, in a later section : 7 " It is the right of the witness to be 
 protected from irrelevant, improper, or insulting questions, and 
 from harsh or insulting demeanor." The Connecticut legislature 
 has provided : 8 " During the trial of a cause, witnesses shall 
 not be interrupted except for the purpose of having notes of their 
 testimony taken by the stenographer." The commonwealth of 
 
 8. It is not judicious to attempt the tect the operation of a concerted plan 
 
 enforcement of an administrative rule of testimony, or bring into light the 
 
 in this particular as unqualified as incidental facts and circumstances 
 
 Bentham's rule. Bentham, Jud. Ev., that the witness may be supposed to 
 
 Vol. II, bk. Ill, c. V. "Every ex- have suppressed, — in short, whatever 
 
 pression of reproach, as if for estab- may be expected fairly to promote the 
 
 lished mendacity : every such manifes- real manifestation of the merits of 
 
 tation, however expressed — by Ian- the cause, is not only justifiable but 
 
 guage, gesture, countenance, tone of meritorious." 2 Evans' Pothier, 268 
 
 voice (especially at the outset of the (1806). 
 
 examination) — ought to be abstained 5. Ark. Stats., 1894, § 2955. 
 
 from by the examining advocate." G. Cal. C. C. P. 1872, § 2044. 
 
 4. " Whatever can elicit the actual 7. Cal. C. C. P. 1872, § 2066. 
 
 dispositions of the witness with re- 8. Conn. Gen. St. 1887, § 768. 
 spect to the event, — whatever can de- 
 
§ 532 B. Fuethebajsce op Justice. 700 
 
 Kentucky enacts an ideal rule of administration: 9 Court is to 
 exercise a " reasonable control " over interrogation, so as to make 
 it "as little annoying to the witness and as effective for the ex- 
 traction of the truth as may be." 
 
 Innuendo. — Counsel should rarely be permitted to comment 
 upon the evidence they are eliciting. 10 An appropriate oppor- 
 tunity will be reserved for such observations at a later stage. At 
 that of examination, the principal effect of such comment, and 
 often, apparently, its exclusive object, is to embarrass the witness. 
 
 Intimidation. — Any question which tends to intimidate 11 or 
 embarrass a witness is objectionable. For a judge to decline to 
 check this, is to sanction it. As Bentham observes : 12 " Brow- 
 beating is that sort of offense which never can be committed by 
 any advocate who has not the judge for his accomplice." 
 
 Sneering. — It is not permissible for a counsel to sneer at the 
 witness, especially when repeating his answer. Thus, where a 
 witness had answered " Yes, I have seen him," counsel was not 
 allowed to rejoin: "That is, you imagine you have!" 13 
 
 Judicial Apology. — It has been suggested that where the test 
 as applied by counsel shows that a meritorious witness has, with- 
 out adequate cause, been subjected to pain or annoyance in the 
 interest of justice, that the matter should not be allowed merely 
 to drop. A citizen has been required to make a painful and un- 
 necessary sacrifice for the cause of justice and some recognition 
 should be made of the fact. The presiding judge has consented 
 to the testing of the veracity of a witness by means of a most cruel 
 exposure to pain and humiliation. This has been shown to have 
 been an injustice — by a tribunal consecrated to the service of 
 justice. The public prestige and dignity of judicial administra- 
 tion has been far more deeply injured than could be done by any 
 mere breach of the peace in open court. To permit the matter 
 to rest at that point; — an injured man smarting under a sense 
 of wrong, a baffled counsel still hoping that he may in some way 
 yet reap a profit with the jury out of the process — has seemed 
 to certain jurists a travesty upon ordinary commonplace fairness, 
 
 9. Ky. C. C. P. 1895, § 593. 12. Bentham, Jud. Ev., Vol. I, Bk. 
 
 10. Ings' Trial, 33 How. St. Tr. 957, II, Ch. IX, § IV. 
 
 999 (1820). 13. People v. Darrant, 116 Cal. 179, 
 
 11. Haines v. Ins. Co., 52 N. H. 48 Pac. 75 (1897). 
 470 (1872). 
 
701 Temptation to Abuse of Witnesses. § 533 
 
 nothing being said as to an enlightened administration of public 
 justice. 1 * 
 
 § 533. ( [3] Prevent Surprise; Protect Witnesses from An- 
 noyance; Cross-examination) ; An Anti-Social Attitude. — Possibly 
 in no connection does the anti-social tendency of the purely 
 personal element of litigation show itself in more unmistakable 
 light, than in connection with ,the intimidation and other abuse 
 of persons giving testimony. The passions of the parties are seen 
 to extend not only to their adversaries but even to the witnesses 
 by which the latter are forced to prove their case, however inno- 
 cent they may be. The evil goes still deeper when the passions 
 of clients are permitted to affect the public conduct of the honor- 
 able profession who are the representatives and ministers of 
 justice. Wherever the line between the custody of private in- 
 terests and the conservation of the public concern in judicial ad- 
 ministration is properly to be drawn, it certainly must exclude 
 from the forces which exert a controlling influence upon members 
 of the bar the selfish unintelligent hatred or greed which may 
 dominate their clients. 1 Yet it is so well-balanced an observer as 
 Mr. W. D. Evans, who after noting the well-recognized conclusion 
 that the abuse of witnesses, unless justified by the result, recoils 
 disastrously upon the side which employs these methods, is forced 
 to add : " But however unfavorable an injudicious asperity of 
 cross-examination may be to the advancement of a cause, it, for 
 
 14. "When, on the false supposition 1. " I conceive that a client has no 
 of a disposition to mendacity, an hon- right to expect from hia counsel an 
 est witness has been treated accord- endeavor to assist his cause, or what 
 ingly by the cross-examining advocate is a more frequent object, to gratify 
 (the judge having suffered the ex- his passions, by unmerited abuse, by 
 amination to be conducted in that embarrassing or intimidating wit- 
 manner, for the sake of truth ) — at nesses of whose veracity he has no 
 the close of which examination all real suspicion, or by conveying an 
 doubts respecting the probity of the impression of discredit which he does 
 witness have been dispelled, — it is a. not actually feel; and that where such 
 moral duty on the part of the judge expectations are intimated, there is an 
 to do what depends on him towards imperious duty upon the advocate, 
 soothing the irritation sustained by who, while the protector of private 
 the witness' mind; to wit, by ex- right is also the minister of public 
 pressing his own satisfaction respect- justice, which requires them to be re- 
 ing the probity of the witness, and pelled." 2 Evans' Pothier, 268 
 the sympathy and regret excited by (1806). 
 the irritation he has undergone." 
 Bentham, Jud. Ev., Vol. II, bk. Ill, 
 c. V. 
 
§ 534 B. Furtherance of Justice. 702 
 
 the most part, is congenial to the wishes of the party ; the neglect 
 of it is regarded as an indifference to his interests and a derelic- 
 tion of duty ; and the practice of it is one of the surest harbingers 
 of professional success." 2 
 
 § 534. Principles of Administration; (B) Furtherance of Justice ; 
 
 (4) Judge May Interrogate Witnesses Nothing more readily 
 
 arouses the indignation of counsel who are seeking to obtain an 
 unjust advantage than a question asked of a witness by the judge 
 either directly or by a suggestion to the counsel conducting an 
 examination. The one who is thoroughly impressed with the 
 litigious aspect of the administration of justice, 1 with the con- 
 ception that forensic contests are mere trials of intellectual 
 prowess or financial endurance, it well may seem little short of 
 an impertinence for a judge to intervene in this way. If the 
 state has provided the elaborate and costly machinery of courts 
 of justice merely for the purpose of affording a safe and conven- 
 ient opportunity for one of her citizens to outwit another to his 
 own personal profit, there is much ground for such an objection. 
 Evidently such questions may mean the clouding of many a bright 
 prospect of misleading a jury or claiming, when too late to remedy 
 the defect, that a formal, but absolutely necessary part of an op- 
 ponent's case is lacking. But if the object of a trial is, first, to 
 ascertain truth by the light of reason, and, then, do justice — 
 conventionalized, indeed — justice according to law — upon the 
 basis of this truth, then the judge is not only justified but required 
 to elicit a fact whenever these interests of truth and justice would 
 suffer if he did not. 
 
 It is but reasonable that the judge should wait, before interven- 
 ing, until the parties have had a full and fair opportunity of 
 developing their cases in their own way. On cross-examination, 
 for example, a well meant intrusion may ruin a carefully planned 
 test of truth which might otherwise have been of great value for 
 the purposes intended. The examining counsel cannot inform the 
 judge as to his purpose without acquainting the witness and his 
 counsel with the same facts at the same time. 
 
 Espousing one side of a controversy, is an entirely different 
 matter. The court is not senior counsel for either of the parties 
 and the natural advantages of skill and preparedness cannot be 
 
 2. Kvans' Pothier, 268 (1806). 1. Supra, § 303. 
 
703 
 
 DlSCLOSUBE OF OPINION IMPROPER. 
 
 § 534 
 
 offset by the appearance of the judge as deus ex machina. To 
 adopt such a course early in the trial, while the case is but partly 
 developed, is, therefore, just and intolerable grievance. The judge 
 is not permitted to regard himself as leading counsel for one of 
 the parties. 2 The court cannot take sides and manage the hear- 
 ing for a forensic favorite. The action of the trial judge, in 
 practically conducting plaintiff's case by examining plaintiff and 
 his "witnesses while on the stand, as to points not yet touched on 
 by the counsel, by asking them questions which would have been 
 incompetent if asked by plaintiff's counsel, and which were lead- 
 ing and suggestive, 3 is manifestly an irrational exercise of admin- 
 istrative power. 4 
 
 Limitation wpon right. — The judge may elicit evidence ; he 
 should not intimate his opinion as to the case, its merits or the 
 credibility of witnesses. The right of a judge, for the promotion 
 of justice, to interrogate a witness is not affected by the consti- 
 tutional provision forbidding judges to comment upon the evi- 
 dence in the case. 5 In any case, the court will not interrogate a 
 party or witness in such a manner as to indicate to the jury the 
 
 2. Bartley v. State, 55 Neb. 294, 75 
 N. W. 832 (1898) 
 
 3. It is error for the presiding 
 judge during the progress of a trial 
 to ask leading and suggestive ques- 
 tions during the cross-examination 
 nf a hesitating plaintiff. Kramer v. 
 Riss, 77 111. App. 623 (1898). 
 
 i. Bolte v. Third Ave. R. Co., 56 
 N. Y. Supp. 1038, 38 App. Div. 234 
 (1899). 
 
 "When the counsel for the de- 
 fendant expostulated with the court 
 for assuming the examination of 
 these witnesses to the extent to 
 which it was done, he was told that 
 the right of the court to ask ques- 
 tions was absolute, and that a judge 
 had the right to do so whenever he 
 believed that the interest of justice 
 and the circumstances of the case 
 required it. This statement may be 
 very true, but yet it is possible for 
 a judge to deprive a party of a, fair 
 trial, even without intending to do 
 so, by unduly undertaking the con- 
 duct of the case for one party or the 
 
 other, when such conduct results, or 
 may result, in a plain exhibition 
 to the jury of his own opinions in 
 respect to the case. 
 
 Necessarily, the cases upon this 
 subject are not numerous, but yet 
 there are such cases in the books, 
 and, whenever the question has been 
 presented to an appellate tribunal, 
 it has held that if, upon a fair con- 
 sideration of the case, it appears 
 that the action of the judge at the 
 trial was such as to unduly influence 
 the jury in behalf of one party or 
 another, by assuming the duty of 
 counsel, and conducting the trial of 
 the case, it was a sufficient ground 
 for reversal. " Wheeler v. Wallace, 53 
 Mich. 355, 19 N. W. 33 (1884); 
 Dunn v. People, 172 III. 582, 50 N. E. 
 137 (1898)." Bolte v. Third Ave. R. 
 Co., 56 N. Y. Supp. 1038, 1042 
 (1899), per Rumsey, J. 
 
 5. Wilson v. Ohio River & C. Ry. 
 Co., (S. C. 1898) 30 S. E. 406. 
 Supra, § 281. 
 
§ 535 B. FuKTHEKANCE OF JUSTICE. 704 
 
 judgment which he may have formed regarding the truth of a 
 disputed matter of fact, especially if such a fact be a material 
 one. 6 On the other hand, he may not properly ask immaterial 
 questions calculated to arouse the passions and prejudices of a 
 jury. 7 In the same way, while the judge may question witnesses 
 to bring the facts properly before the jury, he must so frame his 
 questions as not to indicate his own opinion, and not to lay undue 
 stress on particular features of the witness' testimony tending to 
 impeach him. 8 
 
 § 535. C [4] Judge May Interrogate Witnesses); To Enable 
 Judge to Charge the Jury. — While the prohibition in many of the 
 American states which forbids the presiding judge to comment on 
 the evidence in his charge to the jury, elsewhere somewhat con- 
 sidered, 1 has, in connection with other concurrent influences, 
 tended to establish the practice of abstention from interference 
 on the part of a judge, the custom of interrogation by the court 
 has always existed. The judge must charge the jury; he must 
 therefore, have as complete a knowledge of the facts of the case 
 as possible. 2 
 
 Relevancy Required. — The questions of the judge must relate 
 to some material or constituent fact in the case. He would not be 
 
 6. Bryant v. Anderson, 5 Ga. App. termination of the litigated matters, 
 517, 63 S. K. 638 (1909). that justice may not miscarry, but 
 
 7. Flinn v. Ferry, 127 Cal. 648, may prevail; and doubtless it is 
 60 Pac. 434 (1900). allowable at times, and under some 
 
 8. Barlow Bros. Co. v. Parsons, 73 circumstances, for the presiding judge 
 Conn. 696, 49 Atl. 205 (1901); Mer- to interrogate a witness. The exact 
 ritt v. Bush, 122 111. App. 189 extent or [times] when the exigencies 
 (1905) ; State v. Allen, (Iowa 1896) may warrant an exercise of this right 
 69 N. W. 274. Should the examina- are matters which are not capable of 
 tion clearly show the judge's opinion very precise statement, but it may be 
 on the question of credibility, it is said that the right herein questioned 
 matter for reversal. City of Flint v. is one which should be very sparingly 
 Stockdale's Estate, 157 Mich. 593, exercised, and, generally, counsel for 
 122 N. W. 279, 16 Detroit Leg. N. the parties should be relied on and al- 
 493 (1909). lowed to manage and bring out their 
 
 1. Supra, §§ 276 et seq. own case. The actions of the judge in 
 
 2. " It is undoubtedly necessary this respect should never be such as to 
 that the judge who presided should warrant any assertion that they were 
 acquire as full knowledge of the facts with a view to assistance of the one 
 and circumstances of the case on trial or the other party to the cause." Per 
 as possible, in order that he may in- Harrison, C. J. Bartley v. State, 55 
 struct the jury, and correctly, to the Neb. 294, 75 N. W. 832 (1898). 
 extent his duty demands, shape the de- 
 
705 Questions in the Inteeest of Justice. §§ 536, 537 
 
 at liberty to gratify bis curiosity by inquiring as to the political 
 views of a witness. 3 
 
 A Contrary View. — The interrogation has been held improper 
 except where the witness fails to understand the questions put to 
 him. 4 Disapproval has been suggested as to the interrogation of 
 a witness in states where the judge is required not to comment to 
 the jury on the evidence. Such a question has been held objection- 
 able as tending to suggest a belief in the guilt of one accused of 
 crime. 5 It has been expressly said, however, that there is no con- 
 flict between the constitutional provision and the power of the 
 judge to interrogate. 6 
 
 § 536. ( [4] Judge May Interrogate Witnesses); Magis- 
 trates, Arbitrators, etc. — This power and duty of interrogation is 
 not limited to judges. It applies also to inferior magistrates or 
 persons exercising temporary judicial functions, such as arbi- 
 trators. 1 
 
 § 537. ( [4] Judge May Interrogate Witnesses) ; In Order to 
 
 Elicit Material Facts. — But the judge may interrogate a witness 
 for a higher purpose than to enable him to give the jury full in- 
 structions. Beside his function of offering light to the jury, he 
 has a duty to justice. He should therefore ask any question cal- 
 culated to present new and material evidence. It may properly 
 be said in any case as was said by Judge Bickwell in the supreme 
 court of Indiana : * "A circuit judge presiding at a trial is not 
 a mere moderator between contending parties; he is a sworn 
 officer charged with grave public duties. In order to establish 
 justice and maintain truth and prevent wrong, he has a large dis- 
 cretion in the application of rules of practice. . . . There is 
 nothing wrong in the court's asking the witness any question the 
 answer to which would likely throw any light upon the testimony." 
 As Sir Henry Hawkins puts it: "Although a judge has 
 no right to cross-examine for the one side or the other, he has a 
 right to put a question in an impartial manner for clearing 
 
 3. Sharp v. Treece, 1 Heisk. 446, 6. Wilson v. R. Co., 52 S. C. 537, 
 44S (1870). 30 S. E. 406 (1898). 
 
 4. Fager v. State, 22 Neb. 332, 338 1. Butler v. Boyles, 10 Humph. 155 
 (1887). (1849). 
 
 5. People l). Bowers, 79 Cal. 415, 21 1. Huffman V. Cauble, 86 Ind. 591, 
 Pae. 752 (1889); Leo v. State, 63 596 (1882). 
 
 Neb. 723, 89 N. W. 303 (1902). 
 
 Vol. I. 45 
 
537 
 
 B. FUKTHEKANCE OF JUSTICE. 
 
 706 
 
 up a doubtful piece of evidence, and for taking every precau- 
 tion that injustice is not done by any omission on the part of 
 counsel." 2 The importance of this power of interrogation to the 
 cause of justice, and the temper with which it should be, and 
 usually is, exercised, are admirably stated by Judge Lumpkin of 
 the supreme court of Georgia: 3 "We know of no limit to the 
 right which belongs to the court of interrogating witnesses, either 
 in civil or criminal cases, especially the latter. The life or death 
 of a man may hang upon a full development of the truth. The 
 presumption that this liberty will not be honorably and imparti- 
 ally exercised is not to be tolerated for a moment. When they 
 see, therefore, that a material fact has been omitted which ought 
 to be brought out, it is not only the right but the duty of the pre- 
 siding judge to call the attention of the witness to it, whether it 
 makes for or against the prosecution; his aim being neither to 
 punish the innocent nor screen the guilty, but to administer the 
 law correctly." * But this interrogation must " be done within 
 such bounds as control attorneys in similar interrogations." 8 
 
 2. 1 Brampton's Remin. p. 211. 
 
 3.Epps v. State, 19 Ga. 118 (1855). 
 
 4. Alabama. — Real v. State, 35 So. 
 58 ( 1903 ) ; Milton V. Rowland, 11 
 Ala. 737 (1847). 
 
 Colorado. — Kansas P. R. Co. v. Mil- 
 ler, 2 Colo. 442, 452, 470 (1874). 
 
 Connecticut. — Barlow B. Co. v. Par- 
 sons, 73 Conn. 696, 49 Atl. 205 
 (1901). 
 
 Georgia. — Kearney v. State, 101 
 Ga. 803, 29 S. E. 127 (1897) ; Bow- 
 den v. Achor, 95 Ga. 243, 22 S. E. 271 
 (1895). 
 
 Illinois. — Featherstone v. People, 
 194 111. 325, 62 N. E. 685 (1902). 
 
 Indiana. — Huffman v. Cauble, 86 
 Ind. 591, 596 (1882); Lefever v. 
 Johnson, 79 Ind. 554, 556 (1881). 
 
 Ioioa. — State v. Spiers, 103 Iowa 
 711, 73 N. W. 336 (1897). 
 
 Massachusetts. — ■ Palmer v. White, 
 10 Cush. 321 (1852). 
 
 Nebraska. — South Omaha v. Fen- 
 nell, 94 N. W. 632 (1903) ; Nightin- 
 gale V. State, 62 Neb. 371, 87 N. W. 
 158 (1901). 
 
 North Carolina. — State V. Lee, 80 
 N. C. 483, 485 (1879). 
 
 # 
 
 klahoma. — De Ford v. Painter, 3 
 tiki, 80, 41 Pac. 96 (1895). 
 
 Tennessee. — State v. Hargroves, 104 
 Tenn. 112, 56 S. W. 857 (1900) ; 
 Graham V. MoReynolds, 90 Tenn. 673, 
 692, 18 S. W. 272 (1891) ; McDonald 
 v. State, 89 Tenn. 161, 164, 14 S. W. 
 487 (3890). 
 
 Texas.— C. Cr. P. § 772 (1895). 
 
 Vermont. — State v. Noakes, 70 Vt. 
 247, 40 Atl. 249 (1898). 
 
 Wisconsin. — Lowe v. State, 96 N. 
 W. 417 (1903). 
 
 Canada. — Coulson v. Lisborough, 2 
 Q. B. 316 (1894). "It is also his 
 duty to propound to the witnesses 
 such questions as he may deem neces- 
 Bary to elicit any relevant and mate- 
 rial evidence." Sparks v. State, 59 
 Ala. 82, 87 (1877). The judge 
 should not so interrogate as to dis- 
 credit the witness. Gordan v. Irvine, 
 105 Ga. 144, 3] S. E. 151 (1898). 
 " Taking the cross-examination of sev- 
 eral of the witnesses out of the hands 
 of the solicitor," i3 not objectionable. 
 State v. Atkinson, 33 S. C. 100, 107, 
 11 S. E. 693 (1890). "A judge is 
 not a mere figure-head." Hill v. 
 
707 Freedom of Judge in Asking Questions. §§ 538, 539 
 
 Suggestions to Counsel. — The trial judge is not required to 
 ask the questions personally. He may suggest them to counsel. 6 
 
 § 538. ( [4] Judge May Interrogate Witnesses); Range of 
 
 Inquiry.— The only limitation upon the range of the judge's in- 
 terrogation is that the power should be reasonably exercised. The 
 questions should be relevant, and so framed as not to prejudice 
 either of the parties. As is said by the supreme court of Georgia, 1 
 a judge may ask a witness " any legal question he pleases." 
 Where the judge is forbidden to comment on the evidence in 
 charging the jury, for the judge to indicate by his question his 
 opinion as to a material fact, would constitute prejudice. 2 The 
 propriety of the employment of this, or, indeed, any particular 
 method of ascertaining truth is a question of administration, or 
 as is more commonly said, of discretion. 3 Circumstances may 
 well arise under which the use by the presiding judge of the power 
 of interrogation would be improper ; — either at all, 4 or in the 
 particular form of question adopted. 
 
 § 539. ( [4] Judge May Interrogate Witnesses); Form of 
 
 Question — The judge employed in a disinterested questioning of a 
 witness presents such guaranties of being engaged on a search for 
 truth for its own sake that he is very properly absolved from 
 
 State, 5 Lea 725, 731 (1880). The See also White v. State, 56 Ga. 385 
 
 judge will be permitted to interrogate / (1876). A judge may properly call 
 
 the witness " when necessary to elicit the attention of a witness to a state- 
 
 the truth." Lowe v. .State, (Wis. men t by him which is apparently 
 
 1903) 96 N. W. 417. "It is the duty incredible and ask him if he really 
 
 of the judge to receive every offer of means it. Elgin, J. & E. Ry. Co. v. 
 
 evidence, apparently material, sug- Lawlor, 229 111 621, 82 N. E. 407 
 
 gested to him, though the parties (1907) ' [affirming judgment, 132 
 
 themselves through negligence, ignor- m. App. 280]. In general, the judge 
 
 ance, or corrupt collusion, should not may, and, indeed, should, assist a 
 
 bring it forward. A judge is not witness to correct his testimony in 
 
 placed in that high situation merely such a way as to make it conform to 
 
 as a passive instrument of parties. He the truth. 
 
 has a duty of his own independent of 2. Harris v. State, 61 Ga. 369 
 
 them, and that duty is to investigate (1878). See also supra, § 529a. 
 
 the truth." . . . Hastings' Trial, 3. r>unn v. People, 172 111. 582, 50 
 
 31 Pari. Hist. 348 (1794). Per Mr. N". E. 137 (1898); Huffman v. Cau- 
 
 Edmund Burke. ble, 86 Ind. 591, 596 (1882) ; Com. V. 
 
 5. State v. Lockett, 168 Mo. 480, 68 Galavan, 9 All. 272, 274 (1852); 
 
 S. W. 563 (1902). People v. Stevens, 47 Mich. 413, 418, 
 
 8. State v. Noakes, 70 Vt. 247, 40 11 N. W. 220 (1882). 
 
 Atl. 249 (1898). 4. State v. Crotts, 22 Wash. 245, 60 
 
 1. Epps v. State, 19 Ga. Ill (1855). Pac. 408 (1900). 
 
§ 540 B. FuBTHEBAXCE OF JUSTICE. 708 
 
 many of the limitations in point of form which judicial adminis- 
 tration has found it necessary to impose upon the self-serving zeal 
 of litigants. He may ask leading questions. 1 Said Lord Chief 
 Justice Ellenborough, on this subject: 2 " I have always under- 
 stood, after some little experience, that the meaning of a leading 
 question was this, and this only: That the judge restrains an 
 advocate who produces a witness on one particular side of a ques- 
 tion, and who may be supposed to have a leaning to that side of 
 the question, from putting such interrogatories as may operate as 
 an instruction to that witness how he is to reply to favor the .party 
 for whom he is adduced. The counsel on the other side, however, 
 may put what questions he pleases, and frame them as best suits 
 his purpose, because then the rule is changed; for there is no 
 danger that the witness will be too complying. But even in a case 
 where evidence is brought forward to support a particular fact, 
 if the witness is obviously adverse to the party calling him, then 
 again the rule does not prevail, and the most leading interroga- 
 tories are allowed. But to say that the judge on the bench may 
 not put what questions and in what form he pleases can only origi- 
 nate in that dullness and stupidity which is the curse of the age." 3 
 
 § 540. Principles of Administration; B. Furtherance of Justice; 
 (5) Judge May Call Additional Witnesses. — As Burke says, 1 a pre- 
 siding judge is not "a passive instrument between the parties." 
 Where the social demands of justice are likely to suffer by an 
 avoidable inadequacy of proof, the court may, of its own motion, 
 seek to supply it. Thus, if a material witness, available to the 
 parties, is not produced, the judge may cause him to be sworn 
 and testify. 2 As Lord Esher, Master of the Bolls,, said in 1894 : 3 
 " If there be a person whom neither party to an action chooses 
 
 1. See Witnesses. not bring it forward. A judge is not 
 
 2. 25 Hansard Pari. Deb. 207 placed in that high situation merely 
 (1813). as a passive instrument of parties. 
 
 3. 25 Hansard Pari. Deb. 207 He has a duty of his own, independent 
 (1813). of them and that duty is to investi- 
 
 1. Report of Committee on Warren gate the truth." 
 
 Easting's Trial, 31 Pari. Hust. 348, 2. Selph r. State, 22 Fla. 537, 548 
 
 (1794), per Mr. Edmund Burke. "It (1886) ; Hoskins v. State, 11 Ga. 92, 
 
 is the duty of the judge to receive 97 (1852) ; Fullerton r. Fordyce, 144 
 
 •every offer of evidence, apparently Mo. 519, 44 S. W. 1053 (1898). 
 
 material, suggested to him, though the S. Coulson v. Disborough, L. R. 2 
 
 parties themselves through negligence, Q. B. D. 316 (1894). 
 ignorance, or corrupt collusion, should 
 
709 Hold Balance of Indulgence Even. § 541 
 
 to call as a witness, and the judge thinks that that person is able 
 to elucidate the truth, the judge in my opinion, is himself en- 
 titled to call him." The judge may make the order equally 
 whether he is* or is not sitting as a jury. His right to ask ques- 
 tions of a witness is subject, however, to the qualification that 
 his questions should be put in open court. It is highly improper 
 for a judge to interrogate a witness privately and subsequently 
 ask him questions upon the basis of the information so obtained. 5 
 In much the same way a witness may properly be recalled for 
 further examination at the request of the presiding judge. 6 
 
 § 541. (Principles of Administration; B. Furtherance of 
 Justice); (6) Judge Should Hold Balance of Indulgence Even. — 
 A presiding judge will not be permitted to grant an indulgence 
 to one party which he denies to the other. Should he give an 
 instruction in a positive form at the request of one party he 
 should, as a rule, give it in its negative form to oblige the other 
 side. 1 In like manner, he cannot refuse to permit a witness to 
 testify on rebuttal because he has disobeyed the rule for the ex- 
 clusion and separation of witnesses, while permitting his testi- 
 mony in chief to be contradicted. 2 For similar reasons a party 
 cannot properly be permitted to introduce testimony on a given 
 point and his adversary prevented from introducing, at an appro- 
 priate stage, evidence legitimately tending to control its logical 
 effect. 3 " No fact is legally proved, in judicial proceedings, by 
 parol evidence upon one side only, when competent and proper 
 opposing testimony is rejected." * 
 
 Like the Canon against Unfair Treatment? the rule at present 
 under consideration is one of wide range of application. The 
 care with which any concession accorded one party in connection 
 with the admission of evidence out of its regular order will be 
 offset by the allowance to the opponent of a reasonable oppor- 
 
 4. Badische A. & S. Fabrik v. Lev- 1. Bruce v. Wolfe, 103 Mo. App. 
 instein, L. R. 24 Ch. D. 156, 167 384, 76 S. W. 723 (1903) ; Texas & P. 
 (1883). Ry. Co. v. Dawson, (Tex. Civ. App. 
 
 5. Littleton v. Clayton, 77 Ala. 571, 1904) 78 S. W. 235. 
 
 575(1884). See also Sparks v. State, 2. Illinois Cent. R. Co. v. Ely 
 
 59 Ala. 82, 87 (1877). (Miss. 1904) 35 So. 873. 
 
 6. Fitzgerald v. Benner, 219 111. 3. Paxton v. Knox, (Iowa 1904) 98 
 485, 76 N. E. 709 (1906). For an N. W. 468. 
 
 interesting and instructive contrilm- 4. Richardson v. Lloyd, 99 Mass. 
 
 tion to the learning of this subject 475 (1868). 
 
 see 57 L. R. A. 875. ._ S. Supra, l§ 629|. 
 
§ 541 
 
 B. FuKTHEEANOE OF JUSTICE. 
 
 710 
 
 tunity to meet the new facts 6 has been elsewhere noticed. 7 Where 
 a party has been permitted, for instance, to introduce on rebuttal 
 evidence which is part of his original case, his adversary cannot 
 properly be held to the strict rules of practice in this respect. 8 
 
 Completeness Required. — Indeed, it is in part under this prin- 
 ciple of administration that a litigant against whom a portion of 
 a conversation or transaction has been put in evidence or a part 
 of a document read 9 will be allowed, almost as of course, to intro- 
 duce the rest of the conversation, 10 or his version of it, 11 the re- 
 mainder of the transaction, 12 or his claim with regard to it. 
 
 Moulding Course of Trial. — In like manner, where one party 
 has been permitted to offer evidence on a particular subject 13 or 
 to use some special class of evidence, 14 his adversary will be con- 
 ceded the privilege of meeting him upon the same ground 15 or 
 with the same weapons. 16 
 
 6. State V. Smith, (La. 1908) 45 
 So. 415. 
 
 7. Supra §§ 329 et seq. 
 
 8. Flowers v. State, (Miss. 1905) 
 37 So. 814. 
 
 9. Supra, §§ 500 et seq. 
 
 10. Supra, §§ 489 et seq. 
 
 11. Ray v. State, (Ala. 1906) 41 
 South 519; Hoggson & Pettis Mfg. 
 Co. v. Sears, 77 Conn. 587, 60 Atl. 
 133 (1905). 
 
 12. Supra, § 522. 
 
 13. McElevaney v. McDiarmid, 131 
 Ga. 97, 62 S. E. 20 (1908); Alpena 
 Tp. v. Mainville, 153 Mich. 732, 117 
 N. W. 338, 15 Detroit Leg. N. 605 
 (1908). 
 
 14. Bates v. Hall, (Colo. 1908) 98 
 Pac. 3 (parol evidence) ; Missouri, 
 K. & T. Ey. Co. of Texas v. Steele, 
 (Tex. Civ. App. 1908) 110 S. W. 
 171. 
 
 15. Alabama. — Alabama Great So. 
 Ey. Co. v. Guest, (Ala. 1905) 39 So. 
 654. 
 
 Colorado. — Jefferson Min. Co. v. 
 Anchoria-Leland Min. & Mill Co., 75 
 Pac. 1070, 64 L. R. A. 925 (1904). 
 
 Illionis. — Kuhn v. Eppstein, 239 
 111. 555, 88 N. E. 174 (1909); Wil- 
 liam Grace Co. v. Larson, 227 111. 
 101, 81 N. E. 44 (1907) [affirming 
 judgment, 129 111. App. 290 
 
 (1906)]; White v. Western State 
 Bank, 119 111. App. 354 (1905); 
 Cook v. Lantz, 116 111. App. 472 
 (1904) (compromise). 
 
 Iowa. — Kelly v. Chicago, E. I. & 
 P. Ry. Co., (Iowa 1908) 114 N. W. 
 536. 
 
 Louisiana. — State v. Lively, 119 
 La. 363, 44 So. 128 (1907). 
 
 Michigan. — Proctor r. Hobart M. 
 Cable Co., 145 Mich. 503, 108 N. W. 
 992, 13 Detroit Leg. N. 644 (1906). 
 
 Minnesota. — Peters r. Schultz, 107 
 Minn. 29, 119 N. W. 385 (1909). 
 
 Missouri. — Crawford v. Kansas 
 City Stockyards Co., 215 Mo. 394, 
 114 S. W. 1057 (1908). 
 
 Montana. — Yank v. Bordeaux, 29 
 Mont. 74, 74 Pac. 77 (1903). 
 
 New York. — Jetter v. Zeller, 104 
 N. Y. S. 229, 119 App. Div. 179 
 (1907). 
 
 North Carolina. — ■ Parker v. Atlan- 
 tic Coast Line E. Co., 133 N. C. 335, 
 45 S. E. 658, 63 L. E. A. 827 (1903) 
 [rehearing denied, Parker v. Eadl- 
 road Co., 43 S. E. 1005 (1902)]. 
 
 Pennsylvania. — Hastings v. Speer, 
 34 Pa. Super. Ct. 478 (1907); 
 Whitney v. Haskell, 216 Pa. 622, 66 
 Atl. 101 (1907) (construction of 
 agreement). 
 
 South Dakota. — Borneman v. Chi- 
 
711 Iebelevant Testimony in Eeplt Rejected. § 541 
 
 Use of Incompetent Testimony. — The principle has even been 
 carried so far, in certain courts, as to permit a party against 
 ■whom irrelevant evidence 17 or that which is incompetent, 18 hear- 
 say, "opinion" 19 or the like, 20 to insist upon meeting it with 
 equally incompetent evidence of the same nature. 
 
 In a criminal case, the same right has been conceded to the 
 prosecution where the accused has introduced without objection, 
 legally inadmissible testimony. 21 
 
 Administrative Objection to Use of Irrelevant Testimony. — 
 The administrative propriety of such a course has, however, not 
 been universally conceded. Where relevant testimony is offered, 
 the waiver of a procedural bar by a party entitled to insist upon 
 its observance may well be held to entitle his opponent to reply 
 in the same way. Where, however, irrelevant evidence is offered, 
 the judge will by no means necessarily feel constrained to waste 
 the court's time in hearing it merely because the other party has 
 led the way in doing so. 22 The matter may properly be regarded 
 
 D 
 
 cago, St. P., M. & 0. Ry. Co., (S. 
 
 1905) 104 N. W. 208. 
 
 Texas. — St. Louis & S. F. R. Co. 
 v. Sizemore, (Civ. App. 1909) 116 
 S. W. 403; Cobb v. Bryan (Civ. App. 
 
 1906) 97 S. W. 513; St. Louis South- 
 western Ry. Co. of Texas v. Smith, 
 ; (Tex. Civ. App. 1905) 86 S. W. 943 
 (expert examination of an injury]. 
 
 United States. — Burrell v. U. S., 
 147 Fed. 44, 77 C. C. A. 308 (1906). 
 Where defendant questions his own 
 witnesses about a certain matter, he 
 cannot complain if plaintiff questions 
 his witnesses about the same matter. 
 Indianapolis Traction & Terminal 
 Co. v. Eomans, (Ind. App. 1907) 79 
 N. E. 1068. A party who has availed 
 himself of improper evidence cannot 
 complain of the opposite party having 
 gone into the same matter on cross- 
 examination. Cronk v. Wabash R. 
 Co., 123 Iowa 349, 98 N. W. 884 
 (1904). 
 
 16. Farmer's High Line .Canal & 
 Reservoir Co. v. White, (Colo. 1903) 
 75 Pac. 415; Mcllwain v. Gaebe, 128 
 111. App. 209 (1906) '(X-ray photo- 
 graphs) ; Policemen's Benev. Ass'n of 
 City of Chicago v. Ryce, 115 111. App. 
 95 (1904) [judgment affirmed, 213 
 
 111. 9, 72 N. E. 764]; Merchant's 
 Loan & Trust Co. v. Boucher, 115 111. 
 App. 101 (1904). 
 
 17. Warren Live Stock Co. v Farr, 
 142 Fed. 110, 73 C. C. A. 340 (1905). 
 
 18. German-Amer. Ins. Co. v. 
 Brown, (Ark. 1905) 87 S. W. 135. 
 
 19. Provident Sav. Life Assur. Soc. 
 V. King, 216 111. 416, 75 N. E. 166 
 
 (1905) [affirming judgment, 117 111. 
 App. 556] (conclusion) ; State v. 
 Grubb, 201 Mo. 585, 99 S. W. 1083 
 
 (1906) (handwriting); Ahnert t. 
 Union Ry. Co. of N. Y. City, 110 
 ST. Y. Suppl. 376 (1908); Lefevre v. 
 Silo, 98 N. Y. Suppl. 321, 112 App. 
 Div. 464 (1906) (conclusion). 
 
 20. Aetna Ins. Co. v. Fitze, (Tex. 
 Civ. App. 1904), 78 S. W. 370 
 (compromise offer). Where plaintiff 
 gave secondary evidence without ob- 
 jection, defendant should have been 
 allowed to give similar contradictory 
 evidence. MoCormack v. Mandle- 
 baum, 92 N. Y. S. 425, 102 App. Div. 
 302 (1905). 
 
 21. People v. Duncan, (Cal. App. 
 1908) 96 Pac. 414 (hearsay). 
 
 22. Union Steel & Chain Co. v. 
 Wagoner, (Colo. 1906) 85 Pac. 836. 
 
§§ 542, 543 B. JFubthebance of Justice. 712 
 
 as one of administration. 23 The violation of the administrative 
 canon requiring that trials should be expedited is still less in the 
 public interest where the effect of the irrelevant testimony offered 
 in rebuttal is calculated not only to prolong the trial but to bring 
 it to an irrational result, by misleading the jury. 
 
 § 542. (Principles of Administration; B. Furtherance of 
 Justice); (7) Judge Should Require Full Disclosure. — Limited, by 
 the substantive or procedural law in conceding various privileges 
 of silence, 1 as may have been the administrative principle that 
 the interests of justice require disclosure of material facts, the 
 principle itself is a sound and valuable one, and should be ac- 
 corded force and extension. In certain connections this is 
 recognized. Thus, the " best evidence rule " requires that the 
 most probative evidence should be given. 2 A verbal or written 
 statement introduced into evidence must be made as complete as 
 is essential to fairness. 3 It follows that a party is not entitled, 
 as a matter of right, to withdraw legal and competent evidence, 
 voluntarily introduced by him, which is favorable to his adver- 
 sary. 4 While the interests of public justice may require a full 
 disclosure on the part of a witness, the attempt to break down 
 the testimony of one whom the judge regards as mistaken 5 may 
 more properly be left to counsel. Zeal on the part of a presiding 
 judge to secure a particular issue of a trial is seldom conducive 
 to increased popular respect for judicial administration. 6 
 
 § 543. (Principles of Administration; B. Furtherance of 
 Justice); (8) Judge May Suggest Proper Amendments. — A pre- 
 siding judge may suggest amendments to the pleadings, in order 
 
 23. Bennett v. Susser, 191 Mass. lutely sure that the defendant was 
 
 329, 77 N. E. 884 (1906). at the place stated, and to tell the 
 
 1. See Witnesses. witness that if he -was mistaken he 
 
 2. Supra, §§ 4S0 et seq. could correct his statement, and to ask 
 
 3. Supra, §§ 489 et seq. him to think and see whether or not 
 
 4. Zipperer v. City of Savannah, he was not mistaken, and to correct 
 128 Ga. 135, 57 S. E. 311 (1907). his testimony if there was any doubt 
 
 5. Where, in a prosecution for in his mind concerning his testimony, 
 robbery, a witness had testified posi- Glover v. United States, 147 Fed. 
 tively in support of defendant's alibi 426, 77 C. C. A. 450 (1906). 
 
 as to the place where he saw defend- 6. No objection exists to the 
 
 ant on or about the time of the al- court's offering a witness any reason- 
 
 leged robbery, it was improper for able opportunity for explanation, 
 
 the court to catechise the witness at Owens v. State, (Tex. Cr. App. 1906) 
 
 length as to whether he was abso- 96 S. W. 31. Supra, § 538. 
 
713 Expedite Trials is to Euethee Justice. § 544 
 
 that they may correspond more completely with the proofs intro- 
 duced in evidence. 1 It is not, for example, improper for a trial 
 judge to recommend to a plaintiff the adding of another count 
 to his declaration, setting forth with more clearness and detail 
 matters covered by a general averment, the effect of which would 
 be merely to divide his causes of action and present them in 
 separate counts. 2 
 
 § 544. Principles of Administration; (C) Expedite Trials. — 
 
 If the first fundamental canon of judicial administration be the 
 preservation of the substantive rights of the litigants, 1 and the 
 second is found to be the furtherance of justice, 2 little question 
 can exist as to what is properly classed as next in social im- 
 portance. It is that justice should be made as speedy as is con- 
 sistent Avith its being accurate and complete. Not without reason 
 is it that in Magna Charta as careful provision is made against 
 the delay of justice as against either its sale or denial. There is, 
 in reality, under many constantly recurring circumstances, but 
 slight difference to the petitioner for justice between its delay and 
 its denial. Beyond a certain point, to delay justice in any case, 
 is to deny it. " Undue delay is a denial of justice." 3 The expe- 
 diting of trials is therefore in the direction of the furtherance of 
 justice, and, therefore, is well within the administrative duty of 
 the court. This is recognized and, indeed, certain eminent jurists 4 
 
 1. J. W. Bishop Co. v. Shelhorse, in examinations of this nature and the 
 (TJ. S., Va. 1905) 72 C. C. A. 337, time which it is practicable to bestow 
 141 Fed. 643. upon them. If we lived for a thou- 
 
 2. J. W. Bishop Co. v. Shelhorse, sand years, instead of about sixty or 
 141 Fed. 643, 72 C. C. A. 337 (1905). seventy, and every case were of suffi- 
 For some consideration of the formal cient importance, it might be possible, 
 nature of such an amendment, see and perhaps proper, to throw a light 
 supra, § 5>28a. on matters in which every possi-ble 
 
 1. Supra, §§ 332 et seq. question might be suggested, for the 
 
 2. Supra, §§ 463 et seq. purpose of seeing by such means 
 
 3. Post v. Bklyn. Heights B. B. Co., whether the whole was unfounded, or 
 195 N. Y. 62 (1909). what portion of it was not, and to 
 
 4. For example, Baron Rolfe, in raise every possible inquiry as to the 
 deciding that the cross-examiner truth of the statements made. But I 
 must rest content with the witness' do not see how that could be; in fact, 
 answer on an immaterial point, says: mankind find it to be impossible. 
 " The laws of evidence on this subject, Therefore some line must be drawn, 
 as to what ought and what ought not I take it the established rule is, that 
 to be received, must be considered as you may contradict any portion of 
 founded on a sort of comparative con- the testimony that is given in sup- 
 sideration of the time to be occupied port or contradiction of the issue be- 
 
§ 544 
 
 C. Expedite Teials. 
 
 714 
 
 have stated this canon in terms which might well be misunder- 
 stood as implying a feeling that some arbitrary limit in time was 
 imposed upon the length of a trial. This isi not the case. No 
 furtherance of justice, as a whole, can take place by declining to 
 accord to a case all the time reasonably necessary to diagnose 
 every material fact merely in order to advance a case standing 
 later on the docket. 5 The present canon of administration pre- 
 scribes economy in the use of time. It permits any expenditure 
 which is reasonably necessary for the purpose of doing justice. 8 
 It cautions merely against time's waste; nothing is said against 
 its useful employment. 7 
 
 tween the parties. That is clear. 
 Then, undoubtedly, mankind have 
 felt that, as facts are frequently to 
 be proved by the testimony of men of 
 suspicious character, you may in- 
 quire into the genuineness and 
 truthfulness of the party who gives 
 such testimony. And undoubtedly 
 there -is some rule as to what you 
 can contradict in respect of such 
 evidence, and what you cannot, al- 
 though it is not very easy to reconcile 
 the rule with any positive principle; 
 and I conceive the rule which permits 
 evidence to be given to contradict a 
 person who is not actuated by any im- 
 proper motives, may be taken to trench 
 a little upon that which does not allow 
 you to contradict him when he says, 
 ' I am not infamous.' That is, how- 
 ever, the rule that is established, and 
 may be adhered to." Attorney-Gen- 
 eral v. Hitchcock, 1 Exch. 91, 105 
 (1847). 
 
 5. " We are much pressed with 
 the argument that it would be at- 
 tended with great inconvenience if 
 we permit a party to try his right 
 to an office by showing that his ad- 
 versary received a greater number 
 of illegal votes than the ascertained 
 majority given him. It is said that 
 in a general State election the time 
 necessarily occupied in such a trial 
 might consume more than eighty- 
 three years. It is the first time I have 
 ever heard it urged that a party who 
 had a conceded right should not have 
 
 a. remedy to enforce it, because a large 
 consumption of time would take place 
 before his right could be established. 
 If a party has a legal title to an office, 
 it surely can be no legal reason for 
 denying him the opportunity to estab- 
 lish it, that such process will require 
 the examination of a large number of 
 witnesses and consume much time in 
 the proceeding. Eights of parties can- 
 not be determined on such a basis.'' 
 People v. Pease, 27 N. Y. 45, 61 
 1863). 
 
 6. " The trial to which parties are 
 entitled is not an endless one, nor one 
 unreasonably protracted and exhaust- 
 ing. There may be a vast amount 
 of evidence, relevant in a, certain 
 legal sense, but so unimportant, 
 when compared with an abundance 
 of better evidence easily available, as 
 to be properly excluded. The parties 
 being allowed, upon collateral issues, 
 an equal range, amply sufficient for 
 the purposes of justice, under the cir- 
 cumstances of the particular case, 
 they are not necessarily entitled, as 
 a matter of law, to go further in that 
 direction." Amoskeag Mfg. Co. v. 
 Head, 59 N. H. 332 (1879), per Doe, 
 C. J. 
 
 7. " We enforce a legal obligation, 
 and we admit any defense which 
 shews that there is no legal obliga- 
 tion or a legal excuse for not fulfill- 
 ing it; but in no ease that we know 
 of is it ever said that a defense shall 
 be admitted if it is easily proved and 
 
715 Kedundancy in Pkoof to be Elided. §§ 545, 546 
 
 The contrary conception is one appropriate to an age which 
 required that every criminal trial should be finished within the 
 day j 8 — out of which the law has evolved, into higher things, 
 largely through the indignant protests of judges themselves. 9 
 
 Methods Employed. — In 'seeking this objective of administra- 
 tion — the attainment of substantial justice as speedily as is con- 
 sistent with the adequacy of the result itself — • courts proceed, in 
 addition to minor and more incidental methods, by these principal 
 ways: (1) Such a use of its judicial knowledge and power to 
 rule as to the existence of prima, facie states of evidence as will 
 prevent diverting of attention from the facts really in dispute and 
 keep the case as it were constantly turning on its hinge; (2) 
 controlling the range of inquiry at any stage to the reasonable 
 requirements of proof; (3) eliminating evidence of slight, colla1>- 
 eral, or remote logical bearing; (4) regulating introduction of 
 cumulative evidence; (5) limiting number of witnesses; (6) re- 
 stricting repetition of question; (7) restricting repetition of 
 testimony; (8) restricting length of argument; (9) restricting 
 length of examination, number of counsel, etc. 
 
 § 545. (Principles of Administration; C. Expedite Trials); 
 
 Reason Required. — Any method must be reasonable. Any arbi- 
 trary limitation upon the course of the trial made in advance of 
 the arising of the actual situation as fixing a limit to the number 
 of permissible requests for rulings, 1 may be unreasonable. 
 
 § 546. (Principles of Administration; C. Expedite Trials); 
 
 (1) Rulings as to Prima Facie Case. — Eeasonable dispatch of ju- 
 dicial business' requires the elimination of mere redundancy in 
 
 rejected if it would give the Court 9. " What is necessary to an end 
 
 great trouble to investigate." Godard the law allows, is never too long. 
 
 v. Gray, L. R. 6 Q. B. 139,152 (1870). ' Non sunt longa quiius nihil est quod 
 
 8. The rule which prevailed then demere possis ' is as true as an axiom 
 
 (1699), and long afterwards, of fin- in Euclid." Bushel's Case, 6 How. St. 
 
 ishing all criminal trials in one day Tr. 999, 1003, Vaughan 135, 3 Keb. 
 
 must often have produced cruel in- 322, 1 Mod. 119 (1670). 
 
 justice. Many of the cases I have re- 1. "A hard and fast rule, limiting 
 
 ferred to were tried in a superficial, in advance the number of instructions 
 
 perfunctory way. . . . The right to be tendered by each party, is un- 
 
 of the Court to adjourn in cases of reasonable." Chicago Union Traction 
 
 treason or felony was not fully estab- Co. v. Ludlow, 108 111. App. 357 
 
 lished till the treason trials of 1794." (1903). 
 Stephen's History of the Criminal 
 Law, I, 422, 403. 
 
§ 546 C. Expedite Tbials. 716 
 
 proof. The power must, necessarily, reside somewhere of prevent- 
 ing a party from doing more than proving his immediate case. 
 He should not he permitted to go further than this, anticipate 
 possible defenses and answer them. He should not be at liberty 
 to suppose that his evidence will be attacked on a particular 
 point, or the credibility of certain of his witnesses assailed and 
 proceed to repair as part of his original case the breach in its 
 proof before it is made. He should not, as has been said, 1 be 
 allowed to reinforce a story complete in itself by a mass of merely 
 consistent facts. A purely consistent fact usually has very little 
 probative value. It is in the nature of a " finishing touch," which 
 adds, possibly, symmetry but not strength. It may be necessary 
 to go into all tbese matters later ; — if the case develops along 
 these lines. But when a party has proved a complete case in his 
 own behalf, which as it lies at that time tbe jury are apt to be- 
 lieve if tbey are ever going to believe it, and should follow if tbey 
 believe it, anything further from that side, at that point, would 
 be a waste of time. The judge alone is in a position to prevent 
 this Joss ; — by declaring that a prima facie case has been estab- 
 lished and calling upon the other side to state its position. It 
 seems clear that this power is not only necessary for the dispatch 
 of business, but salutary, and, when wisely handled, very much 
 in the public interest. It is equally obvious, however, for what 
 reason judges have proved themselves not only cautious in the use 
 of this power but anxious, even during its conscious exercise, to 
 conceal the real nature of what they were doing under some other 
 name. Usually, we have a " presumption," 2 or a statement as to 
 the " burden of proof." Any ruling as to the existence of a prima 
 facie case unquestionably invades the province of the jury; and, 
 pro tanto, curbs the right of a party to place his case before them 
 in his own way. Hence, a necessity for indirection in judicial 
 method has continually been felt in this connection. The admin- 
 istrative danger is an entirely different one ; — lest the court rule 
 that a prima facie case has been established before the jury have 
 seen cause to reach the requisite stage of belief to that effect. The 
 jury lags mentally behind the court. Possibly more evidence 
 would have produced tbe result of mental certainty on their part 
 had the court been a little less prompt in thus forestalling the 
 action of the jury. The power, nevertheless, is a necessary one; 
 
 1. Supra, § 52. 2. Infra, § 1085. 
 
717 Collatebal Inquieies Kestbicted. §§ 547, 548 
 
 and the fact of .possible injustice from its exercise furnishes 
 merely matter for caution in curtailing the proof of facts which, 
 under the circumstances of a particular case, may be constituent 
 in their nature. It is the most potent method of expediting causes 
 which it is in the power of the court to employ. 
 
 § 547. (Principles of Administration; C. Expedite Trials); 
 
 (2) Range of Examination. — With this object of securing all ex- 
 pediting consistent with care and thoroughness, the court may 
 limit the range of the examination of witnesses. On every direct 
 examination a point is reached when the witness has fairly told 
 his etory and will be credited, if he is to be believed at all. In 
 the same way, on cross-examination, a witness' story in chief 
 finally becomes tested to a reasonable extent. If it is to be supple- 
 mented at all, the supplementing has been done. If the witness 
 is to be discredited, the result has been accomplished, or a satis- 
 factory foundation laid for doing so. 1 The question which arises 
 on cross-examination is one of far greater nicety than the corre- 
 sponding inquiry present on direct examination; and much must 
 be left to the good faith of counsel. But when, either on direct 
 or cross-examination, the counsel has had a reasonable opportunity 
 of advancing in the manner appropriate to any 'stage the interests 
 intrusted to him, the court may and should, intervene to prevent 
 repetition and the turning of sterile furrows. 2 
 
 § 548. (Principles of Administration; C. Expedite Trials); 
 
 (3) Inquiry into Collateral Matters Restricted. — While proving 
 such material facts, bearing upon or involved in the issue, as lie 
 in a party's power to produce is a matter of right, 1 how far the 
 court will permit litigants to go in showing collateral facts which 
 tend to corroborate their contentions or to test or discredit that of 
 an opponent is within the administrative function. In view of 
 the great variety and ramification of deliberative facts, gradually 
 shading off in point of logical relation to those which are constitu- 
 ent, it is obvious that a line must, as a practical matter, be drawn 
 
 1. See Witnesses. properly decline to allow an examin- 
 
 2. Aurora v. Hillman, 90 111. 61 ing counsel to repeat a question which 
 (1878) ; Stroh v. South Covington, the witness has already fully 
 etc., R. Co., 78 S. W. 1120, 25 Ky. L. answered. Aurora v. Hillman, 90 111. 
 Eep. 1868 (1904) ; Davis v. U. S., 165 61 (1878). See Infra, § 551. 
 
 U. S. 373, 17 S. Ct. 360, 41 L. ed. 1. Com. v. Gray, 129 Mass. 474 
 
 750 ( 1897 ) . For example he may also ( 1880) . 
 
§ 549 C. Expedite Teials. 718 
 
 somewhere. Under certain general principles of administration 2 
 this line is drawn by the court, in the exercise of reasonable dis- 
 cretion, 3 as between the demands of truth and the necessity for 
 handling causes with a reasonable degree of expedition. 
 
 Corroboration. — How far a party shall be permitted to cor- 
 roborate the material statements of his witnesses by proof of col- 
 lateral facts is within the administrative function of the court. 4 
 
 § 549. (Principles of Administration; C. Expedite Trials); 
 
 (4) Introduction of Cumulative Evidence Regulated. — Cumulative 
 evidence is evidence of the same kind to the same point. A stage 
 will usually be reached in any case at which the proof will be 
 found to have been introduced with such fullness that if the 
 contention of the litigant in support of which it is adduced is 
 to be credited at all by the tribunal, it will be believed then. To 
 go further, in this line, until at least conflict of evidence is de- 
 veloped on the point is to weary the jury, waste time and weaken 
 the effect, by suggesting the existence of some hidden doubt on 
 the part of the proponent beyond what appears on the surface. 
 The court, therefore, is justified as a matter of administration, 
 in excluding such additional or cumulative evidence. 1 The court 
 may properly refuse to allow parties to introduce matters already 
 in evidence. 2 While the power of a trial judge to reject cumu- 
 lative evidence has been denied, 3 it cannot be doubted that the 
 exercise of such a power may be entirely justified. 
 
 2. Supra, %% 332 et seq. Massachusetts. — Parker v. Hardy, 
 
 3. Com. v. Williams, 105 Mass. 62 24 Pick. 246 (1837). 
 
 (1870). Mississippi. — Wilson v. Williams, 
 
 4. Com. V. Williams, 105 Mass. 62 52 Miss. 487 (1876). 
 
 (1870). Missouri. — 'Craighead v. Wells, 21 
 
 1. Arkansas.— Olmstead v. Hill, 2 Mo. 404 (1855). 
 
 Ark. 346 (1839). New York. — People v. New York 
 
 California. — Noonan v. Nunan, 76 Super. Ct., 10 Wend. 285 (1833). 
 
 Cal. 44, 18 Pac. 98 (1888). 2. Johnson v. Crookston Lumber 
 
 Connecticut. — Waller v. Graves, 20 Co., (Minn. 1904) 100 N. W. 225; 
 
 Conn. 305 (1850). Siegelman v. Jones, 103 Mo. App. 172, 
 
 Georgia.— White v. Columbus Iron 77 S. W. 307 (1903) ; Carr v. Ameri- 
 
 Works Co., 113 Ga. 577, 38 S. E. can Locomotive Co., 26 R. I. 180, 58 
 
 944 (1901). Atl. 678 (1904); Camp v. League, 
 
 Indiana. — Farmers', etc., Bldg., etc., (Tex. Civ. App. 1906) 92 S. W. 1062. 
 
 Assoc, v. Rector, 22 Ind. App. 101, 3. Perkins v. Rice, 187 Mass. 28, 
 
 53 N. E. 297 (1899). 72 N. E. 323 (1904). 
 
 Maine. — Glidden v. Dunlap, 28 Me. 
 379 (1848). 
 
719 Peemitting Repetition of Questions. §§ 550, 551 
 
 § 550. (Principles of Administration; C. Expedite Trials); 
 
 (5) Judge May limit Number of Witnesses. — Where no gain to the 
 cause of justice may be anticipated from the calling of a large 
 number of witnesses to a given point, it is not required by good 
 administration that they be all heard. The court may well limit 
 the witnesses to a reasonable number. 1 Thus on a question of a 
 bid at an auction at which two hundred persons were present the 
 judge may well restrict the number on each side to five. 2 In like 
 manner on a question regarding the utility of a patent the number 
 of witnesses may be limited to fifteen. 3 A party is not entitled 
 to complain that the judge thinks it wise to employ the public 
 time in hearing a large number of witnesses. 4 Kor can he so 
 object even where the judge, in so doing, is exceeding a limitation 
 which he himself has hitherto imposed. 5 The judge may limit 
 the number of expert, 6 or other witnesses which the parties shall 
 be at liberty to call upon a given point, and with this exercise 
 of administrative power an appellate court will not interfere so 
 long as it is reasonably exercised. If the action is unreasonable 
 it will be reversed. 7 
 
 § 551. (Principles of Administration; C. Expedite Trials); 
 
 (6) Right to Restrict Repetition of Questions; Direct Examination. — 
 
 The necessity for expediting trials frequently precludes the court 
 from permitting the repetition of questions, especially on direct 
 examination. Where the inquiry has already been excluded in- 
 sisting upon repeating it is highly objectionable; 1 — unless the 
 state of the evidence, the subject-matter of the offer or some other 
 condition of the situation has been so modified since the last tender 
 as to afford fair reason for a belief that the judge's action may 
 be different than when the question was first asked. Where the 
 question which it is sought to repeat is one which has already 
 
 1. Burt-Brabb Lumber Co. v. Craw- 5. Brady V. Shirley, (S. D. 1904) 
 ford, 27 Ky. L. Rep. 798, 86 S. W. 101 N. W. 886. 
 
 702 (1905) ; White v. City of Boston, 6. Fraser v. Jennison, 42 Mieh. 206, 
 
 186 Mass. 65, 71 N. E. 75 (1904); 3 N. W. 882 (1879); Powers v. Mc- 
 
 Swope v. City of Seattle, 36 Wash. Kenzie, 90 Tenn. 167, 182, 16 S. W. 
 
 113, 78 Pac. 607 (1904). 559 (1891). 
 
 2. Austin v. Smith & Holliday, 7. St. Louis, M. & S. E. E, Co. v. 
 (Iowa 1906) 109 N. W. 289. Aubuehon, 199 Mo. 352, 97 S. W. 867 
 
 3. J. H. Clark Co. v. Rice, 127 Wis. (1906). 
 
 451, 106 N. W. 231 (1906). 1. Jones v. Stevens, 36 Neb. 849, 
 
 4. Taylor v. Security Life, etc., Co., 852, 55 N. W. 251 (1893). 
 145 N. C. 383, 59 S. E. 139 (1907). 
 
§ 552 C. Expedite Teiaxs. 720 
 
 been allowed either specifically or in a substantially similar form, 
 permitting it to be again asked is entirely a question of adminis- 
 tration. 2 To repeat a question once excluded for any other pur- 
 pose than to seek, in good faith, its introduction after a change 
 of condition in the proof, is opposed to the canon under considera- 
 tion. 
 
 § 552. (Principles of Administration; C. Expedite Trials); 
 
 (6) Right to Restrict Repetition of Questions; Cross-examination. — 
 On cross-examination, a somewhat different situation is pre- 
 sented. Asking a witness at this stage, to repeat the evidence 
 given on direct examination may well serve to test the truth of 
 the original statements, and be, therefore, entirely within the 
 legitimate rights of the party. 1 Ability to repeat a story not only 
 involves memory and accuracy; it throws valuable light on the 
 question as to whether a narrative concerns actual facts, in which 
 case, the reality of the events or circumstances narrated will 
 enable the witness to repeat them as often as asked, with sub- 
 stantial accuracy ; or, the story is a fabricated one, in which event, 
 attempts at repetition may well break down, unless the story is a 
 short one, or learned with remarkable thoroughness and retentive- 
 ness of memory. The limits of insistence upon repetition are 
 questions of administration. But, in general, as the supreme 
 court of Michigan say : 2 " The only safe general rule upon cross- 
 examination is to allow the party cross-examining to go over the 
 whole subject or subjects to which the direct examination re- 
 lated." " We know of no rule of practice," say the same court, 3 
 " that prohibits an attorney from requesting a witness to repeat 
 what he has testified to upon a particular point in his direct 
 examination. He has a right to have it repeated, for the purpose 
 not only of testing the recollection of the witness, but of ascertain- 
 ing whether he makes a statement at variance with what he testi- 
 fied to in chief." 4 The trial judge is quite at liberty, and, indeed, 
 
 2. Singer & T. S. Co. v. Hutchinson, 60 N. W. 373 (1891), per Champlin, 
 
 184 111. 169, 56 N. E. 353 (1900); C. J. 
 
 Simon v. Home Ins. Co., 58 Midi. 4. A Idbomu.— Wesley V. State, 52 
 
 278, 25 N. W. 190 (1885); Ulrich Ala. 182, 188 (1875). 
 
 1?. People, 39 Mich. 245, 251 (1878). M dryland.— Brown v. State, 72 Md. 
 
 1. Supra, § 377. 468, 475, 20 Atl. 186 (1890); 
 
 2. O'Donnell v. Segar, 25 Mich. 367, Schwartze V. Yearly, 31 Md. 270, 276 
 371 (1872), per Christiancy, C. J. (1869). 
 
 3. Zucher v. Karpeles, 88 Mich. 424, 
 
721 Repeating Question on Cboss-Examination. § 553 
 
 for purposes of expediting trials, required, to place reasonable 
 limitations upon the exercise of this mode of testing. " Of course 
 it would not be permissible for an attorney to pass through the 
 whole of the direct examination and ask the witness to repeat it; 
 and such was not the case here. The attorney had not abused his 
 privilege; nor, as it appears from the record, unnecessarily con- 
 sumed the time of the court in a fruitless attempt at cross-exami- 
 nation." B Such may be regarded as the established rule. 6 
 
 § 553. (Principles of Administration; C. Expedite Trials; 
 [6] Right to Restrict Repetition of Questions); Repeating 
 
 Question Asked on Cross-examination. — Where perjury is claimed, 
 by reputable counsel, directly or by implication from conduct, the 
 court, in exercise of its administrative function for the further- 
 ance of justice, may permit repetition on cross-examination, not 
 alone of the same questions asked on direct examination but of 
 questions asked on cross-examination, to which the examiner can- 
 not get an answer or only one with which he is not satisfied as 
 being in accordance with the facts. He will, if permitted, ask 
 the same question until he gets either an answer, or one which 
 he thinks is true. With many, perhaps most, witnesses the test 
 is one of the most effective that can be employed. Where the 
 
 Michigan. — Gutsch v. Mcllhargey, the ordinary and usual methods." 
 
 69 Mich. 377, 37 N. W. 303 (1888). People v. Barberi, 149 N. Y. 256, 43 
 
 Pennsylvania. — Stern v. Stanton, N. E. 635 (1896) (question repeated 
 
 184 Pa. 468, 39 Atl. 404 (1898). seven or eight times ) . 
 
 Texas. — Shaw v. State, 32 Tex. Cr. 5. Zucker V. Karpeles, 88 Mich. 424, 
 
 155, 169, 22 N. W. 588 (1893) ; Rail- 50 N. W. 373 (1891), per Champlin, 
 
 way v. Pool, 70 Tex. 715 (1888). C. J., 
 
 Wisconsin. — McMahon v. Water- 6. People v. Rader, 136 Cal. 253, 
 
 works Co., 95 Wis. 640, 70 N. W. 68 Pac. 706 (1902) ; Mathis v. State, 
 
 829 (1897). (Fla. 1903) 34 So. 287; Winklemans 
 
 United States. — Middlesex B. Co. v. v. R. Co., 62 Iowa 11, 17 (1883); 
 Smith, 83 Fed. 133, 27 C. C. A. 485 Odiorne v. Bacon, 5 Cush. 185, 191 
 (1897). "How many times the same (1850). He refers also to 61st day, 
 question should be repeated on cross- Times Report, pt. 15, p. 149; Ken- 
 examination . . and how far the nedy's Trial, p. 6 (Mongan's Cele- 
 witness should be compelled to answer brated Trials in Ireland) ; R. v. Bern- 
 were matters within the discretion of ard, 8 St. Tr. (N. S.) 887, 958 
 the presiding judge." Demerritt v. (1858). Such a ruling is not objec- 
 Randall, 116 Mass. 331 (1874). "We tionable as a comment upon the 
 are wholly unable to perceive any such weight of evidence. Highley v. Metz- 
 element of improbability in her direct ger, 187 111. 237, 58 N. E. 407 (1900) 
 narrative ... as to warrant such [judgment affirmed — 86 111. App. 
 a wide and unusual departure from 573]. 
 
 Vol. I. 46 
 
§ 554 C. Expedite Trials. 72.2 
 
 mind of the witness is interposing a barrier of falsehood or equivo- 
 cation between the examiner and the true state of his own mind, 
 the effect of repeating the question, psychologically, is not unlike 
 that of an ancient battering ram. Each Now, delivered at the 
 same point adds its quota of disintegrating force until the barrier 
 is broken down. The auto-suggestion of the witness that ho re- 
 main steadfast to the prearranged story is steadily undermined 
 by the counter suggestion of the insistent questions, until it 
 weakens, totters, falls. The expedient is a desperate one; but, in 
 a master hand, it often succeeds where others fail. Apparently 
 its use offends against the canon which requires the expediting 
 of trials. Where, however, it serves to- detect perjury, it is, in 
 reality, a most excellent way of expediting the cause. Where no 
 such gain is promised, a trial judge may exclude questions on 
 cross-examination which are chiefly argumentative or combative 
 in their nature. 1 In general, constant going over the same topic 
 on cross-examination may be prevented without abuse of discre- 
 tion. 2 A trial judge has an administrative function to put a stop 
 to prolonged and useless examination of a witness. 3 Any other 
 threatened waste of time may be dealt with in the same way. 
 Thus, where counsel stated that he did not hope to obtain any- 
 thing by a certain line of cross-examination that he was about to 
 enter upon, there was no error in refusing to permit him to pro- 
 ceed with it. 4 
 
 § 554. (Principles of Administration; C. Expedite Trials); 
 
 (7) Right to Restrict Repetition of Testimony. — The court may 
 properly decline to permit the consumption of time by the unrea- 
 sonable repetition by a witness of his testimony. A trial judge 
 must exercise some discretion as to the repetition of testimony, 
 and where this function is not unreasonably employed, there 
 is no error in re-fusing to allow a witness to repeat himself. 1 
 
 1. Clay v. Sullivan, (Ala. 1908) 4- Union Ry. Co. v. Hunton, 114 
 47 So. 153. Tenn. 609, 88 S. W. 182 (1905). 
 
 2. Leimgruber v. Leimgruber (Ind. 1. Gracy V. Atlantic Coast Line R. 
 1908) 86 N. E. 73; State v. Wren, Co., (Fla. 1907) 42 So. 903; Stern 
 121 La. 55, 46 So. 99 (1908) ; Fu- v. Bradner Smith & Co., 225 111. 430, 
 qua v. Com., 26 Ky. Law Rep. 420, 80 N. E. 307 (1907) [affirming 127 
 81 S. W. 923 (1904); Odegard r. 111. App. 640 (1906)]; 'Missouri, K. 
 North Wisconsin Lumber Co., 130 & T. Ry. Co. v. Garrett, (Tex. Civ. 
 Wis. 659, 110 y. W. 809 (1907). App. 1906) 96 S. W. 53; Gulf, C. & 
 
 3. State v. Rodriguez, 115 La. S. F. Ry. Co. v. Hays, (Tex. Civ. 
 1004, 40 So. 438 (1906). App. 1905) 89 S. W. 29; Griswold 
 
723 Ntjmbee of Counsel Intekkogat'g Witness. §§ 554a, 555 
 
 Similarly it is not permitted to a witness to repeat evidence 
 stated by his counsel which can lead to no legal result. An offer 
 of evidence which, taken in its entirety, fails to show a cause of 
 action, is properly rejected. 2 
 
 There is no standard other than reason, as applied by the trial 
 judge to the facts of a particular case. Where justice or practical 
 convenience require or sanction it, there is no objection to allow- 
 ing the jury to hear the statement of a witness repeated. Thus, 
 it is within his sound discretion to permit the stenographer to read 
 three times, in the presence of the jury, certain testimony of plain- 
 tiff while testifying on his own behalf, and to allow him to correct 
 a statement. 3 
 
 § 554a. (Principles of Administration; Expedite Trials); 
 (8) Judge may Restrict Length of Arguments. — The court is the 
 custodian of the public time as employed in judicial proceedings. 
 He is most competent to decide where the right of a suitor fairly 
 to present his case is limited by the fact that others are waiting to 
 be heard. A division of the time which the judge feels disposed 
 to devote to that particular matter may be made by an order of 
 court, 1 with or without the agreement of the parties. So long as 
 the judge's administrative action in this respect is reasonable it 
 will not be disturbed. A rule of court providing that in jury 
 trials plaintiff, or, where he has the affirmative of the issues, de- 
 fendant may open and close, and that the court may announce 
 how much time will be allowed on each side for argument, and 
 that plaintiff may apportion the time allotted to him between his 
 opening and closing argument, but shall not consume more than 
 one-half thereof in closing, is a reasonable regulation, and within 
 the power of the court to make. 2 
 
 § 555. (Principles of Administration; C. Expedite Trials); 
 
 (9) Judge May Restrict Length of Examination, Number of Counsel, 
 etc. — The court may expedite trials by declining to permit more 
 than one counsel to intervene in the examination of any given wit- 
 
 r. Nichols, 126 Wis. 401, 105 N. W. 1. Munro v. Stowe, 175 Mass. 169, 
 
 815 (1905). 55 N. E. 993 (1900). 
 
 2. Logan v. McMuIlen, (Cal. App. 2. Reagan v. St. Louis Transit Co., 
 1906) 87 Pac. 285. 180 Mo. 117, 79 S. W. 435 (1904). 
 
 3. Equitable Life Assur. Soc. v. 
 Maverick, (Tex. Civ. App. 1904) 78 
 S. W. 560. 
 
§ 5oo C. Expedite Tbials. 724 
 
 ness. He may properly require that a counsel who has started 
 the examination or cross-examination 1 of a witness should finish 
 it without the intervention of other counsel on the same side, 
 should more than one be retained. 2 The confusion, repetitions, 
 cross-purposes, time-wasting elaboration, conflicting theories, can- 
 not fail to protract a trial. Still, the matter is one of administra- 
 tion; and circumstances may arise which will justify or require 
 a trial judge to permit more than one counsel to interrogate a 
 witness. The practice and certain obvious considerations affect- 
 ing it are thus stated by Lord Ellenborough : 3 " Convenience cer- 
 tainly requires that the examination of a witness should be car- 
 ried on entirely by the gentleman who begins it, and several coun- 
 sel clearly cannot be permitted to put questions to the same wit- 
 ness, one after another, in the manner apprehended. But I think 
 the leading counsel has a right, in his discretion, to interpose, and 
 to take the examination into his own hands. Very unpleasant 
 consequences might follow if this were not allowed. If a gentle- 
 man, it being his first appearance in a court of justice, should be 
 much embarrassed in the course of examining a witness, it would 
 be hard if it were in the power of the opposite party to prevent his 
 leader from stepping in to his relief. And other occasions may be 
 imagined when it may be very important that the gentleman who 
 conducts the cause should have the privilege of putting questions 
 to a witness originally called by a co-adjutor." The same rule is 
 applied where several defendants rely on separate defenses tried in 
 the same action : " The witnesses are to be examined by the coun- 
 sel successively, in the same manner as if the defense were joint 
 and not separate." i Should the examining counsel fall ill, 5 or 
 other valid excuse appear for deviation from the customary prac- 
 tice or administrative procedure in this respect, 6 the right of the 
 court to permit examination by more than one counsel is un- 
 
 1. Walker v. McMillan, 21 N. Br. will be permitted even where, as a 
 31, 44, 6 Can. Sup. 241, 245 (1883). general matter, examination by more 
 
 2. Ma,son v. Ditchbourne, 1 M. & than one counsel is prohibited by rule 
 Rob. 460, 462 (1835). of court. State v. Bryant, 55 Mo. 
 
 3. Doe l'. Roe, 2 Cowp. 280 (1809). 75 (1874). 
 
 4. Chippendale v. Masson, 4 Campb. 5. Tilton v. Beecher, Abbott's Rep. 
 174 (1815), per Gibbs, C. J. T, 552 (1875). 
 
 The contrary course may be reason- 6. Citizens' Bank r. Fromholz, 64 
 
 able under certain circumstances. Neb. 284, 89 N". W. 775 (1902); 
 
 Ridgway v. Philip, 1 C. M. & R. 415, Doe l\ Roe, 2 Campb. 280 (1809). 
 417 (1834). Such cross-examination 
 
725 Repeated Trials Should Settle Law. § 556 
 
 doubted. When such a deviation is allowed, the trial judge may 
 still, in the interests of expediting business, intervene or prescribe 
 general conditions to avoid useless repetition 7 or other waste of 
 the court's time. 
 
 Different Stages. — It is important to observe that the mischief 
 against which the practice was intended to protect the administra- 
 tion of justice does not arise where different counsel propose to 
 examine the witness at separate stages. The trial is not retarded 
 by such a course ; the rule, therefore, is not applied. ISTo require- 
 ment as a rule is made, for example, that a counsel who has ex- 
 amined a witness at one stage is the only man who can examine 
 him for the same side at a subsequent one. 8 The court will per- 
 mit other counsel on the same side to assist their examining associ- 
 ate in any way except intervening in the examination. As said by 
 Lord Ellenborough, 9 they may suggest questions to him. An 
 associate may take and argue objections as to evidence. 10 
 
 § 556. Principles of Administration; (D.) Judge Should Aim to 
 Give Certainty to Substantive Law. — The final general canon of 
 administration is that of legal certainty. Litigation should be so 
 conducted as not only to (A) secure and enforce the substantive 
 rights of the parties, 1 (B) further justice, 2 (C) do it in as speedy 
 a manner as is consistent with the higher ends, 3 but also (D) to 
 create and establish a more complete and perfect system of sub- 
 stantive law. 
 
 In seeking to secure to the community as a whole the benefit of 
 the litigation between individuals, the judiciary as a body, having 
 a continuous tradition and a constant object, endeavors to utilize 
 the results of repeated jury trials for making the rules of law 
 more precise and definite. Such action is evidently in the line of 
 the public interest. " Supposing a state of facts often repeated in 
 practice is it to be imagined that the court is to go on leaving the 
 standard to the jury forever." * It is important that some general 
 rule or principle should, if possible, be distilled from repeated 
 action by juries upon a given state of affairs. In proportion as 
 
 7. Kasson's Est., 127 Cal. 496, 59 1. Supra, §§ 333 et seq. 
 Pac. 950 (1900). 2. Supra, §§ 463 et seq. 
 
 8. Olive v. State, 11 Neb. 1, 25, 3. Supra, §§ 544 et seq. 
 
 7 N. W. 444 (1881). 4. Holmes, Common Law, 123. 
 
 9. Supra, § 555. 
 
 10. Baumier v. Antian, 65 Mich. 31, 
 31 N. W. 888 (1887). 
 
§ 55U D. Give Certainty to Substantive Law. 726 
 
 the debatable ground between liability and its absence is reduced 
 by making the line of distinction clearer the cause of jurispru- 
 dence is advanced. 5 
 
 Where successive juries upon substantially similar facts evi- 
 dence by their decisions a fairly uniform tendency to draw a par- 
 ticular inference from these facts, the judge may, in committing 
 the decision of the same question to a jury call attention to this 
 inference, if approved by him, as being a reasonable one, which 
 the jury may properly consider, giving it such weight as they may 
 think proper. The court has announced a." presumption of fact," 
 so called. 6 Should this tentative and provisional effort to estab- 
 lish a principle in the matter be confirmed by subsequent verdicts 
 and appear to be in the public interest, a further step is taken. 
 The court will instruct the jury that when this inference of fact 
 is found to exist they may, unless and until additional facts ap- 
 pear to vary its effect, assume it to be correct and act upon it. In 
 other words, the inference is ruled to be, prima facie, true. This 
 is the announcement of an assumption or in the more usual 
 phrase, " presumption of law." 
 
 A settled and uniform usage to hold an established inference 
 prima facie correct may, however, practically form part of the 
 standards of conduct maintained in the community. Its recog- 
 nized and therefore anticipated regularity may be such as to ren- 
 der any departure from it in a particular case inequitable because 
 a surprise on the party affected. Other considerations of public 
 policy make it desirable that the law should be rendered certain 
 or, very possibly, that a particular rule should be established. 7 
 
 5. Supra, §§ 146 et seq. years). But large interests of pron- 
 
 6. Infra, § 1027. erty became dependent upon the 
 
 7. " Grants are frequently presumed continued enforcement of the 
 
 from a principle of quieting the presumption. Great loss and hard- 
 possession." Hillary v. Waller, 12 ship might well be caused by 
 Vesey 239, 252 (1806). permitting it to be disregarded or off- 
 Living and legal memory. — An in- set in any particular case. The in- 
 stance is furnished by the earlier law ference, therefore was not " an ordi- 
 in England relating to cases of pre- nary question of fact." Bryant «'. 
 scriptive right. It finally came to Foot, L. R. 2 Q. B. 172, per Black- 
 be established, as an inference or burn, J. (1S67) ; Jenkins v. Harvey, 
 "presumption" of fact that when a 1 C. M. & R. 877 (1835). The rule 
 party had given evidence of a usage was accordingly made a presumption 
 during living memory it would be in- of law, and in many instances, treated 
 ferred that the same usage continued as conclusive ; — verdicts to the con- 
 during the whole period of legal mem- trary being uniformly set aside, 
 ory (fixed by Stat. 32 H. 8 at 60 
 
727 Imposition of Reason on Appeal. .§ 556a 
 
 The inference is, therefore, declared to be irrebuttable. The 
 " presumption " is said to be " conclusive." In reality a rule has 
 been added to the substantive law relating to the matter about 
 which the inference is concerned. 8 A very desirable legal result 
 is thus accomplished ; the law has been made more definite. The 
 experience of the community has registered itself into its body 
 of laws and the latter more nearly adapted to present conditions. 
 Still, the regularity of judicial precedent has not been, in appear- 
 ance, in the least affected. It is all legitimate legal growth, 
 tempered with the common sense and conservatism of common 
 law judges in dealing with practical problems. Nothing is dis- 
 carded until finally forced out; the judge is weaving contin- 
 ually the necessary new material into the old. It is not surprising, 
 however, that the care used in obscuring the process occasionally 
 leads to ambiguity. 
 
 To avoid the appearance of judicial legislation or for other 
 reasons, the court is apt to use language adapted to the statement 
 of a rule of law, and color is lent to this presentation of the matter 
 by the general assumption that where all facts are found their 
 legal effect is a " matter of law." 9 
 
 § 556a. (Principles of Administration; D. Judge Should 
 Aim to Give Certainty to Substantive Law); Use of Reason. — 
 
 In few respects has greater certainty been conferred upon the 
 substantive law than by the imposition of reason, logical or legal, 
 as the proper test of extra judicial and judicial conduct alike. 
 Legal conduct, in many respects, is that which is reasonable; 1 
 and the limits of reasonableness, in various ■aspects of human 
 activity, are constantly being fixed and narrowed by the in- 
 fluence of judicial administration. Much of this valuable work 
 
 8. Lost grant. — The entire process jury are not kept properly separate 
 of carrying an inference of fact into in dealing with these acts of Parlia- 
 the substantive law of a given subject ment, but there seems to be a sort 
 is illustrated by the various steps of notion that if the facts of the par- 
 taken by the courts in presuming the ticular case are admitted, the result 
 existence of a lost grant from adverse is that the functions of the judge 
 possession for a given period. and the jury are thereby altered, and 
 
 9. Supra, § 119. But compare the that the jury ceases to be the tribunal 
 language of Williams, J., in Pearce v. which is to draw the necessary in- 
 Lansdowne, 69 L. T. Rep. 316 (1893). ferences of fact and that it becomes 
 " I do not quite know why the func- the duty of the judge to draw them." 
 tions of the judge and those of the 1. Supra, § 146. 
 
§§ 557, 558 D. Give Cektainty to Substantive Law. 728 
 
 in conferring certainty upon substantive law is being done by the 
 appellate courts. 2 
 
 At the same time, the substantive right of parties litigant to 
 the use of reason 3 is, pari passu, being established by appellate 
 courts as the supreme test of correct procedural and administra- 
 tive action on the part of inferior tribunals to an extent which 
 would seem well to warrant a brief examination before proceed- 
 ing to the very important topic of Judicial Knowledge which is 
 to form the subject of the following chapter. The same use of 
 reason which the trial 4 judge properly seeks, at every turn, to 
 enforce upon the jury, finally reversing their action by awarding 
 a new trial should they have failed to employ it, appellate courts 
 are constantly applying, both as a standard of concession and re- 
 quirement to the action of the trial judge, whether his function 
 be judicial, administrative or executive. 
 
 § 557. Action of Appellate Court; Judicial Function of Trial 
 Judge; Substantive Law. — Any ruling as to substantive law, 
 whether in open or confused 1 connection with administrative or 
 judicial rulings, is clearly subject to review. On ordinary princi- 
 ples, any ruling as to matter of substantive law or procedure, in- 
 cidental to a subsidiary finding 2 as that deciding a subordinate 
 issue of fact in a particular way renders certain evidence ad- 
 missible or inadmissible, 8 that the court has or has not a discre- 
 tion in the matter may constitute error. Under these circum- 
 stances if the substantive rights of the party said to be aggrieved 
 appear to have been injuriously affected, the result reached by the 
 trial court will be modified or annulled ; — unless, indeed, as is the 
 rule in certain jurisdictions, it shall appear that no possible in- 
 jury could have been done by the ruling in question.* 
 
 § 558. (Action of Appellate Courts; Judicial Function ot 
 Trial Judge) ; Findings of Fact. — A finding by the trial judge as 
 to a preliminary or subsidiary fact may be final or provisional, 1 
 according as the ultimate determination as to the existence of the 
 fact is or is not within the duty of the presiding judge. If it is 
 
 2. Supra, §§ 145 et seq. 8. Com. v. Gray, 129 Mass. 474 
 
 3. Supra., §§ 385 et seq. (1880). 
 
 4. Supra, § 307. 4. Com. v. Gray, 129 Mass. 474 
 
 1. Supra, §§ 267. (1880). 
 
 2. Com. v. Coe, 115 Mass. 481, 505 1. Supra, §§ 79 et seq. 
 (1874). 
 
729 Conditioning Fact Left to Jury. § 559 
 
 within his province and is justified by the rules of reasoning, 2 it is 
 " a finality as much as the verdict of a jury upon a question of 
 fact " 3 and will not be reviewed in an appellate court in a civil 4 
 or criminal 5 proceeding; — unless the judge sees fit to permit a re- 
 vision. 6 But in respect to failure to exercise the faculty of reason 
 in making an inference of fact the appellate court stands to the 
 judge presiding at nisi prius in much the same position that the 
 presiding justice himself occupies as regards the trial jury. To 
 fail in exercising the reasoning faculties through ignorance, 
 prejudice, lack of competent evidence upon which a finding could 
 be based, 7 or for <any other oause, is in violation of the rule of 
 substantive law requiring the use of reason and is subject to cor- 
 rection on review at the hands of an appellate court. 
 
 § 559. (Action of Appellate Courts; Judicial Function of 
 Trial Judge; Findings of Fact); Facts Conditioning Admissibility. 
 
 — While the action of the presiding justice in submitting evi- 
 dence to the jury is not reversible in an appellate tribunal, if the 
 finding of a preliminary fact necessary to admissibility is logically 
 permissible, the party may ask that the jury, in discharging their 
 function of weighing the evidence submitted, should reverse the 
 finding of the judge as to the existence of the preliminary 
 fact. 1 The usual effect of the ruling that evidence, the. admissi- 
 
 2. How far discretionary. — The de- (competency of wife as a witness) 
 termination of a subsidiary question (1870). 
 
 of fact is said necessarily to rest 5. Com. v. Robinson, 146 Mass. 571 
 chiefly "in the discretion of the pre- (general scheme or plan) (1888); 
 siding judge." Lane v. Moore, 151 Com. v. Gray, 129 Mass. 474 (1880); 
 Mass. 87, 91 (1890). This may be Com. v. Culver, 126 Mass. 464 (con- 
 doubted, if by discretion is implied fession voluntary) (1879). 
 irresponsible action. See Com. v. 6. Com. v. Robinson, 146 Mass. 571 
 Gray, 129 Mass. 474 (1880). Dis- (1888). 
 
 cretion may be properly predicated of 7. Com. v. Williams, 105 Mass. 62, 
 
 the exercise of an administrative func- 68 (1870). 
 
 tion but hardly of an act of judgment 1. If a testimony is admitted 
 
 based upon evidence. The finding of against a party's objection, on the 
 
 a judge is no more a matter of dis- basis of a finding by the presiding 
 
 cretion, than that of a jury would be. justice that a preliminary fact, neoes- 
 
 3. Lane v. Moore, 151 Mass. 87 sary to admissibility exists, it may 
 (remoteness of declarations showing often happen that the opponent of the 
 mental condition) (1890); State p. evidence may still ask the jury to 
 Pike, 49 N. H. 399 (1870). disregard it because such fact does 
 
 4. Walker v. Curtis, 116 Mass. 98 not in reality exist. Com. v. Robin- 
 (genuineness of papers) (1874); son, 146 Mass. 571 (1888). 
 O'Connor v. Hallinan, 103 Mass. 547 
 
§§ 560, 561 Action of Appellate Couets. 730 
 
 bility of which is conditioned upon the existence of a preliminary 
 fact, may be laid before the jury, is merely that sufficient facts 
 have been made to appear to convince the judge that the jury may, 
 within the bounds of reason, find that the preliminary fact exists. 2 
 The ruling merely places the matter before the jury. It fails to 
 give, in any sense, to the existence of the conditioning fact the pro- 
 bative weight of the judge's unqualified endorsement. " The fact 
 of the admission of the evidence by the judge does not in a legal 
 sense give it any greater weight with the jury; 3 it does not affect 
 the burden of proof 4 or change the duty of the jury in weighing 
 the whole evidence." 5 
 
 § 560. (Action of Appellate Courts; Judicial Function of 
 Trial Judge; Findings of Fact; Facts Conditioning Admissh 
 bility); Competency of Witnesses. — For example, the finding as 
 to the competency of a witness is not final ;* where the evidence is 
 reported for the purpose, but will be revised though with hesi- 
 tancy and caution. 2 
 
 § 561. (Action of Appellate Courts); Administrative Function 
 of Trial Judge. — It is, as has been said, 1 the essential characteristic 
 of judicial administration that it is governed by the use of en- 
 lightened reasoning. The necessity for employing legal reason 
 is the only limitation upon its exercise. Not the result, but 
 the process of reaching it, is in the control of an appellate court. 
 If the administrative act of the trial judge is defensible on 
 grounds of legal reasoning, it will stand. If, on the contrary, it 
 is not supportable on these grounds the discretion is said to be 
 " abused " and the action is reversed. The ruling of a trial judge, 
 for example, in refusing an interpreter may be reviewed if the 
 effect of the ruling would be to deprive the party of a reasonable 
 opportunity of proving his case 2 but the question of the qualifi- 
 cation of a particular witness to act as an interpreter is within the 
 
 2. Com. f. Robinson, 146 Mass. 571 held, however, that unless some rule 
 (1888). of law has been wrongly applied, the 
 
 3. Com. i'. Robinson, 146 Mass. 571 finding is not a subject of exceptions. 
 (1888). Com. v. Mullins, 2 Allen (Mass.) 295 
 
 4. Com. v. Robinson, 146 Mass. 571 (1861). 
 
 (1888). 2. Peterson v. State, 47 Ga. 524 
 
 5. Com. v. Robinson, 146 Mass. 571 (1873). 
 (1888). 1. Supra, § 176 
 
 1. Udy v. Stewart, 10 Out. Rep. 2. Chicago, etc., Ry. Co. r. Shenk, 
 
 591 (1886). It has been properly 131 111. 283, 23 N. E. 436 (1890). 
 
731 
 
 Appeal i.\ Contempt Peoceedings. 
 
 § 562 
 
 judge's discretion and so not reviewable; 3 — unless, indeed, the 
 discretion is so exercised as to amount to the denial of the right to 
 have any interpreter whatever. 
 
 § 562. (Action of Appellate Courts); Executive Function of 
 Trial Judge. — The action of a presiding judge in enforcing 
 obedience to his orders or in protecting the administration of jus- 
 tice is part of his function as judge, and, so long as his acts are 
 done under the guidance of reason, their propriety is not revers- 
 ible in an appellate court. 1 It has even been held that if the trial 
 judge had jurisdiction his action, reasonable or unreasonable, will 
 not be reversed. 2 On appeal in proceedings for contempt, ques- 
 tions not presented or decided in court below are not open to con- 
 sideration. 3 
 
 3. California. — People v. Ramirez, 
 56 Cal. 533, 38 Am. Rep. 73 (1880). 
 
 Michigan. — ■ Swift v. Applebone, 23 
 Mich. 253 (1871). 
 
 Illinois.— Chicago, etc., Ry. Co. v. 
 Shenk, 131 111. 283, 23 N. E. 436 
 (1890). 
 
 Washington. — State v. Thompson, 
 14 Wash. 285, 44 Pac. 533 (1896). 
 
 United States. — Barber, etc., Co. v. 
 Odasz, 57 U. S. App. 129, 85 Fed. 
 454 (1898). 
 
 1. Alabama. — Wyatt v. Magee, 3 
 Ala. 94 (1841). 
 
 Arizona. — Em parte Brown, 3 Ariz. 
 411, 77 Pac. 489 (1892). 
 
 Connecticut. — William Rogers Mfg. 
 Co. v. Rogers, 38 Conn. 121 (1871). 
 
 Georgia. — Wakefield v. Moore, 65 
 Ga. 268 (1880) ; Tucker v. Keen, 60 
 Ga. 410 (1878). 
 
 Illinois. — Clark v. People, 1 111. 
 340, 12 Am. Dec. 177 (1830). 
 
 Indiana. — Brown v. Brown, 4 Ind. 
 627, 58 Am. Dec. 641 (1853). 
 
 Iowa. — State v. Archer, 48 Iowa 
 310 (1878). 
 
 Michigan. — Bagley v. Scudder, 66 
 Mich. 97, 33 N. W. 47 (1887) ; Fro- 
 man v. Froman, 53 Mich. 581, 19 
 N. W. 193 (1884) ; Haines v. Haines, 
 35 Mich. 138 (1876). 
 
 New York. — Watrous v. Kearney, 
 79 N. Y. 496 (1880) [affirming (N. 
 
 Y.) 11 Hun 584]; Cochrane v. Inger- 
 soll, 73 N. Y. 613 (1878). 
 
 Tforth Carolina. — Murray v. Berry, 
 113 N. C. 46, 18 S. E. 78 (1893). 
 
 Ohio. — Compare Myers v. State, 46 
 Ohio St. 473, 22 N. E. 43, 15 Am. St. 
 Rep. 638 (1889). 
 
 Texas. — Moon Bros., etc., Co. v. 
 Waxahachie Grain, etc., Co., 13 Tex. 
 Civ. App. 103, 35 S. W. 337 (1896). 
 
 Wisconsin. — West v. State, 1 Wis. 
 209 (1853). 
 
 United States. — Heinze v. Butte & 
 B. Consol. Min. Co., 63 C. C. A. 388, 
 129 Fed. 274 (1904). 
 
 England. — Rex v. Clement, 4 B. & 
 Aid. 218, 23 Rev. Rep. 260, 25 Rev. 
 Rep. 710, 6 E. C. L. 458 (1821) ; In 
 re Wray, 36 L. R. Ch. D. 138, 56 
 L. J. Ch. 1106, 67 L. T. Rep. (N. S.) 
 605, 36 Wkly. Rep. 67 (1887). See 
 also Whitaker v. McBride, (Neb. 
 1904) 98 N. W. 877. 
 
 2. Otis V. Superior Court of Los 
 Angeles County, (Cal. 1905) 82 Pac. 
 853 ; Seastream v. New Jersey Exhibi- 
 tion Co., (N. J. Ch. 1905) 61 Atl. 
 1041 [affirmed in 65 Atl. 982] ; In re 
 Consolidated Rendering Co., 80 Vt. 55, 
 66 Atl. 790 [affirmed in 207 U. S. 
 541, 28 S. Ct. 178] (1907). 
 
 3. Fairfield v. U. S., 146 Fed. 508, 
 76 C. C. A. 590 (1906). A witness 
 punished for contempt in refusing to 
 
§§ 563, 564 Action of Appellate Courts. 
 
 732 
 
 § 563. (Action of Appellate Courts; Executive Function ot 
 Trial Judge); All Intendments Made in Favor of Trial Judge. — 
 
 No mere irregularities, not prejudicing the substantive rights of 
 the person claiming relief against an order for contempt, will be 
 permitted to affect the action of the trial judge. 1 For a reversal, the 
 difficulty with prior proceedings must be so radical that they are, 
 in whole or in part, void. 2 Every fact found by the trial judge will 
 be assumed to be correct, all intendments being made in its favor. 3 
 In the same way it will be assumed that all steps were regularly 
 and properly taken, and, unless it distinctly appears to the con- 
 trary on the record, that the party aggrieved was given a full op- 
 portunity to be heard. 4 It will be taken for granted that all his 
 defenses were duly considered, 3 and existing rules of practice 
 properly followed. 6 Such an assumption will include the exist- 
 ence of all facts grounding the jurisdiction of the trial judge. 7 
 
 § 564. (Action of Appellate Courts; Executive Function of 
 Trial Judge; All Intendments Made in Favor of Trial Judge); 
 
 Error in Law Necessary for Reversal. — Indeed, it might fairly be 
 
 answer questions cannot raise the 
 point that the evidence sought from 
 him was not material. Nelson v. 
 U. S., 201 U. S. 92, 26 S. Ct. 358, 
 50 L. ed. 673 (1906) . But see Hurley 
 v. Com., 188 Mass. 443, 74 N. E. 677 
 (1905) ; State ex rel. Chicago, B. & 
 Q. R. Co. v. Bland, 189 Mo. 197, 88 
 S. W. 28 (1905). 
 
 1. California. — Eao p. Bowe, 7 Cal. 
 181 (1857). 
 
 Georgia. — Martin v. Burgwyn, 88 
 Ga. 78, 13 S. E. 958 (1891); Clem- 
 ent V. Bunn, 60 Ga. 334 (1878). 
 
 Indiana. — Hawkins v. State, 126 
 Ind. 394, 26 N. E. 43 (1890). 
 
 New York. — In re Copcutt, 52 N. 
 Y. St. Bep. 724, 23 N. Y. Suppl. 394, 
 69 Hun 110 (1893). 
 
 South Carolina. — In re Stokes, 5 
 S. C. 71 (1873). 
 
 Wisconsin. — In re Perry, 30 Wis. 
 268 (1872). 
 
 2. Drady v. Dist. Court of Polk 
 County, (Iowa 1905) 102 X. W. 115; 
 Ex p. Keeler, 45 S. C. 537, 23 S. E. 
 865, 55 Am. St. Bep. 785, 31 L. R. 
 A. 678 (1895). 
 
 3. Gunn v. Calhoun, 51 Ga. 501 
 (1874); Sudlow v. Knox, (N. Y. 
 1869) 4 Abb. Dec. 326, 7 Abb. Pr. 
 (X. S.) 411; Park v. Park, 80 N. Y. 
 156 (1880) ; People V. Bergen, 6 Hun 
 267 (1875) ; Com. v. Newton, (Pa. 
 1857) 1 Grant 453. See also Beck 
 ■v. State, 72 Ind. 250 (1880). A state- 
 ment, filed by a judge and entered 
 of record, relating to an alleged con- 
 tempt in the presence of the court, 
 imports absolute verity. Mahoney v. 
 State, (Ind. App. 1904) 72 N. E. 151. 
 
 4. Papke v. Papke, 30 Minn. 260, 
 15 N. W. 117 (1883). 
 
 5. Seventy-six Land, etc., Co. v. 
 Fresno County Super. Ct, 93 Cal. 
 139, 28 Pac. 813 (1892). 
 
 6. Lewis v. Miller, 13 Sm. & M. 
 110 (1849). 
 
 7. Penn r. Georgia Ry. & Electric 
 Co., 122 Ga. 280, 50 S. E. 103 (1905) ; 
 Mahoney v. State, (Ind. App. 1904) 
 72 N. E. 151 (accused present) ; 
 In re Cuddy, 131 U. S. 289, 9 Sup. 
 Ct 703, 33 L. ed. 154 (1889). 
 
733 
 
 Tendeeness foe Those Guilty of Contempt. 
 
 565 
 
 said that questions of fact will not be deemed reviewable at all, 1 
 so long as the rules of reason are observed, 2 including, as seems 
 proper, within the term " matter of law," any violation of the rule 
 that in all judicial proceedings reason must be employed. 3 Re- 
 vision properly extends merely to matters of law. 4 
 
 Where error in law — including failure to use the reasoning 
 faculty — is involved in the exercise of an executive power, a 
 judgment may be set aside. 5 If no error in law has been com- 
 mitted, an appellate court will simply affirm the action of the 
 trial judge. 6 
 
 § 565. (Action of Appellate Courts; Executive Function of 
 Trial Judge; All Intendments Made in Favor of Trial Judge); 
 
 A Contrary View. — A characteristic tenderness for those accused 
 of attacking established authority has quite logically evolved a con- 
 flicting view, to the effect that every fact necessary to show the 
 jurisdiction of the trial judge must be made affirmatively to ap- 
 pear. 1 No intendments or presumptions can be indulged against 
 
 1. Georgia. — Smith i\ Cook, 39 Ga. 
 191 (1869). 
 
 Kansas. — In re Pryor, 18 Kan. 72, 
 26 Am. Rep. 747 (1877). 
 
 Kentucky. — Turner v. Com., 2 Mete. 
 619 ( 1859 ) ; Biekley v. Com., 2 J. 
 J. Marsh. 572 (1829). 
 
 Louisiana. — State ex rel. Barthet 
 V. Judge Div. B, etc., 40 La. Ann. 
 434, 4 So. 131 (1888). 
 
 New York. — Holly Mfg. Co. v. Ven- 
 ner, 143 N. Y. 639, 37 N. E. 648 
 (1894). 
 
 North Carolina. — Green v. Green, 
 130 N. C. 578, 41 S. E. 784 (1902). 
 But see In re Deaton, 105 X. C. 59, 
 11 S. E. 344 (1890). 
 
 Oklahoma. — Burke r. Territory, 2 
 Okl. 499, 37 Pao. 829 (1894). 
 
 Oregon. — • State V. McKinnon, 8 Or. 
 487 (1880). 
 
 Canada. — Young v. Saylor, 23 Ont. 
 513 (1893). 
 
 2. The facta found by the judge in 
 contempt proceedings are not review- 
 able on appeal, except for the purpose 
 of passing upon their sufficiency to 
 warrant the judgment. Green v. 
 
 Green. 130 N. C. 578, 41 S. E. 784 
 (1902). 
 
 3. Green V. Green, 130 N. C. 578, 
 41 S. E. 784 (1902). 
 
 4. Florida. — Ex p. Senior, 37 Fla. 
 1, 19 So. 652, 32 L. R. A. 133 (1896). 
 
 Illinois. — Ex p. Thatcher, 7 111. 167 
 (1845). 
 
 Iowa. — State v. Seaton, 61 Iowa 
 563, 16 N. W. 736 (1883). 
 
 Kansas. — In re Pryor, 18 Kan. 72, 
 20 Am. Rep. 747 (1877). 
 
 Maine. — Bradley v. Veazie, 47 Me. 
 85 (1860). 
 
 New York. — In re Blumenthal, 22 
 Misc. 704, 50 N. Y. Suppl. 49 (1898) 
 [affirming 22 Misc. 764, 48 N. Y. 
 Suppl. 1101 (1897)]. 
 
 North Carolina. — Ex p. Summers, 
 27 N. C. 149 (1844). 
 
 5. State v. Denham, 30 Wash. 643, 
 71 Pac. 196 (1903). 
 
 6. Middlebrook v. State, 43 Conn. 
 257, 21 Am. Rep. 050 (1876) ; In re 
 Copcutt, 52 N. Y. St. Rep. 742, 23 
 N. Y. Suppl. 394, 69 Hun 110 (1893). 
 
 1. Otis r. Superior Court of Los 
 Angeles County, (Cal. 1905) 82 Pac. 
 
§§ 566, 567 Actios of Appellate Courts. 731 
 
 the prisoner. 2 The order must be strictly construed in favor of his 
 liberty. 3 Thus, an attorney, punished for contempt in continuing 
 to address the court, though admonished not to do so, goes free 
 because the record does not show that he was not rightfully and 
 respectfully discharging his duty to the court and to his client. 4 
 It has even been held that a judgment on summary proceedings 
 for contempt in the presence of the court, where no complaint is 
 filed, no evidence taken and no trial had, may be reviewed with- 
 out a motion for a new trial. 5 The change in view is not that of 
 jurisprudence but of the legislature. Practically the effect of per- 
 mitting one who has insulted a judge calmly to appeal as from a 
 police court judgment is regrettable. Thus, while at common law 
 a superior court of record was the sole judge of contempt com- 
 mitted against its authority and dignity, and its judgments in- 
 flicting punishments on contemners were not reviewable, a person 
 adjudged guilty of contempt by a circuit court may, under the 
 express provisions of Bel. and C. Ann. Codes and St., § 676, ap- 
 peal in like manner and with like effect as from a judgment in 
 an action. 6 
 
 § 566. (Action of Appellate Courts; Executive Function ot 
 the Trial Judge) ; Powers of an Appellate Court. — In matters of 
 contempt an appellate court has the same power as in other error 
 in law. 1 Regarding questions of fact wherever reason has been 
 followed by the trial judge there will be no reversal merely be- 
 cause the exercise of reason might have led the appellate court to 
 a different conclusion. 2 
 
 § 567. (Action of Appellate Courts; Executive Function of 
 Trial Judge; Powers of an Appellate Court); Reversal of Action. 
 
 — It may reverse an order of the trial judge in toio 1 or annul 
 
 853 ; State v. District Court of Taylor 6. State v. Gray, 42 Or. 261, 70 
 
 County, (Iowa 1904) 99 X. W. 712; Pac. 904 (1902) [rrhenring denied, 71 
 
 Roncoroni t\ Gross, 86 ST. Y. Suppl. Pac. 978 (1903)]. 
 
 1113, 92 App. Div. 366 (1904). 1. Questions finally determined by 
 
 2. Kanter v. Clerk of Circuit Court, the appellate court are res ctdjudiccita. 
 108 III. App. 287; Crites r. State, Ryan v. Kingsbery, 89 Ga. 228, 15 
 (Neb. 1905) 105 N. W. 469; Ogden S. E. 302 (1892). 
 
 V. State, (Xeb. 1903) 93 N. W. 203. 2. In re Cbesseman, 49 N. J. L. 
 
 3. Crites r. State, (Neb. 1905) 105 115, 6 Atl. 513, 60 Am. Rep. 596 
 N. W. 469. (1886). 
 
 4. Ex parte Sbortridge, (Cal. App. 1. Middlebrook v. State, 43 Conn. 
 1907) 90 Pac. 478. 257, 21 Am. Rep. 650 (1876); Pat- 
 
 5. Critea r. State, (Xeb. 1905) 105 ton r. Harris, 15 B. Monr. 607 (1855). 
 N. W. 469. 
 
735 Directions on Appeal for Contempt. §§ 568, 569 
 
 any part of it. Naturally, if the order for the disobedience to 
 which the administrative sanction of the trial judge is being ap- 
 plied is itself vacated or reversed, the order enforcing obedience 
 to it fails in effect at the same time. 2 
 
 § 568. (Action of Appellate Courts; Executive Function of 
 Trial Judge; Powers of an Appellate Court); Modification of 
 
 Action. — Instead of reversing, the appellate court may modify the 
 order of the trial judge, 1 as by reducing a fine imposed by him 2 to 
 the statutory limit. 3 The appellate court may make any orders 
 incidental to carrying out its decree; — e. g., provide for enforc- 
 ing a modification. 4 
 
 § 569. (Action of Appellate Courts; Executive Function of 
 Trial Judge; Powers of an Appellate Court); Other Orders.— 
 
 The appellate tribunal may dismiss the matter altogether, when it 
 would be impossible for it to take efficient action, as where a 
 party aggrieved had at the time of hearing already served the full 
 term of imprisonment. 1 The matter may be sent back to the trial 
 court with directions as to the manner in which to proceed. 2 It 
 may well, however, on the contrary, decline to undertake to make 
 such an order as the trial judge should have made. 3 But it may 
 direct the lower court to order a reference. 4 
 
 2. Smith v. McQuade, 36 N. Y. St. 4. Gilman v. Byrnes, 10 N". Y. Civ. 
 
 Rep. 557, 13 N. Y. Suppl. 63 (1891). Proc. 46 (1886). 
 
 1. Turner v. Com., (Ky.) 2 Mete. 1. Loven r. People, 46 111. App. 
 619 (1859) ; Bickley v. Com., 2 J. J. 306 (1892). 
 
 Marsh. 572 (1829) ; Fechter v. Hays, 2. Russell v. Mohr-Weil Lumber Co., 
 
 4 Ky. L. Rep. 217 (1882); State 102 Ga. 563, 29 S. E. 271 (1897); 
 
 eoo rel. Barthet P. Judge Div. B., etc., Tolleson v. People's Sav. Bank, 85 
 
 40 La. Ann. 434, 4 So. 131 (1888). Ga. 171, 11 S. E. 599 (1890). 
 
 2. Buffalo Loan, Trust, etc., Co. v. 3. Livingston v. Swift, 23 How. Pr. 
 Medina Gas, etc., Co., 74 N. Y. Suppl. 1 (1861). 
 
 486, 68 App. Div. 414 (1902). 4. Ryan v. Kingsbery, 89 Ga. 228, 
 
 3. Luedeke t?. Coursen, 3 Misc. 559, 15 S. E. 302 (1892). See also At- 
 23 N. Y. Suppl. 314, 52 N. Y. St. lantic, etc., Tel. Co. v. Baltimore, etc., 
 Rep. 516 (1893). R. Co., 46 N. Y. Super. Ct. 377 
 
 As to costs in the appellate court, (1880). 
 see Tucker v. Gilman, 37 N. Y. St. 
 Rep. 958, 14 N. Y. Suppl. 392, 20 
 N. Y. Civ. Proc. 397 (1891). 
 
Knowledge; Judicial. 
 
 CHAPTER VIII. 
 
 KNOWLEDGE. JUDICIAL. 
 
 Knowledge, 570. 
 
 Knovjledge of law; in general, 571. 
 Common and judicial knowledge, 572. 
 "Judicial notice," 573. 
 Judicial vs. personal knowledge, 574. 
 judge, 574. 
 
 judge as witness, 575. 
 England, 575. 
 American practise, 576. 
 sole judge, 577. 
 one of several judges, 578. 
 conclusions, 579. 
 jury, 580. 
 
 juror as witness, 581. 
 
 objections to the evidence, 582. 
 Scope of judicial knowledge of law, 583. 
 Judicial knowledge of common law, 584. 
 national, 584. 
 
 judicial knowledge on appeal, 585. 
 sfotfe and provincial courts, 586. 
 
 foreign unwritten laiv, sister state, 587. 
 
 law of former sovereignties, 588. 
 other countries, 589. 
 matters of common knowledge, 590. 
 Judicial knowledge of international law, 591. 
 Judicial knoivledge of law merchant, 592. 
 
 Judicial knowledge of written law; extension and intension, 593. 
 intension; existence of the law, 594. 
 results directly accomplished, 595. 
 facts recited, 596. 
 treaties. r>97. 
 
 national courts; constitutions, 598. 
 public statides, 599. 
 private statutes, -600. 
 
 [736] 
 
737 Synopsis. 
 
 Judicial knowledge of written law; extension and intension, 
 national courts; constitutions. 
 
 foreign statutes, 601. 
 state and provincial courts; constitutions, 602. 
 
 constitutional requirements for statutory enact- 
 ments, 603. 
 national statutes, 604. 
 state statutes, 605. 
 
 statutes of former sovereignties, 606. 
 legislative resolutions, 607. 
 special acts, 608. 
 private statutes, 609. 
 
 judicial knowledge of private statutes, 610. 
 local regulations, 611. 
 
 judicial knowledge on appeal or review, 612. 
 regulations of voluntary associations, 613. 
 statutes of sister state, 614. 
 
 " full faith and credit," 615. 
 statutes of foreign country, 616. 
 local courts, 617. 
 amendment and repeal, 618. 
 what statutes are public, 619. 
 
 administration of government, 620. 
 local option laws, result of voting not judicially known, 
 621. 
 results of voting judicially known, 622. 
 municipal corporations, 623. 
 
 cities, 624. 
 mercantile corporations; acts of incorporation, 625. 
 existence of such corporations, 626. 
 
 under private acts, 627. 
 statutes conferring power, 628. 
 minor facts, 629. 
 railroads, 630. 
 street railways, 631. 
 telegraph companies, 632. 
 private acts made public, 633. 
 statutes of sister state, 634. 
 Hovj judicial knowledge of law is acquired, 625. 
 foreign law, 636. 
 Vol. I. 47 
 
Knowledge; Judicial. 738 
 
 Judicial knowledge of the results of law, 637. 
 governmental assumptions, 638. 
 official position, 639. 
 
 cle facto and de jure officers, 640. 
 tenure of minor officers, 641. 
 official proceedings; in general, 642. 
 correspondence, 643. 
 publications, 644. 
 executive department, 645. 
 nation, 645. 
 
 proclamations and other executive acts, 646. 
 state, 647. 
 
 proclamations and other executive acts, 648. 
 county, 649. 
 municipal, 650. 
 public surveys, 651. 
 rwZes anc? regulations, 652. 
 nation, 652. 
 
 administrative boards, 653. 
 sforfe, 654. 
 signatures and seals, 655. 
 national, 655. 
 
 executive magistrates of foreign states, 656. 
 sMe, 657. 
 county, 658. 
 cities, towns, etc., 659. 
 legislative department; general facts, 660. 
 journals, 661. 
 
 legislative proceedings, 662. 
 direct results of legislation, 663. 
 judicial department; general facts, 664. 
 inferior courts, 665. 
 special tribunals, 666. 
 Federal courts, 667. 
 foreign courts, 668. 
 districts, 669. 
 tferas, 670. 
 
 administrative boards, 671. 
 length of terms, 672. 
 sessions; length of actual sitting, 673. 
 
739 Questions Preliminary to Proof of Facts. § 570 
 
 Judicial knowledge of the results of law. 
 judicial department; general facts, 
 judges and magistrates, 674. 
 
 inferior courts, 675. 
 attorneys and counsel, 676. 
 
 signatures and seals, 677. 
 clerks, 678. 
 
 court officers and officials, 679. 
 sheriffs, constables, etc., 680. 
 practice, 681. 
 
 court, records, papers, etc., 682. 
 own court; same case, 683. 
 other cases, 684. 
 
 supplementary proceedings, 685. 
 other courts, 686. 
 
 sister state or foreign country, 687. 
 signatures and seals, 688. 
 national courts, 688. 
 state courts, 689. 
 notaries public, 690. 
 
 § 570. Knowledge. — Certain of the more frequently employed 
 terms with which the law of evidence deals having been defined l 
 with sufficient fullness for practical convenience, the nature and 
 allotment of function between court and jury having been con- 
 sidered in some detail, the intimate and essential relation of evi- 
 dence to judicial administration being ascertained, 2 and the pur- 
 poses for which and the general canons under which judicial ad- 
 ministration operates through the law of evidence having been in- 
 dicated, 3 the inquiry in hand is nearly prepared to enter into the 
 principal subject with which the law of evidence as a working 
 system must necessarily concern itself ; — how facts submitted to 
 judicial investigation may be proved. Advance into this field 
 must, however, be for a time suspended in order that two prelim- 
 inary inquiries of great importance to an adequate consideration 
 of the subject be first undertaken. Before it can properly be 
 determined how facts in issue may be proved, it must be pre- 
 determined (1) to what facts the necessity of making proof 
 
 1. Supra, §§ 1 et seq. 3. Supra, §§ 332 et seq. 
 
 2. Supra, § 266. 
 
§ 570 Knowledge; Judicial. 740 
 
 attaches and (2) when a fact is to be proved which of the litigants 
 is required to establish it. The first of these inquiries concerns- 
 itself with the matter of knowledge; — which is the subject of the 
 present and two following chapters; the second involves the topic 
 of the burden of proof, which will be considered in the chapter 
 then next ensuing. 4 
 
 Xeither antecedent knowledge nor burden of proof will be 
 found to have any exclusive relation to the law of evidence. Both 
 are highly important in connection with any contest to be 
 decided by the use of reason. Certain facts need not be proved 
 because they are already known. Being thus outside the domain 
 of proof, they are strictly speaking, also outside of the law of 
 evidence. These facts, of which no proof need be offered because 
 it would be a waste of time to prove to the tribunal facts which it 
 already knows with sufficient certainty for forensic purposes, fall 
 into two main divisions, not without a definite relation to the 
 two branches of court and jury of which the tribunal is itself com- 
 posed. These classes of facts as to which no proof need be 
 offered, may be designated, respectively, as judicial knowledge 
 and common knowledge. Judicial knowledge is that which the 
 judge has, or is assumed to have by virtue of his office ; — virtute 
 officii. It covers, in main, propositions of law and, to a limited 
 extent, facts established as the direct result of legal provisions. 
 Common knowledge is the property of judge and jury alike, 
 equally with any other well informed members of the community. 
 It is confined to matters of fact. 5 
 
 It has seemed expedient to divide common knowledge into 
 (a) that which is general among the community — to which the 
 
 4. Infra, §§ 930 et seq. justifies and, indeed, requires, the ap- 
 
 5. Common and judicial knowledge, plication to it of the term " judicial." 
 are, it may be conceded, most fre- It is true that these two species or 
 quently united under the general term classes of facts — rules of domestic 
 "judicial knowledge," "judicial no- law and facts generally known in the 
 tice," "judicial cognizance" or some community — possess an important 
 similar expression. There seems little feature in common. Neither need be 
 propriety, however, in classing as proved by evidence. But the juri- 
 " judicial," knowledge which has no dical reasoning upon which the main- 
 relation to the judicial functions, tenance of this common incident is 
 but is shared by every well-informed based is so diverse in the two cases 
 person; while the especial and ap- as to furnish slight cause for joining 
 propriate knowledge of the judge things so dissimilar under a single 
 which he acquires or at least, is as- term. 
 
 sumed to have, by reason of his office, 
 
741 Judicial and Common Knowledge. §§ 571, 572 
 
 generic term " common " may be deemed appropriate, and (b) 
 the technical knowledge which is general among members of 
 a class, trade or profession. This class or species of knowledge 
 may be designated as special, and will form the subject of a sepa- 
 rate chapter. Frequently knowledge of this class is indiscrimi- 
 nately grouped with judgment, conclusion or inference of skilled 
 observers under the general head of " expert " or " opinion " 
 evidence. 7 This special knowledge is, indeed, often part of the 
 premise upon which the conclusion of the skilled observer 8 or the 
 judgment of the expert 9 is predicated. But a clear distinction 
 exists, in the nature of things, between an inference drawn by the 
 reasoning faculty and the premises of fact upon which it is based. 
 The knowledge of the witness, the voyant and oyant, the observer 
 by sense perception, of facts in evidence, may well be spoken of 
 as particular. 
 
 § 571. Knowledge of Law; In General. — The court's knowledge 
 of the law it is appointed to apply and enforce is not so much a 
 fact as a function. In themselves considered, propositions of 
 domestic law differ in no way from propositions of foreign. They 
 are equally matters of fact. 1 To announce and enforce the pro- 
 visions of a certain code of laws, substantive or procedural, is one 
 of the judicial powers of the court, 2 and a very important object in 
 the creation of the tribunal. Knowledge of that code is therefore 
 an essential attribute of the office. Cognizance of these rules of 
 law is not, like that of facts in general, 3 something which comes 
 to the judge from without, i. e., dehors the judicial office. Knowl- 
 edge of domestic law is intrinsic in the judge, whose action, in 
 this respect, binds the jury and is, for the purposes of the case, 
 final as to the rights of the parties. 
 
 § 572. Common and Judicial Knowledge — Essential differences 
 exist between the knowledge which a judge has of the domestic 
 law of the jurisdiction — more or less extensive — which he is 
 set to enforce, and that general information which is fairly to be 
 designated as common knowledge. 1 Knowledge of notorious facts, 
 i. e., common knowledge, the judge may be assumed to share with 
 other intelligent men. But he may decline to notice the existence 
 
 G. Infra, §§ 870 et seq. 1. Supra, §§ 40 et seq. 
 
 7. Infra, §§ 1791 et seq. 2. Supra, §§ 69, 165. 
 
 8. Infra, §§ 1947 et seq. 3. Swpra, §§ 6, 7. 
 
 9. Infra, §§ 2371 et seq. 1. Infra, §§ 691 et seq. 
 
§ 573 Knowledge; Judicial. 742 
 
 of such facts and may require that they be proved. The jury 
 share the same common knowledge. The parties may, in many 
 cases, dispute the fact which is said to be commonly or " judici- 
 ally " known. Common knowledge, moreover, covers as a rule the 
 deliberative facts and those general propositions which are at the 
 basis of all legal and logical reasoning, so far as relates to matter 
 of fact, rather than those which are probative, res gestae or con- 
 stituent. 2 Knowledge of domestic law the judge must have. He 
 has no option or discretion as to whether he will have it or not. 
 It is his elementary duty to know the rules, to state them for the 
 guidance of the jury and fully to determine, for the purposes of 
 the trial, the legal rights of the parties. To decline to perform 
 this duty would be an abdication, pro tanto, of his judicial office. 
 For the discharge of this duty he is at all times during the trial 
 responsible and he alone. He is not at liberty to decline to rule as 
 to his judicial knowledge until the parties supply him with actual 
 information, — as he might do in a matter of common knowledge. 
 He must rule ; and his ruling creates and formulates an essential 
 and absolutely indispensable element in the task of judging as to 
 the existence of the right or liability asserted ; to wit, the " rule 
 of law " which must be applied, for the purpose, to the constituent 
 facts. 
 
 The parties have not only the right to insist that the judge 
 should act, but to insist that he shall act right. 3 Should he fail 
 to do so, it is error ; — for which redress will be furnished on 
 taking appropriate steps. Questions which present themselves for 
 consideration are: (a) What propositions of law are embraced 
 within the scope of this function? (b) How are its duties dis- 
 charged ? Consideration of the appropriate steps by which the 
 rights of the party to correct rulings by the trial court are pre- 
 served and enforced falls outside the scope of this treatise. 
 
 § 573. " Judicial Notice." — This common knowledge is vari- 
 ously spoken of as judicial cognizance or judicial notice. Neither 
 of these terms seem especially felicitous. As is said else- 
 where, 1 the term "judicial" is strictly inapplicable; — for com- 
 mon knowledge is by no means an appendage of the judge's 
 function. The constant use of this knowledge is equally noticeable 
 in case of the jury. The judge, indeed, will instruct the jury as 
 
 2. Supra. § 47. 1. Supra, § 570 
 
 3. Supra, §§ 385 et seq. 
 
743 Peksoxal Knowledge is Xot Judicial. § 574 
 
 to knowledge of such facts. 2 But it is not necessary that he should 
 do so. If " judicial " is objectionable, the word " notice " seems 
 equally so. It tends to impart a sense of surprised, as if some- 
 thing unexpectedly had intruded itself into the judicial conscious- 
 ness ; not in the way of a known fact now remembered but rather 
 as of something which forces itself upon the mind or which the 
 person in question voluntarily consents to admit as part of the 
 mental equipment. As usually employed, " judicial knowledge," 
 " judicial cognizance " and " judicial notice " present scarcely 
 recognizable differences of meaning. The phrases are used 
 practically indiscriminately, to cover two very dissimilar set of 
 facts — those which the judge knows qua judge and those facts 
 which everyone knows. It has been deemed advisable to disasso- 
 ciate these two classes of fact from under the common designation 
 of " judicial knowledge," — reserving the phrase exclusively for 
 those which are part of the judicial office. 
 
 § 574. Judicial vs. Personal Knowledge ; Judge. — Judicial 
 knowledge is not the personal knowledge of the judge. 1 To a cer- 
 tain extent, a presiding judge may use his knowledge of facts 
 provided these are not part of the res gestae of a case. He may 
 properly cognize facts which are notorious in the community be- 
 cause arising out of celebrated or protracted litigation 2 or known 
 to him, because established in judicial proceedings before him in 
 the same 3 or another 4 case. He may even remember that he has 
 done something now on record in his court. 9 In none of these 
 
 2. Mobile, etc., E. Co. v. Ladd, 92 21 La. Ann. 594 (1869) (foreign 
 
 Ala. 287, 9 So. 169 (1890); Cash v. statute). 
 
 State, 10 Humphr. (Tenn.) Ill Texas.— Hatch r. Dunn, 11 Tex. 
 
 (1849). 708 (1854) (colonization contract). 
 
 1. Steenerson v. R. Co., 69 Minn United States. — U. S. v. Tesch- 
 353, 72 N. W. 713 (1897); Marriot maker, 22 How. (U. S.) 392, 16 L. 
 v. Pascal, 1 Leon. 159, 161 (1588). ed. 353 (foreign statute, land office 
 Infra. § 575. procedure) (1859) ; Consequa v. Wil- 
 
 2. Davies v. Hunt, 37 Ark. 574 lings, 6 Fed Cas.. No. 3,138, Pet. C. 
 (1881). C. 225. (usage) (1816). 
 
 3. Robertson v. Meyers, 7 U. C. Q. 5. Secrist v. Petty, 109 111. 188 
 B. 423 (1850). (1883) (signed paper) ; Robertson v. 
 
 4. California. — People v. Lon, Meyers, 7 U. C. Q. B. 423 (1850). 
 Yeck, 123 Cal. 246, 55 Pac. 984 This sort of knowledge the judge may 
 (Chinese perjury) (1899). use in connection with his adminis- 
 
 Kentueky. — Bryan v. Beckley, Litt. trative duty of expediting causes by 
 
 Sel. Cas. (Ky.) 91, 12 Am. Dec. 276 throwing the burden of evidence as to 
 
 (1809). that point on the party against whom 
 
 Louisiana. — Graham v. Williams, he rules. 
 
§ 574 
 
 Knowledge ; Judicial. 
 
 744 
 
 cases, is it, strictly speaking, the particular 6 knowledge of the 
 judge, as an individual. As has been said, judicial knowledge is 
 that which a judge has as judge; it does not include the personal 
 or particular 7 knowledge which he acquires while judge or which 
 becomes important in a judicial inquiry after he has become one. 
 That a presiding justice cannot give judgment on his personal 
 and private knowledge is a doctrine as old as Chief Justice Gas- 
 coigne, 8 and has at all times since been regarded as good law both 
 in England, 9 Canada 10 and in the United States. 11 Where he 
 possesses particular knowledge 12 which is important to the cause 
 
 6. Supra, § 570. 
 
 7. Supra, § 570. 
 
 8. Y. B. 1 H. IV, 41, pi. 5 (1406). 
 
 9. Marriot's Case, 1 And. 202, 1 
 Leon, 159, Moore 228, (1588); Part- 
 ridge v. Strange, Plowd. 83 (1578). 
 " The judge he ought not to carry 
 himself according to his private 
 knowledge which he hath of the said 
 fact, soil, to acquit the prisoner, but 
 all that he can do is to respite judg- 
 ment." Marriot v. Pascal, 1 Leon. 
 159, 161 (1588) ; Thayer, Prelim. 
 Treat., 291. 
 
 10. Canada. — Bank of British 
 North America v. Sherwood, 6 U. C. 
 Q. B. 213 (facts abating a writ) 
 (1849). 
 
 11. Fox V. State, 9 Ga. 373, 376 
 (1851) (credibility). 
 
 Illinois. — Dines v. People, 39 111. 
 App. 565 (1890). 
 
 Indiana. — Stephenson v. State, 28 
 Ind. 272 (age from inspection) 
 ( 1867 ) . 
 
 Mississippi. — Smith v. Moore, 3 
 How. 40 (person has mania a potu) 
 (1838). State, r. Edwards, 19 Mo. 
 675, 676 (1854) (previous convic- 
 tion). 
 
 'Nebraska. — ■ State v. Chase County 
 School Dist. No. 24, 38 Neb. 237, 56 
 N. W. 791 (1893) (false statements 
 in pleadings). 
 
 New York. — Purdy v. Erie R. Co., 
 162 N. Y. 42, 56 N. E. 508, 48 L. R. 
 A. 669 (1900) ; Cassidy r. McFar- 
 land, 139 N. Y. 201, 34 N. E. 893 
 (1893) (case suitable for a refer- 
 
 ence) ; Matter of Van Nostrand, 3 
 Misc. (N. Y.) 396, 24 N. Y. Suppl. 
 850 (1893) (legal fees higher than 
 customary). 
 
 North Dakota. — Amundson v. Wil- 
 son, 11 N. D. 193, 91 N. W. 37 
 (1902) (witness cannot be excluded 
 because he proposes to testify con- 
 trary to the court's knowledge) . 
 
 Vermont. — ■ State v. Horn, 43 Vt. 
 20, 23 (1870) (law of another 
 State). 
 
 Wisconsin. — Halaska r. Cotzhau- 
 sen, 52 Wis. 624, 9 N. W. 401 (1881) 
 (judge's knowledge of legal services 
 rendered in a cause tried before him, 
 considered) . 
 
 12. Brown r. Lincoln, 47 N. H. 468 
 (where a judge familiar with a signa- 
 ture admitted it as prima facie gen- 
 uine) (1867) ; Wisconsin Central Ry. 
 Co. v. Cornell, 49 Wis. 162, 164 
 (judge's personal knowledge of a por- 
 tion of the state considered) (1880). 
 
 United States. — GrifEng r. Gibb, 2 
 Black. 519, 17 L. ed. 353 (false state- 
 ments in pleadings) (1862). "The 
 justice cannot act from his own 
 knowledge and call that knowledge 
 proof." Rosekrans r. Antwerp, 4 
 Johns. 239 (1809) (sickness of wit- 
 ness) ; State v. Horn, 43 Vt. 20, 23 
 (1870) (law of sister state). For a 
 magistrate to act precisely on his 
 personal knowledge, as by excluding 
 a witness because he proposes to tes- 
 tify to a fact which, as the judge 
 says, Shafer r. Eau Claire, 105 Wis. 
 239, 81 N. W. 409 (1900) is "con- 
 
745 Judge Testifying as a Witness. § 575 
 
 of justice it is the duty of the judge to take the stand as a wit- 
 ness, 13 even when presiding at the trial. 
 
 Foreign Law or Procedure. — The administrative power of the 
 judge may involve a certain limited personal knowledge regarding 
 matters which did they relate to the jurisdiction of the forum, 
 might properly be subjects of his judicial knowledge. 1 * As this 
 knowledge is not the particular knowledge of a witness, i. e., does 
 not relate to the res gestce, 15 the matter as to the judge's using or 
 acquiring information on the subject may well be treated as an 
 administrative one. Thus, for example, the modern tendency of 
 decision is to assimilate in treatment, foreign and domestic law ; 18 
 to deem matters of judicial procedure, foreign or domestic, matter 
 of law, 17 and to extend cognizance of matters of law in such a 
 manner as to cover its direct official results, 18 including matters 
 generally known to the legal profession. 19 A judge, therefore, may 
 judicially know the law 20 or procedure of an American state,- the 
 law 21 or procedure of a foreign country, or facts notorious in the 
 limited professional community of which the judge is. a member. 22 
 In a sense, this knowledge is personal to the judge. He cannot 
 be required to know such facts, as would be the case were the law 
 or procedure domestic. More properly, however, the knowledge is 
 used, as a rule, to expedite the judicial business before the court, 23 
 and is a fair exercise of the function of administration. 
 
 § 575. (Judicial vs. Personal Knowledge; Judge); Judge 
 
 as Witness; England. — The early English practice seems clearly 
 
 trary to what I know to be the fact 15. Supra, § 47. 
 
 from my own personal knowledge," 16. Infra, % 587. 
 
 constitutes error. 17. Supra, § 41. 
 
 Great familiarity on the part of a 18. Infra, §§ 637 et seq. 
 
 trial judge with the subject-matter 19. Infra, § 697. 
 
 of a case may properly be considered 20. Herschfeld v. Dexel, 13 Ga. 582 
 
 by an appellate court in deciding (1853) ; Rush v. Landers, 107 La. 
 
 whether justice has probably been 549, 35 So. 95, 57 L. R. A. 353 
 
 done. Wisconsin Cent. R. Co. v. (1901) ; State v. Rood, 12 Vt. 396 
 
 Cornell Univ., 49 Wis. 162, 164 (1840). 
 
 (1880). See also Hiilaska v. Cotz- 21. Arayo v. Currel, 1 La. 528, 20 
 
 hausen, 52 Wis. 624, 9 N. W. 401 Am. Dec. (1830). 
 
 (1881); Conn. Gen. St. 1887, § 689. 22. People v. McQuaid, 85 Mich. 
 
 13. Secrist v. Petty, 109 111. 188 123, 48 N. W. 161 (value of unoffi- 
 (1883); Hoyt v. Russell, 117 U. S. cial publications) (1891); Day v. 
 401 (1886) ; Brown v. Piper, 91 TJ. Decousse, 12 L. C. Jur. 265 (1868) 
 S. 37, 42 (1875): Fenwick's Trial, (lawyer out of. practice). 
 
 13 How. St. Tr. 663, 667 (1696). 23. Supra, §§ 544 et seq. 
 
 14. Supra, § 571. 
 
§ 575 Kxow-LEDGii ; Jldicial. 746 
 
 to have authorized a judge to testify as a witness even before a 
 jury at a trial over which he was himself presiding or before a 
 court of which he was a member. 1 The prevailing opinion seems 
 to have been that stated by Sir John Hawkes, as solicitor-general : 2 
 " If a judge knows anything whereby the prisoner might be con- 
 victed or acquitted (not generally known), then I do say he ought 
 to be called from the place where he sate and to go to the bar and 
 give evidence of his knowledge ; and so the judge in H. IV's time 3 
 ought to have done, and not to have suffered the prisoner to have 
 been convicted and then get a pardon for him ; for a pardon will 
 not always do the business." The immediate reference of the 
 learned solicitor-general is to criminal cases; the reason, however, 
 applies even more strongly and directly in civil actions; and, in 
 fact, the basis of Sir John Hawkes' argument is, that as the rule 
 prevails in civil cases, no cause can be assigned why it should not 
 obtain also in criminal ones. 4 Later, in England, doubts as to 
 the propriety of such a course were expressed ; — it. being felt that 
 exposing a judge to cross-examination and comment, 5 allowing 
 him, in appearance, at least, to assume the role of a partisan, was 
 but little calculated to enhance public respect for the judiciary. 
 
 1. Oate's Trial, 10 How. St. Tr. whose evidence the jury are the 
 1079, 1142 (1683) ; Regicides' Trials, judges, though he after reassume 
 Kel. 12 (1660). In this case, there his authority and is afterwards 
 being several "judges, the witnesses a judge of the jury's verdict, 
 did not return to the bench during . . . If it be so in civil matters, 
 the trial. " It seems agreed that it let any man show me a reason why 
 is no exception against a person's the law is not so in criminal mat- 
 giving evidence either for or against ters." Fenwick's Trial, 13 How. St. 
 a prisoner, that he is one of the Tr. 537, 667 (1696), per Sir John 
 judges or jurors who are to try him." Hawkes, Solicitor-General. 
 Hawkins, Pleas of the Crown, b. 2, c. 5. " With respect to those who fill 
 46, § 80 (1716); Earl of Stafford's the office of judge, it has been felt 
 Trial, 7 How. St. Tr. 1293, 1413, that there are grave objections to 
 144S, 1487 (16S0). their conduct being made the subject 
 
 2. Fenwick's Trial, 13 How St. Tr. of cross-examination and comment 
 537, 667 (1696), per Sir John (to which hardly any limit could be 
 Hawkes, Solicitor-General. put) in relation to proceedings be- 
 
 3. Y. B. 7 H. IV, 41, pi. 5 (1406). fore them; and, as everything which 
 
 4. " Every man knows that a judge they can properly prove can be 
 in a civil matter tried before him, proved by others, the Courts of law 
 and a counsel even against his client, discountenance, and I think I may 
 has been enforced to give evidence say prevent, them from being exain- 
 (provided it be not of a secret com- ined." Duke of Buccleuch v. Metro- 
 municated to him by his client), politan Board, L. R. 5 E. & I. App. 
 for in that particular a judge ceases 429, 433 (1872). 
 
 to be a judge, and is a witness; of 
 
("47 American Kcle as to Judge's Testimony. §§ 576, 577 
 
 Especial insistence has been made to this effect where the judge 
 who testifies is sole judge presiding at the trial. 6 
 
 § 576. (Judicial vs. Personal Knowledge; Judge as Witness; 
 Judge); American Practice. — The courts of the United States re- 
 ceive the evidence of a judge, whether that of a single justice pre- 
 siding at the trial, 1 or one of a number of judges before whom a 
 trial is being held. 2 Grave doubts as to the propriety of the prac- 
 tice have, however, been entertained in very authoritative judicial 
 quarters of the United States. 3 
 
 § 577. (Judicial vs. Personal Knowledge; Judge as Witness; 
 Judge); Sole Judge — These objections are based upon purely 
 practical considerations. ISTo incongruity is found in the mere 
 fact that 'a, judge should testify as a witness. 1 The inconsistency is 
 
 6. E. v. Petrie, 20 Chit. 317, 323 
 (1890). 
 
 1. "The law could not disqualify 
 a judge, even if the judge were a ma- 
 terial witness." State v. Barnes, 34 
 La. Ann. 395, 399 (1882), per Ber- 
 mudez, C. J., obiter. " It is in no 
 respect infra dignitatem for the judge 
 to appear as a witness in this mode." 
 1 Sandf. Suppl. 701 (1848), per Re. 
 Heyward. 
 
 Contra, Shockley v. Morgan, 103 
 6a. 156, 29 S. E. 694 (1898); Ross 
 V. Buhler, 2 Mart. N. S. 312 (1824) ; 
 People v. Miller, 2 Park Cr. 197, 200 
 (1854). See also Reno M. & L. Co. 
 v. Westerfield, 26 Nev. 332, 67 Pac. 
 961, 69 Pac. 899 (1902). 
 
 2. State v. Duffy, 57 Conn. 525, 18 
 Atl. 791 (1889) (justice of the 
 peace) ; U. S. v. Fries, Wharton's 
 State Trials, 482, 532 (1799). "The 
 inclination of the Courts has been to 
 hold that when it is necessary for the 
 conduct of the trial that one should 
 act as judge, he may not be called 
 from the bench to be examined as a. 
 witness; but when his action as a 
 judge is not required because there 
 is a sufficient court without him, he 
 may become a witness ; though it is 
 then decent that he do not return to 
 the bench." People v. Dohring, 59 N. 
 Y. 374, 379 (1874). 
 
 California. — " The judge himself 
 or any juror, may be called as a 
 witness by either party; but in such 
 case it is in the discretion of the 
 Court or judge to order the trial to 
 be postponed or suspended and to 
 take place before another judge or 
 jury." C. C. P. (1872), § 1883. 
 
 Idaho. — Rev. St. (1887), § 5959. 
 
 Illinois.— Rev. St. (1874), c. 148, 
 I 5. 
 
 Iowa.— Code (1897), § 4610. 
 
 Kentucky.— C. C. P. (1895), § 
 603. 
 
 Louisiana. — Rev. L. (1897), § 
 3192. 
 
 Montana.— C. C. P. 1895, § 3164. 
 
 Nebraska. — Lonip. St. 1899, § 
 5922. 
 
 Nevada.— Gen. St. 1885, § 3408. 
 
 North Dakota.— Rev. C. 1895, § 
 5705. 
 
 South Dakota.— Stats. 1899, § 
 6546. 
 
 Tennessee. — Code 1896, § 5594. 
 
 Texas.— C. Cr. P. 1895, § 778. 
 
 Utah. — Rev. St. 1898, § 3415. 
 
 3. Dabney v. Mitchell, 66 Ala. 495, 
 503 (1880) (a judge may exclude his 
 own atfidavit) ; Morss v. Morss, 11 
 Barb. 510, 515 (1851). 
 
§ 577 Knowledge ; Judicial. 748 
 
 felt to be in endeavoring to reconcile, at the same time, the capaci- 
 ties of witness and presiding judge. This has been deemed cal- 
 culated to bring the judicial office into disrepute and to lose for 
 it a measure of the popular respect which is essential to its highest 
 social usefulness. A judge undergoing cross-examination in his 
 own court, before a jury whom, a few moments later, he will in- 
 struct as their presiding magistrate, in part at least, on his own 
 testimony, trying to hold the scales even while adding weight 
 to one of them, is scarcely an impressive spectacle. That the pre- 
 siding justice will give undue weight to his own evidence if in 
 conflict with that of others is almost inevitable. 2 It is difficult to 
 separate the office and its incumbent to an extent which makes the 
 comments of counsel on the judge's motives, veracity, power of 
 observation, memory and the like, fail to lower the dignity of the 
 office itself. And yet, unless this right of cross-examination and 
 comment is frankly conceded and freely exercised, the party 
 against whom the judge's evidence bears may well have suffered 
 a serious injury. Where the fact established by the judge's testi- 
 mony is of a formal nature, this danger is reduced to a minimum ; 
 — though even here proof has been rejected. 3 But, in any case, 
 a litigant may well complain of having the power and dignity of 
 a great office thrown, like the sword of Brennus, into the scale 
 against him. 4 In civil actions the evidence of a sole judge has 
 been rejected, in courts which have no clerk, on account of the 
 practical difficulty of the judge swearing himself. 5 The evidence 
 
 1. State v. Duffy, 57 Conn. 525, is to try an issue of facts, it would 
 528, 18 Atl. 791 (1889). seem the reason in some degree fails. 
 
 2. "If the judge, when lie tries the Yet cogent ones present themselves: 
 facts, must weigh the evidence, he in a Court composed of one judge 
 must do so impartially; this, per- only, who is to administer the oath? 
 haps, he cannot be easily supposed to It cannot be done by any but a mem- 
 do when he is to weigh his testimony ber of the Court, and he is the only 
 against that of another." Ross r. one. . . . Tt seems to us some 
 Buhler, 2 Mart. (N. S.) 312 (1824), legislative provision is necessary in a 
 per Martin, J. case like this. Otherwise, the party 
 
 3. Randall v. Wadsworth, 130 Ala. cannot attain his right." Ross. v. 
 633, 31 So. 555 (1902) (absence of Buhler, 2 Mart. (N. S.) 312 (1824), 
 paper from files). per Martin, J. Where a statute pre- 
 
 4. Estes i\ Bridgforth, 114 Ala. scribes that the oaths of witnesses 
 221, 21 So. 512 (1897). shall be administered by the presid- 
 
 5. Baker r. Thompson, 89 Ga. 486, ing judge, the latter, if sole judge, 
 15 S. E. 644 (1892) ; McMillen r. cannot testify on being sworn by 
 Andrews, 10 Ohio St. 112 (1859). another judge. Perry v. Weyman, 1 
 "When, however, not he but a jury Johns. 520 (1806). 
 
749 Objections to Judge's Evidence. §§ 578, 579 
 
 of a sole judge has, therefore, been excluded in criminal cases; ° — 
 but it has also been accepted. 7 
 
 § 578. (Judicial vs. Personal Knowledge; Judge as Witness; 
 Judge); One of Several Judges. — Nor do the administrative in- 
 felicities disappear when a plurality of judges is present. " In 
 examining this question upon principle, there seems to be the 
 same difficulty, whether the court consists of one judge or of three, 
 all of them being necessary to constitute the court. In the latter 
 case, if one of the judges be called as a witness, there are but two 
 judges left to administer the oath, to decide upon his competency 
 if he be objected to, and to settle questions as to the relevancy of 
 his testimony. If he refuses to answer, there are but two judges 
 to commit him for contempt." * Certain troubles may, indeed, 
 disappear. The witness no longer is forced to rule on objections 
 to his own testimony or engage in unseemly wranglings with coun- 
 sel over his rulings. But other difficulties arise. Propriety would 
 obviously suggest that a judge who has acted as a witness retire 
 from further participation in the case. Where the witness, how- 
 ever, is one of a number of judges necessary to the constitution of 
 the court, embarrassing questions may well arise as to whether 
 proceedings would be valid upon his retirement, or even as to the 
 effect of his leaving the bench at all. 2 In other words, while " the 
 objection to a juror's being a witness rests mainly on a question 
 of public policy, and that the objection to a judge being sworn de- 
 pends on an additional and different ground, viz., that of want of 
 power to discharge the duties of a court while acting as a wit- 
 ness." 3 
 
 § 579. (Judicial vs. Personal Knowledge; Judge as Witness; 
 Judge); Conclusions. — On the whole, while some force must be 
 conceded to these objections, they seem rather chimerical than 
 sound. The evidence to be given by a trial judge is either material 
 or formal. If it be formal, the necessity for requiring the actual 
 
 6. Rogers v. State, 60 Ark. 76, 84, 2. Rogers V. State, 60 Ark. 76, 86, 
 29 S. W. 894 (1894). The judge can- 29 S. W. 894 (1894), per Riddick, J.; 
 not be required to give his testimony. Morss v. Morss, 11 Barb. 510, 511 
 State v. De Maio, N. J. L. (1903) 55 (1851), per Parker, J. 
 
 Atl. 644. 3. Morss v. Morss, 11 Barb. 510, 
 
 7. U. S. v. Lyon, Wharton's State 515 (1851), per Parker, J. 
 Trials, 333, 335 (1798). 
 
 1. Morss v. Morss, 11 Barb. 510, 
 511 (1851), per Parker, J. 
 
§ 580 Knowledge ; Judicial. 750 
 
 evidence of the judge will readily be obviated, in most cases, by 
 agreement of counsel, on a mere statement by the judge as to what 
 his testimony would be. In no event, will any considerable 
 warmth, forensic or actual, be developed on the part of opposing 
 counsel. Greater forensic friction between court and counsel 
 might well be feared where the fact covered by the judge's testi- 
 mony is material. Still greater would be the danger were the 
 fact controlling, as in the case put by Gascoigne, C.J., 1 where the 
 judge witnesses the commission of a murder. But it scarcely could 
 happen that so important a circumstance should escape notice until 
 the time of trial. Usually, if foreseen, the dilemma could be pre- 
 vented. 2 But, whatever the difficulties, the right of a party to 
 prove his case is paramount, and to protect a litigant in its enjoy- 
 ment constitutes a primary object of administration. 3 To it may 
 properly yield, in case of conflict, either the personal preferences 
 of the judge, or even the orderly and seemly administration of 
 justice. It is better, if either is to be sacrificed, that substance be 
 preferred to appearance and procedure. An inharmonious and 
 inelegant administration may well be deemed a venial fault as 
 compared with the absolute denial of all justice involved in refus- 
 ing a party the right to use the only available means of proving 
 his case. 
 
 § 580. (Judicial vs. Personal Knowledge) ; Jury. — Common 
 knowledge is not the personal knowledge of the jury or any mem- 
 ber of the panel. The old practice of allowing or requiring a jury- 
 man to use facts of personal knowledge 1 has been universally aban- 
 doned ; and the law is now settled that a juryman is not at liberty 
 to use his individual knowledge f — even though there be no at- 
 tempt to supply, in this way, facts in the res gestae. 3 In other 
 words, a juryman is not permitted to act on his own knowledge — 
 
 1. Y. B. 7 H. IV, 41 pi. 5 (1406). York Union Mut. F. Ins. Co., 1 Gray 
 
 2. Maitland v. Zanga, 14 Wash. 92, 529 (1854). 
 
 44 Pac. 117 (1896), per Dunbar, J. Texas.— Wharton v. State, 45 Tex. 
 
 3. Supra, §§ 334 et seq. 2 (1876). 
 
 1. Schmidt v. New York Union Wisconsin. — Johnson v. Superior 
 Mut. P. Ins. Co., 1 Gray (Mass.) Rapid Transit R. Co., 91 Wis. 233, 
 529, 535 (1854). 64 N. W. 753 (1895). 
 
 2. Georgia. — Chattanooga, etc., R. United States. — Head v. Hargrave, 
 Co. v. Owen, 90 Ga. 265, 15 S. E. 853' 105 U. S. 45, 26 L. ed. 1028 (1881). 
 (1892). England.— R. v. Rosser, 7 C. & P. 
 
 Kansas. — Craver r. Hornburg, 26 648 (1836) (value of a watch). 
 Kan. 94 (1881). 3. Supra, § 47. 
 
 Massachusetts. — Schmidt v. New 
 
751 
 
 Eight to Testimony of Jukoe. 
 
 § 581 
 
 not shared by the general community — as to probative or delib- 
 erative facts; — e. g., facts of a historical nature 4 or with regard 
 to the character of a witness. 5 The particular knowledge of a 
 juryman, in like manner, cannot be classed as " judicial." Such 
 facts should be given in evidence by the juryman as a witness. 
 He must testify to the fact on the stand, in the ordinary way. 
 
 § 581. (Judicial vs. Personal Knowledge; Jury); Juror as 
 
 Witness. — The right of a party litigant to require the evidence 
 of a member of the panel which is trying his case where the evi- 
 dence is reasonably necessary to proof of the proponent's conten- 
 tion, may be regarded as undoubted, either in England * or in the 
 United States; 2 — although it has been held that a juryman may 
 refuse to testify if so minded. 3 After testifying, the witness may 
 return to his place on the panel. 4 
 
 4. Gregory v. Baugh, 4 Rand. 
 (Va.) 611 (1827). 
 
 5. Collins v. State, 94 Ga. 394, 19 
 S. E. 243 (1894) ; Chattanooga, etc., 
 R. Co. v. Owen, 90 Ga. 265, 15 
 S. E. 853 (1892) [overruling earlier 
 cases] ; Schmidt i. New York Union 
 Mut. F. Ins. Co., 1 Gray (Mass.) 
 529 (1854) ; Wharton v. State, 45 
 Tex. 2, 4 (1876) ; Johnson v. Superior 
 Rapid Transit R. Co., 91 Wis. 233, 
 G4 N. W. 753 (1895). 
 
 In South Carolina personal knowl- 
 edge of credibility has been permitted 
 a certain weight, such being among 
 the precise objects of selecting jurors 
 from the neighborhood. McKain v. 
 Love, 2 Hill (S. C.) 506 (1834). 
 
 6. Schmidt v. New York Union 
 Mut. F. Ins. Co., 1 Gray (Mass.) 
 529 (infamous character of a wit- 
 ness) (1854) ; Rex v. Sutton, 4 M. & 
 S. 532 (1816) ; Partridge v. Strange, 
 Plowd. 77 (1553). See also Parks v. 
 Ross, 11 How. (U. S.) 362, 13 L. ed. 
 730 (1850). 
 
 1. Heath's Trial, 18 How. St. Tr. 
 1, 123, (1744); Reading's Trial, 7 
 How. St. Tr. 259, 267 (1679) ; Fitz- 
 james v. Moys, 1 Sid. 133 (1663). 
 
 2. Arkansas.— A. Stats. 1894, § 
 2965. 
 
 Calif ornia.— Cal. C. P. 1872, § 
 1883. 
 
 Georgia. — Savigny F. & W. R. Co. 
 r. Quo, 103 Ga. 125, 29 S. E. 607 
 (1897). 
 
 Idaho.— Rev. St. 1887, § 5959. 
 
 Iowa. — State v. Cavanaugh, 98 la. 
 688, 691, 68 N. W. 452 (1896). 
 
 Kentucky.— C. C. P. 1895, § 603. 
 
 Montana.— C. C. P. 1895, § 3164. 
 
 Nebraska. — Chicago, R. I. & P. R. 
 Co. v. Collier, 95 N. W. 472 (1903). 
 472 (1903). 
 
 Nevada.— Gen. St. 1885, § 3408. 
 
 New York. — People v. Dohring, 59 
 N. Y. 374, 378 (1874). 
 
 North Dakota.— "Rev. C. 1895, § 
 5705. 
 
 Pennsylvania. — Howser v. Com., 51 
 Pa. 332, 337 (1865), per Woodward, 
 C. J.; Plank Road Co. v. Thomas, 20 
 Pa. 9195 (1852). 
 
 South Dakota. — Stats. 1899, § 
 6546. 
 
 Utah.— People r. Thiede, 11 Utah 
 241, 39 Pac. 837 (1895); Rev. St. 
 1898, § 3415. 
 
 Vermont. — Dunbar v. Parks, 5 Vt. 
 217 (1802). 
 
 Washington.— C. & Stats. 1897, § 
 5001. But see also R. v. Petrie, 20 
 Ont. 317, 319 (1890). 
 
 3. Manley v. Shaw, Car. & M. 361 
 (1840), per Tindal, C. J. 
 
 4. Fitzjames p. Moys, 1 Sid. 133 
 (1663). 
 
§§ 582,583 Knowledge; Judicial. 752 
 
 § 582. (Judicial vs. Personal Knowledge; Jury; Juror as 
 
 Witness); Objections to the Evidence The grounds on which the 
 
 widely prevalent criticism adverse to using, as a witness, a mem- 
 ber of the jury which is trying the case, are clearly and very con- 
 cisely stated in the following portion of an opinion by Judge 
 Parker, supreme court of iSTew York: 1 "The objection to his 
 competency rests on public policy. In all cases he has to pass 
 upon his own credibility; and this difficulty would be greatly in- 
 creased in case of his impeachment. He may refuse to answer, in 
 which case his commitment would delay the trial. The party 
 against whom be is called is subjected to a great disadvantage, for 
 the juror may be expected to maintain unyieldingly in the jury 
 box the opinions he has expressed on the witness-stand. It may 
 plausibly be objected, therefore, that respect for the feeling of the 
 juror and regard for justice to the parties should exclude the juror 
 as a witness and require the objection to be made on the calling 
 of the jury, that the party need not suffer for the want of his 
 testimony." In other words, the thought is that a party may be 
 prejudiced by the intervention of the juror as a witness in that 
 effective sifting of his testimony by cross-examination and com- 
 ment would be impossible and because the juror, settled in his 
 view, might be resolute against the party and carry the jury with 
 him. It must be obvious, however, that all that is necessary to 
 preserve every right is for the juryman to be left off the panel 
 and another substituted in his place ; — while the right of the 
 party to prove his case is entirely too important to be in the least 
 controlled by any such speculative injury to his adversary as is 
 here suggested. As in case of the judge as a witness, 2 the evidence 
 of the juror is either formal or material. If formal, no prejudice 
 is apt to arise to the opposing party. If the evidence is material, 
 any mischief can be prevented by the simple expedient of chal- 
 lenging the juror, 3 as, indeed, has repeatedly been held or pro- 
 vided by statute. 
 
 § 583. Scope of Judicial Knowledge of law. — The extent of 
 judicial knowledge of domestic law is conditioned by the general 
 principle that a court knows the law it is legally called upon to 
 
 1. Morss r. Morss, 11 Bart. 510, 6 (1877) ; Atkins v. State, 60 Ala. 
 511 (1851). 45, 49 (1877). The right of chal- 
 
 2. Supra, § 575. lenge may be expressly conferred by 
 
 3. Commander r. State, 60 Ala. 1, statute. Mo. Rev. St. 1899, § 2615. 
 
753 Judicial Knowledge of Commoa' Law. § 584 
 
 apply or enforce. Tribunals of general jurisdiction enforce and 
 apply, and, therefore, judicially know, not only the general body 
 of statutes enacted by the law-making body of the forum, but also 
 any laws constitutionally promulgated and adopted by the para- 
 mount national authority under which the court exists. Tribunals 
 of limited or local jurisdiction, as county, circuit, police or city 
 courts are required to know the local regulations, municipal 
 ordinances, town by-laws and the like which it is their duty to 
 administer. This is the extent or extension 1 of the court's knowl- 
 edge of law. The intention of such knowledge, or the attributes to 
 which it applies, or which are covered by it, are (1) the existence 
 of the law, (2) the results immediately accomplished by it. This 
 judicial knowledge, does not, properly speaking cover secondary 
 results, i. e., those which flow from the immediate effects of the 
 law itself. When the latter are said to be " judicially known," 
 the cognizance is one of fact and exists by virtue of a different 
 principle of administration, e. g., that which employs " common " 
 knowledge. This frequently happens, as in case of the judge's 
 knowledge of governmental functions established by law. 2 For 
 convenience of treatment, courts may be roughly classified, in 
 this connection, as (a) national, (b) state or provincial, (c) local; 
 and the laws as to which knowledge is predicated, into unwritten 
 and written. 
 
 § 584. Judicial Knowledge of Common Law; National Courts. — 
 Courts of any national jurisdiction using the English system of 
 jurisprudence judicially know the unwritten common law of Eng- 
 land. This rule applies not only to the courts of England 1 but to 
 those of the United States, as the common law existed prior to the 
 independence of the American States, legal doctrines adopted in 
 England since that date 2 not being judicially known. The com- 
 mon law rule of judicial knowledge is a broad and general one, 
 so far, at least, as courts of common law jurisdiction are con- 
 
 ' 1. "The intension of a term is 88, 59 L. T. Rep. (N. S.) 1 (1888) ; 
 
 synonymous with its comprehension, Eeg. v. Nesbitt, 2 D. & L. 529 
 
 or connotation, or depth; while the (1844). 
 
 extension j s synonymous with the de- 2. Untermeyer v. Freund, 50 Fed. 
 
 notation or breadth." Jevons, Ele- 77 (1892); Liverpool, etc., Steam 
 
 ments of Logic, Ch. I, § III. Co. v. Phenix Ins. Co., 129 U. S. 397, 
 
 2. Infra, § 637. 9 Sup. Ct. 469, 32 L. ed. 788 (1888). 
 
 1. Cooper v. Cooper, 13 App. Cas. 
 
 Vol. I. 48 
 
§ 585 
 
 Knowledge; Judicial. 
 
 754 
 
 cerned. Such a court knows the rules and .principles of equity, 3 
 while courts sitting in equity know the propositions of civil 4 and 
 criminal 5 law administered by the common law courts. 
 
 § 585. (Judicial Knowledge of Common Law; National 
 Courts); Judicial Knowledge on Appeal — National courts know 
 the laws of states, colonies or provinces over which they exercise 
 appellate jurisdiction. Thus, in England the house of lords 
 judicially knows the unwritten law of Scotland and Ireland; 1 — 
 while courts of inferior jurisdiction do not, 2 except where the fact 
 is so notorious as would justify taking cognizance of any other 
 fact generally known. 3 In like manner, the supreme court of the 
 United 'States, exercising appellate jurisdiction from the highest 
 court of a state, knows the law of that state ; 4 but judicially knows 
 as to the law of states other than that whose action is under re- 
 view, merely to the same extent that the court appealed from 
 would have had such knowledge. 5 Every federal court, however, 
 
 3. Nimmo v. Davis, 7 Tex. 26 
 (1851) ; Westboy v. Day, 2 E. & B. 
 605, 18 Jur. 10, 22 L. J. Q. B. 418, 1 
 Wkly. Rep. 431, 75 E. C. L. 605 
 (1853); Sims V. Marryat, 17 Q. B. 
 281, 79 E. C. L. 281 (1851) ; Neeves 
 r. Burrage, 14 Q. B. 504, 19 L. J. Q. 
 B. 68, 68 E. C. L. 504 (1849-) ; Elliot 
 v. Edwards, 3 B. & P. 181 (1892). 
 See also Maberly v. Robins, 1 Marsh. 
 258, 5 Taunt. 625 (1814). Judicial 
 notice is taken by the federal su- 
 preme court that the distinctions be- 
 tween law and equity, in a technical 
 sense, do not obtain in the local law 
 of Porto Rico. Garzot v. Rios De 
 Rubio, (Porto Rico 1908) 28 S. Ct. 
 548, 209 U. S. 283, 52 L. ed. 794; 
 Burset r. Rios De Rubio, (Porto 
 Rico 1908) 28 S. Ct. 548, 209 U. P. 
 283, 52 L. ed. 794. 
 
 4. Southgate v, Montgomery, 1 
 Paige (N. Y.) 41 (1828). 
 
 5. Scott V. Brown, (1892) 2 Q. B. 
 724, 57 J. P. 213, 61 L. J. Q. B. 738, 
 67 L. T. Rep. (N. S.) 782, 4 Rep. 
 42, 41 Wkly. Rep. 116. 
 
 1. Cooper v. Cooper, 13 App. Cas. 
 88, 59 L. T. Rep. (N. S.) 1 (1888). 
 
 2. Cooper r. Cooper, 13 App. Cas. 
 88, 107, 59 L. T. Rep. (N. S.) 1 
 
 (1888). See also Reg. v. Pov«y, 6 
 Cox C. C. 83, Dears. C. C. 32, 17 
 Jur. 120, 22 L. J. M. C. 19, 1 Wkly. 
 Rep. 40, 14 Eng. L. & Eq. 549 (1852). 
 The law of Canada stands in the 
 same position. Cartwright V. Cart- 
 wright, 26 Wkly. Rep. 684 (1878). 
 
 3. Reg. v. Nesbitt, 2 D. & L. 529, 
 533 (1844) (common law of England 
 extends to Ireland). 
 
 4. Hanley v. Donoghue, 116 U. S. 
 1, 6 S. Ct. 242, 29 L. ed. 535 (1885). 
 
 5. Lloyd v. Matthews, 155 U. S. 
 222, 15 S. Ct. 70, 39 L. ed. 128 
 (1894) ; Liverpool, etc., Steam Co. v. 
 Phenix Ins. Co., 129 U. S. 397, 9 S. 
 Ct. 469, 32 L. ed. 788 (1888); Chi- 
 cago, etc., R. Co. r. Wiggins Ferry 
 Co., 119 U. S. 615, 7 S. Ct. 398, 30 
 L. ed. 519 (1886); Hanley v. Dono- 
 ghue, 116 U. S. 1, 6 Sup. Ct. 242, 29 
 L. ed. 535 (1885). 
 
 Where the court rendering the 
 judgment under review is required by 
 statute to know judicially the laws 
 of other states, the Supreme Court of 
 the United States has precisely the 
 same powers as to judicial knowl- 
 edge. Hanley v. Donoghue, 116 U. S. 
 1, 6 Sup. Ct. 242, 29 L. ed. 535 
 (1885). 
 
Judicial Knowledge of State Courts. 
 
 § 586 
 
 in its original jurisdiction knows the laws, 6 written 7 or unwritten, 
 of any state, 8 or territory, including the District of Columbia, 
 which it is called upon to administer, 9 either as a matter of orig- 
 inal jurisdiction or of jurisdiction acquired by removal from a 
 state court. 10 And it necessarily follows from this rule that the 
 Supreme Court of the United States when reviewing the judgment 
 rendered in a federal court judicially knows the law of all the 
 states and territories of the Union. 11 
 
 § 586. (Judicial Knowledge of Common Law); State and 
 Provincial Courts. — The state courts of the American Union know 
 the common law of England, 1 including early English general 
 statutes applicable to their condition, and the principles of equity 
 jurisprudence, 2 which was in force at the time of the separation 
 from the mother country. Rules of law adopted in England since 
 that time are not judicially known by the American courts. 3 Com- 
 
 6. Laws of a country formerly 
 sovereign over the jurisdiction in 
 question, or part thereof, will be ju- 
 dicially known under this rule. U. S. 
 r, Chaves, 159 U. S. 452, 16 Sup. Ct. 
 57, 40 L. ed. 215 (1895); U. S. V. 
 Perot, 98- U. S. 428, 25 L. ed. 251 
 (1878); Fremont V. TJ. S„ 17 How. 
 (U. S.) 542, 15 L. ed. 241 (1854); 
 U. S. v. Turner, 11 How. (U. S.) 663, 
 13 L. ed. 857 (1850). 
 
 7. Lamar v. Mieou, 114 U. S. 218, 
 5 Sup. Ct. 857, 29 L. ed. 94 (1884). 
 
 8. Liverpool & G. W. S. Co. t'. Ins. 
 Co., 129 U. S. 397, 445, 9 Suppl. 469 
 (1888); Lamar v. Mieou, 114 TJ. S. 
 218, 5 Sup. Ct. 857, 29 L. ed. 94 
 (1884) ; Owings v. Hall, 9 Pet. (TJ. 
 S.) 607, 624 (1835) ; Barry v. Snow- 
 den, 106 Fed. 571 (1901); Western 
 k A. R. Co. v. Roberson, 9 C. C. A. 
 646, 61 Fed. 592 (1894) (Georgia 
 and Tennessee) ; Merchants Exch. 
 Bank v. McGraw, 8 C. C. A. 420, 59 
 Fed. 972 (1894) (Wisconsin) ; Loree 
 r. Abner, 6 C. C. A. 302, 57 Fed. 159 
 (1893) (Pennsylvania prior to 
 1788); Miller v. McQuerry, 17 Fed. 
 Cas. No. 9,583, 5 McLean 469 (1853). 
 
 9. The laws of an Indian tribe or 
 nation, though occupying certain ter- 
 ritory within the State are not ad- 
 
 ministered by the court and conse- 
 quently are not judicially noticed. 
 Wilson v. Owens, 30 C. C. A. 257, 
 86 Fed. 571 (1898) (Chicasaw Na- 
 tion) . 
 
 10. 18 U. S. St. at L. 472, § 6 
 [TJ. S. Comp. St. (1901) p. 512]. 
 
 11. Lamar v. Mieou, 114 TJ. S. 218, 
 5 Sup. Ct. 857, 29 L. ed. 94 (1884) ; 
 Owings t\ Hall, 9 Pet. (U. S.) 607, 
 9 L. ed. 246 (1835). 
 
 1. Arkansas. — Eureka Springs R. 
 Co. v. Timmons, 51 Ark. 459, 11 S. 
 W. 459 (1888); Cox v. Morrow, 14 
 Ark. 603 (1854). 
 
 Kentucky. — Davis v. Curry, 2 Bibb. 
 238 (1810). 
 
 Louisiana. — Rush v. Landers, 107 
 La. 549, 32 So. 95, 57 L. R..A. 353 
 (1902). 
 
 New York. — Stokes v. Macken, 62 
 Barb. 145 (1861). 
 
 Texas. — Wallace v. Burden, 17 
 Tex. 467 (1856). 
 
 2. Nimmo v. Davis, 7 Tex. 26 
 (1851). 
 
 3. Wickersham v. Johnston, 104 
 Cal. 407, 38 Pac. 89, 43 Am. St. Rep. 
 118 (1894); Watson v. Walker, 23 
 N. H. 471 (1851). 
 
 The unwritten law of Canada, is 
 not judicially known to the state 
 
o$t 
 
 Knowledge; Judicial. 
 
 756 
 
 nion law courts know, when sitting at law, the rules and principles 
 of equity jurisprudence 4 and know, when sitting in equity, the 
 rules of ordinary civil and criminal law ; 5 but common law courts 
 do not know, in either capacity, the rules of the ecclesiastical law. 6 
 A state court notices the unwritten law of the forum, 7 including 
 the unwritten laws of any country, as France, s Spain 9 or Mexico, 10 
 state 11 or territory, 12 which have been operative in any portions 
 of the domain which now constitutes the jurisdiction of the 
 forum. 
 
 § 587. (Judicial Knowledge of Common Law; State and 
 Provincial Courts); Foreign Unwritten law; Sister State. — 
 
 Unless required to do so by statute, 1 the courts of an American 
 state do not judicially know the unwritten or non-statutory law 
 of a sister state. 2 State courts, where it may be anticipated that 
 
 courts of the United States. Char- 
 lotte V. Chouteau, 25 Mo. 465 (1857); 
 Pickard v. Bailey, 26 N. H. 152 
 (1852). 
 
 4. Nimmo r. Davis, 7 Tex. 26 
 (1851). 
 
 5. Southgate r. Montgomery, 1 
 Paige (N. Y.) 41 (1828). 
 
 6. De Grandmont v. La. Society des 
 ' Artisans, etc., 16 Quebec Super. Ct. 
 
 532 (1899). 
 
 7. Gaylod's Appeal, 43 Conn. 82 
 (1875); St. Louis, etc., R. Co. v. 
 Weaver, 35 Kan. 412, 11 Pac. 408, 57 
 Am. Rep. 176 (1886). 
 
 8. Chouteau r. Pierre, 9 Mo. 3 
 (1845K 
 
 9. Doe i\ Eslava, 11 Ala. 1028 
 (1847) ; Berluchaux v. Berluchaux, 7 
 La. 539 (1835) ; Malpica v. McKown, 
 1 La. 24*8, 20 Am. Dec. 279 (1830) 
 Ott r. Soulard, Mo. 581 (1845) 
 Chouteau v. Pierre, 9 Mo. 3 (1845) 
 Matter of Hall, 61 N. Y. App. Div. 
 266, 70 N. Y. Suppl. 406 (1901). 
 
 10. Wells v. Stout, 9 Cal. 480 
 (1858). 
 
 11. Arkansas. — Cox i>. Morrow, 14 
 Ark. 603 (1854). 
 
 Indiana. — Henthorn v. Doe, 1 
 Blackf. 157 (1822). 
 
 Kentucky. — Delano r. Jopling, 1 
 Litt. 417 (1822). 
 
 Texas.— State v. Sais, 47 Tex. 307 
 (1877). 
 
 West Virginia. — Northwestern Bank 
 v. Machir, 18 W. Va. 271 (1881). 
 
 12. Crandall v. Sterling Gold Min. 
 Co., 1 Colo. 106 (1868). The rule is 
 the same in territorial courts. Por- 
 ter v. United States, (Ind. T. 1907) 
 104 S. W. 855. 
 
 1. Hale v. New Jersey Steam Nav. 
 Co., 15 Conn. 539, 39 Am. Dec. 398 
 (1843) ; Anderson v. May, 10 Heisk. 
 (Tenn.) 84 (1872). See also Lock- 
 wood v. Crawford, 18 Conn. 361 
 (18^7); Hendryx r. Evans, 120 
 Iowa 310, 94 N. \V. 853 (1903). 
 
 2. Alabama. — Cubbedge r. Napier, 
 02 Ala. 518 (1878). 
 
 Arkansas. — Cox v. Morrow, 14 Ark. 
 603 (1854). 
 
 Connecticut. — Hale r. New Jersey 
 Steam Nav. Co.. 15 Conn. 539, 39 Am. 
 Dec. 398 (1843). 
 
 Florida.— Tuten r. Gazan, 18 Fla. 
 751 (1882). 
 
 Indiana. — Robords r. Marley, 80 
 Ind. 185 (1881). 
 
 Iowa. — Hendryx r. Evans, 120 
 Iowa 310, 94 N. \V. 853 (1903). 
 
 Kansas. — Ferd. Heim Brewing Co. 
 v. Gimber, 67 Kan. 834, 72 Pac. 859 
 (1903). 
 
757 
 
 Laws of Former Soveeeigkty. 
 
 § 588 
 
 a federal question may arise, e. g., as to the effect of the judgment 
 of another state, 3 and in certain other connections, 4 take judicial 
 knowledge of the law of such other state. 
 
 'Where a state recognizes acts done in pursuance of the laws of 
 another state, its courts will take judicial cognizance of those 
 laws, so far as may be necessary to determine the validity of the 
 acts alleged to have been done in conformity with them. 5 When 
 the courts of one state have taken judicial cognizance of the laws 
 of another they will, " until it is proved that the law has been 
 changed . . . presume it still exists." 6 
 
 § 588. (Judicial Knowledge of Common Law; State and 
 Provincial Courts; Foreign Unwritten Law; Sister State); 
 
 Law of Former Sovereignties — The laws of a state 1 or country, 2 
 which at any time exercised jurisdiction over the forum, are re- 
 garded as domestic so far as in force during the time of such 
 exercise of jurisdiction. It by no means follows that the judge, in 
 
 Kentucky. — Muhling V. Sattler, 3 
 Mete. 285, 77 Ara. Dec. 172 (1860). 
 
 Maryland. — Baltimore, etc., R. Co. 
 v. Glenn, 28 Mil.. 287, 92 Am. Dec. 
 688 (1867). 
 
 Massachusetts. — Hazelton v. Val- 
 entine, 113 Mass. 472, 478 (1873). 
 
 Michigan. — Kermott v. Ayer, 11 
 Mich. 181 (1863). 
 
 Minnesota. — Crandall v. Great 
 Northern R. Co., 83 Minn. 190, 86 N. 
 W. 10, 85 Am. St. Rep. 458 (1901). 
 
 Nebraska. — Barber v. Hildebrand, 
 42 Neb. 400, 60 N. W. 594 (1894). 
 
 New Jersey. — Condit «. Blackwell, 
 19 N. J. Eq. 193 (1868). 
 
 New York. — Phenix Ins. Co. V. 
 Church, 59 How, Pr. 293 (1880). 
 
 North Carolina. — Hooper v. Moore, 
 50 N. C. 130 (1857). 
 
 Ohio.— Smith v. Bartram, 11 Ohio 
 St. 690 (1860). 
 
 Pennsylvania. — Bollinger r. Gal- 
 lagher, 170 Pa. St. 84, 32 Atl. 569 
 (1895). 
 
 Rhode Island. — Ilorton v. Reed, 13 
 R. I. 366 (1881). 
 
 South Dakota. — Meuer v. Chicago, 
 etc., R. Co., 5 S. D. 568, 59 N. W. 
 945, 49 Am. St. Rep. 898, 25 L. R. A. 
 81 (1894). 
 
 Tennessee. — Hobbs v. Memphis, 
 etc., R. Co., 9 Heisk. 873 (1872). 
 
 Texas. — ■ Tryon v. Rankin, 9 Tex. 
 595 (1853). 
 
 Vermont. — Ward v. Morrison, 25 
 Vt. 593 (1853). 
 
 3. Butcher v. Bank of Bronsville, 
 2 Kan. 70 (1863) (Pennsylvania 
 judgment) ; Ohio v. Hinchman, 27 
 Pa. 479, 482 (1856) (Ohio judg- 
 ment) ; Paine v. Schenectady Ins. 
 Co., 11 R. I. 411, 415 (1877) (New- 
 York judgment) ; Jarvis v. Robin- 
 son, 21 Wis. 523 (1867) (Michigan 
 judgment) . 
 
 4. Shotwell v. Harrison, 22 Mich. 
 410, 414 (1871) (certified copy of a 
 Massachusetts deed) ; Trowbridge v. 
 Spinning, 23 Wash. 48, 62 Pac. 124 
 (1900) (jurisdiction of St. Louis, 
 Mo. City Court). 
 
 5. Carpenter v. Dexter, 8 Wall. 
 513, 531 (1869). 
 
 .6. Graham v. Williams, 21 La. 
 Ann. 594 (1869). 
 
 1. Henthorn v. Doe, 1 Blackf. 
 (Ind.) 157, 161, 163 (1822) (Vir- 
 ginia) . 
 
 2. U. S. /•. Chaves, 159 U. S. 452, 
 1G Suppl. 57 (1895) (Mexico). 
 
§ 589 
 
 Knowledge: Judicial. 
 
 758 
 
 all cases, requires that the fact of the unwritten law of a foreign 
 state or country, should be proved to the court by the use of evi- 
 dence. In many instances, especially where the fact is not a ma- 
 terial one, the judge informs himself, by a resort to the usual 
 sources of information as to the foreign law, 3 — its printed vol- 
 umes of reports, etc.* This is not only to ascertain what the 
 foreign law is, where he is practically making a finding of fact, 
 but that he may learn what is the law of his own jurisdiction. 
 
 § 589. (Judicial Knowledge of Common Law; State and 
 Provincial Courts; Foreign Unwritten Law); Other Countries 
 
 — Xeither the courts of England, 1 nor those of the United States, 2 
 judicially know the laws of Austria, 3 China, 4 France, 5 Germany, 6 
 Holland, 7 Mexico, 8 Norway, 9 Portugal, 10 Eussia, 11 Spain, 12 
 Switzerland, 13 or any foreign country. 14 
 
 3. Barranger v. Baum, 103 Ga. 465, 
 30 S. E. 524, 68 Am. St. Rep. 113 
 (1897) ; Herschfield r. Dexel, 12 Ga. 
 582 (1853); Farmers' Mfg. Co. v. 
 Spruks Mfg. Co., 119 Fed. 594 (1902). 
 
 4. Infra, § 636. 
 
 1. Godard v. Gray, L. R. 6 Q. B 
 139, 40 L. J. Q. B. 62, 24 L. T. Bep 
 N. S. 89, 19 Wkly. Bep. 348 (1870 
 Di Sora v. Phillipps, 10 H. L. Cas 
 624, 33 L. J. Ch. 129, 2 New Bep. 
 553, 11 Eng. Eeprint 1168 (1863) 
 Bremer v. Freeman, 10 Moore P. C 
 306, 14 Eng. Eeprint 508 (1857) 
 Beg. v. Povey, 6 Cox C. C. 83, Dears 
 C. C. 32, 17 Jur. 120, 22 L. J. M. C 
 19, 1 Wkly. Bep. 40, 14 Eng. L. & 
 Eq. 549 (1852) ; Bristow v. Seque- 
 -ville. 5 Exch. 275, 14 Jur. 674, 19 L. 
 J. Exch. 289 (1850) ; Vander Douckt 
 v. Thellusson, 8 C. B. 812, 19 L. J. 
 C. P. 12, 65 E. C. L. 812 (1849); 
 Nelson v. Bridport, 8 Beav. 527, 10 
 Jur. 871 (1845) ; In re Sussex Peer- 
 age, 11 CI. & F. 85, 8 Jur. 793, 8 
 Eng. Reprint 1034 (1844); Millar v. 
 Heinrick, 4 Campb. 155 (1815); 
 Mostyn t'. Fabrigas, 1 Cowp. 161 
 (1774). 
 
 2. Dianese v. Hale, 91 U. S. 13, 18 
 (1875) ; The Pawaahick, 2 Low. 142 
 (1872); Strother i>. Lucas, 6 Pet. 
 (U. S.) 763, 768 (1832). 
 
 3. Bowditch v. Soltyk, 99 Mass. 
 136 (1868). 
 
 4. State v. Moy Looke, 7 Or. 54 
 (1879). 
 
 5. Bowditch v. Soltyk, 99 Mass. 
 136 (1868). 
 
 6. American L. Ins., etc., Co. i\ 
 Rosenagle, 77 Pa. St. 507 (1875) 
 
 (Grand Duchy of Baden). 
 
 7. Fremoult r. Dedire, 1 P. Wms. 
 429 (1718). 
 
 8. McFadden r. Mitchell, 61 Cal. 
 148 (1882); Banco de Sonora r. 
 Bankers' Mut. Casualty Co., (Iowa 
 1903) 95 N. W. 232; Isabella r. 
 Pecot, 2 La. Ann. 387 (1847). 
 
 9. Pierce v. Indseth, 106 U. S. 546, 
 1 Sup. Ct. 418, 27 L. ed. 254 (1882). 
 
 10. Board r. Estrella, 5 Haw. 211, 
 214 (1884). 
 
 11. State i: Behrman, 114 N. C. 
 797, 19 S. E. 220, 25 L. E. A. 449 
 (1894). 
 
 12. Roberts' Will, 8 Paige 446 
 (1840). 
 
 13. Bowditch v. Soltyk, 99 Mass. 
 136 (1868) (Geneva). 
 
 14. Bowditch r. Soltyk, 99 Mass. 
 136 (1868) ; Hall v. Costello, 48 N. 
 H. 176, 2 Am. Rep. 207 (1868); 
 Liverpool, etc.. Steam Co. v. Phenix 
 Tns. Co., 129 U. S. 397, 9 Sup. Ct. 
 469, 32 L. ed. 788 (1888); Wil- 
 
759 International Law in Admiralty Courts. §§ 590, 591 
 
 § 590. (Judicial Knowledge oi Common Law; State and 
 Provincial Courts; Foreign Unwritten Law); Matters of Com- 
 mon Knowledge. — Matters of notoriety among the legal profession 
 may be treated by the courts as matters of common knowledge. 
 That the unwritten law of France is not identical with the com- 
 mon law of England is known. 1 The courts of the state of Louisi- 
 ana, in which a modified form of the civil law prevails, judicially 
 notice that the law of adjoining states is the common law 2 and, 
 therefore, that this law differs from their own in certain particu- 
 lars. 3 The common law of England extends to Ireland. 4 The 
 ancient civil law is the basis of the jurisprudence of Mexico. 5 
 But such knowledge is only of the broad outline, the fact which 
 is common knowledge. Facts of a secondary nature, as, e. g., the 
 particular rules of law in a foreign state or country, 6 must be 
 proved. 
 
 § 591. Judicial Knowledge of International Law. — While the 
 position of a nation toward the rest of the world is determined 
 by the executive branch of the government, 1 the courts of a 
 country know the principles of international law to which the 
 executive department of the forum has assented. 2 
 
 Prize and admiralty courts, whose international jurisdiction, 3 
 but not whose practice, 4 is judicially known by the common law 
 
 cocks c. Phillips, 29 Fed. Cas. No. N. W. 232 (whether in Mexico a boy 
 
 17,639, 1 Wall. Jr. (1843). See also is an adult at 14). 
 
 Electric Welding Co. t . Prince, 200 1. Infra, § 645. 
 
 Mass. 386, 86 N. E. 947 (1909). 2. Ocean Ins. Co. v. Francis, 2 
 
 1. Matter of Hall, 61 N. Y. App. Wend. (N. Y.) 64, 19 Am. Dec; 549 
 Div. 266, 70 N. Y. Suppl. 406 (1828); Strother v. Lucas, 12 Pet. 
 
 (1901). (TJ. S.) 410, 436, 9 L. ed. 1137 
 
 2. Rush V. Landers, 107 La. 549, (1838); U. S. v. Percheman, 7 Pet. 
 32 So. 95, 57 L. R. A. 353 (1902); (U. S.) 51, 8 L. ed. 604 (1833). 
 Sandidge c Hunt, 40 La. Ann. 766, " Foreign municipal laws must in- 
 5 So. 55 (1888). deed be proved as facts, but it is not 
 
 3. Farwell v. Harris, 12 La. Ann. so with the law of nations." The 
 50 (1857) (slaves are personal prop- Scotia, 14 Wall. 171 (1871). See 
 erty) ; Mcllvaine r. Legare, 34 La. also The Paquete Habana, 175 U. S. 
 Ann. 923 (1882) (vendor's privilege 677, 20 Sup. Ct. 290, 44 L. ed. 320 
 on moveables is not recognized). (1899) ; TJ. S. v. Repentigny, 5 Wall. 
 
 4. Reg. v. Nesbitt, 2 P. & L. 529, (U. S.) 211, 18 L. ed. 627 (1866) ; 
 533 (1844). Soulard v. U. S., 4 Pet. (U.S.) 511, 
 
 5. Banco de Sonora v. Bankers 7 L. ed. 938 (1830). 
 
 Mut. Casualty Co., (Iowa 1903) 95 3. Chandler r. Grieves, 2 H. Bl. 
 
 K. W. 232. 605, note, 3 Rev. Rep. 525 (1796). 
 
 6. Banco de Sonora v. Bankers' 4. Place i\ Potts, S Exch. 705, 17 
 Mut. Casualty Co., (Iowa 1903) 95 Jur. 1168, 22 L. J. Exch. 269 (1853). 
 
S .J91 
 
 Knowledge; Judicial. 
 
 760 
 
 tribunals, have occasion with especial frequency to apply and en- 
 force the international law, so far as the latter relates to the 
 affairs of the sea. They, therefore, judicially know such laws. 5 
 Such a court will recognize the right of capture as prize of war 
 and the limitations on this right of seizure imposed by the law 
 of nations. 6 They know the maritime regulations adopted by the 
 commercial nations as the law of the sea. 7 
 
 A notary public, as being an officer recognized and sanctioned 
 by international law, which also controls his office, and deter- 
 mines his customary functions, 8 is judicially known by the courts 
 as existing under the law of nations. 9 Courts will accordingly 
 give effect to his seal, 10 or jurat taken before him without a seal, 11 
 when attached to an official act shown to have been valid accord- 
 ing to the law of the domicile of the notary. 12 The same effect 
 will be given his act whether he is acting in a colony, foreign or 
 domestic ; 13 or in a foreign country 14 or in another state of the 
 
 5. The New York, 175 U. S. 187, 
 20 Sup. Ct. 67, 44 L. ed. 126 (1899) 
 (Canadian statute adopting Revised 
 International Navigation Regula- 
 tions) ; The Scotia, 14 Wall. 170, 188 
 (1871) ; Place V. Potts, 8 Exch. 705, 
 17 Jur. 1168, 22 L. J, Exch. 269 
 (1853) ; Chandler V. Grieves, 2 H. Bl. 
 606, note, 3 Rev. Rep. 525 (1796). 
 See, however, semble, contra, The 
 Pawashick, 2 Low. 142 (1872). 
 
 G. The Paquete Habana, 175 U. S. 
 677, 20 Sup. Ct. 290, 44 L. ed. 320 
 (1899) (fishing vessels exempted) ; 
 Talbot v. Seeman, 1 Cr. 1, 37 (1801) 
 (French marine decrees as to neutral 
 commerce) . 
 
 7. The New York, 175 U. S. 187, 
 20 S. Ct. 67, 44 L. ed. 126 [reversing 
 °6 Fed. 814, 30 C. C. A. 628, 82 Fed. 
 819, 27 C. C. A. 154 (1899). See 
 also Liverpool, etc., Steam Co. !\ 
 Phenix Ins. Co., 129 U. S. 397, 9 Sup. 
 Ct. 469, 32 L. ed. 788] (1888) ; Sears 
 V. The Scotia, 14 Wall. (U. S.) 170, 
 20 L. ed. 832 (1871). 
 
 8. Brooke v. Brooke, 50 L. J. Ch. 
 528, 17 Ch. D. 833, 44 L. T. Rep. 
 (N. S.) 512, 30 Wkly. Rep. 45 (1881). 
 
 9. Recognition does not extend to 
 
 the power to attest deeds. Neese v. 
 Farmers' Ins. Co., 55 Iowa 604 
 (1881); Nye v. McDonald, 2 Low. 
 Can. Jurist 109 (1857). 
 
 10. Cole r. Sherard, 11 Exch. 482 
 (1855); Anon, 12 Mod. 345 (1796). 
 Stamping paper with a seal carrying 
 ink has been deemed valid. Pierce v. 
 Indseth, 106 "U. S. 546, 1 Sup. Ct. 
 418, 27 L. ed. 254 (1882). 
 
 11. Thielmann v. Burg, 73 111. 293 
 (1S74). 
 
 12. Neese v. Farmers' Ins. Co., 55 
 Iowa 604, 8 N. W. 450 (1881) ; Orr 
 r. Lacy, 18 Fed. Cas. No. 10,589, 4 
 McLean 243 (1847). 
 
 13. Brooke r. Brooke, 17 Ch. D. 
 833, 50 L. J. Ch. 528, 44 L. T. Rep. 
 (N. S.) 512, 30 Wkly. Rep. 45 (1881) ; 
 Hutcheon i*. Mannington, 6 Ves. Jr. 
 823, 2 Rev. Pop. 115, 31 Eng. Re- 
 print 1327 (1802). 
 
 14. Pierce r. Indseth, 106 U. S. 
 546, 1 S. Ct. 418, 27 L. ed. 254 
 (1882) ; Cole v. Sherard, 11 Exch. 482, 
 25 L. J. Exch. 59 (1855); Orr r. 
 Lacy, 18 Fed. Cas. No. 10,589, 4 Mc- 
 Lean 243 (1847); Yeaton r. Fry, 5 
 Cranch. 335, 3 L. ed. 117 (1809). 
 
761 Judicial Knowledge of Law aIekchajst. § 592 
 
 Union, 15 or within the jurisdiction of the court itself. 16 Special 
 powers conferred by domestic law, such as right to administer 
 affidavits, 17 must be proved in the ordinary way. 
 
 Foreign officials discharging functions isomewhat similar to 
 those of a notary public, are of national rather than international 
 creation and importance. The validity of their acts must be estab- 
 lished by evidence. 18 
 
 § 592. Judicial Knowledge of law Merchant. — The law mer- 
 chant is part of the common law and, as such, is judicially known. 1 
 This knowledge differs in no essential feature from knowledge 
 of other branches of the common law, except that the cosmopoli- 
 tan nature of commerce carries with it an approximation to inter- 
 national law which shows itself, in practice, principally by a more 
 ready assumption on the part of the judge that the law of a 
 foreign state or country is the same as that of the forum and, 
 consequently, that he knows it. The force of these considerations 
 is increased by the fact that the basis of the law merchant is the 
 civil law, prevalent on the Continent of Europe, and that a gen- 
 eral uniformity, not observable in other particulars, exists with 
 regard to mercantile affairs', between the common and the civil 
 systems of law. Of this nature are laws relating to partnership, 2 
 
 15. Denmead v. Maack, 2 Mac- Illinois. — Hunn v. Burch, 25 111. 
 Arthur (D. C.) 475 (1876); Carter 35, 38 (1860). 
 
 v. Burley, 9 N. H. 558 (1838); Neio Jersey. — Reed v. Wilson, 41 
 
 Halliday v. McDougall, 20 Wend. N. J. L. 29 (1879). 
 
 (N. Y.) 81 (1838) ; Orr v. Lacy, 18 England.— Edie v. East India Co., 
 
 Fed. Cas. No. 10,589, 4 McLean 243 1 W. Bl. 295, 2 Burr. 1216, 1228 
 
 (1847). (1761) (special custom of merchants). 
 
 16. Porter v. Judson, 1 Gray " The principles of the law merchant 
 (Mass.) 175 (1854) ; Browne v. Phila- . have become a part of the com- 
 delphia Bank, 6 Serg. & R. (Pa.) 484, mon law." Munn v. Burch, 25 III. 
 9 Am. Dec. 463 (1821). 35, 38 (1860). "The court must 
 
 17. Teutonia Loan, etc., Bldg. Co. take judicial notice not only of the 
 v. Turrell, 19 Ind. App. 469, 49 N. law merchant, which is a part of the 
 E. 852, 65 Am. St. Rep. 419 (1897). common law, but also of the almanac, 
 
 18. Chanoine v. Fowler, 3 Wend. from which it appears that the 15th 
 (N. Y.) 173 (1829) ("hussier;" a day of December, 1872, fell on Sun- 
 kind of bailiff) ; Church v. Hubbart, day." Reed v. Wilson, 41 N. J. L. 
 2 Cranch 186 (1804) (certificate by 29 (1879). 
 
 a consul). 2. Cameron v. Orleans, etc., R. Co., 
 
 1. A labama.— Jewell v. Center, 25 108 La. 83, 32 So. 208 (1902) (status 
 
 Ala. 498 (1854). and liabilities). 
 
 Arkansas. — Davis v. Hanly, 13 
 
 Ark. 645 (1852). 
 
§ 593 Knowledge; Judicial. 762 
 
 negotiable instruments" or banking. 4 As in case of all laws which 
 he is called upon to administer, a judge is not required to hear 
 evidence bearing on the law merchant to an effect contrary to his 
 judicial knowledge. 
 
 § 593. Judicial Knowledge of Written Law; Extension and 
 Intension. — The general principle that a court knows the rules 
 of law w'hich it is organized to apply and enforce controls the 
 [judge's action as to dealing with the written law. Such laws 
 may be conveniently divided, for purposes of examination in this 
 particular of judicial knowledge, into (a) constitutions, (b) pub- 
 lic statutes, (c) private statutes and (d) municipal regulations. 
 
 Extension. — Judicial knowledge of these written laws does not, 
 however, extend equally to all courts. The more limited the juris- 
 diction of the court, the wider, or perhaps, more properly, the 
 more microscopic, is the range of its judicial knowledge of writ- 
 ten law. All tribunals in a jurisdiction, regardless of grade, 
 judicially know the organic law, or constitution, through which 
 the ultimate sovereign of the jurisdiction has established the par- 
 ticular form of government of which courts constitute a part. 
 Courts of national, provincial or state jurisdiction judicially 
 know, in addition to the constitution, such statutes as legislation 
 in the forum has directed them to know. Usually these are only 
 public statutes. Occasionally knowledge is required also of pri- 
 vate statutes. Judicial knowledge of local or municipal regula- 
 tions is confined to the local tribunals of limited jurisdiction 
 whose distinctive duty it is to enforce such minor enactments ; but 
 who are, at the same time, charged with judicial knowledge of 
 the more general statutes known to the superior courts. Such is 
 
 3. Huie V. Brazeale, 19 La. 457 of the law merchant, and is to be 
 (1841) ; Sasscer r. Farmers' Bank, judicially noticed, like the negotiabil- 
 4 Md. 409 (1853) ; Reed v. Wilson, ity of bills of exchange, or the days 
 41 N. J. L. 29 (1879); Brandao r. of grace allowed for their payment. 
 Barnett, 3 C. B. 519, 54 E. C. L. 519, When a general usage has 'been ju- 
 12 CI. & F. 787, 8 Eng. Reprint 1622 dicially ascertained and established, 
 (1846) (negotiability of bill of ex- it becomes part of the law merchant, 
 change) ; Edelstein v. Schuler, 2 K. which courts of justice are bound 
 B. 144, 155 (1902) (negotiable char- to know and recognize. Such has 
 acter of certain bonds). been the invariable understanding and 
 
 4. Brandao v. Barnett, 3 C. B. 519, practice in Westminster Hall for a 
 54 E. C. L. 519, 12 CI. & F. 787, great many years." Brandao V. Bar- 
 R Eng. Reprint 1622 (1846) (lien nett, 3 C. B. 519, 530 (1846). 
 
 of bankers on a customer's deposit). 5. Jewell r. Center, 25 Ala. 498 
 
 "The general lien of bankers is part (1854). 
 
763 
 
 Intension ix Knowledge of Statutes. 
 
 § 594 
 
 the judicial knowledge of written law in extension ; — the breadth 
 of its application. 
 
 § 594. (Judicial Knowledge of Written Law); Intension; 
 Existence of the Law. — In intension, or depth,- this judicial knowl- 
 edge of written law covers the following particulars: (a) The 
 existence of the law in question, including the date at which it 
 went into effect, 1 was suspended 2 or repealed ; 3 — so far as these 
 facts are ascertainable from the legislative records themselves or 
 by a resort to customary sources of information regarding official 
 proceedings. Judicial knowledge on these and similar details is 
 not demanded when it can be acquired only by ascertaining a fact 
 in pais* as adoption at a popular municipal election of the pro- 
 visions of a general permissive act relating to various public pur- 
 poses, 5 including municipal incorporation, 6 or local option in the 
 
 1. California. — Fowler r. Pierce, 2 
 Cal. 165 (1852). 
 
 Illinois. — Young r. Thompson, 14 
 111. 380 (1853). 
 
 Indiana. — Moss v. Sugar Ridge Tp., 
 161 Ind. 417, 68 N. E. 896 (1903). 
 
 Iowa. — Pierson v. Baird, 2 Greene 
 235 (1849). 
 
 Louisiana. — L'Eglise v. Brenton, 3 
 La. 435 (1832) (date of promulga- 
 tion in the parishes). 
 
 Minnesota. — State v. Stearns, 72 
 Minn. 200, 75 N. W. 210 (1898). 
 
 New York. — Ottman v. Hoffman, 7 
 Misc. 714, 28 N. Y. Suppl. 28 (1894). 
 
 Pennsylvania. — Speer v. Plank- 
 Road Co., 22 Pa. St. 376 (1853). 
 
 Utah.— People v. Hopt, 3 Utah 
 396, 4 Pac. 250 (1884). 
 
 Vermont. — Matter of Wellman, 20 
 Vt. 653, 29 Fed. Cas. No, 17,407 
 (1844). 
 
 Wisconsin. — Berliner r. Waterloo, 
 14 Wis. 378 (1861). 
 
 United States. — Walnut v. Wade, 
 103 U. S. 683, 26 L. ed. 526 (1880) ; 
 South Ottawa v. Perkins, 94 U. S. 
 260, 24 L. ed. 154 (1876); Gardner 
 v. The Collector, 6 Wall. 499, 572, 
 18 L. ed. 890 (1867). 
 
 The side or marginal note of a 
 statute in a printed copy forms no 
 part of the statute itself and cannot 
 
 be used to explain or construe a 
 section. Claydon v. Greene, L>. R. 3 
 C. P. 511 (1868). The punctuation 
 of a statute is not part of it. Clay- 
 don e. Greene, L. R. 3 C. P. 522 
 (1868). Nor can the title of an act 
 be judicially noticed as part of it. 
 R. v. Williams, 1 W. Bl. 93 (1758). 
 
 2. Bernstein v. Humes, 60 Ala. 582, 
 31 Am. Rep. 52 (1877) ; Buckingham 
 f. Walker, 48 Miss. 609 (1873); 
 East Tennessee Iron Mfg. Co. v. Gas- 
 kell, 2 Lea (Tenn.) 742 (1879). 
 
 3. State v. O'Conner, 13 La. Ann. 
 486 (1858) ; Springfield v. Worcester, 
 2 Cush. (Mass.) 52 (1848). 
 
 4. Stein v. Morrison, (Idaho 1904) 
 75 Pac. 246. 
 
 5. State v. Burkett, 83 Miss. 301, 
 35 So. 689 (1904) (working public 
 roads) ; Foster v. Swope, 41 Mo. App. 
 
 • 137 (1890) (restraining hogs). See 
 also House v. Greensburg, 93 Ind. 
 533 (1883); Stultz v. State, 65 Ind. 
 492, (1879); Sipe v. Holliday, 62 
 Ind. 4 ( 1878 ) ; Johnson v. Indian- 
 apolis, 16 Ind. 227 (1861) ; Shaw 
 v. New York Gent., etc., R. Co., 
 83 N. Y. Suppl. 91, 85 App. Div. 137 
 (1903). 
 
 The adoption by the voters of an 
 amendment to a municipal charter 
 has, however, been assumed upon the 
 
§§ 595, 596 Knowledge; Judicial. 764 
 
 sale of intoxicating liquors. 7 This, unless required to do so by 
 statute, 8 the court will not do. The burden of establishing facts 
 in pais, not to be gathered by the judge from the act itself or from 
 any official source, but which are necessary to the going into effect 
 of a statute duly enacted, or to its continued application to a par- 
 ticular state of facts, cannot be placed on the presiding justice but 
 rests on the party claiming their existence. 9 
 
 § 595. (Judicial Knowledge of Written Law; Intension); 
 
 Results Directly Accomplished. — (b) A knowledge as to "the direct 
 results accomplished by the statute. So where a statute deter- 
 mines the character of certain buildings as public houses under 
 the gambling law, 1 founds a public institution, 2 or establishes a 
 probate court in a certain county, 3 the judge is bound to recognize 
 the fact. Indeed, it may be fairly said that such knowledge often 
 is barely distinguishable from knowledge of the very existence of 
 the law. 
 
 § 596. (Judicial Knowledge of Written Law; Intension); 
 
 Facts Recited (c) Knowledge of facts recited or recognized in 
 
 the written law will be judicially known to any court whose 
 knowledge, in extension, covers the written law itself. 1 
 
 judge's knowledge. Davey v. Janes- 8. Jones v. Lake View, 151 111. 
 
 ville, 111 Wis. 628, 87 N. W. 813 663, 38 N. E. 688 (1894). 
 
 (1901). See also Bragg v. Rush 9. Miller v. Com., 13 Bush (Ky.) 
 
 County, 34 Ind. 405 (1870); Harvey 731 (1878); People V. State Land 
 
 r. Wayne, 72 Me. 430 (1881); Ives Office, 23 Mich. 270 (1871). 
 
 v. Kimball, 1 Mich. 308 (1849). 1. Grant r. State, (Tex. 1894) 27 
 
 6. Doyle v. Village of Bradford, 90 S. W. 127. 
 
 111. 416 (1878) (villages); Hard v. 2. Calloway v. Cossart, 45 Ark. 81 
 
 Decorah, 43 Iowa 313 (1876); Shivery (1885); Shaw v. State, 3 Sneed 
 
 v. Langford, 174 Mo. 535, 74 S. W. (Tenn.) 86 (1855); Oxford Poor 
 
 835 (1903) (township organization) ; Rate, 8 El. & Bl. 184, 92 E. C. L. 
 
 Hopkins v. Kansas City, etc., R. Co., 1S5 (1857). See also United States 
 
 79 Mo. 98 (1883); Temple v. State, r. Harries, 2 Bond (U. S. C. C.) 
 
 15 Tex. App. 304, 49 Am. Rep. 200 311 (1869). 
 
 (1883). 3. La Salle Co. v. Milligan, 143 
 
 7. Eco p. Reynolds, 87 Ala. 138, 6 111. 321 (.1892). 
 
 So. 335 (1888); Gifford r. Falmouth, 1. Georgia. — Lane v. Harris, 16 
 
 4 Ky. L. Rep. 902 (1883) ; Whitman Ga. 217 (1854). 
 
 r. State, 80 Md. 410, 31 Atl. 325 Michigan.— Boyd I. Conklin, 54 
 
 (1895); State v. Mackin, 41 Mo. Mich. 583, 20 N. W. 595, 52 Am. 
 
 App. 99 (1890). Rep. 831 (1884). 
 
 To the contrary see Woodward v. Texas. — Grant v. State, 33 Tex. Cr. 
 
 State, 103 Ga. 496, 30 S. E. 523 527, 27 S. W. 127 (1894). 
 (1897). 
 
765 
 
 Judicial Knowledge of Treaties. 
 
 § 597 
 
 § 597. (Judicial Knowledge of Written Law); Treaties. — 
 
 By constitutional provision, treaties legally made by the national 
 executive are declared to be the supreme law of the land. The 
 judges of all American courts, state 1 or federal, 2 will, therefore, 
 know of the existence and provisions 3 of treaties with foreign 
 nations or Indian tribes. 4 Protocols and schedules attached to a 
 treaty, 5 its date, 6 the date of its ratification 7 and all other facts 
 necessary to its legal validity have been deemed part of the treaty 
 itself. 
 
 Treaties. — Acts done under a treaty* foreign laws, usages, 9 
 or other facts referred to therein, unless cognizable as matters of 
 
 Wisconsin. — Swain v. Oomstock, 18 
 Wis. 463 (1864). 
 
 United States. — Wstkins r. Hol- 
 man, 16 Pet. 25, 55, 56, 10 L. ed. 
 873 (1842). 
 
 England. — Alcinous v. Nigreu, 4 
 E. & B. 217, 1 Jur. N. S. 16, 24 
 L. J. Q. B. 19, 3 Wkly. Rep. 25, 82 
 E. C. L. 217 (1854) ; Rex v. Sutton, 
 4 M. & S. 532 (1816) ; Withers V. 
 Warner, 1 Str. 309 (1733). 
 
 For example, that the isle of Ely is 
 a franchise in the nature of a riding, 
 will he judicially known where such 
 is said to be the fact in a public act 
 of Parliament. R. v. Ely, 15 Q. B. 
 827 (1850). But allegations of fact 
 in a public statute may be disproved. 
 R. v. Greene, 6 Ad. & E. 548 (1837). 
 In the same way, recitals, whether 
 of fact or law, may, it is said, be 
 controverted. R. v. Haughton, 1 E. 
 & B. 501 (1853). The preamble of 
 a general act of Parliament is judi- 
 cially known as part of the statute. 
 Every subject is, in judgment of law, 
 privy to the making of it. R. v. 
 Sutton, 4 M. & S. 532 (1834). 
 
 1. La Rue v. Kansas Mut. L. Ins. 
 Co., (Kan. Sup. 1904) 75 Pac. 494; 
 Montgomery v. Deeley, 3 Wis. 709 
 (1854) (Ashburton treaty). 
 
 2. Callsen v. Hope, 75 Fed. 758 
 (1896) (cession of Alaska) ; Knight 
 v. United Land Assoc, 142 U. S. 161, 
 12 S. Ct. 258, 35 L. ed. 974 (1891) ; 
 Lacroix v. Sarrazin, 15 Fed. 489, 4 
 Woods 174 (1883); U. S. r. Reynes, 
 
 9 How. (U. S.) 127, 13 L. ed. 74 
 (1850) (Louisiana treaty of cession); 
 U. S. v. Reyner, 9 How. 127 (1850) 
 (treaty of Paris) ; Fisher v. Ham- 
 den, 9 Fed. Cas. No. 4,819, 1 Paine 
 (U. S.) 55 (1812) ; U. S. v. The 
 Peggy, 1 Cranch (U. S.) 103, 2 L. 
 ed. 49 (1801). 
 
 3. La Rue v. Kansas Mut. L. Ins. 
 Co., (Kan. Sup. 1904) 75 Pac. 794 
 (treaty of Paris conveyed the Phil- 
 ippines to the United States). The 
 court judicially knows that under the 
 treaty of Paris, "the Philippine Islands 
 became part of the territory of the 
 United States. La Rue v. Kansas 
 Mutual Life Ins. Co., (Kan. 1904) 
 75 Pac. 494. 
 
 4. U. S. v. Beebe, 2 Dak. 292, 11 
 N. W. 505 (1880) ; Myers V. Mathis, 
 2 Indian Terr. 3, 46 S. W. 178 
 (1898); Dole v. Wilson, 16 Minn. 
 525 (1871) ; Carson V. Smith, 5 Minn. 
 78 (1860) ; Kreuger v. Schultz, 6 N. 
 D. 310, 70 N. W. 269 (1896). See 
 also Gay v. Thomas, 5 Okl. 1, 46 
 Pac. 578 (1896); U. S. v. De Cour- 
 sey, 1 Pinn. (Wis.) 508 (1845). 
 
 5. Callsen v. Hope, 75 Fed. 758 
 (1896). 
 
 6. Kreuger v. Schultz, 6 N. D. 310, 
 70 N. W. 269 (1896). 
 
 7. Carson v. Smith, 5 Minn. 78, 77 
 Am. Dec. 539 (1860). 
 
 8. Dole v. Wilson, 16 Minn. 525 
 (1871). 
 
 9. Dainese v. Hale, 91 U. S. 13, 
 23 L. ed. 190 (1875). 
 
§§ 598, 599 Knowledge; Judicial. 766 
 
 notoriety, i. e., of common knowledge, 10 are secondary effects of 
 law which will not be judicially known. 
 
 The rule requiring judicial knowledge of treaties ceases with\ 
 the disappearance of the reason for it. A superseded n treaty, 
 being no longer law, is not judicially known. 
 
 § 598. (Judicial Knowledge of Written Law); National 
 Courts; Constitutions — Tribunals of national jurisdiction know 
 judicially the written constitution, if any, which formulates the 
 fundamental law of the sovereignty under which they are acting, 
 and the constitution, if any, of each province or state within its 
 jurisdiction. In America, for example, the federal courts judici- 
 ally know the Constitution of the United States and its amend- 
 ments. 1 
 
 § 599. (Judicial Knowledge of Written Law; National 
 Courts); Public Statutes. — National tribunals know judicially the 
 public statutes passed by the national legislature. As English 
 courts know the public acts of Parliament, so the federal courts 
 of the United States judicially know the public statutes enacted 
 by Congress. 1 A national court will also know judicially the pub- 
 lic statutes of every province or state, whose jurisprudence it ad- 
 ministers by virtue of an appellate jurisdiction. This includes 
 the then existing statutes of prior governments which at any time 
 exercised sovereignty over the territory in question ; — whether 
 the control were colonial, 2 provincial, or in some other form. 
 
 10. Infra, § 699; U. S. v. Beebe, 2 V. S. v. Johnson, 26 Fed. Cas. No. 
 Dak. 292, 11 N. W. 505 (1880) (proc- 55,488, 2 Sawy. 482 (1873); U. S. 
 lamation establishing Indian reser- r. Williams, 28 Fed. Cas. No. 16,706, 
 vations). 4 Biss. 302 (1869) ; In re Muller, 17 
 
 11. Ryan r. Knorr, 19 Hun (N. Fed. Cas. No. 9,912, Deady 513 
 y.) 540 (1880). (1869); Gardner v. The Collector, 6 
 
 1. Young r. Montgomery, etc.. R. Wall. 499, 18 L. ed. 890 (1867); 
 
 Co., 30 Fed. Cas. No. 18,166, 2 Woods Central Bank v. Tayloe, 5 Fed. Cas. 
 
 606 (1875); Furman v. Nichol, 8 No. 2,548, 2 Crancli C. C. 427 (1823). 
 
 Wall. (U. S.) 44, 19 L. ed. 370 See also Beck r. Johnson, (Ky. 1909) 
 
 (1868); Riggs v. Johnson County, 6 169 Fed. 154. 
 
 Wall. 166, 181, 199, 18 L. ed. 768 2. Loree r. Abner, 6 C. C. A. 302, 
 
 (1867); Central Bank r. Tayloe, 5 57 Fed. 159 (1893) (Pennsylvania 
 
 Fed. Cas. No. 2,548, 2 Cranch C. C. when a colony of England or under 
 
 427 (1823); Marbury r. Madison, 1 the articles of confederation). Thus 
 
 Cranch (TJ. S.) 137, 2 L. ed. 60 the federal supreme court will take 
 
 (1803). judicial notice of the Spanish law, as 
 
 1. Pennsylvania R. Co. v. Balti- far as it affects the insular posses- 
 more, etc., R. Co., 37 Fed. 129 (1888); sions of the United States. Munici- 
 
767 
 
 Judicial Knowledge of Federal Courts. 
 
 § 599 
 
 Thus, the United States Supreme Court, in reviewing the judg- 
 ment or decree of the highest court of a state of the American 
 Union, has such judicial knowledge of the written law of the state 
 as the court whose action is under review would have had, 3 includ- 
 ing any judicial knowledge such a state court would have of the 
 written laws of other jurisdictions. In exercising original jurisdic- 
 tion the Supreme Court of the United States, and all inferior fed- 
 eral courts, know the written law not only of the state for which 
 they are sitting, for the time being, 4 but that of every other state 5 or 
 territory in the American Union. In reviewing the action of an in- 
 ferior federal tribunal the Supreme Court of the United States has 
 
 pality of Ponee v. Roman Cath. A. 
 Church, etc., (Porto Rico 1908) 28 
 S. Ct 737, 210 U. S. 296, 52 L. ed 
 1068. 
 
 3. Pennie v. Reis, 132 U. S. 464, 
 10 S. Ct. 149, 33 L. ed. 426 (1889) ; 
 Hanley v. Donoghue, 116 U. S. 1, 
 
 6 S. Ct. 242, 29 L. ed. 535 (1885) ; 
 Beaty v. Knowler, 4 Pet. (U. S.) 152, 
 
 7 L. ed. 813 (1830). 
 
 4. Gerling v. Baltimore, etc., R. 
 Co.. 151 U. S. 673, 14 S. Ct. 533, 38 
 L ed. 311 (1893); Smith v Talla- 
 poosa County, 22 Fed. Cas. No 13,- 
 113, -A Woods 574 (1874). 
 
 5. Barry v. Snovvden, 106 Fed. 571 
 (1901) ; Hathaway v. New York Mut. 
 L Ins Co., 99 Fed. 534 (1900); 
 New York Mut. L. Ins. Co. v. Hill, 
 97 Fea 263, 38 C C. A. 159, 49 L. 
 R. A. 127 ( 1899 ) ; Andruss v. People 
 Bidg., etc., Assoc, 94 Fed 575, 36 
 C. C. A 336 (1899); L'Engle V. 
 Gates, 74 Fed. 513 (1896); Noonan 
 V. Delaware, etc., R Co.. 68 Fed. 1 
 (1895) ; Western, etc.. R. Co. v. Rob- 
 erson. 61 Fed. 592, 9 C C A 646 
 (1894); Toppan v. Cleveland, etc., 
 R. Co.. 24 Fed. Cas. No 14,099, 1 
 Flipp. 74 (1862); Nelson r. Foster, 
 17 Fed. Cas No 10,105, 5 Biss. 44 
 (1857) ; Miller v. McQuerry, 17 Fed. 
 Cas. No 9,583, 5 McLean 469 (1853); 
 Merrill i Dawson, 17 Fed Cas No. 
 9,469, Hempst. 563 (1846); Gordon 
 r. Hobart, 10 Fed. Cas No. 5,609, 2 
 Sumn. 401 (1836); Jaffray v Dennis, 
 13 Fed. Cas. No. 7,171, 2 Wash. 253 
 
 (1808). See also Bohlander v. Heikes, 
 (Ala. 1909) 168 Fed. 886, 94 C. C. A. 
 298; Moore V. Pywell, 29 App. D. C. 
 312, 9 L. R. A. (U. S.) 1078 (1907) ; 
 In. re Dunn, 212 U. S. 374, 29 S. Ct. 
 299 (1909) (incorporated mercantile 
 corporations) ; Denver & R. G. R. Co. 
 v. Wagner, 167 Fed. 75, 92 C. C. A. 
 527 (1909). "The circuit courts of 
 the United States are created by Con- 
 gress, not for the purpose of admin- 
 istering the local law of a single state 
 alone, but to administer the laws of 
 all the States in the Union, in cases 
 to which they respectively apply. 
 The judicial power conferred on the 
 general government by the Constitu- 
 tion, extends to many cases arising 
 under the laws of the different States. 
 Th£rt jurisprudence is, then, in no 
 just sense, a foreign jurisprudence, to 
 be proved, in the courts of the United 
 States, by the ordinary modes of 
 proof by which the laws of a foreign 
 country are to be established; but 
 is to be judicially taken notice of in 
 the same manner as the laws of the 
 United States are taken notice of by 
 these courts." Owings v. Hull, 9 
 Pet. (U. S.) 607, 625, 9 L. ed. 246 
 (1835). 
 
 6. Breed v. Northern Pac. R. Co., 
 35 Fed. 642 (1888). The rule ap- 
 plies equally to territories of the 
 United States. Denver & R. G. R. Co. 
 i' Wagner, 167 Fed 75, 92 C. C. A. 
 527 (1909;. Amendments are noticed 
 in the same way. Denver & R. G. 
 
§§ 600, 601 Knowledge; Judicial. 768 
 
 the same judicial knowledge.' Iu exercising, however, its appellate 
 jurisdiction to state courts, the United States Supreme Court takes 
 merely such judicial knowledge of the laws of a state other than 
 the one whose action is under review as the judges of that court 
 could have taken under the law of that state. 
 
 § 600. (Judicial Knowledge of Written Law; National 
 Courts); Private Statutes — A court of national jurisdiction does 
 not judicially know the private acts of the national legislature, 
 nor the private acts of the state whose public statutes it knows. 1 
 Where the national legislature has required that national tribu- 
 nals shall judicially know a private act, the courts so required to 
 know the statute will do so. Where a federal court exercises its 
 jurisdiction in a state whose statute or constitution has required 
 knowledge on the part of the state courts of all or certain classes 
 of private acts, or where a state statute is expressly '" declared to 
 be a public act," 2 the national tribunal possesses the same judicial 
 knowledge. 3 
 
 § 601. (Judicial Knowledge of Written Law; National 
 Courts) ; Foreign Statutes. — The national courts of a country do 
 not judicially know the public laws of another country, 1 except 
 
 R.. Co. v. Wagner, 167 Fed. 75, 92 3. Junction Ey. Co. v. Ashland 
 C. C. A. 527 (1909). Courts of the Bank, 12 Wall. (U. S.) 226, 230, 
 United States, being required to take 20 L. ed. 385 (1870) ; Beaty v. Know- 
 judicial notice of the laws of the ler, 4 Pet. 152, 7 L. ed. 813 (1830). 
 various states, whether depending on 1. Coghlan r. South Carolina R. 
 statutes or judicial opinion, such Co., 142 U. S. 101, 12 S. Ct. 150, 
 courts may look to the whole of a 35 L. ed. 951 [affirming 32 Fed. 316] 
 statute which it is required to apply, (1891) ; Liverpool, etc., Steam Co. v. 
 though merely a portion thereof is Phenix Ins. Co., 129 U. S. 397, 9 
 pleaded. Bond r. John V. Farwell S. Ct. 469, 32 L. ed. 788 (1888); 
 Co., (Tenn. 1909) 172 Fed. 58, 96 Dainese V. Hale, 91 U. S. 13, 23 L. 
 C. C. A. 546. ed. 190 (1875); De Bode's Case, 8 
 7. Mills v. Green, 159 U. S. 651, Q. B. 208, 55 E. C. L. 208 (1845); 
 16 S. Ct, 132, 40 L. ed. 293 (1895); Nelson v. Bridport, 8 Beav. 527. 10 
 Gerling v. Baltimore, etc., B. Co., Jur. 871 (1845); Bristow r. Seque- 
 151 V. S. 673, 14 S. Ct. 533, 38 L. ville, 5 Exch. 275, 14 Jur. 674. 19 
 ed. 311 (1893); Gormley P. Bunyan, L. J. Exch. 289 (1850); Fyson !-. 
 138 U. S. 623, 11 S. Ct. 453, 34 L. Kemp. 6 C. & P. 71, 25 E. C. L. 326 
 ed. 1086 (1890). (1833) ; Millar r. Heinrick, 4 Canrpb. 
 
 1. Leland r. Wilkinson, 6 Pet. (U. 155 (1815); McNeil V. Perchard, 1 
 S.) 317, 8 L. cd. 412 (1832). See Esp. 263 (1795). A federal court 
 also South Carolina r. Coosaw Min. does not judicially know the laws of 
 Co., 45 Fed. 804 (1891). the Chickasaw Nation. Elliott r. 
 
 2. Case r. Kelly. 133 U. S. 21. 10 Garvin, (Ind. T. 1907) 104 S. W. 878. 
 S. Ct. 216, 33 L. ed. 513 (1889). 
 
769 Constttu'nal Requirements foe Statutes. §§ 602, 603 
 
 such as may be known by them as part of general international 
 law. 2 
 
 § 602. (Judicial Knowledge of Written Law); State and 
 Provincial Courts; Constitutions — All courts of a state judicially 
 know the written Constitution of the United States 1 and amend- 
 ments to it subsequently adopted. 2 They also know the direct 
 results accomplished by the instrument, as the division of the 
 powers of the national government among the three great depart- 
 ments, the legislative, executive and judicial. 3 State courts know 
 the state constitutions and the adoption of amendments to it. 4 
 State courts know judicially the effect of a state constitution not 
 only as to its direct enactments, but as to any results in repealing 
 statutes. 5 Subordinate facts not directly resulting from the con- 
 stitution as the subdivision of departments, as to who are the 
 officials whose election or appointment is authorized by the con- 
 stitution, these, and similar facts cannot, with entire propriety, 
 be regarded as facts which are " matter of law." They may be 
 made so by legislative requirement, 6 knowledge of which, on the 
 part of the judge, is- imperative. They are matters strictly of fact, 
 the cognizance of which is voluntary, and best explainable upon 
 other ground. 7 
 
 § 603. (Judicial Knowledge of Written Law; State and 
 Provincial Courts; Constitutions); Constitutional Requirements 
 
 for Statutory Enactments. — To know a statute, it is necessary that 
 the judge should ascertain that the facts essential to its validity 
 
 2. Supra, § 591; The New York, 175 Co., 188 Mo. 572, 87 S. W. 913 (1905). 
 TJ. S. 187, 20 S. Ct. 67, 44 L. ed. States will take judicial notice of the 
 126 [reversing 82 Fed. 819, 27 C. C. record of the state constitutional con- 
 A. 154, 86 Fed. 814, 30 C. C. A. 628] vention. Schwartz v. People, 46 Colo. 
 (1899) (Canadian Navigation Act of 239, 104 Pac. 92 (1909). Constitu- 
 1886). tional limitations upon the business 
 
 1. St. Louis, etc., R. Co. v. Brown, powers of religious corporations will 
 
 67 Ark. 295, 54 S. W. 865 (1899); be noticed. Lunsford v. Wren, 64 
 
 Graves v. Keaton, 3 Coldw. (Tenn.) W. Va. 458, 63 S. E. 308 (1908). 
 
 8 (1866); State v. Bates, 22 Utah 5. Campbell v. Shelby County, (Ala. 
 
 65, 61 Pac. 905, 83 Am. St. Rep. 768 1906) 41 So. 407, 408. 
 
 (1900). 6. U. S. v. Williams, 6 Mont. 379, 
 
 2 Graves v. Keaton, 3 Coldw. 12 Pac. 851 (1887). 
 
 (Tenn.) 8 (1866). 7. Infra, § 637; Prince v. Skillin, 
 
 3. TJ.' S. v. Williams, 6 Mont. 379, 71 Me. 361, 367, 36 Am. Rep. 325 
 387, 12 Pac. 851 (1887). (1880) ("public notoriety or inter- 
 
 4. Carmody v. St. Louis Transit est"). 
 
 Vol. I. 49 
 
§ 604 
 
 Knowledge ; Judicial. 
 
 770 
 
 actually exist In many jurisdictions constitutional provisions 
 have prescribed compliance with certain formalities', intended, as 
 a rule, to prevent hasty or ill-considered legislation, or have 
 deemed it advisable to require that the legislature should assume, 
 in certain instances, individual responsibility for its acts by being 
 publicly recorded, by name, upon the legislative journals. It is 
 the duty of the judge to ascertain the fact of compliance with 
 such provisions. In doing so, he may resort to any source of in- 
 formation deemed by him helpful. 1 The question whether the 
 official authentication of a statute, by the legislative branch of the 
 government, is final or may be reviewed by the judges, presents a 
 subject involving the fundamental scope of the judicial power, 2 
 with which the law of evidence has no direct concern. 
 
 § 604. (Judicial Knowledge of Written Law; State and 
 Provincial Courts); National Statutes — The courts of a prov- 
 ince or state know the public statutes passed by the national legis- 
 lature. The domestic tribunals of the states of the American 
 Union judicially know the public acts of Congress, 1 including 
 
 1. Gardner v. Collector, 6 Wall. 
 499, 511 (1867). 
 
 2. McCormick v. Hayes, 159 U. S. 
 332 (1895) ; Field v. Clark, 143 U. 
 S. 649 (1891); Ottawa v. Perkins, 
 94 U. S. 260 (1876) ; French v. Fyan, 
 93 U. S. 169 (1876). 
 
 1. Alabama. — Jordan v. McDonnell, 
 (Ala. 1907) 44 So. 101; Kansas City, 
 M. & B. R. Co. v. Flippo, 138 Ala. 
 487, 35 So. 457 (1903). 
 
 Arkansas. — St. Louis, etc., R. Co. 
 V. Brown, 67 Ark. 295, 54 S. W. 865 
 (1899). 
 
 California. — Schwerdtle v. Placer 
 County, 108 Cal. 589, 41 Pac. 448 
 (1895); Semple v. Hagar, 27 Cal. 
 163 (1865). 
 
 Georgia. — 'Morris v. Davidson, 49 
 Ga. 361 (1873) ; Morris v. David- 
 son, 49 Ga. 361 (1873). 
 
 Illinois. — Gooding v. Morgan, 70 
 111. 275 (1873). 
 
 Iowa. — Coughran v. Gilman, 81 
 Iowa 442, 46 N. W. 1005 (1890). 
 
 Kentucky. — Laidley v. Cummings, 
 83 Ky. 606 (1886). See also Louis- 
 
 ville & N. R. Co. v. Scott, (Ky. 1909) 
 118 S. W. 990. 
 
 Louisiana. — Pollard v. Cook, 4 
 Rob. 199 (1843). 
 
 Maryland. — Eastwood v. Kennedy, 
 44 Md. 563 (1876); Chesapeake & 
 O. Canal Co. v. B. & O. R. Co., 4 G. 
 & J. 1, 63 (1832). 
 
 Missouri. — Papin v. Ryan, 32 Mo. 
 21 (1863). 
 
 New Mexico. — U. S. v. Fuller, 4 
 N. M. 358, 20 Pac. 175 (1889). 
 
 New York. — Wheelock v. Lee, 15 
 Abb. Pr. (N. S.) 24 (1873) ; Kessel 
 v. Albetis, 56 Barb. 362 (1870) (in- 
 ternal revenue law ) . 
 
 Oklahoma. — Greenville Kat. Bank 
 V. Evans-Snyder-Buel Co., 9 Okl. 353, 
 60 Pac. 249 (1900). 
 
 Pennsylvania. — Flanigen r. Wash- 
 ington Ins. Co., 7 Pa. St. 306 (1847). 
 
 South Dakota. — In re Kirby, 10 
 S. D. 338, 73 N. W. 95 (1897). 
 
 Texas. — Overton v. McCabe & 
 
 Steen, (Tex. Civ. App. 1904) 79 S. 
 
 W. 861; Davenport v. State, (Tex. 
 
 .Cr. App. 1905) 89 S. W. 1077, 107S 
 
771 Pbomulgation by Congress of Body of Laws. 
 
 604 
 
 those which relate to the District of Columbia, 2 though relating 
 exclusively to concerns of the District, 3 and also the laws of 
 sister states which are referred to in such an act. 4 But this in- 
 direct judicial knowledge of the laws of a sister state is limited 
 to matters specially stated in or which can be directly gathered 
 from the federal statute itself. This knowledge does not affect 
 the judges of state courts with knowledge of the corpus of the 
 state laws referred to or impose any obligation to acquire such 
 knowledge. Thus, when Congress promulgates the laws of a given 
 state, over a portion of the public domain, by an act which refers 
 to these laws without incorporating them, the courts of the other 
 states, while taking notice of all facts which may be gleaned from 
 an examination of the act of Congress, do not judicially know 
 what provisions of law are actually embraced in the code referred 
 
 (extending laws of Arkansas into 
 Indian Territory) ; Mims v. Swartz, 
 37 Tex. 13 (1806). See also San An- 
 tonio Light Pub. Co. u. Lewy, (Tex 
 Civ. App. 1908) 113 S. W. 574. 
 
 Vermont. — Metropolitan Stock 
 
 Exch. v. Lyndonville Nat. Bank, 
 (1904) 57 Atl. 101. 
 
 Virginia. — Bird v. Com., 21 Gratt. 
 900 (1871). A state court of the 
 American Union judicially knows an 
 act of Congress extending the laws of 
 another state as construed by its su- 
 preme court over » particular terri- 
 tory. Missouri, K. & T. Ry. Co. v. 
 Wise, (Tex. Civ. App. 1908) 106 
 S. W. 465 [judgment affirmed (Tex 
 Sup. 1901) 109 S. W. 112]; Red 
 River Nat. Bank v. De Berry, (Tex. 
 Civ. App. 1907) 105 S. W. 998. But 
 it does not judicially know the con- 
 struction given to the law extended 
 by the supreme court of the state of 
 its origin. Missouri, K. & T. Ry. Co. 
 v. Wise, (Tex. Civ. App. 1908) 106 
 S. W. 465 [judgment affirmed (Tex. 
 Sup. 1908) 109 S. W. 112]. A state 
 court knows the tariff laws of the 
 United States and that certain goods 
 are dutiable under it. Marrash v. 
 U. S., 168 Fed. 235 ( 1909) . The court 
 must take notice of Act Cong. May 2, 
 
 1890, c. 182, § 31, 26 Stat. 94, which 
 puts in force in Indian Territory 
 statutes of Arkansas, including the 
 one which in general terms adopts 
 the common law, and since the act 
 adopts for the territory certain chap- 
 ters of the statutes of Arkansas, the 
 court must take notice of such statu- 
 tory provisions precisely as if they 
 were provisions of the act of Con- 
 gress. Missouri, K. & T. Ry. Co. of 
 Texas v. Wise, (Tex. 1908) 109 S. W. 
 112 [affirmed (Civ. App.) 106 S. W. 
 465 (1908)]. 
 
 2. Milliken v. Dotson, 102 N. Y. 
 Suppl. 564, 117 App. Div. 527 (1907). 
 Bankruptcy acts are within the rule. 
 Morris v. Davidson, 49 Ga. 361 
 (1873) ; Mims v. Swartz, 37 Tex. 13 
 (1872). 
 
 3. Chesapeake Ohio Canal Co. v. 
 Baltimore & Ohio Railroad Company, 
 4 Gill & J. 1, 63 (1832); Bird's 
 Case, 21 Gratt. 800 (1871); Bayly's 
 Adm. e. Chubb, 16 Gratt. 284 (1862). 
 
 4. Flanigen v. Washington Ins. 
 Co., 7 Pa. St. 306 (1847); Belt v. 
 Gulf, etc., R. Co., 4 Tex. Civ. App. 
 231, 22 S. W. 1062 (1893); Apollos 
 v. Staniforth, 3 Tex. Civ. App. 502, 
 22 S. W. 1060 (1893). 
 
605 
 
 Knowledge; Judicial. 
 
 772 
 
 to ; but, if relied on, the provisions of the latter must be pleaded 
 and proved. 5 
 
 § 605. (Judicial Knowledge of Written Law; State and 
 Provincial Courts); State Statutes. — State courts know, as a 
 matter of course, and as will be more fully treated in subsequent 
 sections, the public statutes of the state legislature, and any other 
 statutes which the legislature or the constitution directs that they 
 shall know. 1 
 
 5. Greenville Nat. Bank V, Evans- 
 Snyder-Buel Co., 9 Okl. 353, 60 Pac. 
 249 (1900). 
 
 Territorial court s. — Territorial 
 courts in the United States take judi- 
 cial notice of the acts of Congress ap- 
 plying to the territory. Perry v. 
 Morris, (Ind. T. 1907) 104 S. W. 571 
 ( clerk's fees ) . 
 
 1. Alabama. — Arndt v. Cullman, 
 132 Ala. 540, 31 So. 478, 90 Am. St. 
 Rep. 922 (1901). See also Cox v. 
 Board of Trustees of University of 
 Alabama (Ala. 1909) 49 South. 814. 
 
 Arkansas. — Pritchard v. Wood- 
 ruff, 36 Ark. 196 (1880). 
 
 California. — Sehwerdtle c. Placer 
 County, 108 Cal. 589, 41 Pac. 448 
 (1895). See also Ex parte Avdalas, 
 (Cal. App. 1909) 102 Pac. 674. 
 
 Connecticut. — Willimantic School 
 Soc. v. Windham First School Soc, 
 14 Conn. 457 (1841). 
 
 Georgia. — Mayson v. Atlanta, 77 
 Ga. 662 (1886). 
 
 Illinois. — Pittsburgh, Ft. W. & C. 
 E. Co. v. Moore, 110 111. App. 304 
 ( 1903 ) ; Vance i\ Bankin, 194 111. 
 625, 62 N. E. 807 [reversing 95 111. 
 App. 562] (1902). 
 
 Indiana. — Moss ». Sugar Ridge 
 Tp., 161 Ind. 417, 68 N. E. 896 
 (1903). See also State v. Wheeler, 
 172 Ind. 578, 89 N. E. 1 (1909). 
 
 Iowa.— State v. dinger, 72 N. W. 
 441 (1897). 
 
 Kansas. — In re Howard County, 15 
 Kan. 194 (1875). 
 
 Kentucky. — Lackey v. Richmond, 
 etc., Turnpike Road Co., 17 B. Monr. 
 43 (1856). 
 
 Louisiana. — Doss v. Board of 
 Com'rs of Mermentau Levee Disk, 
 (La. 1906) 41 So. 720. 
 
 Maine. — State v. Webbfs River Imp. 
 Co., 97 Me. 559, 55 Atl. 495 (1903). 
 
 Maryland. — Miller v. Matthews, 87 
 Md. 464, 40 Atl. 176 (1898). 
 
 Massachusetts. — Barnes v. Squier, 
 193 Mass. 21, 78 N. E. 731 (1906) ; 
 Harris v. Quincy, 171 Mass. 472, 50 
 N. E. 1042 (1898). 
 
 Michigan. — Holdridge v. Farmers', 
 etc., Bank, 16 Mich. 66 (1867). 
 
 Minnesota. — Peterson v. Cokato, 84 
 Minn. 205, 87 N. W. 615 (1901). 
 
 Mississippi. — Green v. Weller, 32 
 Miss. 650, 685 (1856). 
 
 Missouri. — Bowen v. Missouri Pac. 
 R. Co., 118 Mo. 541, 24 S. W. 436 
 (1893). 
 
 Nebraska. — North Platte Water 
 Works Co. v. North Platte, 50 Neb. 
 853, 70 N. W. 393 (1897). 
 
 New Hampshire. — Winnipiseogee 
 Lake Co. v. Young, 40 N. H. 420 
 (1860). 
 
 New Jersey. — Rader v. Union Tp. 
 Committee, 43 N. J. L. 518 (1881). 
 
 Neio York. — Warner v. Beers, 23 
 Wend. 103 (1840). 
 
 North Carolina. — Wikel v. Jackson 
 County, 120 N. C. 451, 27 S. E. 117 
 (1897). 
 
 Oregon. — State r. Banfield, 43 Or. 
 237, 72 Pac. 1093 (1903). See also 
 Gay r. City of Eugene, (Or. 1909) 
 100 Pac. 306. 
 
 South Carolina. — State v. Sartor, 2 
 Strobh. 60 (1847). 
 
 Tennessee. — State v. Murfreesboro, 
 11 Humphr. 217 (1850). 
 
773 Judicial Knowledge of Peivate Statutes. §§ 606-609 
 
 Provincial Courts. — It is familiar law that the courts of a 
 province know the public statutes enacted by the legislative 
 branch of the sovereignty of the forum under which they are 
 constituted. 2 
 
 § 606. (Judicial Knowledge of Written Law; State and 
 Provincial Courts; State Statutes); Statutes of Former Sov- 
 ereignties — Equally domestic are the public statutes of a state 1 
 or nation which exercised sovereignty over the territory in ques- 
 tion, and which were in force at the time such sovereignty was 
 exercised. 
 
 § 607. (Judicial Knowledge of Written Law; State and 
 Provincial Courts) ; Legislative Kesolutions. — Legislative reso- 
 lutions of a public character are classed with public acts and are 
 accordingly judicially known to the state courts. 1 
 
 § 608. (Judicial Knowledge of Written Law; State and 
 Provincial Courts) ; Special Acts — Statutes specially limited by 
 the legislature, though of a public nature, e. g., a statute forbid- 
 ding the sale of intoxicating liquor in a particular county, 1 are 
 judicially known. 
 
 § 609. (Judicial Knowledge of Written Law; State and 
 Provincial Courts); Private Statutes. — In the absence of consti- 
 
 Texas.— Storrie v. Cortes, 90 Tex. esdenier, 7 Tex. 76 (1851). See also 
 
 283, 38 S. W. 154, 35 L. R. A. 666 Inhabitants of Kingman v. Penobscot 
 
 (1896). County Com'rs, 105 Me. 184, 73 Atl. 
 
 Vermont. — Briggs v. Whipple, 7 1038 (1909). 
 
 Vt. 15 (1835). 1. Ball v. Com., 99 S. W. 326, 
 
 West Virginia.— -Hart v. Baltimore, 30 Ky. L. Rep. 600 (1907); Combs 
 
 etc., Co., 6 W. Va. 336 (1873). v. Com., 31 Ky. L. Rep. 822, 104 
 
 Wisconsin.— Smith v. Janesville, S. W. 270 (1907); Irby v. State, 
 
 52 Wis. 680, 9 N. W. 789 (1881). (Miss. 1907) 44 So. 801. The act 
 
 2. Darling v. Hitchcock, 25 U. C. making a portion of the Mohawk 
 
 Q. B. 463 (1866); Girdlestone v. river part of the Erie canal will be 
 
 O'Reilly, 21 U. C. Q. B. 409 (1862). judicially noticed. In re Mohawk 
 
 Canadian Admiralty courts are River Bridge Connecting Towns of 
 
 " bound to take judicial notice of an Rotterdam and Glenville, 112 N. Y. 
 
 order in council from which the court Suppl. 428, 128 App. Div. 54 (1908). 
 
 derives its jurisdiction." Reg. v. The The courts are bound to take judicial 
 
 Minnie, 4 Can. Exch. 151 (1894). notice of every public act of the 
 
 1. Henthorne v. Doe, 1 Blackf. Provincial Legislature, though its 
 
 (Ind.) 157, 161, 163 (1822) (Vir- operation may be locally limited. 
 
 g ini a). Darling v. Hitchcock, 25 U. C. R. 463, 
 
 1. MeCarver v. Herzberg, 120 Ala. 28 U. C. R. 4S9 (1866). 
 «23, 25 So. 3 (1898) ; State v. Del- 
 
§ 609 
 
 Knowledge; Judicial. 
 
 774: 
 
 tutional 1 or statutory 2 requirement to other effect, courts do not 
 judicially know private statutes of a state, 3 provincial or national 4 
 legislature, or legislative resolutions, affecting private interests. 5 
 This is the uniform rule though the purpose is, in a sense, public; 
 — as where a private act incorporates an association for business 
 purposes, 6 or affects a municipal corporation. 7 
 
 1. A federal court exercising juris- 
 diction in a, state where the constitu- 
 tion requires the state courts to 
 know private acts, will assume the 
 same knowledge. Junction B. Co. v. 
 Ashland Bank, 13 Wall. (U. S.) 326, 
 230, 20 L. ed. 385 (1870). 
 
 2. Mullan v. State, 114 Gal. 578, 
 46 Pac. 670, 34 L. E. A. 262 (1896). 
 
 A general mandate to know judici- 
 ally the laws of another state will 
 not be construed to include private 
 statutes. Miller v. Johnston, 71 Ark. 
 174, 72 S. W. 371 (1903). 
 
 3. Alabama. — Mobile v. Louisville, 
 etc., E. Co., 124 Ala. 132, 26 So. 902 
 (1899). 
 
 California. — Ellis v. Eastman, 32 
 Cal. 448 (1867). 
 
 Illinois. — Minck v. People, 6 111. 
 App. 127 (1880). 
 
 Indiana. — Toledo, etc., Pv. Co. v. 
 Nordyke, 27 Ind. 95 (1866). 
 
 Kansas. — Atchison, etc., E. Co. V. 
 Blackshire, 10 Kan. 477 (1872). 
 
 Kentucky. — Eudd v. Owensboro 
 Deposit Bank, 105 Ky. .443, 49 S. W. 
 207, 971, 20 Ky. L. Eep. 1276, 1497 
 (1899) 
 
 Louisiana. — Mower v. Kemp, 42 
 La. Ann. 1007, 8 So. 830 (1890). 
 
 Missouri. — Bailey v. Lincoln Acad- 
 emy, 12 Mo. 174 (1848). 
 
 New Hampshire. — Hall v. Brown, 
 58 N. H. 93 (1877). 
 
 New Jersey. — State v. Haddonfield, 
 etc., Turnpike Co., 65 N. J. L. 97, 46 
 Atl. 700 (1900). 
 
 North Carolina. — Carrow v. Wash- 
 ington Toll-Bridge Co., 61 N. C. 118 
 (1867). 
 
 Ohio.— Pittsburgh, etc., E. Co. V. 
 Moore, 33 Ohio St. 384, 31 Am. Rep. 
 543 (1878). 
 
 Pennsylvania. — Timlow v. Phila- 
 delphia, etc., E. Co., 99 Pa. St. 284 
 (1882). 
 
 Texas. — Holmes V. Anderson, 59 
 Tex. 481 (1883). 
 
 Vermont. — Pearl v. Allen, 2 Tyler 
 311 (1803). 
 
 Virginia. — Legrand v. Hampden 
 Sidney College, 5 Muni. 324 (1817). 
 
 West Virginia. — Hart v. Balti- 
 more, etc., E. Co., 6 W. Va. 336 
 (1873). 
 
 Wisconsin. — Horn v. Chicago, etc., 
 E. Co., 38 Wis. 463 (1875). 
 
 4. Denver, etc., E. Co. v. U. S., 9 
 N. M. 389, 54 Pac. 336 (1898); 
 Wright v. Paton, 10 Johns. (N. Y.) 
 300 (1813). 
 
 5. Simmons v. Jacobs, 52 Me. 147 
 (1862). 
 
 6. Alabama. — Mobile v. Louis- 
 ville, etc., E. Co., 124 Ala. 132, 26 
 So. 902 (1899). 
 
 Louisiana. — Mandere v. Bonsig- 
 nore, 28 La. Ann. 415 (1876). 
 
 Maine. — Fryeburg Canal v. Frye, 
 5 Me. 38 (1827). 
 
 Missouri. — Butler V. Eobinson, 75 
 Mo. 192 (1881). 
 
 New Hampshire. — ■ Haven v. New 
 Hampshire Insane Asylum, 13 N. H. 
 532, 38 Am. Dec. 512 (1843). 
 
 New Jersey. — State r. Haddon- 
 field, etc., Turnpike Co., 65 N. J. L. 
 97, 46 Atl. 700 (1900). 
 
 New York. — Methodist Episcopal 
 Union Church v. Pickett, 19 N. Y. 
 482 (1859). 
 
 North Carolina. — Carrow v. Wash- 
 ington Toll-Bridge Co., 61 N. C. 118 
 (1867). 
 
 Pennsylvania. — ■Timlow V. Phila- 
 delphia, etc., E. Co., 99 Pa. St. 284 
 (1882). 
 
775 Right to Enact Local Regulations. §§ 610, 611 
 
 A fortiori a private statute not known to the courts of the state 
 hy authority of which it is enacted will not be known to the court3 
 of other states. 8 
 
 An exception is presented in cases where the court has been 
 made judicially acquainted with a private statute in the course 
 of previous litigation, in which it was construed by the highest 
 court. 9 
 
 § 610. (Judicial Knowledge of Written Law; State and 
 Provincial Courts; Private Statutes); Judicial Knowledge of 
 
 Private Statutes. — As intimated in the preceding section, the 
 constitution or the legislature may require, either by general pro- 
 vision or by a specific provision of the act itself, that certain private 
 statutes shall be deemed public, i. e., shall be judicially known to the 
 court as would be the case with public statutes. The same result 
 may be reached in other ways. The private act may be recog- 
 nized in the state constitution, 1 or in a public statute ; 2 it may be 
 amended by a public act. 3 Under any of these conditions the 
 courts judicially know the private act to the same extent as if it 
 were publie,* and also know judicially any subsequent amendment 
 to a private act of which they possess judicial knowledge. 5 
 
 § 611. (Judicial Knowledge of Written Law; State and 
 Provincial Courts); Local Regulations. — The power of passing 
 ordinances or by-laws conferred on municipalities by a general act 
 of incorporation or granted by special charter known to the oourt 
 
 Texas. — Conley v. Columbus Tap Iowa. — State v. dinger, 72 N. W. 
 
 E. Co., 44 Tex. 579 (1876). 441 (1897). 
 
 7. Loper v. St. Louis, 1 Mo. 681 Maine. — State v. McAllister, 24 
 (1826); Apitz v. Missouri Pac. R. Me. 139 (1844). 
 
 Co., 17 Mo. App. 419 (1885). Michigan. — People v. River Raisin, 
 
 8. Miller v. Jolinston, 71 Ark. 174, etc., R. Co., 12 Mich. 389, 86 Am. 
 72 S. W. 371 (1903). Dec. 64 (1864). 
 
 9. Mower v. Kemp, 42 La. Ann. Missouri. — Bowie v. Kansas, 51 
 1007, 8 So. 830 (1890). Mo. 454 (1873). 
 
 1. Vance v. Farmers', etc., Bank, Nebraska. — Hornberger v. State, 
 1 Blackf. (Ind.) 80 (1820). 47 Neb. 40, 66 N. W. 23 (1896). 
 
 2. Webb v. Bidwell, 15 Minn. 479 New Jersey. — Hawthorne v. Ho- 
 (1870). boken, 32 N. J. L. 172 (1867). 
 
 3. Lavalle v. People, 6 111. App. Texas. — Storrie v. Cortes, 90 Tex. 
 157 (1880). 283, 38 S. W. 154, 35 L. R. A. 666 
 
 4 Illinois.- - Nimmo v. Jackman, (1896). 
 
 21 111. App. 607 (1886). 5. Stephens, etc., Transp. Co. v. 
 
 Indiana. — White Water Valley New Jersey Cent. R. Co., 33 N. J. L. 
 
 Canal Co. v. Boden, 8 Blackt. 130 229 (1869) 
 (1846). 
 
§ 611 
 
 Knowledge; Judicial. 
 
 776 
 
 as a public act 1 is a direct result of the public statute ; and is, there- 
 fore, judicially known to the court. 2 The ordinances or other reg- 
 ulations passed in pursuance of the powers so conferred are them- 
 selves secondary results of the public statute and are, in effect, so 
 far as regards state or provincial courts, matter in pais. Such a 
 court, therefore, will not judicially know their enactment. 3 Within 
 
 1. Aliter, where the charter confer- 
 ring the power of legislating ordi- 
 nances, etc., is not deemed a public 
 act. Butler v. Robinson, 75 Mo. 193 
 (1881). 
 
 2. Case v. Mobile, 30 Ala. 538 
 (1857); Green v. Indianapolis, 22 
 Ind. 192 (1864); Akerman v. Lima, 
 8 Ohio S. & C. PI. Dec. 430, 7 Ohio 
 N. P. 92 (1898). 
 
 3. Alabama. — Furhman v. Hunts- 
 ville, 54 Ala. 263 (1875) ; Case V. 
 Mayor, etc., 30 Ala. 538 (1857). 
 
 Arkansas. — Gardner v. State, 80 
 Ark. 264, 97 S. W. 48 (1906); 
 Strickland v. Little Rock, 68 Ark. 
 483, 60 S. W. 26 (1900). 
 
 Colorado. — City of Greeley v. 
 Hamman, 12 Colo. 94, 20 Pac. 1 
 ( 1888 ) ; Garland v. Denver, 11 Colo. 
 534, 19 Pac. 460 (1888). 
 
 Florida. — Logan v. Childs, (Fla. 
 1906) 41 So. 197; Freeman v. State, 
 19 Fla. 552 (1882). 
 
 Georgia. — Hill v. Atlanta, 123 Ga. 
 697, 54 S. E. 354 (1906); Moore V. 
 Jonesboro, 107 Ga. 704, 33 S. E. 
 435 (1899) ; Western, etc., E. Oo. V. 
 Young, 81 Ga. 397, 7 S. E. 912, 12 
 Am. St. 320 (1888). 
 
 Idaho. — People v. Buchanan, 1 
 Idaho 681 (1878). 
 
 Illinois. — Illinois Cent. R. Co. v. 
 Ashline, 171 111. 313, 49 N. E. 521 
 (1898); Weaver v. Snow, 60 111. 
 App. 624 (1895). See also People v. 
 Heidelberg Garden Co., 223 111. 290, 
 84 N. E. 230 (1908) [affirmed Heidel- 
 berg Garden Co. v. People, 124 111. 
 App. 331 (1906)]; Cordatoa v. City 
 of Chicago, 129 111. App. 471 (1906). 
 
 Indiana. — City of Huntington v. 
 Pease, 56 Ind. 305 (1877); Whitson 
 v. City of Franklin, 34 Ind. 392 
 (1870). 
 
 Iowa. — Wolf v. Keokuk, 48 Iowa 
 129 (1878); Garvin v. Wells, 8 
 Iowa 286 (1859). 
 
 Kansas. — Watt v. Jones, 60 Kan. 
 201, 56 Pac. 16 (1899) ; City of Mc- 
 Pherson v. Nichols, 48 Kan. 430, 29 
 Pac. 679 (1892). 
 
 Kentucky. — Home v. Mehler, (Ky.) 
 64 S. W. 918 (1901); Lucker v. 
 Com., 4 Bush. 440 (1868). 
 
 Louisiana. — State v. Judge Crim- 
 inal Dist. Ct., 105 La. 758, 30 So. 
 105 (1901); State v. Marmouget, 
 104 La. Ann. 1, 28 So. 920 (1900). 
 
 Maryland. — Field v. Malster, 88 
 Md. 691, 41 Atl. 1087 (1898) ; Shan- 
 felter v. Baltimore, 80 Md. 483, 31 
 Atl. 439, 27 L. R. A. 648 (1895). 
 
 Massachusetts. — O'Brien v. Wo- 
 burn, 184 Mass. 598, 69 N. E. 350 
 (1904). 
 
 Minnesota. — Winona v. Burke, 23 
 Minn. 254 (1876); City of Winona 
 V. Burke, 23 Minn. 254 (1876). 
 
 Missouri. — Town of Canton v. 
 Madden, 120 Mo. App. 404, 96 S. W. 
 699 (1906); City of St. Louis v. 
 Leissing, 190 Mo. 464, 1 L. R. A. 
 (N. S.) 918, 89 S. W. 611 (1905); 
 City of Tarkio v. Loyd, 179 Mo. 600, 
 78 S. W. 797 (1904) ; Tarkio v. 
 Loyd, 179 Mo. 600, 78 S. W. 797 
 
 (1903) ; City of St. Louis v. Roche, 
 128 Mo. 541, 31 S. W. 915 (1895). 
 
 Neio York. — City of New York v. 
 Knickerbocker Trust Co., 93 N. Y. 
 Suppl. 937, 104 App. Div. 223 
 (1905) ; Boston v. Abraham, 86 N. 
 Y. Suppl. 863, 91 App. Div. 417 
 
 (1904) ; Porter v. Waring, 69 N. Y. 
 250 (1877) ; Sachs v. Lyons, 53 
 Misc. (N. Y.) 640, 103 N. Y. Suppl. 
 149 (1907). See also Tucker v. 
 O'Brien, 117 N. Y. Suppl. 1010 
 ( 1909 ) ; Milton Schnaier & Co. v. 
 
777 
 
 Regulations of Administrative Boards. 
 
 § 611 
 
 the scope of this rule fall the ordinances of a city, 4 or of a municipal 
 department; 5 the regulations of county 6 or administrative boards, 
 
 of a public statute. Badgett v. State, 
 (Ala. 1908) 48 So. 54. 
 Special customs, such as that of 
 
 Grigsby, 117 N. Y. Suppl. 455, 132 
 App. Div. 854 (1909) [judgment 
 affirmed, 113 N. Y. Suppl. 548, 61 
 Misc. Rep. 325 (1908) which reversed 
 Milton M Schnaier & Co. v. Grigsby, 
 (City Ct.) 117 N. Y. Suppl. 455, 132 
 App. Div. 854] (building code) ; Daly 
 17. O'Brien, 112 N. Y. Suppl. 304, 60 
 Misc. Rep. 423 (1908) (city ordi- 
 nances and resolutions of the board 
 of aldermen) ; People v. Ahearn, 109 
 N. Y. Suppl. 249, 124 App. Div. 840 
 (1908). 
 
 Ohio.— Esch v. City of Elyria, 37 
 Ohio Cir. Ct. R. 446 (1905) ; Chitten- 
 den v. City of Columbus, 26 Ohio 
 Cir. Ct. R. 531 (1904); Toledo v. 
 Libbie, 19 Ohio Cir. Ct. 704, 8 Ohio 
 Cir. Dec. 589 (1900) ; Pittsburg, etc., 
 R. Co. v. Moore, 33 Ohio St. 384 
 (1878). 
 
 Oregon. — Pomeroy v. Lappeus, 9 
 Or. 363 (1881). 
 
 Pennsylvania. — City v. Cohen, 13 
 Wkly. Notes Cas. 468 (1883). 
 
 South Carolina. — Charleston v. 
 Ashley Phosphate Co., 34 S. C. 541, 
 13 S. E. 845 (1890). 
 
 Tennessee. — Tilford v. Woodbury, 
 7 Humphr. 190 (1846). 
 
 Texas. — ■ Hall v. International & 
 G. N. Ry. Co., (Tex. 1904) 81 S. W. 
 520; Austin v. Walton, 68 Tex. 507, 
 5 S. W. 70 (1887). 
 
 Vermont. — State v. Soragan, 40 
 Vt. 450 (1868). 
 
 Wisconsin. — Stittgen v. Rundle, 99 
 Wis. 78, 74 N. W. 536 (1898). 
 But see Lake Erie, etc., R. Co. v. 
 Hancock, 15 Ind. App. 104, 43 N. 
 E. 659 (1895); Winter v. Central 
 Iowa R. Co., 80 Iowa 443, 45 N. W. 
 737 (1890). See also State v. Koch, 
 138 Wis. 27, 119 N. W. 839 (1909). 
 
 United States. — Robinson v. Denver 
 City Tramway Co., 164 Fed. 174 
 (1908). The adoption of town regu- 
 lations is not a matter of judicial 
 knowledge, even where the fact im- 
 plies exemption from the operation 
 
 the city of London, cannot be judi- 
 cially noticed but must be proved. 
 Argyle v. Hunt, 1 Stra. 187 (1795). 
 A certificate of the recorder may con- 
 stitute sufficient proof. Piper v. 
 Chappel, 14 M. & W. 624 (1845); 
 Blacquiere v. Hawkins, 1 Doug. 378 
 (1780). It has been said, however, 
 that it is the duty of the courts to 
 take judicial notice of the law and 
 privilege of the stannaries. Gaved v. 
 Martyn, 19 C. B. (N. S.) 732, 757, 
 34 L. J. C. P. 353, 362 (1865), per 
 Erie, C. J. As to judicial notice of 
 the customs of Gavelkind or borough 
 English, see In re Chenoweth, 2 Ch. 
 488 (1902) ; Rider v. Wood, 1 Kay 
 & J. 644, 24 L. J. Ch. 737 (1855). 
 
 4. Alabama. — Case V. Mobile, 30 
 Ala. 538 (1857). 
 
 Georgia. — Moore v. Jonesboro, 107 
 Ga. 704, 33 S. E. 435 (1899). 
 
 Iowa. — Garvin v. Wells, 8 Iowa 
 286 (1859). 
 
 Kansas. — 'Watt v. Jones, 60 Kan. 
 201, 56 Pac. 16 (1899). 
 
 Kentucky. — Home v. Mehler, 
 (Ky. 3901) 64 S. W. 918 (1901). 
 
 Louisana. — Hassard v. Municipal- 
 ity, 7 La. Ann. 495 (1852). 
 
 Maryland. — Field v. Malster, 88 
 Md. 691, 41 Atl. 1087 (1898). 
 
 Minnesota.— Winona v. Burke, 23 
 Minn. 254 (1876). 
 
 Missouri. — Mooney v. Kennett, 19 
 Mo. 551, 555 (1854). 
 
 New York. — Porter v. Waring, 69 
 N. Y. 250, 254 (1877). 
 
 5. State v. Inhabitants of Trenton, 
 51 N. J. L. 495, 17 Atl. 1083 
 (1889); Department of Health of 
 City of New York v. City Real Prop- 
 erty Investigating Co., 86 N. Y. 
 Suppl. 18 (1904) (Health Depart- 
 ment) ; Wright v. Trenton, 51 N. J. 
 L. 497, 17 Atl. 1103 (1889). 
 
 6. Indianapolis & C. R. Co. v. 
 Caldwell, 9 Ind. 397 (1857). 
 
§ 612 Knowledge; Judicial. 778 
 
 such as county commissioners; 7 the by-laws of a corporation, public 
 or private. 8 The repeal of any such regulations or ordinances 9 
 stands in the same position. Such knowledge may be required by 
 statute. 10 
 
 Statutory authority for using printed official copies of these 
 local regulations as evidence, without further proof, does not have 
 the effect of requiring judicial knowledge of the regulations them- 
 selves. 11 
 
 Operation of Ordinance. — Whether an ordinance is in force 
 in a city is a question of law for the court. 12 
 
 § 612. (Judicial Knowledge of Written Law; State and 
 Provincial Courts; Local Regulations) ; Judicial Knowledge on 
 
 Appeal or Review.- — In this connection, a question of some diffi- 
 culty and considerable diversity of ruling is presented when an 
 action, civil or criminal, which has been decided in a local court 
 is brought under review in a court of general jurisdiction, either 
 on appeal or review of the record. The court of original instance 
 judicially knows the local regulations involved in the proceeding. 1 
 The appellate court would not have this knowledge in a case 
 originally before it. 2 "What shall be the attitude of the higher 
 court toward the municipal or other local regulation which the 
 lower court knows ? As a matter of principle, it would seem, in 
 the absence of statutory regulation, that the answer should vary, 
 according to whether the superior court is acting (a) on appeal 
 or (b) on review of the record of the lower court. 
 
 7. Atkinson v. Mott, 102 Ind. 431, Missouri. — Cox v. St. Louis, 11 
 26 N. E. 217 (1885). Mo. 431 (1848). 
 
 8. Portage, etc., Benev. Society v. New York. — Harker v. New York, 
 Phillips, 36 Mich. 22 (1877); Simp- 17 Wend. 199 (1837). 
 
 son v. S. Car., etc., Ins. Co., 59 S. C. Ohio. — Toledo v. Lihbie, 19 Ohio 
 
 195, 37 S. E. 18, 225 (1900); Piper Cir. Ct. 704, 8 Ohio Cir. Dec. 589 
 
 V. Chappell, 14 M. & W. 624 (1845) ; (1900). See also Porter v. Waring, 
 
 Gerhard v. Bates, 2 E. & B. 476, 75 69 N. Y. 250 (1877). 
 
 E. C. h. 476 (1853). 12. Ohio v. Metropolitan St. By. 
 
 9. Field v. Malster, 88 Md. 691, Co., 125 Mo. App. 710, 103 S. W. 
 41 Atl. 1087 (1898). 142 (1907). When local ordinances 
 
 10. Moore v. Jonesboro, 107 Ga. are proved, they stand on the same 
 704, 33 S. E. 435 (1899); Wooley v. footing as statutes. Norfolk & P. 
 Louisville, 71 S. W. 893, 24 Ky. L. Traction Co. v. Forrest's Adm'x, 109 
 Bep. 1357 (1903). Va. 658, 64 S. E. 1034 (1909). 
 
 11. Maryland. — Central Sav. Bank 1. Infra, § 617. 
 V. Baltimore, 71 Md. 515, 18 Atl. 809, 2. Supra, § 611, 
 20 Atl. 283 (1889). 
 
 Minnesota. — Winona v. Burke, 33 
 Minn. 254 (1876). 
 
779 Local Ordinances on Eeview. § 612 
 
 (a) Where the hearing in the superior court is upon appeal, 
 the trial being of fact and de novo as to all issues, little reason 
 exists why the parties should not comply with the established 
 rules of the court merely because they have had a former trial 
 elsewhere; or why the court should depart from its usual course 
 of proceeding. Such is the view adopted in Colorado. 3 The 
 weight of authority is, however, to the effect that the local regula- 
 tion will be judicially known by the appellate court. 4 
 
 In Kansas the rule prevails that on appeal, judicial knowledge 
 is taken of the ordinance in criminal cases. 8 
 
 (b) Where the appellate court has before it, for review, only 
 the record of the lower court, it would seem that there is great 
 propriety in suggesting that the upper court assume the same 
 knowledge of local regulations which the lower court had. The 
 court below cannot well certify as part of the evidence a fact 
 which was not made the subject of evidence on the trial. 6 No 
 provision is made, as a rule, for certifying upon the record the 
 existence of a fact unless it is one which was admitted or proved. 7 
 To prevent surprise and miscarriage of justice, the upper court 
 should judicially know the local ordinance; — and such is the law 
 
 3. Mcintosh v. City of Pueblo, 9 Sand Creek Ditching Co., 26 Ind. 407 
 Colo. App. 460, 48 Pac. 969 (1897); (1866); Steeneraon V. Great North- 
 Mclntosh v. Pueblo, Colo. App. 460, em E. Co., 69 Minn. 353, 72 N. W. 
 48 Pac. 969 (1897); Greely V. Ham- 713 (1897). 
 
 man, 12 Colo. 94, 20 Pac. 1 (1888) ; 5. Watt v. Jones, 60 Kan. 201, 56 
 
 Garland v. Denver, 11 Colo. 534, 19 Pac. 16 (1899). In civil cases, the 
 
 Pac. 460 (1888). See also City of knowledge is not taken. MoPherson 
 
 Frankfort v. Aughe, 114 Ind. 77, 15 v. Nichols, 48 Kan. 430, 29 Pac. 679 
 
 N. E. 802 (1887). (1892). 
 
 4. Iowa. — Incorporated Town of 6. Where the trial judge makes a 
 Scranton v. Danenbaum, 109 Iowa statement on the point, it will be 
 95, 80 N. W. 221 (1899). accepted in an appellate court as 
 
 Kansas. — Downing v. City of Mil- correct, in the absence of actual 
 
 tonvale, 36 Kan. 740, 14 Pac. 281 knowledge to the contrary. People 
 
 (1887) ; Solomon v. Hughes, 24 Kan. v. Mayes, 113 Cal. 618, 45 Pac. 860, 
 
 211 (1880). 862 (1896). 
 
 Nebraska. — Steiner v. State, (Neb. 7. See also State v. Leiber, 11 
 
 1907) 110 N. W. 723; Foley v. State, Iowa 407 (1860); Downing v. City of 
 
 42 Neb. 233, 60 N. W. 574 (1894). Miltonvale, 36 Kan. 740, 14 Pac. 281 
 
 Oregon. — Portland v. Yick, 44 Or. (1887); Foley v. State, 42 Neb. 233, 
 
 439, 75 Pac. 706 (1904). 60 N. W. 574 (1894) ; Keck v. City 
 
 West Virginia. — Moundsville v. of Cincinnati, 4 Ohio Dec. 324, 3 
 
 Velton, 35 W. Va. 217, 13 S. E. 373 Ohio N. P. 253 (1896); Town of 
 
 (1891). See also Clapp v. Hartford, Moundsville v. Velton, 35 W. Va. 817, 
 
 35 Conn. 66 (1868); Delawter V. 13 S. E. 373 (1891). 
 
§ 613 Knowledge; Judicial. 780 
 
 of certain jurisdictions. 8 The rule should be the same in cases 
 where an appellate tribunal is undertaking to review the action 
 of an executive or other board of special skill and technical ex- 
 perience, e. g., a railroad commission. 9 The prevailing opinion, 
 however, is to the contrary; — that judicial notice will not be 
 taken. The effect of this refusal to take judicial knowledge of 
 the local regulation known to the inferior tribunal has varied with 
 different courts, according to the view which these courts chance 
 to take as to the position of the burden of proof — meaning burden 
 of establishing — in such cases. The existence of the local regu- 
 lation being eliminated from the record, it has seemed to certain 
 tribunals that the action of the lower court should be reversed ; — 
 its accuracy not being shown. 10 Other courts have sustained the 
 action of the lower court because the appealing party has not 
 shown it to be erroneous. 11 
 
 § 613. (Judicial Knowledge ot Written Law; State and 
 Provincial Courts); Regulations of Voluntary Associations. — 
 
 A fortiori judges do not judicially know the laws by which mem- 
 bers of voluntary associations, e. g., labor unions, 1 are bound. A 
 state or provincial court does not take judicial notice of the 
 by-laws of a private corporation; but will require proof on the 
 
 subject. 2 
 
 8. March v. Com., 13 B. Mon. City of Eugene, (Or. 1909) 100 Pac. 
 
 (Ky.) 25 (1851) (ordinance affect- 306. 
 
 ing jurisdiction) ; Strauss v. Con- 9. Steenerson v. Ry. Co., 69 Minn, 
 
 ncaut, 23 Ohio Cir. Ct. 320 (1902). 353, 72 N. W. 713 (1897). 
 
 See also Galen Hall Co. v. Atlantic 10. Green v. Indianapolis, 22 Ind. 
 
 City, (N. J. Supp. 1908) 68 Atl. 192 (1864); Shanfelter v. Baltimore, 
 
 1092. While if the local option law 80 Md. 483, 31 Atl. 439, 27 L. R. A. 
 
 had been adopted in a county by or- 648 ( 1895 ) ; Central Sav. Bank v. 
 
 dinance of a city council, so that the Baltimore, 71 Md. 515, 18 Atl. 809, 
 
 recorder's court must have taken cog- 20 Atl. 283 (18S9); Allen r. State, 
 
 nizance thereof in a prosecution for (Tex. Cr. App. 1906) 98 S. W. 869. 
 
 violating a prohibition ordinance, on 11. State v. Judge Criminal Dist. 
 
 ■writ of review to the circuit court, Ct., 105 La. 758, 30 So. 105 (1901). 
 
 to review the recorder's decision, the In Georgia, on certiorari, the rule 
 
 circuit court might have been bound is the same. Benson v. Carrollton, 
 
 by knowledge of, its adoption, yet, 96 Ga. 761, 22 S. E. 303 (1895). 
 
 where the law was adopted by major- 1. Birmingham Paint & Roofing 
 
 ity vote and promulgated by order of Co. v. Crampton & Tharpe, (Ala. 
 
 the county court, proof of adoption 1905) 39 So. 1020. 
 
 in compliance with statute was neces- 2. Elkhart Hydraulic Co. r. Turner, 
 
 sary, and the circuit court could not 170 Ind. 455, 64 N. E. 812 (1908). 
 take judicial notice of it. Gay v. 
 
781 
 
 Eokeign Statutes Not Judicially Known. § 614 
 
 § 614. (Judicial Knowledge of Written Law; State and 
 Provincial Courts); Statutes of Sister State — The courts of one 
 state, or province, do not judicially know, that is, without proof, 1 the 
 
 1. Alabama. — Southern Express Co. 
 V. Owens, (Ala. 1906) 41 So. 752; 
 Johnson v. State, 88 Ala. 176, 7 
 So. 253 (1889) ; Insurance Co. v. 
 Forcheimer, 86 Ala. 541, 5 So. 870 
 (1888). 
 
 Arkansas. — McNeill v. Arnold, 17 
 Ark. 154 (1856). See also Louisiana 
 & N. W. R. Co. v. Phelps, 70 Ark. 17, 
 65 S. W. 709 (1901). 
 
 California. — Norman v. Norman, 
 121 Cal. 620, 54 Pac. 143, 66 Am. St. 
 Rep. 74, 42 L. R. A. 343 (1898). 
 
 Colorado. — Polk v. Butterfield, 9 
 Colo. 325, 12 Pac. 216 (1886). 
 
 Connecticut. — Hale v. S. N. Co., 
 15 Conn. 539, 549 (1843); Hemp- 
 stead v. Reed, 6 Conn. 480 (1827). 
 
 Delaware. — Kinney v. Hosea, 3 
 Harr. 77 (1839). 
 
 Florida. — ■ Equitable Building & 
 Loan Ass'n v. King, (Fla. 1904) 
 
 37 So. 181; Duke v. Taylor, 37 Fla. 
 64, 19 So. 172, 53 Am. St. Rep. 232, 
 31 L. R. A. 484 (189C). 
 
 Georgia. — Simms v. Express Co., 
 
 38 Ga. 129 (1868). 
 
 Illinois. — Crane v. Blackman, 126 
 111. App. 631 (1906); Leathe v. 
 Thomas, 218 111. 246, 75 N. E. 810 
 ( 1905 ) ; Clarke v. Assets Realization 
 Co., 115 111. App. 150 (1904) ; Balti- 
 more & O. S. W. R. Co. v. McDonald, 
 112 111. App. 391 (1904); Leathe v. 
 Thomas, 109 111. App. 434 (1903); 
 Ferris v. Bank, 158 111. 237, 41 N. E. 
 1118 (1895) (authority of notary 
 public) ; Bonnell v. Holt, 89 111. 71 
 (1878). See also Royal League v. 
 Kavanagh, 233 111. 175, 84 N. E. 178 
 (1908) [affirming judgment, 134 111. 
 App. 75 (1907)]; Coats v. Chicago, 
 R. I. & P. Ry. Co., 134 111. App. 217 
 (1907). 
 
 Indian Territory. — Hockett v. Al- 
 ston, 58 S. W. 675 (1900). 
 
 Indiana. — Old Wayne Mut. Life 
 Ass'n v. Flynn, 31 Ind. App. 473, 68 
 
 N. E. 327 (1903); Robards V. Mar- 
 ley, 80 Ind. 185 (1881). 
 
 Iowa. — Hendryx v. Evans, 120 
 Iowa 310, 94 N. W. 853 (1903). 
 
 Kansas. — Loyal Mystic Legion of 
 America v. Brewer, 75 Kan. 729, 90 
 Pac. 247 (1907); Ferd. Heim Brew- 
 ing Co. v. Gimber, 67 Kan. 834, 72 
 Pac. 859 ( 1903 ) ; Alexandria, A. & 
 F. S. R. Co. v. Johnson, 61 Kan. 417, 
 59 Pac. 1063 (1900). See also 
 Beshears v. Nelson Distilling Co., 80 
 Kan. 194, 101 Pac. 1011 (1909) 
 (Arkansas). 
 
 Kentucky. — McDaniel v. Wright, 
 7 J. J. Marsh. 475 (1832). See also 
 Union Cent. Life Ins. Co. of Cincin- 
 nati v. Dukes, (Ky. 1908) 113 S. W. 
 454. 
 
 Louisiana. — Rush v. Landers, 107 
 La. 549, 32 So. 95, 57 L. R. A. 353 
 (1902). 
 
 Maine. — Owen v. Boyle, 15 Me. 
 147, 32 Am. Dec. 608 (1838). 
 
 Maryland. — Jackson v. Jackson, 
 80 Md. 176, 30 Atl. 752 (1894) ; Bal- 
 timore & O. R. Co. v. Glenn, 28 Md. 
 287, 323 (1867) See also Mandru 
 V. Ashby, (Md. 1908) 7 Atl. 312. 
 
 Massachusetts. — Washburn Crosby 
 Co. v. Boston, etc., R. Co., 180 Mass. 
 252, 62 N. E 590 (1902); Chipman 
 v. Peabody, 159 Mass 420, 423, 34 
 N. E. 563 (1893). 
 
 Michigan. — Phelps v. American 
 Sav., etc., Assoc, 121 Mich. 343, 80 
 N. W. 120 (1899). 
 
 Minnesota. — Crandall v. R. Co., 
 83 Minn. 190, 86 N. W. 10 (1901) ; 
 Myers v. Chicago, etc., R. Co., 69 
 Minn. 476, 72 N. W. 694, 65 Am. St. 
 Rep. 572 (1897). 
 
 Mississippi. — Hemphill v. Ala- 
 bama Bank, 6 Sm. & M. 44 (1846). 
 
 Missouri. — Smith v. Aultman, 120 
 Mo. App. 462, 96 S. W. 1034 (1906) ; 
 Southern Illinois, etc., Bridge Co. v. 
 Stone, 174 Mo. 1, 73 S. W. 453, 63 
 
§ 614 
 
 Knowledge ; Judicial. 
 
 782 
 
 written, law of another state, or of an Indian tribe. 2 If the foreign 
 law is essential to a ease, it must be pleaded, 3 proved 4 and found 5 
 
 L. E. A. 301 (1903); Charlotte v. 
 Chouteau, 25 Mo. 465, 473 (1857). 
 
 Nebraska. — People's Bldg., etc., 
 Assoc, v. Backus, 89 N. W. 315 
 (1902). 
 
 New Hampshire. — Piekard v. Bailey, 
 26 N. H. 152 (1852). 
 
 New Jersey. — Uhler v. Semple, 20 
 N. J. Eq. 288 (1869); Condit v. 
 Blackwell, 19 N. J. Eq. 193, 196 
 (1868). 
 
 New York. — Harris V. White, 81 
 N. Y. 532 (1880). 
 
 North Carolina. — Hilliard v. Out- 
 law, 92 N. C. 266 (1885) ; Hooper 
 V. Moore, 5 Jones L. 130, 132 (1857). 
 See also Hall u. Southern Ry. Co., 
 (N. C. 1907) 59 S. E. 879. 
 
 Ohio. — Smith v. Bartram, 11 Ohio 
 St. 690 (I860). 
 
 Oklahoma. — ■ Greensville X. Bank v. 
 Evans, S. B. Co., 9 Old. 353, 60 Pac. 
 249 (1900). 
 
 Oregon. — Cressy i\ Tatom, 9 Or. 
 541 (1881). See also Scott v. Ford, 
 (Or. 1908) 97 Pac. 99. 
 
 Pennsylvania. — Spellier Electric 
 Time Co. v. Geiger, 147 Pa. St. 399, 
 23 Atl. 547 (1892). 
 
 Rhode Island. — Taylor v. Slater, 
 21 E. I. 104, 41 Atl. 1001 (1898). 
 
 South Carolina. — Bridger v. Ashe- 
 ville, etc., E. Co., 25 S. C. 24 (1885). 
 
 Tennessee. — Templeton v. Brown, 
 86 Tenn. 50, 5 S. W. 441 (1887). 
 
 Texas. — White v. Eicheson, (Tex. 
 Civ. App. 1906) 94 S. W. 202; An- 
 derson v. Anderson, 23 Tex. 639 
 (1859) ; Trigg v. Moore, 10 Tex. 197 
 (1853). 
 
 Vermont j — Murtey v. Allen, 71/ 
 Vt. 377, 45 Atl. 752, 76 Am. St. Eep. 
 779 (1899). 
 
 Virginia. — App v. App. 106 Va. 
 253, 55 S. E. 672 (1906) ; Union 
 Central L. Ins. Co. v. Pollard, 94 
 Va. 146, 26 S. E. 421, 64 Am. St. 
 Eep. 715, 36 L. E. A. 271 (1896); 
 Warner v. Com., 3 Va. Cas. 95, 98 
 (1817). 
 
 Washington. — MoDaniel v. Pres- 
 sler, 3 Wash. 636, 29 Pac. 209 
 (1892). 
 
 West Virginia. — Klinck v. Price, 
 4 W. Va. 4, 6 Am. Eep. 268 (1870). 
 
 Wisconsin. — Osborn v. Blackburn, 
 78 Wis. 209, 47 N. W. 175, 23 Am. 
 St. Eep. 400, 10 L. E. A. 367 (1890). 
 
 Code or statutory provisions regu- 
 lating procedure which undertake to 
 enumerate the subjects of which the 
 courts are to take " judicial notice " 
 reinforee the general rule, should 
 they fail to enumerate the statutes 
 of a sister state. McKnight v. Ore- 
 gon Short Line E. Co., (Mont. 1905) 
 82 Pac. 661. 
 
 Foreign law or that of a sister state 
 must be averred and proved as facts. 
 Clark v. Assets Eealization Co., 115 
 111. App. 150 (1904). 
 
 2. Eowe r. Henderson, (Ind. T. 
 
 1903) 76 S. W. 250 (Chickasaw law); 
 Sass v. Thomas, (1902 Ind. Terr.) 
 69 S. W. 893 (Chickasaw Indians); 
 Hockett v. Allston, (Ind. Terr. 1900) 
 58 S. W. 675 (Cherokee Indians). 
 
 3. Louisville & N. E. Co. v. Sulli- 
 van's Adm'r, 76 S. W. 525, 25 Ky. 
 Law Rep. 854 (1903) ; STenno r. St. 
 Louis St. S. F. R. Co., (Mo. App. 
 
 1904) 80 S. W. 24; Columbian 
 Building & Loan Ass'n r. Rice, 68 S. 
 
 "C. 236, 47 S. E. 63 (1904). See also 
 Leigh v. Nat. Hollow Brake Beam 
 Co., 131 111. App. 106 (1907) (powers 
 of foreign corporation) ; Varner v. 
 Interstate Exch., (Iowa 1908) 115 
 N. W. 1111; Mathieson v. St. Louis 
 & S. F. Ey. Co., 219 Mo. 542, 118 
 S. W. 9 ( 1909 ) ; Electro-Tint En- 
 graving Co. v. American Handkerchief 
 Co., 115 N. Y. Suppl. 34, 130 App. 
 Div. ,561 (1909). The rule is not 
 altered where a party incorporates in 
 his pleading a court decision in the 
 sister state in which the foreign law 
 is declared. Missouri, K. & T. Ey. 
 Co. r. Lealy, (Kan. 1908) 99 Pac. 
 230. 
 
783 " Full Faith and Ceedit." § 615 
 
 like any other fact. The foreign law has, however, been judicially- 
 noticed where the existence of the statute has been established in 
 the courts of the forum by previous litigation therein. 6 There is 
 even authority to the effect that a general judicial recognition may 
 be extended to the statutes and unwritten laws of other states. 7 
 Whether it be permissible, from the procedural point of view to 
 make the law of a sister state a subject of judicial knowledge, it 
 cannot reasonably be questioned but that, from that of adminis- 
 tration, there is much force in the suggestion that it is at least 
 safer to require that the law be proved. 8 
 
 § 615. (Judicial Knowledge of Written Law; State and 
 Provincial Courts; Statutes of Sister State) ; " Full Faith and 
 Credit." — A cause of considerable, though diminishing, conflict 
 of opinion among the states of the American Union has been 
 found in that clause of the Federal Constitution 1 requiring the 
 courts of each state to give " full faith and credit " to the judg- 
 ment of any other state of the Union. The supreme court of the 
 United States was supposed to have announced 2 the doctrine 
 that in reviewing the action of a state court alleged to be in viola- 
 tion of this constitutional provision, it would judicially know the 
 laws of the state to whose judgment " full faith and credit " was 
 said to have been refused. The state courts of several jurisdictions 
 in the Union, in order that the case in the Supreme Court of the 
 
 Virginia adopts a broad rule to the supreme court on the common law. 
 
 effect that no judicial cognizance will El Paso & S. W. Ry. Co. v. Smith, 
 
 be taken of the laws of a sister state (Tex. Civ. App. 1908) 108 S. W. 988. 
 
 which are at variance with the com- 5. Cumberland Tel. & Tel. Co. v. 
 
 mon law. Mountain Lake Land Co. St. Louis, etc., Ry. Co., (La. 1906) 
 
 v. Blair, (Va. 1909) 63 S. E. 751. 41 So. 492; Snuffer v. Karr, 197 Mo. 
 
 4. Baltimore & 0. E. Co. v. Ryan, 182, 94 S. W. 983 (1906); Lassiter 
 
 31 Ind. App. 597, 68 N. E. 923 v. Norfolk & C. R. Co., 136 N. C. 89, 
 
 (1903); The Matterhorn, (TJ. S. 48 S. E. 642 (1904). 
 
 1904) 63 C. C. A. 331, 128 Fed. 863. 6. Graham v. Williams, 21 La. 
 
 Judicial notice cannot be taken of Ann. 594 ( 1869 ) ; U. S. v. Tesch- 
 
 the construction placed by the courts maker, 22 How. (U. S.) 392, 16 L. 
 
 of another state on its statutes, but ed. 353 ( 1859 ) . 
 
 such construction must be proved. 7. Missouri State Life Ins. Co. v. 
 
 Loyal Am. of Rep. v. McClanahan, Lovelace, 1 Ga. App. 446, 58 S. E. 
 
 (Tex. Civ. App. 1908) 109 S. W. 93 (1907). 
 
 973. The court will take judicial 8. Hunt v. Monroe, (Utah 1907) 
 
 notice of an act of Congress organiz- 91 Pac. 269. 
 
 ing a territory, but not of the laws 1. U. S. Const., Art. IV, § 1. 
 
 passed by the territory's legislature, 2. Carpenter v. Dexter. 8 Wall, 
 
 nor of the construction placed by its 513 (1869). 
 
616 
 
 Knowledge; Judicial. 
 
 784 
 
 United States might be the same as that in the court appealed 
 from, deemed it incumbent upon themselves to take the same judi- 
 cial knowledge of the written laws of the state whose judgment 
 was before them ; — so far, at least, as to enable the court to 
 determine whether the judgment was valid under the laws of the 
 state in which it was rendered. 3 The Supreme Court of the United 
 States, however, later produced the same uniformity between 
 itself and the state courts for which these state tribunals were 
 striving by deciding that on review of the judgment of a state 
 court, it would take only such knowledge of the law of a state 
 other than the one under review as that court itself would have 
 taken.* The majority of the state courts, in consequence, in part, 
 of this decision, take no additional judicial knowledge of the laws 
 of a sister state when they are asked to give " full faith and 
 credit " to its judgments. 8 A judge may properly examine the 
 decisions of the court of last resort in a sister state construing the 
 statutes of that state. 6 
 
 § 616. (Judicial Knowledge of Written Law; State and 
 Provincial Courts); Statutes of Foreign Country — Courts of a 
 
 3. Illinois. — Eae v. Hulbert, 17 
 111. 572 (1856). 
 
 Indiana. — Draggoo v. Graham, 9 
 Ind. 213 (1857). 
 
 Kansas. — Dodge v. Coffin, 15 Kan. 
 277 (1875). 
 
 Missouri. — Wilson v. Jackson, 10 
 Mo. 329 (1847). 
 
 New Jersey. — Curtis v. Martin, 2 
 N. J. L. 377 (1805). 
 
 Pennsylvania. — Jones v. Quaker 
 City Mut. F. Ins. Co., 9 Pa. Dist. 
 213 (1900) ; State V. Hinchman, 27 
 Pa. St. 479 (1856). 
 
 Rhode Island. — Paine v. Schenec- 
 tady Ins. Co., 11 B. I. 411 (1876). 
 
 Tennessee. — Coffee V. Neely, 2 
 Heisk. 304 (1871). 
 
 Washington. — Trowbridge v. Spin- 
 ning, 23 Wash. 48, 62 Pac. 125, 83 
 Am. St. Eep. 806, 54 L. K. A. 204 
 (1900). 
 
 4. Lloyd v. Matthews, 155 U. S. 
 222, 15 S. Ct. 70, 39 L. ed. 128 
 (1894) ; Chicago, etc., R. Co. v. Wig- 
 gins Ferry Co., 119 XJ. S. 615, 7 S. 
 
 Ct. 398, 30 L. ed. 519 (1886) ; Ben- 
 aud v. Abbott, 116 U. S. 277, 6 S. Ct. 
 1194, 29 L. ed. 629 (1885) ; Hanley r. 
 Donoghue, 116 IT. S. 1, 6 S. Ct. 242, 
 29 L. ed. 535 (1885). 
 
 5. Florida. — Sammis v. Wightman, 
 31 Fla. 10, 12 So. 526 (1893). 
 
 Ioioa. — Taylor v. Eunyan, 9 Iowa 
 522 (1859). 
 
 Massachusetts. — Knapp v. Abell, 
 10 Allen 485 (1865). 
 
 Texas. — ■ Gill- r. Everman, 94 Tex. 
 209, 59 S. W. 531 (1900). 
 
 Wisconsin. — Osborn v. Blackburn, 
 78 Wis. 209, 47 X. W. 175, 23 
 Am. St. Rep. 460, 10 L. R. A. 367 
 (1890). 
 
 United States. — Lloyd v. Matthews, 
 155 U. S. 222, 15 S. Ct. 70, 39 L. 
 ed. 128 (1894) ; Chicago, etc., R. Co. 
 v. Wiggins Ferry Co., 119 U. S. 615, 
 7 S. Ct. 398, 30 L. ed. 519 (1886). 
 6. Hendryx v. Evans, 120 Iowa 310, 
 94 N. W. 853 (1903); Pacific Ex- 
 press Co. v. Pitman, 30 Tex. Civ. App. 
 626, 71 S. W. 312 (1902). 
 
785 
 
 Foreign Law Must be Pleaded and Peoved. § 616 
 
 state 1 or province 2 do not know the corporation 3 or other written 
 laws, of a foreign country. The law of the foreign country must 
 he pleaded and proved. 4 
 
 1. Alabama. — Doe v. Eslava, 11 
 Ala. 1028 (1847). 
 
 Arkansas. — Cox v. Morrow, 14 Ark. 
 603 (1854). 
 
 California. — Wickersham v. John- 
 ston, 104 Cal. 407, 38 Pac. 89, 43 
 Am. St. Eep. 118 (1894). 
 
 Connecticut. — Brackett v. Norton, 
 4 Conn. 517, 10 Am. Dee. 179 (1823). 
 
 Delaware. — Thomas v. Grand Trunk 
 R. Co., 1 Pennew. 593, 42 Atl. 987 
 (1899). 
 
 Illinois. — McCurdy v. Alaska, etc., 
 Commercial Co., 102 111. App. 120 
 (1902). 
 
 Indiana. — Coplinger v. The David 
 Gibson, 14 Ind. 480 (1860). 
 
 Iowa. — Banco de Sonora v. Bank- 
 ers' Mut. Casualty Co., 95 N. W. 233 
 (1903). 
 
 . Louisiana. — Kohn v. The Renais- 
 ance, 5 La. Ann. 25, 52 Am. Dec. 577 
 (1850). 
 
 Maryland. — Baptiste v. De Volun- 
 brun, 5 Harr. & J. 86 (1820). 
 
 Massachusetts. — Aslanian v. Dost- 
 umian, 174 Mass. 328, 54 N. E. 845, 
 75 Am. St. Eep. 348, 47 L. E. A. 
 495 (1899). 
 
 Michigan. — Chapman v. Colby, 47 
 Mich. 46, 10 N. W. 74 (1881). 
 
 Minnesota. — Brimhall v. Van Cam- 
 pen, 8 Minn. 13, 82 Am. Dec. 118 
 (1862). 
 
 Mississippi. — Sessions v. Doe, 7 
 Sm. & M. 130 (1846). 
 
 Missouri. — Charlotte V. Chouteau, 
 25 Mo. 465 (1857). 
 
 Nebraska. — Moses v. •Comstock, 4 
 Neb. 516 (1876). 
 
 New Jersey. — Campion v. Kille, 14 
 N. J. Eq. 229 [affirmed in 15 N. J. 
 Eq. 476] (1862). 
 
 New York. — Monroe V. Douglass, 5 
 N. Y. 447 (1851). 
 
 Oregon. — State v. Moy Looke, 7 
 Or. 54 (1879). 
 
 South Carolina. — MeFee v. South 
 Carolina Ins. Co., 2 McCord 503, 13 
 Am. Dec. 757 (1823). 
 
 Texas. — Trigg v. Moore, 10 Tex. 197 
 (1853). 
 
 Vermont. — McLeod r. Connecticut, 
 etc., E. Co., 58 Vt. 727, 6 Atl. 648 
 (1886). 
 
 2. Giles v. Gariepy, 29 L. C. Jur. 
 20'7 (1885). 
 
 3. Alabama. — Savage v. Eussell, 84 
 Ala. 103, 4 So. 235 (1887). 
 
 Florida.— Duke v. Taylor, 37 Fla. 
 64, 19 So. 172 (1896). 
 
 Maryland. — Agnew v. Gettysburg 
 Bank, 2 Harr. & G. 478 (1828). 
 
 Massachusetts. — Portmouth Livery 
 Co. v. Watson, 10 Mass. 91 (1813). 
 
 Missouri. — Southern Illinois, etc., 
 Bridge Co. v. Stone, 174 Mo. 1, 73 
 S. W. 453, 63 L. E. A. 301 (1903). 
 
 Ohio. — Lewis v. Kentucky Bank, 12 
 Ohio 132, 40 Am. Dec. 469 (1843). 
 
 Oregon. — Law Trust Soc. v. Hogue, 
 37 Or. 544, 62 Pac. 380, 63 Pac. 690 
 (1900). 
 
 Tennessee. — Nashville Trust Co. v. 
 Weaver, 102 Term. 66, 50 S. W. 763 
 (1899). 
 
 England. — St. Charles Nat. Bank v. 
 De Bernales, 1 C. & P. 569, R. & M. 
 193, 12 E. C. L. 325 (1825). 
 
 4. Eyan v. North Alaska Salmon 
 Co., (Cal. 1908) 95 Pac. 862 
 (Alaska) ; Gordon v. Knott, 199 Mass. 
 173, 85 N. E. 184 (1908) (England) , 
 Crosby v. Cuba E. Co., (N. J. 1908) 
 158 Fed. 144. The same rule has 
 been applied to the island of Cuba 
 during the military occupation of the 
 United States. Goodyear Tire & Kub- 
 ber Co. v. Bufober Tire Wheel Co., 164 
 Fed. 869 (1908). 
 
 The question of the foreign law is 
 purely one of fact in Massachusetts; 
 and the reasoning of the courts of the 
 foreign country can no more be used 
 
 Vol. I. 
 
 50 
 
§ 617 Knowledge; Judicial. 786 
 
 Examination by Judge. — While a proposition of foreign, law 
 is unquestionably a matter of fact as, indeed, upon principle, 5 
 and apart from administrative considerations, a rule of domestic 
 law would be, it yet remains so closely analogous to provisions of 
 domestic law, that a presiding judge, even when required to hear 
 the foreign law proved to him as a fact, may yet, with great 
 administrative propriety, conduct a search for himself. 6 In sudh 
 a connection he may dispense with assistance .or suggestion from 
 the parties. He is acting in the exercise of his administrative 
 power to further justice and expedite the course of the trial. 
 
 § 617. (Judicial Knowledge of Written Law); Local Courts. 
 — The judicial knowledge of unwritten law by the local or 
 inferior courts is equally extensive with that of courts of 
 general jurisdiction. The judicial knowledge of tribunals of 
 local or limited jurisdiction is the same, in relation to the con- 
 stitution and public statutes of the state, province or nation, as 
 that of state or provincial courts. 1 Local courts have occasion 
 to administer these laws. They therefore know them judicially. 
 Upon the same fundamental principle, a local court being dis- 
 tinctively charged with the duty of enforcing these municipal 
 regulations, judicially knows them. 2 The function of administra- 
 
 on argument before the supreme ju- Kansas. — City of Solomon v. 
 
 dicial court to show the foreign law Hughes, 24 Kan. 211 (1880) ; West 
 
 than a foreign decision, not intro- v. Columbus, 20 Kan. 633 (1878). 
 
 duced in evidence at the trial could Louisiana. — State l\ Judge Crim- 
 
 be used for the same purpose. Gor- inal Dist. Ct., 105 La. 758, 30 So. 
 
 don v. Knott, 199 Mass. 85 N. E. 105 (1901). 
 
 184 (1908). New Jersey. — Byer r. Harris, 
 
 5. Supra, § 41. (Supp. 1909) 72 Atl. 136 (ordinance 
 
 6. Wells V. Gress, (Ga. 1903) 45 creating excise commission) ; Galen 
 S. E. 418 (foreign law); Barranger Hall Co. v. Atlantic City, (Supp. 
 v. Baum, 103 Ga. 465, 30 S. E. 524 1908) 68 Atl. 1092. 
 
 (1898) (extradition). Ohio — Keck r. Cincinnati, 4 Ohio 
 
 1. Supra, §§ 602, 604, 605. , S. & C. PI. Dec. 324, 3 Ohio N. P. 
 
 2. California.— Eco p. Davis, 115 253 (1896). 
 
 Cal. 445, 47 Pac. 258 (1896). South Carolina.— Anderson r. 
 
 Georgia.— Fears v. State, 125 Ga. O'Donnell, 29 S. C. 355, 7 S. E. 523, 
 
 740, 54 S. E. 661 (1906) ; Taylor r. 13 Am. St. Rep. 728, 1 L. R. A. 632 
 
 Sandersville, 118 Ga. 63, 44 S. E. 845 (1888). 
 
 ng03). West Virginia. — Moundsville ■». 
 
 Iowa.— Scrantou v. Danenbaum, Velton, 35 W. Va. 217, 13 S. E. 373 
 
 109 Iowa 95, 80 N. W. 221 (1899); (1891). 
 Town of La Porte City v. Goodfellow, 
 47 Iowa 572 (1877). 
 
787 Public Statutes Locally Limited. §§ 618, 619 
 
 tion entails the requirement of this knowledge. The mere fact 
 that the court has a limited jurisdiction does not, however, neces- 
 sarily carry with it the requirement of such judicial knowledge of 
 local regulations. To attain this result, any jurisdiction should 
 include the administration of the local laws in question. 3 The 
 written laws of Indian tribes are known only to local courts 
 charged with their enforcement. 4 In other courts, they must be 
 established by proof. 5 
 
 § 618. (Judicial Knowledge of Written Law); Amendment 
 
 and Repeal. — Any amendment of a public act is itself entitled 
 to judicial knowledge; 1 and the same is true of an act repealing 
 a public statute. 2 
 
 § 619. (Judicial Knowledge of Written Law); What Stat- 
 utes Are Public — Public statutes, in connection with the law of 
 judicial notice may be denned as being those which affect, directly 
 and equally, the inhabitants of a nation, state or province; or 
 apply, in the same way, to the dwellers in any municipality or 
 other territorial division of such nation, state or province. If 
 the purpose be public, the act is not made private by the circum- 
 stance that the legislature has limited its operation to a particular 
 territory. 1 Where special laws apply to different sections of the 
 
 3. Winona v. Burke, 23 Minn. 254 Hoekett v. Alston, 110 Fed. 910, 49 
 (1876) (justice of the peace appointed C. C. A. 180 (1901). 
 
 for city and county does not know ju- 5. In Missouri a contrary doctrine 
 
 dicially a city ordinance). See also seems to have been laid down. St. 
 
 Harker v. New York, 17 Wend. (N. Louis v. Roche, 128 Mo. 541, 31 S. 
 
 Y.) 199 (1837). Judicial notice of W. 915 (1895). 
 
 local regulations may be imposed by 1. Jemison v. Planters and Mer- 
 
 statute. .Houren v. Chicago, M. & St. chants' Bank, 17 Ala. 754 (1850) ; 
 
 P. Ry. Co., 236 111. 620, 86 N. E. Parent v. Wamsly's Adm'rs, 20 Ind. 
 
 611 (1908) [judgment affirmed 82, 86 (1863); Belmont V. Morrill, 
 
 Chicago, M. & St. P. Ry. Co. v. Hou- 69 Me. 314, 317 (1879); City of 
 
 ren, 139 111. App. 116-]. The courts Houston v. Dooley, (Tex. Civ. App. 
 
 of the city of London will take judi- 1905) 89 S. W. 777 (charter of city 
 
 cial notice of the city customs. Wilt- of Houston) ; Supra, § 594. 
 
 shire v. Lloyd, 1 Doug. 380, n. 2. State v. O'Conner, 13 La. Ann. 
 
 (1780); Com. Dig. London (N 1), 487 (1858). 
 
 (N. 7). 1. Alabama. — Davis v. State, (Ala. 
 
 4. Sass v. Thomas, (Indian Terr. 1904) 37 So. 454 (restrain cattle from 
 1902) 69 S. W. 893; Kelly v. Church- running at large). 
 
 ill, (Indian Terr. 1902) 69 S. W. 817; Indiana.— Levy v. State, 6 Ind. 281 
 
§ 620 
 
 Knowledge; Judicial. 
 
 788 
 
 state, a court will know the public laws locally limited which 
 apply to each section. 2 Thus, for example, the " local option. " 
 laws, so-called, regulating the sale of intoxicating liquors in 
 limited areas, according to the wishes of the voters in that sec- 
 tion, will be judicially noticed; 3 — and also the time when it goes 
 into effect. 4 In general, statutes allowing certain governmental 
 agencies, counties, cities or the like, to adopt laws relating to 
 given subjects at their option are themselves public statutes; but 
 whether the necessary action, in pais, has in fact been taken in a 
 given case must usually be established by evidence. 5 
 
 § 620. (Judicial Knowledge of Written Law; What Stat- 
 utes Are Public) ; Administration of Government. — Administra- 
 tion of government being a public purpose, statutes prescribing 
 in what manner it shall be conducted are public though dealing 
 with details. 'Within this class, fall statutes creating a public 
 
 (1855) (selling liquor in three towns 
 of a given county ) . 
 
 Maine. — Pierce v. Kimball, 9 Greenl. 
 54, 56 (1832) (regulating lumber 
 trade). 
 
 Maryland. — Hammond's Lessees v. 
 Inloes, 4 Md. 138, 172 (1853) (regu- 
 lating navigation and fishery in a 
 particular river ) . 
 
 Massachusetts. — Burnham v. Web- 
 ster, 5 Mass. 266, 269 (1809) (right 
 of fishing). 
 
 New York. — Bretz v. Mayor, etc., 
 of New York, 6 Bobertson, 325 (1868) 
 (giving jurisdiction to the supreme 
 court of actions against Xew York 
 City). 
 
 Xorth Carolina. — State v. Piner, 
 (N. C. 1906) 53 S. E. 305; State V. 
 Cooper, 101 N. C. 684, 8 S. E. 134 
 (18S8) (sales of liquor). "It is a 
 public act if it extends to all persons 
 within the territorial limits described 
 in the statute." Levy p. State, 6 Ind. 
 281 (1855). "It is true that public 
 acts are usually general in their char- 
 acter and operation, and equally ap- 
 plicable to all parts of the state. 
 There are other acts which are con- 
 sidered as public acts, of which all 
 
 persons are bound to take notice upon 
 their peril, and yet they are local, be- 
 cause the violation of them is and 
 must be local. . . Nothing appears 
 which indicates that the law was not 
 intended as a public benefit, of which 
 all the citizens of the state, as well 
 as others, might equally participate." 
 Pierce v. Kimball, 9 Greenl. 54 (1832). 
 "We are of opinion that the statute 
 referred to [relating to catching bass 
 in a particular river] is a public 
 statute. It is obligatory on all the 
 citizens, and they must notice it at 
 their peril. We must, therefore, ex 
 officio, take notice of it. Indeed, all 
 the laws regulating the taking of 
 fish are made for the public "benefit, to 
 preserve the fish, and are public stat- 
 utes." Burnham r. Webster, 5 Mass. 
 266 (1809). 
 
 2. Lewis v. Easp, (Okl. 1904) 76 
 Pac. 142 (stock running at large). 
 
 3. Crigler v. Comm., (Ky. 1905) 
 87 S. W. 281. 
 
 4. State v. Scampini, 77 Vt. 92, 59 
 Atl. 201 (1904). 
 
 5. Johnson v. Scott, 133 Mo. App. 
 689, 114 6. W. 45 (1908) (road law) . 
 
789 Eesult of Local Option Election Known. §§ 621, 622 
 
 office, 1 determining the duties incumbent upon the individual 
 holding it, 2 or establishing courts. 3 
 
 § 621. (Judicial Knowledge of Written Law; What Stat- 
 utes Are Public); Local Option Laws; Result of Voting not Judi- 
 cially Known. — Considerable difficulty has been apparently ex- 
 perienced by the courts in drawing a satisfactory line of division 
 between the primary and the secondary results of legislation in- 
 volved in a matter where an act in pais, the action of the quali- 
 fied voters of a given district, intervenes, to establish in a par- 
 ticular locality, the prohibitions provided by the general law. 
 The " local option law," as passed by the legislature, is undoubt- 
 edly a public one. All courts, therefore, judicially know it. But 
 tribunals in certain states have been unable to see their way clear 
 to taking judicial notice that the general law had, by popular 
 action, been made operative in a certain section of the state. 1 
 In view of the fact that the application of the general law to the 
 locus of the offense is a constituent fact or one of the res gestce, 2 
 it would seem that such an administrative course was sound in 
 point of principle. For similar reasons, popular action regarding 
 an option conferred by a general law, e. g., that of using the con- 
 tract system of building, repairing or maintaining highways, 3 
 will not be made the subject of judicial notice. 
 
 § 622. (Judicial Knowledge of Written Law; What Stat- 
 utes Are Public; Local Option Laws); Result of Voting Judi- 
 cially Known. — In other states, courts judicially know the result 
 of local option elections; 1 — whether held under the general law 
 
 1. State v. Jarrett, 17 Md. 309 321 (1892) (probate court in a par- 
 (1861). tieular county). 
 
 2. Alabama. — Cary v. State, 76 Ala. 1. Craddick v. State, (Tex. Cr. App. 
 78 (1884). 1905) 88 S. W. 347; State 17. iScam- 
 
 Illinois. — Lynn v. People, 170 111. pini, 77 Vt. 9, 59 Atl. 201 (1904).' 
 
 527, 48 N. E. 964 (1897). See also Bills v. State, (Tex. Cr. App. 
 
 Iowa. — Rowland v. Brown, 75 Iowa 1909) 117 S. W. 835. 
 
 679, 37 N. W. 403 (1888). 2. Supra, § 47. 
 
 Minnesota. — State v. Gut, 13 Minn. 3. State v. Burkett, (Miss. 1904) 
 
 341 (1868). 35 So. 689. 
 
 Pennsylvania. — Fox v. Com., 81% 1. Oglesby V. State, 121 Ga. 602, 
 
 Pa. St. 511 (1875). 49 S. E. 706 (1905). See also Gue 
 
 Texas. — Burnett v. Henderson, 21 v. City of Eugene, (Or. 1909) 100 
 
 Tex. 588 (1858); State V. Delesdenier, Pac. 254. When a local option law 
 
 7 Tex. 76 (1851). went into effect is a matter of judi- 
 
 Vtah. — People v. Lyman, 2 Utah cial knowledge. Badgett V. State, 
 
 30 (1877). (Ala. 1908) 48 So. 54. 
 
 3. La Salle Co. v. Milligan, 143 111. 
 
§ 623 
 
 Knowledge; Judicial. 
 
 790 
 
 or a local statute. The length of time after its adoption during 
 which a local option law persists is also within the judicial knowl- 
 edge of the court. 2 Where it is unlawful to manufacture or sell 
 intoxicants anywhere within a county, the supreme court will 
 take notice of that fact. 3 
 
 § 623. (Judicial Knowledge of Written Law; What Stat- 
 utes Are Public) ; Municipal Corporations. — The creation of mu- 
 nicipalities through which the sovereign may exercise the func- 
 tions of government over portions, more or less extended, of the 
 jurisdiction are pre-eminently public statutes; 1 whether the incor- 
 poration be by general act, 2 or by special charter, 3 particularly 
 
 2. State v. Hall, 130 Mo. App. 170, 
 108 S. W. 1077 (1908). Where 
 courts are required to take notice of 
 a local census, the population as de- 
 cided by one will be judicially known 
 to the court for the purposes of a 
 local option election. State ex rel. 
 Eetonaz r. Mitchell, (Mo. App. 1908) 
 115 S. W. 1098. 
 
 3. State v. Arnold, 80 S. C. 383, 
 61 S. E. 891 (1908). 
 
 1. Frost v. State, (Ala. 1907) 45 
 So. 203; City of Bessemer r. Carroll, 
 (Ala. 1908) 45 So. 419; Agnew v. 
 Pawnee City, (Neb. 1907) 113 N. W. 
 236. Judicial notice will be taken of 
 a town charter. State v. Matthews, 
 (Ala. 1907) 45 So. 307. An act in- 
 corporating an independent school 
 district is a public act, judicially 
 known by all courts. Board of Edu- 
 cation of Flatwoods Dist. r. Berry, 
 
 (W. Va. 1907) 59 S. E. 169. "In 
 chartering such corporations the state 
 in one sense charters a portion of 
 itself. Such corporations are simply 
 instruments in the hands of the 
 state, made use of for the better 
 protection of rights, the admin- 
 istration of justice, and the enforce- 
 ment of the laws.'' Prell v. McDon- 
 ald, 7 Kan. 426 (1871). 
 
 2. Aldermen and Council v. Finley, 
 10 Ark. 423 (1850); State V. Bick- 
 secker, (Kan. 1906) 85 Pac. 5 47; 
 Briggs r. Whipple, 7 Vt. 15 (1835). 
 
 Acts in pais must be proved. — " The 
 
 fact that a particular Tillage or town 
 has availed itself of the provisions of 
 these statutes, and became incorpor- 
 ated as they authorize, is private in 
 its character, and we know of no prin- 
 ciple of law which would require or 
 authorize the courts to take judicial 
 notice of it.'' Hard r. City of De- 
 corah, 43 Iowa 313 (1876). To the 
 same effect, see Bousey v. Wood, 47 
 Mo. App. 465 (1891). If the legis- 
 lature requires the courts to take ju- 
 dicial cognizance of a fact in pais, 
 e. g., the result of a local (liquor) 
 option election, the court, as in othei 
 cases of judicial cognizance will re- 
 sort to any helpful source of informa- 
 tion. "And since no sources of in- 
 formation are pointed out, it is in- 
 cumbent on this as well as all other 
 courts to inform itself by recourse to 
 any and all sources of information." 
 Puckett r. State, 71 Miss. 192 ( 1893 ) . 
 The following cases are in accord: 
 Whitman v. State, 80 Md. 410 (1894) ; 
 Thomas v. Com., 90 Va. 92 (1893). 
 Courts cannot judicially know that 
 towns, even where they are county 
 seats, are incorporated towns. Bluitt 
 V. State, 56 Tex. Cr. B. 525, 121 S. W. 
 168 (1909). 
 
 3. Alabama. — Albriltin r. Hunts- 
 ville, 60 Ala. 486, 492 (1877). 
 
 Arkansas. — Alderman r. Finley, 10 
 Ark. 423, 42« (1850). 
 
 California. — Payne v. Treadwell, 16 
 Cal. 221, 232 (1860). 
 
791 Establishing Goveenment a Public Object. § 623 
 
 where the courts are ordered to regard the latter as public 
 
 acts. 4 
 
 Acts prescribing the duties or establishing the powers, of these 
 public corporations 5 are equally public. 6 
 
 Francisco having been constituted, by 
 a public political act of the former 
 government, » pueblo, we must take 
 judicial notice of its existence, powers 
 and rights." Payne v. Treadwell, 16 
 Cal. 230, 231 (1860). 
 
 4. City of Austin v. Forbis, (Tex. 
 1905) 89 S. W. 405. 
 
 5. Alabama. — Arndt v. Cullman, 
 132 Ala. 540, 31 So. 478, 90 Am. St. 
 Rep. 922 (1901). 
 
 California. — Bituminous Lime Rock 
 Paving, etc., Co. v. Fulton, 33 Pae. 
 1117 (1893). 
 
 Delaware. — Downs V. Smyrna, 2 
 Pennew. 132, 45 Atl. 717 (1899). 
 
 Florida. — City of Miami v. Miami 
 Realty, Loan & Guaranty Co., 57 Fla. 
 366, 49 So. 55 (1909). 
 
 Illinois. — Vance v. Rankin, 194 111. 
 625, 62 N. E. 807, 88 Am. St. Rep. 
 173 [reversing 95 111. App. 562] 
 (1902). 
 
 Indiana. — 'Moss v. Sugar Ridge Tp., 
 161 Ind. 417, 68 N. E. 896 (1903). 
 
 Iowa. — ■ State v. dinger, 72 N. W. 
 441 (1897). 
 
 Kansas. — Solomon V. Hughes, 24 
 Kan. 211 (1880). 
 
 Kentucky. — Gifford v. Falmouth, 4 
 Ky. L. Rep. 902 (1883). 
 
 Maine. — Belmont v. Morrill, 69 Me. 
 314 (1879). 
 
 Massachusetts. — Harris v. Quincy, 
 171 Mass. 472, 50 N. E. 1042 (1898). 
 
 Minnesota. — Peterson v. Cokato, 84 
 Minn. 205, 87 N. W. 615 (1901). 
 
 Missouri. — Shivery v. Lankford, 174 
 Mo. 535, 74 S. W. 835 (1903) (town- 
 ship organization). 
 
 Nebraska. — North Platte Water - 
 Works Co. v. North Platte, 50 Neb. 
 853, 70 N. W. 393 (1897). 
 
 New Hampshire. — Gross v. Ports- 
 mouth, 68 N. H. 266, 33 Atl. 256, 
 73 Am. St. Rep. 586 (1895). 
 
 Connecticut. — Nichols v. City of 
 Ansonia, 81 Conn. 229, 70 Atl. 636 
 (1908) (city charter). 
 
 Georgia. — Beaty v. Sears & Ben- 
 nett, 132 Ga. 516, 64 S. E. 321 
 (1909). 
 
 Illinois. — Jones v. Lake View, 151 
 111. 663, 675, 38 N. E. 688 (1894). 
 
 Indiana. — Macey V. Titcombe, 19 
 Ind. 135, 137 (1862). 
 
 Iowa. — Stier v. Oskaloosa, 41 Iowa 
 353, 355 (1875). 
 
 Kansas. — Prell v. McDonald, 7 Kan. 
 426, 446 (1871). 
 
 Missouri. — State v. Sherman, 42 
 Mo. 210, 214 (1868). 
 
 New York. — Stone v. Auerbach, 117 
 N. Y. Suppl. 734, 133 App. Div. 75 
 (1909). 
 
 Oregon,. — Naylor v. McOolloch, 103 
 Pac. 68 (1909). 
 
 Vermont. — Village of Winooski v. 
 Gokey, 49 Vt. 282 (1877) (village) ; 
 Briggs v. Whipple, 7 Vt. 15, 19 
 (1835). 
 
 Wisconsin. — Davey v. Janesville, 
 111 Wis. 628, 87 N. W. 813 (1901). 
 
 United States. — In re Dunn, 212 
 U. S. 374, 29 S. Ct. 299 (1909). 
 
 On the other hand, it has been re- 
 quired that the existence of a special 
 city charter should be proved by evi- 
 dence where the act itself does not 
 provide that the charter should be 
 treated as a public one by the court. 
 City of Paris v. Tucker, (Tex. 1907) 
 104 S. W. 1046. 
 
 Superseded statutes of municipal 
 incorporation are judicially known. 
 Swain v. Comstock, 18 Misc. 463 
 (1864). It is not material that the. 
 earlier statute was enacted under a 
 sovereignty no longer exercising the 
 functions of government in the ter- 
 ritory in question. Payne v. Tread- 
 well, 16 Cal. 220, 231 (1860). "San 
 
§ 624 
 
 Knowledge; Judicial. 
 
 792 
 
 Names. — Statutes establishing or changing 7 the name of a 
 municipal corporation are public. Other direct results as the 
 powers of municipal officers 8 are judicially known by the judges. 
 
 The repeal of acts incorporating a town are public. 9 
 
 § 624. (Judicial Knowledge ot Written Law; What Stat- 
 utes Are Public; Municipal Corporations) ; Cities. — Particular 
 facts concerning individual cities, established by 1 or recited in 
 an act relating to such city will be judicially known to the judge 
 who will accord it legal force as part of a public statute, declin- 
 ing to hear evidence to any contrary or inconsistent effect. Acts 
 providing for the erection of municipal buildings 2 and, occasion- 
 ally, the adoption of a general municipal incorporation law by a 
 particular city 3 need not be proved. 
 
 Statutes providing individual relief are, in their nature, pri- 
 vate. 4 
 
 New Jersey. — Hawthorne v. Ho- 
 boken, 32 N. J. L. 172 (1867). 
 
 New York. — Shaw v. New York 
 Cent., etc., R. Co., 83 N. Y. Suppl. 91 
 85 App. Div. 137 (1903). 
 
 Oregon. — State v. Banfleld, 43 Or. 
 287, 72 Pac. 1093 (1903). 
 
 Tennessee. — State v. Murfreesboro, 
 
 II Humphr. 217 (1850). 
 
 Texas. — Storrie v. Cortes, 90 Tex. 
 283, 38 S. W. 154, 35 L. R. A. 666 
 (1896). 
 
 Vermont. — Winooski V. Gokey, 49 
 Vt. 282 (1877). 
 
 Washington. — Seattle v. Turner, 29 
 Wash. 515, 69 Pac. 1083 (1902). 
 
 West Virginia. — Beasley v. Beck- 
 ley, 28 W. Va. 81 (1886). 
 
 Wisconsin. — Davey v. Janesville, 
 
 III Wis. 628, 87 N. W. 813 (1901). 
 
 6. Where all acts of incorporation 
 are declared to be public, no question 
 exists that acts conferring powers 
 on municipal corporation are included. 
 Foley v. Ray, 27 R. I. 127, 61 Atl. 50 
 (1905) (fire district furnish water). 
 
 7. State v. Cooper, 101 N. C. 684 
 (1888) (township). 
 
 8. Lynn v. People, 170 111. 527, 48 
 N. E. 964 (1897); Jones v. Lake 
 
 View, 151 111. 663, 38 N. E. 688 
 (1894) (assessors) ; Alford v. State, 
 8 Tex. App. 545 (1880). 
 
 9. Board of Tp. Com'rs for Sulli- 
 van's Island v. Buckley, 82 S. C. 352, 
 
 64 S. E. 163 (1909) (Moultrieville). 
 The date of the incorporation of a 
 town will be judicially noticed. Bad- 
 gett v. State, (Ala. 1908) 48 So. 54. 
 
 1. Harris v. Quincy, 171 Mass. 472, 
 50 N. E. 1042 (1898) (valuation). 
 
 2. Burlington Mfg. Co. V. Board of 
 Court-house, etc., Com'rs, 67 Minn. 
 327, 69 N. W. 1091 (1897) (city 
 hall and courthouse). 
 
 3. Davey v. Janesville, 111 Wis. 628, 
 87 N. W. 813 (1901). 
 
 Acts in pais. — It may be required 
 by statute that a court should take 
 judicial notice of all cities and vil- 
 lages actually incorporated under a 
 general incorporation law. Welch v. 
 Shumway, 232 111. 54, 83 N. E. 549 
 (1908). 
 
 4. State v. H. & C. Turnpike Co., 
 
 65 N. J. L. 97, 46 Atl. 700 (1900) ; 
 Leland v. Wilkinson, 6 Pet. 317, 319 
 (1832). An act for the survey of a 
 tract of land is special. Allegheny 
 V. Wilson, 25 Pa. St. 332 (1855). 
 
793 
 
 Creating Mercantile Corporations. 
 
 625 
 
 § 625. (Judicial Knowledge of Written Law; What Stat- 
 utes are Public); Mercantile Corporations; Acts of Incorporation. 
 
 — General acts of incorporation for business or other private pur- 
 poses, are public statutes, 1 especially where, as in case of rail- 
 ways 2 the purpose is one which concerns the general public. 
 
 Federal Courts. — In case of the federal courts of the United 
 States, this knowledge covers not only incorporation granted by 
 
 1. A labama. — Burdine v. Grand 
 Lodge, 37 Ala. 478 ( 1801 ) . 
 
 Arkansas. — Hammett v. Little 
 Rock, etc., E. Co., 20 Ark. 204 (1859). 
 
 Connecticut. — Woodruff v. Marsh, 
 63 Conn. 125, 26 Atl. 846, 38 Am. 
 St. Rep. 346 (1893). 
 
 Delaware. — Wilmington, etc., Bank 
 v. Wollaston, 3 Harr. 90 (1839). 
 
 Georgia. — Jackson v. State, 72 Ga. 
 28 (1883). 
 
 Illinois. — Nimino v. Jackman, 21 
 111. App. 607 (1886). 
 
 Indiana. — Delawter v. Sand Creek 
 Ditching Co., 26 Ind. 407 (1866). 
 
 Iowa. — Durham v. Daniels, 2 Greene 
 518 (1850). 
 
 Kentucky. — Commercial Bank v. 
 Newport Mfg. Co., 1 B. Monr. 13, 35 
 Am. Dec. 171 (1840). 
 
 Maine. — State v. Webb's River 
 Imp. Co., 97 Me. 559, 55 Atl. 495 
 (1903). 
 
 Maryland. — Miller v. Matthews. 87 
 Md. 464, 40 Atl. 176 (1898). 
 
 Massachusetts. — Portmouth Livery 
 Co. v. Watson, 10 Mass. 91 (1813). 
 
 Michigan. — Chapman v. Colby, 47 
 Mich. 46, 10 N. W. 74 (1881). 
 
 New Hampshire. — Hall v. Brown, 58 
 N. H. 93 (1877). 
 
 New Jersey. — Stephens, etc., Transp. 
 Co. v. New Jersey Cent. R. Co., 33 
 N J. L.. 229 (1869). 
 
 New York. — Methodist Episcopal 
 Union Church v. Pickett, 19 N. Y. 
 482 (1859). 
 
 South Carolina. — . Simpson v. South 
 Carolina Mut. Ins. Co., 59 S. C. 195, 
 37 S. E. 18, 225 (1900). 
 
 Tennessee. — Owen v. State, 5 Sneed 
 493 (1858). 
 
 Texas. — Alabama Bank v. Simonton, 
 2 Tex. 531 (1847). 
 
 Vermont. — Buell v. Warner, 33 Vt. 
 570 (1861). 
 
 Virginia. — Hays v. Northwestern 
 Bank, 9 Gratt. 127 (1852). 
 
 West Virginia. — State v. Baltimore, 
 etc., R. Co., 15 W. Va. 362, 36 Am. 
 Rep. 803 (1879). 
 
 United States. — Case v. Kelly, 133 
 U. S. 21, 10 S. Ct. 216, 33 L. ed. 513 
 (1889) ; Covington Drawbridge Co. V. 
 Shepherd, 20 How. 227, 15 L. ed. 896 
 (1857); Beaty v. Knowler, 4 Pet. 
 152, 7 L. ed. 813 (1830); Pennsyl- 
 vania R. Co. v. Baltimore, etc., R. Co., 
 37 Fed. 129 (1888) ; U. S. v. Wil- 
 liams, 28 Fed. Cas. No. 16,706, 4 
 Biss. 302 '(1869) ; Georgetown, etc., 
 Cent. Bank v. Tayloe, 5 Fed. Cas. No. 
 2,548, 2 Crane C. C. 427 (1823). 
 A company incorporated by public 
 statute will be noticed and its identity 
 with the one named in pleadings will 
 be assumed. MaeGregor v. Dover Ry. 
 Co., 18 Q. B. 618, 627 (1852) ; Church 
 v. Imperial Gas Co., 6 Ad. & E. 856 
 (1838). Whether there be another 
 corporation of the same name as de- 
 fendant can not be judicially known. 
 Mobile Light & R. Co. v. Mackay, 
 (Ala. 1909) 48 So. 509. 
 
 Assessment insurance. — The court 
 will recognize the existence in the 
 state of insurance companies having 
 no capital stock and paying losses 
 by means of assessments collected 
 from the members. Ingle v. Bates- 
 ville Grocery Co., 89 Ark. 378, 117 
 S. W. 241 (1909). 
 
 2. Heaston v. R. Co., 16 Ind. 275, 
 278 (1861). 
 
§ 625 
 
 Knowledge; Judicial. 
 
 794 
 
 public acts of Congress, 3 but tbose created under tbe public stat- 
 utes of a state. 4 They know also powers conferred by act of Con- 
 gress on existing corporations, state 3 or national. 
 
 Corporate Acts in Pais. — Unless required by law to do so 
 courts will not notice acceptance by a corporation of its charter, as 
 to what corporations are established by .acts in pais under the pro- 
 visions of a general statute of incorporation, 6 or, where there are 
 several available statutes of incorporation, as to which was actually 
 employed. 7 This is all in pais and is not, therefore, part of a 
 court's judicial knowledge. Neither will a judge judicially know 
 whether a given corporation has adopted the terms of a certain 
 act, 8 has in fact consolidated with another corporation as author- 
 ized by a statute, 9 whether it has lost or forfeited its charter, 10 
 or has adopted by-laws, and, if so, what these are. 11 In like man- 
 
 3. Central Bank K. Tayloe, 5 Fed. 
 Cas. No. 2,548, 2 Cranch C. C. 427 
 (1823). 
 
 4. Beaty v. Knowler, 4 Pet. (U. S.) 
 152, 7 L. ed. 813 (1830). See also 
 Covington Drawbridge Co. r. Shep- 
 herd, 20 How. (U. S.) 227, 15 L. ed. 
 896 (1857). 
 
 5. Pennsylvania R. Co. v. Baltimore, 
 etc., R. Co., 37 Fed. 129 (1888) 
 (railroad company authorized to 
 
 bridge navigable waters). 
 
 6. Danville, etc., Plank-Road Co. v. 
 State, 16 Ind. 456 (1S61) ; People v. 
 De Mill, 15 Mich. 164, 93 Am. Dec. 
 179 (1867); Trice v. State, 2 Head 
 (Tenn.) 591 (1859). See also: 
 
 Arkansas. — Hammett v. Little Rock, 
 etc., R. Co., 20 Ark. 204 (1859). 
 
 California. — Wall V. Mines, 130 
 Cal. 27, 62 Pac. 386 (1900). 
 
 Maine. — Dutton Ministerial, etc., 
 Fund v. Kendrick, 12 Me. 381 (1835). 
 
 Maryland. — Towson v. Havre-de- 
 Grace Bank, 6 Harr. & J. (Md.) 47, 
 14 Am. Dec. 254 (1823). 
 
 Massachusetts. — Portmouth Livery 
 Co. v. Watson, 10 Mass. 91 (1813). 
 
 New York. — Purdy r. Erie R. Co., 
 162 N. Y. 42, 56 N. E. 508, 48 L. R. 
 A. 669 [affirming 54 N. Y. Suppl. 
 1114, 33 App. Div. 643] (1900). 
 
 North Carolina. — Chicago State 
 
 Bank r. Carr, 130 N. C. 479, 41 S. 
 E. 876 (1902). 
 
 Oregon. — Goodale Lumber Co. v. 
 Shaw, 41 Or. 544, 69 Pac. 546 (1902). 
 
 United States. — U. S. v. Williams, 
 2S Fed. Cas. So. 16,706, 4 Biss. 302 
 (1869). 
 
 The organization of "national 
 banks " under the federal banking act 
 has been noticed. U. S. v. Williams, 
 28 Fed. Cas. No. 16,706, 4 Biss. 302 
 (1869). 
 
 7. Danville, etc., Plank-Road Co. v. 
 State, 16 Ind. 456 (1861). 
 
 8. Danville, etc., Plank-Road Co. v. 
 State, 16 Ind. 456 (1861). 
 
 9. Southgate v. Atlantic, etc., R. 
 Co., 61 Mo. 89 (1875); Columbus, 
 etc., R. Co. v. Skidmore, 69 111. 566 
 (1873). And see also Brown v. Dib- 
 ble, 65 Mich. 520, 3C N. W. 656 
 
 (1887). 
 
 10. Shea v. Knoxville, etc., R. Co., 
 6 Baxt. (Tenn.) 277 (1873). 
 
 11. Bushnell v. Hall, 9 Ky. L. Rep. 
 684 ( 1887 ) ; Portage Lake Miners', 
 etc., Benev. Soc. v. Phillips, 36 Mich. 
 22 ( 1877 ) ; Haven r. New Hampshire 
 Insane Asylum, 13 N. H. 532, 38 Am. 
 Dec. 512 (1843); Simpson v. South 
 Carolina Mut. Ins. Co., 59 S. C. 195, 
 37 S. E. 18, 225 (1900). 
 
795 
 
 Private Corporations Under Public Acts. 
 
 626 
 
 ner, a court will not judicially know what officers a certain corpo- 
 ration has elected and what powers it has conferred on them, 12 
 or, indeed, whether any other act in po,is whatever, has been done 
 by the corporation, 13 or its board of directors. 14 Such acts must 
 be proved, though a court knows what powers the general incor- 
 poration act confers upon corporations organized under its pro- 
 visions. 
 
 Private Corporations. — Statutes of incorporation for private 
 business purposes will not be judicially known. Even the name 15 
 of such a corporation must be proved. In like manner, no judi- 
 cial notice will be taken of the seal of private corporations. 16 
 They must be established by proof. 
 
 § 626. (Judicial Knowledge of Written Law; What Statutes 
 Are Public; Mercantile Corporations) ; Existence of Such Cor- 
 porations. — As a result accomplished by the direct operation of a 
 law which it is obliged to know the court judicially knows the 
 existence of private corporations established by a domestic public 
 statute, 1 their names, 2 and powers; 3 and the duties of its 
 
 12. Crawford v. Mobile Branch State 
 Bank, 7 Ala. 205 (1844) ; Brown V. 
 Missouri, etc., R. Co., 67 Mo. 122 
 (1877). 
 
 13. Illinois Cent. R. Co. v. John- 
 son, 40 111. 35 (1864) (adopted a 
 seal) ; Dunlap v. Wilson, 32 111. 
 517 (1863) ; People v. Tierney, 57 
 Hun (N. Y.) 357, 589, 10 N. Y. 
 Suppl. 940, 948 (1890) (business re- 
 lations with the United States govern- 
 ment) ; Market Nat. Bank v. Pacific 
 Nat. Bank, 27 Hun (N. Y.) 465 
 (1882) (foreign bank insolvent) ; 
 Topp v. Watson, 12 Heisk. (Tenn.) 
 411 (1873) ; Topp v. Watson, 12 
 Heisk. (Tenn.) 411 (1873) (assign- 
 ment made or trustee appointed under 
 authority of statute) ; Chapman v. 
 Pittsburgh, etc., R. Co., 8 W. Va. 
 184 (1881) (acquired any particular 
 land). 
 
 14. Crawford v. Mobile Branch 
 State Bank, 7 Ala. 205 (1844) (ac- 
 tion of directors) ; Dunlap v. Wilson, 
 32 111. 517 (1863); Topp v. Watson, 
 12 Heisk. (Tenn.) 411 (1873). 
 
 15. Winnipiseogee Lake Co. v. 
 Young, 40 N. H. 420, 428 (1860). 
 
 16. Griffing Bros. Co. v. Winfield, 
 (Fla. 1907). 43 So. 687. 
 
 1. State v. Briscoe, (Del. 1907) 67 
 Atl. 154; Com. *. Newport, L. & A. 
 Turnpike Co., 100 S. W. 871, 30 Ky. 
 L. Rep. 1235 (1907). 
 
 2. Jackson v. State, 72 Ga. 28 
 (1883) ; Georgetown, etc., Cent. Bank 
 v. Tayloe, 5 Fed. Cas. No. 2,548, 2 
 Cranch C. C. 427 (1823). 
 
 3. Alabama. — Burdine p. Grand 
 Lodge, 37 Ala. 478 (1861). 
 
 Arkansas. — Hammett v. Little Rock, 
 etc., R. Co., 20 Ark. 204 (1859). 
 
 Georgia. — Jackson v. State, 72 Ga. 
 28 (1883). 
 
 Indiana. — Gordon v. Montgomery, 
 19 Ind. 110 (1862). 
 
 Kentucky. — Lexington Mfg. Co. v. 
 Dorr, 2 Litt. 256 (1822). 
 
 Maine. — State v. Webb's River Imp. 
 Co., 97 Me. 559, 55 Atl. 495 (1903). 
 
 Maryland. — Miller v. Matthews, 87 
 Md. 464, 40 Atl. 176 (1898). 
 
§ 627 
 
 Knowledge; Judicial. 
 
 796 
 
 officers 4 and of a time limit upon its corporate existence, 5 so far as 
 any has been imposed by law. 6 
 
 Federal Courts. — For analogous reasons, a federal court will 
 judicially know that a certain corporation is established under 
 act of Congress. 7 
 
 § 627. (Judicial Knowledge of Written Law; What Statutes 
 Are Private; Mercantile Corporations; Existence of Such 
 Corporations) ; Under Private Acts. — Except where the fact is 
 a notorious one in the community or where required by law so 
 to do, the court will not know the existence of domestic corpora- 
 tions existing under a private act, 1 or that of corporations estab- 
 lished under the law of a foreign country or sister state. 2 
 
 Where the otherwise private act relates to a public purpose, a 
 somewhat different question is presented to the court in the exer- 
 
 Massachusetts. — Portmouth Livery- 
 Co. v. Watson, 10 Mass. 91 (1813). 
 
 Michigan. — Chapman v. Colby, 47 
 Mich. 46, 10 N. W. 74 (1881). 
 
 South Carolina. — Simpson v. South 
 Carolina Mut. Ins. Co., 59 S. C. 195, 
 37 S. E. 18, 225 (1900). 
 
 Tennessee. — Owens v. State, 5 
 Sneed 493 (1858). 
 
 Texas. — Alabama Bank v. Simon- 
 ton, 2 Tex. 531 (1847). 
 
 Vermont. — Buell v. Warner, 33 Vt. 
 570 (1861). 
 
 West Virginia. — State v. Baltimore, 
 etc., R. Co., 15 W. Va. 362, 36 Am. 
 Rep. 803 (1879). 
 
 4. Douglass v. Mobile Branch Bank, 
 19 Ala. 659 (1851) (commissioners 
 of the state bank). 
 
 5. Terry v. Merchants', etc., Bank, 
 66 Ga. 177 (1880). 
 
 6. County courts are required, by 
 statute, in certain jurisdictions, to 
 know judicially the existence of cor- 
 porations whose articles are recorded 
 in the county. Such a provision does 
 not affect a higher court. Cicero 
 Hygiene Draining Co. v. Craighead, 
 28 Ind. 274 (1867) ; Delawter r. Sand 
 Creek Ditching Co., 26 Ind. 407 
 (1866). 
 
 7. Heffelfinger t>. Choctaw, O. & G. 
 R. Co., (Tenn. 1905) 140 Fed. 75. 
 
 1. Mobile v. Louisville, etc., R. 
 Co., 124 Ala. 132, 26 So. 902 (1899 
 Kirby v. Wabash R. Co., 85 Mo. App 
 345 (1900); State v. Haddonfield 
 etc., Turnpike Co., 65 N. J. L. 97 
 46 Atl. 700 (1900) ; Conley v. Colum 
 bus Tap. R. Co., 44 Tex. 579 (1876 
 
 2. Alabama. — Savage v. Russell, 84 
 Ala. 103, 4 So. 235 (1887). 
 
 Maine. — Savage Mfg. Co. v. Arm- 
 strong, 17 Me. 34, 35 Am. Dec. 227 
 (1840). 
 
 Maryland. — Agnew v. Gettysburg 
 Bank, 2 Harr. & G. 478 (1828). 
 
 Massachusetts. — Portmouth Livery 
 Co. v. Watson, 10 Mass. 91 (1813). 
 
 Michigan. — Brown v. Dibble, 65 
 Mich. 520, 32 N. W. 656 (1887). 
 
 Missouri. — Southern Illinois, etc., 
 Bridge Co. v. Stone, 174 Mo. 1, 73 
 S. W. 453 (1902). 
 
 Ohio. — Lewis v. Kentucky Bank, 12 
 Ohio 132, 40 Am. Dec. 469 (1843). 
 
 Oregon. — Law Trust Soc. r. Hogue, 
 37 Or. 544, 62 Pac. 380, 63 Pac. 690 
 (1900). 
 
 Tennessee. — Nashville Trust Co. v. 
 Weaver, 102 Tenn. 66, 50 S. W. 763 
 (1899). 
 
 England. — St. Charles Nat. Bank 
 v. DeBernales, 1 C. & P. 569, R. & M. 
 193, 12 E. C. L. 325 (1825). 
 
797 
 
 Public Statutes Prescribing Powers. 
 
 628 
 
 cise of its administrative power. The result which such a statute 
 effects is usually a matter of notoriety. The impulse to trans- 
 mute common into judicial knowledge for the expediting of pub- 
 lic business or the furtherance of justice in other ways is one to 
 which the judge may reasonably yield. In the absence of the 
 common legislative requirement to the same effect, a court may 
 well treat special charters incorporating persons to carry on cer- 
 tain business enterprises of a public or semi-public nature, as 
 banking, 3 operating a railroad, street railway, or an electric 
 light * or power plant, as within the range of judicial knowledge. 
 
 § 628. (Judicial Knowledge of Written Law; What Statutes 
 Are Public; Mercantile Corporations); Statutes Conferring 
 Powers — For the same reasons statutes prescribing the powers 
 and duties of all corporations of, this class, or of all corporations 
 organized for certain purposes, e. g., operating a railroad, 1 and 
 the like, 2 stand in the same position. In like manner, it will be 
 
 3. Arkansas. — McKiel v. Real Es- 
 tate Bank, 4 Ark. 593 (1841) (state 
 bank of Arkansas). 
 
 Georgia. — Davis v. Bank of Fulton, 
 31 Ga. 69 (1860). 
 
 Indiana. — Gordon v. Montgomery, 
 19 Ind. 110 (1862) (insurance com- 
 pany given privileges of banking) . 
 
 South Carolina. — Bank of New- 
 bury V. R. Co., 9 Rich. L. 495 ( 1855 ) . 
 
 Tennessee.— Shaw v. State, 3 Sneed 
 (Tenn.) 86 (1855) (bank of Tennes- 
 see). 
 
 Vermont. — Buell v. Warner, 33 Vt. 
 570, 578 (1861). 
 
 Virginia. — Hay3 v. Northwestern 
 Bank, 9 Gratt. 127 (1852). 
 
 4. Necessity for legal authority. — 
 A court of general jurisdiction will 
 not judicially know, in the absence of 
 positive requirement, the existence or 
 terms of a municipal ordinance. 
 Supra, § 611. Still, that certain acts 
 will only be permitted where such an 
 ordinance exists, e. g., that an electric 
 light company must, in order to light 
 the streets of a city receive permis- 
 sion from its authorities may be a 
 primary result of law which the court 
 will judicially know. Nelson v. Nar- 
 
 ragansett Electric Lighting Co., 26 
 R. I. 258, 58 Atl. 802 (1904). 
 
 1. Georgia. — Caldwell v. Richmond 
 Ry. Co., 89 Ga. 550 (1892). 
 
 Kentucky. — Chicago, St. L. & N. O. 
 R. Co. v. Liebel, 86 S. W. 549, 27 
 Ky. L. Rep. 716 (1905). 
 
 Maryland. — Chesapeake & O. Canal 
 Co. v. Western Maryland R. Co., (Md. 
 1904) 58 Atl. 34. 
 
 New Hampshire. — Hall v. Brown, 
 58 N. H. 93 (1877). 
 
 Texas. — Hall v. International & G. 
 N. Ry. Co., (Tex. 1904) 81 S. W. 520. 
 
 Judicial notice has however been 
 refused to private railroad charters. 
 Jersey City v. Jersey City & B. R. 
 Co., (N. J. Sup. 1904) 57 Atl. 445. 
 Where the courts are required to take 
 judicial notice of the private laws of 
 a state, the question as to what are 
 the powers conferred by a railroad 
 charter present a mere question of 
 law.. New York, N. H. & H. R. Co. 
 v. Offield, 78 Oonn. 1, 60 Atl. 740 
 (1905). 
 
 2. Miller v. Mathews, 87 Md. 464, 
 40 Atl. 176 (1898) (company em- 
 powered to become sole surety on an 
 official bond). 
 
§§ 629, 630 Knowledge; Judicial. 798 
 
 judicially known that a corporation, operating a canal in a navi- 
 gable river can acquire a fee in such property only by a grant 
 from the legislature. 8 
 
 § 629. (Judicial Knowledge of Written Law; What Statutes 
 Are Public; Mercantile Corporations); Minor Facts. — Minor 
 facts relating to corporations as that all stockholders, residents of 
 the state, are among its citizens 1 are not within the judicial 
 knowledge of the court. Facts of this class may be known wher- 
 ever they are notorious in the community or historical, in some 
 general sense. 2 In the case of certain well-known bodies notice 
 will be taken that they are not organized for business purposes; 
 e. g., that the Free Masons are incorporated to help, aid and 
 assist each other in charitable ways. 3 Protection of workingmen 
 is a public purpose. Thus statutory regulations of the duties due 
 a servant from his master are public in their nature. 4 
 
 § 630. (Judicial Knowledge of Written Law; What Statutes 
 Are Public; Mercantile Corporations); Railroads Direct re- 
 sults of legislation as that railroad companies are common car- 
 riers 1 and, as such, have certain duties to perform, 2 will be recog- 
 nized by the court as a matter of law, i. e., judicially known. 
 The creation of a railroad company either as an original corpora- 
 
 3. State v. Portland General Elec- 4. Squilache v. Tidewater Coal & 
 
 trie Co., (Or. 1908) 98 Pae. 160 Coke Co., 64 W. Va. 337, 62 S. E. 446 
 
 [rehearing denied, 95 Pae. 722]. (1908). 
 
 Courts judicially know that a mer- Acts imposing penalties for failure 
 
 cantile corporation could acquire to provide certain safeguards against 
 
 rights in the bed, banks and water injuries to employees from factory 
 
 of a navigable river only by an act machinery are judicially noticed as 
 
 of the Legislature. State v. Portland public statutes. Lohmeyer v. St. Louis 
 
 Gen. Electric Co., (Or. 1908) 95 Pae. Cordage Co., 214 Mo. 685, 113 S. W. 
 
 722 [rehearing denied, 98 Pae. 160 1108 (1908). 
 
 (1908)]. 1. Caldwell v. Richmond, etc., R. 
 
 1. Lexington Mfg. Co. v. Dorr, 2 Co., 89 Ga. 550, 15 S. E. 678 (1892) ; 
 Litt. (Ky.) 256 (1822). Boyle v. Great Northern R. Co., 13 
 
 2. Ohio L. Ins., etc., Co. v. Debolt, Wash. 383, 43 Pae. 344 (1896); 
 16 How. (U. S.) 416, 435, 14 L. ed. Condran v. Chicago, etc., R. Co., 67 
 997 (1853) (legislative conditions Fed. 522, 523 (1S95) . See also Cald- 
 attending incorporation by special well v. Richmond, etc., R. Co., 89 Ga. 
 charters). See also State r. Franklin 550, .15 S. E. 678 (1892). 
 
 County Sav. Bank, etc., Co., 74 Vt. 2. Evansville, etc., R. Co. v. Dun- 
 
 246, 52 Atl. 1069 (state banks) can, 28 Ind. 441 (1867). 
 
 (1902). 
 
 3. Burdine v. Grand Lodge, 37 Ala. 
 478 (1861). 
 
799 Powees of Street Kailways Known. § 631 
 
 tion, by charter or by certificate under a general law, 3 or as suc- 
 cessor to another railroad 4 will be noticed judicially. By the 
 weight of authority, it is held that a special charter incorporating 
 a railroad will not be deemed a public statute, 5 though there is 
 authority to the contrary. 6 
 
 Taxation. — The involution into any mixed situation of an 
 element of legal enactment may assist to induce the judge to take 
 judicial notice of a fact of history, or of one in some other 
 branch of common knowledge. Thus, where the legislature has 
 provided a system of assessing railroad taxes, the fact that the 
 railroads of the state have paid the taxes so assessed 7 is said to 
 be judicially known. 
 
 § 631. (Judicial Knowledge of Written Law; What Statutes 
 
 Are Public; Mercantile Corporations); Street Railways The 
 
 incorporation of a street railway by special charter is a direct 
 result of a public statute of which courts take judicial notice. It 
 follows that the presiding judge will know that no special charter 
 has been issued to a particular street railway company. 1 In like 
 manner, and for the same reasons, courts judicially know the legal 
 
 3. Atlanta & W. P. R. Co. v. At- lanta, B. & A. E. Co., 125 6a. 529, 54 
 lanta, B. & A. R. Co., 124 Ga. 125, S. E. 736 (1906). 
 
 52 S. E. 320 (1905) ; McArdle v. Chi- 5. Perry v. R. Co., 55 Ala. 413, 426 
 cago City Ry. Co., 141 111. App. 59 (1876); Ohio R. Co. v. Ridge, 5 
 (1908) ; Com. v. Kinniconick & F. S. Black. 78 (1839) ; Atchison, T. & S. 
 R. Co., 31 Ky. L. Rep. 859, 104 S. W. F. R. Co. v. Blackshire, 10 Kan. 477, 
 290 (1907). The court judicially 487(1872). They " operate upon par- 
 knows the principal office or legal resi- ticular persons and private concerns." 
 dence of a railroad company incor- Ohio, etc., R. Co. v. Ridge, 5 Blackf. 
 porated under its laws. White v. At- 78 (1839). 
 
 lanta, B. & A. Ry. Co., 5 Ga. App. 6. Wright v. Hawkins, 28 Tex. 452, 
 
 308, 63 S. E. 234 (1908). 471 (1866). 
 
 The res gestae or constituent facts 7. Gulf & S. I. R. Co. v. Adams, 
 
 cannot be established by judicial 85 Miss. 772, 38 So. 348 (1905). 
 
 knowledge or assumption, or as a 1. American Steel & Wire Co. v. 
 
 matter of notoriety. Infra, § 699. Bearse, 194 Mass. 596, 80 N. E. 623 
 
 This principle, it is to be observed, (1907). But see also Ingersoll v. 
 
 is most highly important in criminal Davis, (Wyo. 1906) 82 Pac. 867. 
 
 cases. Thus, where the corporate The courts will take judicial notice 
 
 existence of a railroad is a constitu- that a domestic street railway corpo- 
 
 ent fact on a criminal proceeding for ration was organized under the general 
 
 keeping a bucket shop, the fact of in- law, and not under a special charter, 
 
 corporation must be pleaded and Murphy v. Worcester Consol. St. Ry. 
 
 proved. People v. Wirsching, 239 111. Co., 199 Mass. 279, 85 N. E. 507 
 
 522, 88 N. E. 169 (1909). (1908). 
 
 4. Atlanta & W. P. R. Co. v. At- 
 
§§ 632, 633 Knowledge; Judicial. 800 
 
 powers and duties conferred or imposed on such creations of law; 
 — e. g., that they are common carriers of passengers. 2 
 
 § 632. (Judicial Knowledge of Written Law; What Statutes 
 Are Public; Mercantile Corporations); Telegraph Companies 
 
 Particular facts relating to telegraph companies, neither of gen- 
 eral importance, nor a direct result of legal enactment, as that 
 there are only two telegraph companies in the state, 1 will not be 
 treated as a matter of judicial knowledge. 
 
 § 633. (Judicial Knowledge of Written Law; What Statutes 
 Are Public); Private Acts Made Public. — The legislature may 
 order that certain acts, otherwise private, shall be treated as 
 being public. 1 This regulation may apply to private acts of a 
 given class, 2 or to all private acts whatever, 3 or to all statutes 
 except those which expressly declare themselves to be of a private 
 nature. 4 
 
 Amendments or recognition of a private act by a public one 
 entail judicial knowledge of the private act. 5 In like manner, the 
 regulations of an administrative board, e. g., the board of health, 6 
 may, if adopted by a public statute, receive judicial notice. 
 
 2. Indianapolis St. Ry. Co. v. Ray, tions) ; Beaty v. Lessee of Knowler, 
 
 (Ind. 1906) 78 N. E. 978. 4 Pet. 152 (1830) (incorporation of 
 
 1. State v. Atlantic Coast Line R. proprietors of lands). 
 
 Co., (Fla. 1906) 40 So. 875. 3. Doyle v. Bradford, 90 111. 416 
 
 1. Illinois. — Gormley v. Day, 114 (1878); Eel River D. Assn. v. Topp, 
 111. 185 (1885) (village incorpora- 16 Ind. 242 (1861) ; Bixler's Adm. v. 
 tion). Parker, 3 Bush, 166 (1867). 
 
 Indiana. — Eel River Draining As- 4. Covington Drawbridge Co. v. 
 
 sociation v. Topp, 16 Ind. 242 (1861). Shepherd, 20 How. 227 (1857) (con- 
 
 Temas. — Missouri, K. & T. R. Co. stitutional provision). "The judicial 
 
 v. Colburn, 90 Tex. 230, 38 S. W. 153 notice we are to take of it, is the 
 
 (1896) . same with that which we give to laws 
 
 United States. — Beaty v. Lessee of of a general and public nature." 
 
 Knowler, 4 Peters 152 (1830). Somerville v. Wimbish, 7 Gratt. 205 
 
 England. — Beaumont v. Mountain, (1850). A private statute, though it 
 
 10 Bing. 404 (1834). It is sufficient contains a clause requiring it to be 
 
 that the act itself, in terms, declares judicially noticed as a public one, is 
 
 that it shall be deemed public. Buell not evidence at all against strangers 
 
 V. Warner, 33 Vt. 570 (1861). either of notice or any of the facts 
 
 Special pleading of private statutes recited. Taylor r. Parry, 1 M. & R. 
 
 may be excused by legislative enact- 504 (1835). 
 
 ment. Halbert r. Skyles, 1 A. K. 5. Lavalle v. People. 6 111. App. 157 
 
 Marsh. (Ky.) 368 (1818); Hart v. (1880). Supra, §§ 600, 609. 
 
 Bait. & O. R. R., 6 W. Va. 336 6. Cohen r. Department of Health 
 
 (1873) . of City of New York, 113 N. Y. Suppl. 
 
 2. Doyle v. Village of Bradford, 90 88, 61 Misc. 124 (1908). 
 111. 416 (1878) (village organiza- 
 
801 Judge May Decline All Assistance. §§ 634, 635 
 
 § 634. (Judicial Knowledge of Written Law; What Statutes 
 Are Public); Statutes of Sister State. — The law-making body of 
 a jurisdiction may see fit to require that the courts organized 
 within it should know judicially the written constitution or public 
 statutes 1 of another state. In such case, the foreign law need not 
 be introduced into evidence. 2 This action has been taken by a 
 state of the American Union in relation to the public 3 written 
 laws of a sister state. 4 
 
 § 635. How Judicial Knowledge of law is Acquired. — Knowl- 
 edge of domestic law, being a judicial function, is beyond the 
 field of evidence and the judge is not called upon to receive it 
 when tendered. 1 Constructively, i. e., in intendment of law, the 
 judge already knows the law. Any assistance from without which 
 he may require, or accepts from a party, or even from an amicus 
 curiw, is simply to refresh the judicial memory. 2 This is com- 
 monly expressed by saying that the judge is " presumed to know 
 the law." 3 This is not a " presumption " or inference. 4 It 
 states merely a necessary principle of administration, viz. ; — that 
 trials must proceed upon the basis or assumption that the judge 
 knows the law, 5 although, in point of fact, he frequently does 
 not know it. Many judges might well say with Baron Parke, 6 
 " though we are supposed to keep the statutes in our heads, we 
 do not." A statute may in reality have recently been passed and 
 the court not know it. T The law may be doubtful or unsettled; 
 it is possible even to mistake the application of a settled principle. 
 In discharging his function of knowing the law, a judge need not 
 make any investigation, or invite any assistance. He may merely 
 
 1. Bates v. McCully, 27 Miss. 584 v. Memphis, etc., R. Co., 9 Heisk. 
 (1854); Lockhead v. B. S. W. & I. (Tenn.) 873 (1872). 
 
 Co., 40 W. Va. 553, 21 S. E. 1031 1. In re Howard County, 15 Kan. 
 
 (1895). 194 (1875). 
 
 2. F. E. Creelman Lumber Co. v. 2. Lincoln v. Battelle, 6 Wend. 
 J. A. Leah & Co., (Ark. 1904) 83 (N. Y.) 475 (1831); Clegg v. Levy, 
 S. W. 320. 3 Campb. 166 (1811). 
 
 3. Private statutes are not included 3. Lincoln v. Battelle, 6 Wend, 
 within the terms of such a statute (N. Y.) 475 (1831). 
 
 unless it is distinctly so provided. 4. Infra, § 1027. 
 
 Miller v. Johnston, 71 Ark. 174, 73 5. Supra, § 571. 
 
 S. W. 371 (1903). 6. Frost's Trial, Gurney's Rep. 168 
 
 4. Miller v. Johnston, 71 Ark. 174, (1840). 
 
 72 S. W. 371 (1903) ; Bates v. Mc- 7. People V. Dowling, 84 N. Y. 478 
 
 Cully, 27 Miss. 584 (1854); Hobbs (1881). 
 
 Vol. I. 51 
 
§ 636 Knowledge; Judicial. 802 
 
 announce his ruling leaving parties aggrieved to their rights, if 
 any, before revisory courts. If he sees fit to do so the judge may 
 examine into what the law is, in his own way ; or he may require 
 the assistance of the parties, and adjourn or continue 8 the case 
 until he gets it. If he decides to examine the matter for himself, 
 he may resort to any source of information which he feels is cal- 
 culated to aid him, 8 as he would in ascertaining a matter of com- 
 mon knowledge. " The existence of a public act is determined 
 by the judges themselves, who if there be any difficulty, are to 
 make use of ancient copies, transcripts, books, pleadings or any 
 other memorial, to inform themselves." 10 The same is true with 
 regard to the existence of any other rule of law. The judge may 
 resort to official documents in the executive 11 or legislative de- 
 partments ; — seeking the most conclusive, if available, 12 unless 
 the legislature has regulated the matter for him. 13 -He may ex- 
 amine text books as to the domestic law; or may equally well, 
 consult the printed official decisions of his jurisdiction. 
 
 § 636. (How Judicial Knowledge of Law Is Acquired) ; For- 
 eign Law. — The unwritten law of a foreign state or country is a 
 fact of a peculiar nature; — by reason of its close analogy, fre- 
 quently recognized in legislation, to rules of domestic law. Even 
 in the absence of statutory requirement, judges frequently take 
 or, perhaps, more properly, acquire judicial knowledge of such a 
 law in the manner appropriate to a rule of domestic law. 1 This 
 
 8. Richardson County School Dist. 10. Bowen v. Missouri Pac. Ry., 118 
 No. 56 v. St. Joseph P. & M. Ins. Co., Mo. 541, 24 S. W. 436 (1893) ; Sedg- 
 101 U. S. 472, 25 L. ed. 868 (1879) Trick Const. St. (2d ed.), p. 26. 
 (furnish list of statutes on brief). 11. Clare v. State, 5 Iowa 509 
 
 9. Alabama. — Cary v; State, 76 (1857) (secretary of state's office); 
 Ala. 78 (1884). State r. Stearns, 72 Minn. 200, 75 
 
 Iowa. — ■ Clare v. State, 5 Iowa 509 N. W. 210 (1898) (election returns) ; 
 
 (1857). Puckett v. State, 71 Miss. 192, 14 So. 
 
 Maryland. — Strauss v. Heiss, 48 452 (1893) (election returns) ; Bowen 
 
 Md. 292 (1877). v. Missouri Pac. R. Co., 118 Mo. 541, 
 
 Minnesota. — State v. Stearns, 72 24 S. W. 436 (1893) (secretary of 
 
 Minn. 200, 75 N. W. 210 (1898). state's office). 
 
 pi.— Puckett v. State, 71 12. Gardner v. Barney, 6 Wall. 
 
 Miss. 192, 14 So. 452 (1893). (U. S.) 499, 18 L. ed. 890 (1867). 
 
 Missouri. — Bowen v. Missouri Pac. 13. Puckett v. State, 71 Miss. 192, 
 
 R. Co., 118 Mo. 541, 24 S. W. 436 14 So. 452 (1893). 
 
 (1893). 1. It will be observed that in cer- 
 
 United States. — Gardner v. Barney, tain connections, more especially in 
 
 6 Wall. 499, 18 L. ed. 890 (1867). those covered by civil or international 
 
803 
 
 Acquiring Knowledge of Foreign Law. 
 
 636 
 
 proceeding on the part of the judge may be really in lieu of evi- 
 dence as to the* foreign law, as verifying facts which such evidence 
 tends to establish, or the judge's individual researches may 
 amplify the evidence itself and confirm the conclusions which he 
 has reached. 2 He may consult text books 3 or other authoritative 
 printed or written statements, 4 official decisions, 5 volumes of 
 statutes and the like ; or, indeed, any other source of information 
 he may deem reliable. 6 In such cases, the rapprochement to the 
 status of a domestic rule of law is still more complete. The 
 judge is rather examining the law itself than weighing evidence 
 as to it. While these books are frequently introduced into evi- 
 
 law, text writers, if of a certain grade 
 of recognized authority, possess a, 
 quasi-legislative power. By stating 
 what the law, in their opinion is, they 
 not ineffectually assist to create the 
 situation which they say already ex- 
 ists. See, for example, The Paquete 
 Habana, 175 U. S. 677, 20 iSup. 220 
 (1899), in which, on a, question of 
 the exemption, by international law, 
 of fishing vessels from seizure as prize, 
 Ortolan, 'Calvo and other authorities 
 are cited. 
 
 2. " If the witness says ' I know 
 the law, and this book truly states 
 the law,' then you have the authority 
 of the witness and of the book." Sus- 
 sex Peerage Case, 11 CI. & F. 85 
 (1844) per Lord Denman. 
 
 3. Hilton v. Guyot, 159 U. S. 113, 
 16 Sup. 139, 162 (1894) ; The Paw- 
 ashick, 2 Low. 148 (1872) (Abbott 
 on Shipping as to Admiralty law of 
 England) ; Breadalbane v. Chandos, 2 
 Myl. & Cr. 711, 741 (1836) ; Lacon v. 
 Higgins, 3 Stark. 178, Dowl. & B. 
 N. P. 42, Abbott, C. J. (1822) ; Pic- 
 ton's Trial, 30 How. St. Tr. 483, 492, 
 511 (1806) ; Dalrymplc v. Dalrymple, 
 2 Hagg. Cons. 54 (1811) (law of 
 Scotland). But see, also, Perth Peer- 
 age Case, 2 H. L. Cas. 865 (1848); 
 R. v. Crouch, 1 Cox Cr. 94 (1844). 
 
 4. Iowa. — De Sonora v. Bankers' 
 M. C. Co., (Iowa 1903) 95 N. W. 232 
 (Bouvier's Law Dictionary as to law 
 of Mexico). 
 
 New York. — Devenhagh v. Deven- 
 bagh, 5 Paige Ch. 554, 556, Walworth, 
 C. (1836). 
 
 United States. — The Paquete Ha- 
 bana, 175 TJ. S. 677, 20 Sup. 290 
 (1899) (international law). 
 
 England. — Bremer v. Freeman, 10 
 Moore P. C. 306, 363 (1857) ; Nelson 
 v. Bridport, 8 Beav. 527, per Lord 
 Langdale, M. B. (1845) (Sicilian 
 Codes, Treatises, Statutes, etc.) ; 
 Baron de Bode's Case, 8 Q. B. 208, 
 Lord Denman, C. J. (1845) ; Picton's 
 Trial, 30 How. St. Tr. 492 (1805) 
 (Spain) per Lord Ellenborough. 
 
 Canada. — Bice v. <Gunn, 4 0nt. 589 
 (1884). 
 
 5. The Pawaspick, 2 Low. 148 
 (1872). 
 
 6. The authority of the book or text 
 writer must be established <by evidence 
 from a competent source. The judge's 
 personal knowledge either as to the 
 fact itself or as to professional opin- 
 ion concerning it would be sufficient. 
 The Pawashick, 2 Low. 148 (1872). 
 But production of the book alone is 
 not satisfactory. " Proof of the law 
 itself, in a case of foreign law, could 
 not be taken from the work of the 
 law, but from the witness who de- 
 scribed the law. If the witness says 
 ' I know the law, and the book truly 
 states the law,' then you have the au- 
 thority of the witness and of the 
 book." Lord Denman, in Sussex Peer- 
 age Case, 11 CI. & F. 85 (1844). 
 
§ 637 Knowledge; Judicial. 804 
 
 denee and their admissibility is thus made to present the appear- 
 ance of an exception to the rule against hearsay, 7 to infer the 
 existence of an exception to the rule would be to misapprehend 
 the situation. No error attends the introduction of such books 
 in evidence ; — any more than would occur were a domestic 
 public statute put in evidence. It is, so far as probative effect 
 goes, simply a work of supererogation. The judge might, if he 
 saw fit, give any statement in the book the same weight were it 
 brought to his attention without the formality of offering it in 
 evidence. This is the only objection to putting the book in evi- 
 dence ; — that it obscures the real nature of what is actually 
 going on. Offering the printed works in evidence, has, however, 
 an incidental advantage of no small administrative value. It 
 acquaints the parties with what is in the judge's mind — always 
 valuable knowledge — and so prevents surprise and enables the 
 party adversely affected to present countervailing and, possibly, 
 prevailing considerations to the judge. 
 
 § 637. Judicial Knowledge of the Results of Law The second 
 
 and remaining branch of judicial knowledge properly so called, is 
 a knowledge, cognizance, notice or whatever may be the term pre- 
 ferred, of facts which are the direct result of law. This knowl- 
 edge may, under some circumstances, be actual ; — as where a 
 judge knows of the establishment of a county or other political 
 division of the state. In most cases, however, the knowledge 
 is of the imputed, constructive kind characteristic of knowledge 
 of the rules of law themselves ; — the sort of knowledge which 
 one may be said to have who is merely forbidden to say that he 
 does not know. A judge judicially knows that which is " matter 
 of law." The phrase is sufficiently elastic to cover hath the rules 
 of law and such facts as laws directly establish. In many cases 
 these are practically inseparable. One striking difference, how- 
 ever, between the two branches of judicial knowledge, (1) knowl- 
 edge of law and (2) knowledge of the results of law — lies in the 
 different proportion of adminstration 1 which they respectively 
 exhibit. In all announcement and enforcement of the rules of 
 law — substantive or procedural — there is an element of admin- 
 istration. The various rules are to be harmonized to each other 
 and adjusted to the facts, certain being given force and extension, 
 
 7. Infra, § 2700. 1. Supra, § 174. 
 
805 Theee Judicial Functions. § 638 
 
 others subordinated. The function of administration in this 
 connection is, however, a minor one. But in regard to matters 
 judicially known because established by law, the element of ad- 
 ministration assumes a much larger relative influence and import- 
 ance. The underlying reason of this is obvious. These facts are 
 especially used as the basis of administrative assumptions designed 
 for the expediting of judicial business. In reality, it may fairly 
 be said that the first class of facts judicially known consists of 
 rules of law, with incidental administration; the second covers 
 instances of administration with incidental knowledge of rules of 
 law. 
 
 § 638. (Judicial Knowledge of the Results of Law); Govern- 
 mental Assumptions. — Perhaps as a relic of early days where the 
 King, the source of all government, as well as the fountain of 
 justice, personally sat in Court of King's Bench and gave judg- 
 ment, courts, to a certain extent, regard themselves as knowing 
 what the other departments of government know. Actual judicial 
 administration, in certain connections, is difficult to understand 
 except by recognizing the influence of what may be called the 
 comity between the different branches in the government of the 
 sovereign. The courts recognize that they are parts of a system 
 or scheme of governmental administration. As such, they assume, 
 in a spirit of co-ordinate responsibility, the correctness of the 
 official actions of other departments. In this way, the administra- 
 tive power of the judge is used to good effect in expediting judicial 
 business and, at the same time, extending a proper courtesy and 
 recognition to other departments of the common government. 
 These assumptions, as usual, 1 are made by means of rulings as to 
 the burden of evidence. 2 It is said that the burden of evidence, 
 " burden of proof," as it is most often termed, is on him who dis- 
 putes the fact which the court provisionally assumes as true. In 
 their aspect of shifting the burden of evidence ("proof") these 
 administrative assumptions are very often spoken of as " presump- 
 tions of law," which have the same effect. In their aspect 
 of dispensing with proof, they are often referred to as judicial 
 knowledge — • which also requires no evidence. 
 
 The three functions of a trial judge, judicial knowledge, use of 
 common knowledge and judicial administration are apt to unite 
 
 1. Supra, § 546. 2. Infra, §§ 967 et seq. 
 
§ 638 Knowledge; Judicial. 806 
 
 and blend with each other in a rather confusing way in any given 
 case. Thus, for example, a judge may know, because every one 
 knows, who is president of the United States; the incumbency of 
 the office is also a direct result of law which he judicially knows. 
 A proclamation by the president, under his signature, authen- 
 ticated by the seal of state, is presented in evidence. The 
 authority of law under which the supreme executive has acted is 
 part of the judge's judicial knowledge. But is the paper genuine ? 
 The judge is personally unfamiliar with both signature and seal 
 of office. But shall he accept them as authenticating the document 
 or, on the other hand, shall he require proof? That, in the ab- 
 sence of some procedural requirement, presents a question of ad- 
 ministration. If he should rule that proof is unnecessary, the 
 judge is very apt to say that he judicially knows the signature 
 of the president and seal of state. Yet he does not, and, if he 
 did, he could by no means know but that the signature had been 
 forged or the seal imitated or impressed on the paper by one who 
 had no authority to do SO'. 
 
 As a matter of administration, the judge assumes that all is as 
 it appears on the surface to be — a genuine signature of the 
 executive under the seal of state. The proponent need to introduce 
 no evidence on the point. If the opponent can show any infirm- 
 ative facts, he may do so. The burden of evidence has been 
 shifted. 3 "Whether the process be called taking judicial knowl- 
 edge, raising a presumption of regularity 4 or otherwise, the real 
 action is one of judicial administration proceeding by way of an 
 assumption of the correctness of official proceedings in another 
 branch of the domestic government. 5 
 
 Church Establishment. — In England, for example, the exist- 
 ence and legal establishment under various acts of Parliament, 
 of a state church, have resulted in a requirement that the courts, 
 being part of the same government, should, under the adminis- 
 
 3. Infra, § 971. 1908) 47 So. 609, The history 
 
 4. Infra, §§ 1193 et seq. of previous legislation upon a 
 
 5. Probably it is in this way that a given subject and the practical con- 
 court will assume that public officials temporaneous construction placed upon 
 keep within the sums appropriated by statutes of that nature 'by officers 
 law for their use. Stein v. Morrison, charged with their enforcement will 
 
 (Idaho 1904) 75 Pac. 246. Courts be known to the presiding judge, 
 
 can take judicial notice of all ques- State v. Rutland R. Co., 81 Vt. 508, 
 
 tions relating to public policy. Hall 71 Atl. 197 (1908). 
 ■v. O'Neil Turpentine Co., (Fla. 
 
807 High Executive Officials and Deputies. § 639 
 
 trative principle now under consideration, dispense with proof of 
 many of the more direct results of these enactments. In this 
 connection, moreover, as elsewhere, this course is made the more 
 natural and inviting by the notorious nature 6 of the fact itself 
 of which cognizance is taken. Thus the courts take notice of the 
 diocese in which the superior courts at Westminster are situate. 7 
 It has been held, however, that a court cannot judicially know 
 that a given town is within a particular diocese. 8 In the same 
 way, these courts recognize the days of festivals appointed by the 
 calendar of the Church of England. 9 Similarly, the limits of 
 ecclesiastical jurisdiction are said to be a isubject of judicial 
 cognizance. 10 
 
 § 639. (Judicial Knowledge of the Results of Law; Govern' 
 mental Assumptions); Official Position In determining judi- 
 cial action the incumbency, past or present, of high public position 
 in other departments of government may be an important fact. 
 All the courts of a country know who is or at any time was the 
 executive head of the state ; — as president of the United States, 1 
 who are 2 or, at a given time, were cabinet officers, 3 foreign minis- 
 ters, 4 or at the head of the great departments of government, 5 
 or of important bureaus in these departments. 6 In minor official 
 connections, they know as a rule who are deputies or acting sub- 
 stitutes, while the latter are exercising the functions of the office, 
 
 6. Infra, § 699. 4. Wetherbee v. Dunn, 32 Cal. 106 
 
 7. Adams v. Savage, 6 Mod. 134 (1867); Walden v. Canfield, 2 Rob. 
 (1794). (La.) 466 (1842). 
 
 8. R. v. Sympson, 2 Ld. Raym. 1379 5. This involves judicial knowledge 
 / 170i ) . that certain persons are not occupying 
 
 9. Brough v. Perkins, 6 Mod. 81 certain offices but that their success- 
 (1794). ors have been elected, qualified and 
 
 10. Adams v. Savage, 2 Ld. Raym. inducted into office. State v. Board 
 854 (1701). of State Canvassers, (Mont. 1905) 79 
 
 1. Liddon v. Hodnett, 22 Fla. 442, Pac. 402 ( Attorney-Gteneral ; Treas- 
 450' (1886) (Andrew Jackson, Presi- urer). 
 
 dent in 1830). 6. Backus Portable Steam Heater 
 
 2. Backus Portable Steam Heater Co. v. Simonds, 2 App. Cas. (D. C.) 
 Co. v. Simonds, 2 App. Cas. (D. C.) 290 (1894) (commissioner of patents) ; 
 290 (1894) ; Herriot v. Broussard, 4 Liddon v. Hodnett, 22 Fla. 442 (1886) 
 Mart. N. S. (La.) 260, 262 (1826). (commissioner of general land office) ; 
 
 3. Walden v. Canfield, 2 Rob. (La.) Keyser v. Hitz, 133 U. S. 138, 10 S. 
 466 (1842). See also Perovich v. Ct. 290, 33 L. ed. 531 (1889) (con- 
 Perry, 167 Fed. 789 (1909) (cabinet troller of the currency). 
 
 officer). 
 
§§ 640, 641 Knowledge; Judicial. 808 
 
 in the absence of the chief, 7 and, less frequently, in case of im- 
 portant officers, who are the deputies empowered to act for the 
 chief. 8 The court knows who are the principal subordinate de- 
 partment officials, 9 receivers of public" money, 10 as chief clerk, 11 
 and the like. 
 
 § 640. (Judicial Knowledge of the Results of Law; Govern- 
 mental Assumptions; Official Position); De Facto and De Jure 
 
 Officers. — It has been reasonably held that only de jure officials 
 could be judicially noticed. 1 Judicial knowledge is reserved for 
 matters of law — law or its direct results or creations. Facts 
 regarding the de facto tenure of office may well be notorious and 
 so the subject of common knowledge. Administrative convenience 
 may often warrant treating the de facto magistrate as if he were 
 de jure. But judicial knowledge, properly so called, does not 
 apply to such officers. The distinction, however, is not well estab- 
 lished. 
 
 Time of holding elections for national officers, including con- 
 gressmen; 2 or for the governor and other high officials of a state, 
 will, when established by law, be judicially known by all the 
 courts of a state. 
 
 § 641. (Judicial Knowledge of Results of Law); Tenure of 
 
 Minor Offices. — Minor political details as to official tenure of state 
 officers, as the appointment by the governor 1 or election by the 
 
 7. Barton v. Hempkin, 19 La. 510 11. Barton v. Hempkin, 19 La. 510 
 
 (1841) (acting commissioner of gen- (1841) (chief clerk), 
 
 eral land office); Keyser v. Hitz, 133 1. Alabama,— Williams v. Finch, 
 
 U. S. 138, 10 S. Ct. 290, 33 L. ed. (Ala. 1906) 41 So. 834. 
 
 531 (1889) (acting controller of the 2. State r. Custer, 28 R. I. 222, 66 
 
 currency); York, etc., R. Co. v. Atl. 306 (1907). 
 
 WinanB, 17 How. (U. B.) 30, 15 L. ed. 1- Alabama.— Colgin v. State Bank, 
 
 27 (1854) (acting commissioner of H Ala. 238 (1847) 
 
 ' ° Arkansas. — Kaufman r. Stone, 85 
 
 Tweiherbee v. Dunn, 32 Cal. 106 Ark 336 (1869) (commissioner of 
 
 , , . deeds ) . 
 
 (1867) (marshal). Georgia.- Bailey v. McAlpin, 122 
 
 Who are deputy United States mar- Ga ^ M g E 38g (igo5) 
 
 shals will not be known to state Kentuc k y .— Louisville r. Board of 
 
 courts. Ward v. Henry, 19 Wis. 76, park Com > rg> 113 Ky , 40 9 ; 65 S. W. 
 
 88 Am. Dec. 672 (1865). 860; 24 Ky. l. Rep. 38 (1901) (elec- 
 
 9. Bullock v. Wilson, 5 Port. (Ala.) t; on commissioner). 
 
 338 (1837). Tennessee. — State v. Evans, 8 
 
 10. Herriot v. Broussard, 4 Mart. Humphr. (Tenn.) 110 (1847) (attor- 
 N. S. (La.) 260 (1826). ney-general ) . 
 
809 
 
 Results of Local Oedinances Not Known. 
 
 641 
 
 legislature 2 or the voters, of inferior state officers, 3 whether de 
 jure or de facto, their tenure of office 5 and the date of the election 
 or appointment 6 will be known to the courts. The appointee of 
 a state official whose own tenure is itself judicially known is not, 
 however, an official within the meaning of the rule. 7 
 
 Tenure Under Local Ordinances. — The rule above stated 8 
 that courts take judicial notice of the primary and immediate 
 results of laws of which they are bound to take judicial cogniz- 
 ance, is equally true in the reversed form. Courts do not take 
 judicial notice of the primary results of statutes of which they 
 do not take such cognizance. As they do not take such notice of 
 local ordinances, 9 a fortiori they do not judicially know their re- 
 sults. For example, a state or provincial court will not notice the 
 salary of a policeman 10 established by a municipal ordinance. 
 
 Who are notaries public in the state 
 will be judicially noticed. 
 
 Alabama. — Russell v. Huntsville R., 
 etc., Co., 137 Ala. 627, 34 So. 855 
 (1902). 
 
 Illinois. — Hertig v. People, 159 111. 
 237, 42 N. E. 879, 50 Am. St. Rep. 
 162 (1896). 
 
 Iowa. — Black v. Minneapolis, etc., 
 R. Co., 122 Iowa 32, 96 N. W. 984 
 (1903). 
 
 South Dakota. — Wiley v. Carson, 
 15 S. D. 298, 89 N. W. 475 (1902). 
 
 2. Colgin v. State Bank, 11 Ala. 
 222 (1847) ; Bennett v. State, Mart. 
 & Y. (Tenn.) 133. 
 
 3. Alabama. — Cary v. State, 76 
 Ala. 78 (1884) ; Colgin v. State Bank, 
 11 Ala. 222 (1847) (bank commis- 
 sioner). 
 
 California. — Wetherbee V. Dunn, 32 
 Cal. 106 (1867). 
 
 Illinois. — Fisk v. Hopping, 169 111. 
 105, N. E. 323 (1897) (commis- 
 sioner of deeds). 
 
 Louisiana. — Follain v. Lefevre, 3 
 Rob. (La.) 13, 14 (1842) (all func- 
 tionaries commissioned in this state ) . 
 
 Michigan. — People v. Johr, 23 
 Mich. 461 (1871) (auditor general). 
 
 New York. — New York v. Vander- 
 veer, 91 N. Y. App. Div. 303, 86 
 N. Y. Suppl. 659 (1904) (tax officer). 
 
 Tennessee. — State v. Cooper, (Tenn. 
 Ch. App. 1899) 53 S. W. 391. 
 
 Texas. — Roach v. Fletcher, 11 Tex. 
 Civ. App. 225, 32 S. W. 585 "(1895) 
 ( state agent ) . 
 
 England. — Rex v. Bembridge, 22 
 How. St. Tr. 29 (1783) (paymaster). 
 
 Canada. — Simms v. Quebec, etc., R. 
 Co., 22 L. C. Jur. 20 (1877) (attor- 
 ney-general). See also R. v. Ander- 
 son, 9 Q. B. 663 (1846) (assessor and 
 collector of the land tax). 
 
 4. New York v. Vanderveer, 91 
 N. Y. App. Div. 303, 86 N. Y. Suppl. 
 659 (1904); Roach v. Fletcher, 11 
 Tex. Civ. App. 225, 32 S. W. 585 
 (1895); State v. Williams, 5 Wis. 
 308, 68 Am. Dec. 65 (1856). 
 
 5. Cary v. State, 76 Ala. 78 (1884); 
 McCarty v. Johnson, 20 Tex. Civ. App. 
 184, 49 S. W. 1098 (1899); Romero 
 v. U. S., 1 Wall. (U. S.) 721, 17 
 L. ed. 627 (1863). 
 
 Length of an official term estab- 
 lished by statute need not be proved. 
 Aultman Taylor Machinery Co. v. 
 Burchett, (Okla. 1905) 83 Pac. 719. 
 
 6. Lindsey v. Atty.-Gen., 33 Miss. 
 508, 528 (1857). 
 
 7. Crawford v. State, 155 Ind. 692, 
 57 N. E. 931 (1900) (deputy attor- 
 ney-general). 
 
 8. Supra, § 637. 
 
 9. Supra, § 611. 
 
 10. Gibbs v. City of Manchester, 73 
 N. H. 265, 61 Atl. 128 (1905). 
 
§§ 642,643 Knowledge; Judicial. 810 
 
 § 642. (Judicial Knowledge of Results of Law) ; Official Pro- 
 ceedings; In General.— In other words, the reasons which control 
 a court's action in dealing with official proceedings are several. 
 Judicial knowledge in this connection is a function of three var- 
 iables, (a) notoriety in the community; (b) directness of relation 
 to a rule of law; (c) difficulty of making other proof as compared 
 to the readiness with which the matter can be set at rest by inspec- 
 tion. The more generally known is the existence of a fact or the 
 accuracy of an official publication, the more nearly it is a direct 
 effect of a known proposition of written or unwritten law, the 
 easier it is for the judge to ascertain the fact and the more diffi- 
 cult it would be, as* a practical matter, for the party to produce 
 competent evidence of it, the more often will a judge regard it as 
 a matter of judicial knowledge. In few cases does the court's 
 actual knowledge extend to saying whether, in any particular in- 
 stance, 'an official act has been properly done. 1 But the general 
 manner in which officials in close touch with the public discharge 
 the duties of their respective offices, as that in the collection of 
 taxes, property is not assessed by the owner, 2 but by public officers 
 who customarily apprise it at less than its market value, 3 that 
 taxes are not at all times collected until years after they are 
 assessed, 4 will be regarded as known. 
 
 § 643. (Judicial Knowledge of Results of Law; Official Pro- 
 ceedings); Correspondence. — Official correspondence, letters and 
 the like, proceeding with apparent regularity from the executive 
 
 1. Roach v. Fletcher, 11 Tex. Civ. 4. Mullen v. Sackett, 14 Wash. 100, 
 App. 225, 32 S. W. 585 (1895). 44 Pac. 136 (1896). That tax officers 
 
 Whether a patent has issued will are at least de facto members of the 
 not be judicially noticed. Bottle Seal executive government and that the ad- 
 Co. v. Dela Vergne Bottle, etc., Co., ministrative assumption of regularity 
 47 Fed. 59 (1891). will, therefore, be accorded their acts 
 
 2. Chicago, etc., R. Co. v. Smith, 6 need not be proved. City of New 
 Ind. App. 262, 33 N. E. 241 (1892). York r. Vanderveer, 86 N. Y. Suppl. 
 
 3. Bureau County v. Chicago, etc., 659, 91 App. Div. 303 (1904). 
 
 R. Co., 44 111. 229 (1867); State v. It will be judicially known that 
 
 Savage, 65 Neb. 714, 91 N. W. 716 it is not within the official or per- 
 
 (1902) ; Wray v. Knoxville, L. F. & J. sonal duty of a state auditor to col- 
 
 R. Co., (Tenn. 1904) 82 S. W. 471; lect current undefaulted insurance 
 
 Cummings v. Merchants' Nat. Bank, taxes. Dailey v. State, 171 Ind. 646, 
 
 101 U. S. 153, 25 L. ed. 903 (1879) ; 87 N. E. 4 (1909) [transferred from 
 
 Railroad, etc., Co. v. Tennessee, 85 the Appellate Court, 86 N. E. 498 
 
 Fed. 302 (1897) ; Cincinnati Southern (1908)]. 
 R. Co. v. Guenther, 19 Fed. 395 
 (1884). 
 
811 State Cognizance of Federal Officers. §§ 644, 645 
 
 department of national government, will be assumed to be what 
 they purport to be. This is the practical meaning of judicial 
 knowledge in this connection. Thus, the letter of the official head 
 of the national land office relating to routine business is a public 
 document 1 which is aaid to be judicially known. 
 
 § 644. (Judicial Knowledge of Results of Law; Official Pro- 
 ceedings) ; Publications. — Printed official copies are, as a rule, 
 incompetent to establish facts of which judicial knowledge is 
 taken. 1 Judicial cognizance of facts stated in certain official pub- 
 lications such as the gazette, 2 may be required by law. Public 
 documents, as the returns of railroad companies 3 to appropriate 
 administrative boards, rendered in accordance with the require- 
 ments of law, are proper subjects of judicial knowledge. Reports 
 of departments, or administrative boards, to the executive or legis- 
 lative branches of the government, if ordered, recognized or sanc- 
 tioned by law, stand in the same position. 4 
 
 § 645. (Judicial Knowledge of Results of Law); Executive 
 
 Department; Nation. — All courts recognize, without proof who is, 
 and at any time in the past, was the chief executive head of the 
 nation, and of any nation which has exercised jurisdiction over 
 any portion of the territory now constituting the sovereignty of 
 the forum, and who was in office while such jurisdiction was in 
 force. The incumbents of the principal departments into which 
 the administration of national executive authority is divided, as 
 the State, Treasury, 1 War, Interior or Wavy departments; and 
 of the principal bureau offices established in these departments, 
 need not be proved. This judicial knowledge is taken equally 
 whether the incumbent is regular and permanent or holds' as a 
 substitute, 2 or locum tenews. A state court will take judicial 
 notice of the inferior federal officers located within the state. 3 
 
 1. Southern Pac. R. Co. v. Willard, 4. State v. Caudland, (Utah 1909) 
 
 (Cal. 1906) 83 Pac. 452. 104 Pac. 285 (official report of Board 
 
 1. Gordon v. Bucknell, 38 Iowa 438 of Regents of the University). 
 (1874) (state land office); Welling- 1. An English court will notice who 
 ton First Nat. Bank v. Chapman, 173 are commissioners of the treasury. 
 U. S. 205, 19 S. Ct. 407, 43 L. ed. R. v. Jones, 2 Campb. 131 ( 1809 ) . 
 669 (1898). 2. York & M. R. Co. v. Winans, 17 
 
 2. Simms v. Quebec, etc., R. Co., 22 How. 30 (1854) (acting commissioner 
 L. C. Jur. 20 (1878) ; Ex p. Dubois, of patents). 
 
 7 Rev. Leg. 430 (1875). 3. Frederick v. Goodbee, (La. 1908) 
 
 3. Staton V. Atlantic Coast Line R. 45 So. 606 (cabinet minister) ; Kel- 
 Co., 144 N. C. 135, 56 S. E. 794 logg v. Finn, (S. D. 1909) 119 N. W. 
 (1907). 545. 
 
§ 646 
 
 Knowledge; Judicial. 
 
 812 
 
 § 646. (Judicial Knowledge of Results of Law; Executive 
 Department; Nation) ; Proclamations and Other Executive Acts 
 
 Public proclamations, 1 messages, 2 orders 3 and other official acts of 
 the national executive, 4 as in declaring a state of war 5 or peace, 6 
 the existence of martial law 7 in certain territory, are judicially 
 known. In like manner, the granting of amnesty or pardon, 8 
 establishing the status of a foreign country, 9 of a set of its people, 
 
 1. Indiana. — Moss v. Sugar Ridge 
 Tp., 161 Ind. 417, 68 N. E. 896 
 (1903). 
 
 Missouri. — Wells v. Missouri Pac. 
 R. Co., 110 Mo. 286, 19 S. W. 530, 15 
 L. R. A. 847 (1892). 
 
 New York. — Woods v. Wilder, 43 
 N: Y. 164, 3 Am. Rep. 684 (1870). 
 
 United States. — U. S. v. Johnson, 
 26 Fed. Cas. No. 15,488, 2 Sawy. 482 
 (1873). 
 
 Canada. — Theberge v. Danjou, 12 
 Quebec 1 (1886). Royal proclama- 
 tions, especially when authenticated 
 by publication in the Gazette, will be 
 judicially known, by an English court 
 without proof. Van Omeron v. Do- 
 wick, 2 Camp. 44 ( 1809 ) ; Dupays v. 
 Shepard, 12 Mod. 216 (1796). 
 
 2. Wells v. Missouri Pac. R. Co., 
 110 Mo. 286, 19 S. W. 530, 15 L. R. A. 
 847 (1892). 
 
 3. State v. Xully, (Mont. 1904) 78 
 Pac. 760 (establishing military res- 
 ervation). Be Stanbro, 2 Manitoba 1 
 (1884). 
 
 4. Woods v. Wilder, 43 N. Y. 164, 
 3 Am. Rep. 684 (1870) ; Rex V. Holt, 
 
 2 Leach C. C. 593, 5 T. R. 436 (1793) ; 
 Taylor v. Barclay, 7 L. J. Ch. O. S. 
 65, 2 Sim. 213, 29 Rev. Rep. 82, 2 
 Eng. Ch. 213 ( 1828 ) ; Rex V. De 
 Berenger, 3 M & S. 67, 15 Rev. Rep. 
 415 (1814); Dolder v. Huntingfleld, 
 11 Ves. Jr. 283, 8 Rev. 139, 32 Eng. 
 Reprint 1097 (1805). 
 
 5. Woods v. Wilder, 43 N. Y. 164, 
 
 3 Am. Rep. 684 (1870); Sutton V. 
 Tiller, 6 Coldw. (Tenn.) 593, 98 Am. 
 Dec. 471 (1869); Ogden v. Lund, 11 
 Tex. 688 (1854) ; Philips v. Hatch, 19 
 Fed. Cas. No. 11,094, 1 Dill. 571 
 (1871). 
 
 6. U. S. v. Anderson, 9 Wall. (U. S.) 
 56, 19 L. ed. 615 (1869); U. S. v. 
 One Thousand Five Hundred Bales of 
 Cotton, 27 Fed. Cas. No. 15,958 
 (1872). 
 
 7. Jeffries v. State, 39 Ala. 655 
 (1866). 
 
 8. State v. Keith, 63 N. C. 140 
 (1869) ; Jenkins v. Collard, 145 U. S. 
 546, 12 S. Ct. 868, 36 L. ed. 812 
 (1891) ; Armstrong v. U. S., 13 Wall. 
 (U. S.) 154, 20 L. ed. 614 (1871); 
 In re Greathouse, 10 Fed. Cas. No. 
 5,741, 2 Abb. 382, 4 Sawy. 487 
 (1864). 
 
 9. Jones V. U. S., 137 U. S. 202, 11 
 S. Ct. 80, 34 L. ed. 691 (1890) ; U.S. 
 v. Lynde, 11 Wall. (U. S.) 632, 20 
 L. ed. 230 (1870) ; U. S. v. Yorba, 1 
 Wall. (U. S.) 412, 17 L. ed. 635 
 (1863) ; R. v. De Berenger, 3 M. & S. 
 67 (1834) (existence of war with a 
 foreign state). Where the British 
 government has recognized the exist- 
 ence of a foreign state, it will then, 
 and not otherwise, be judicially known 
 by the English courts. Foster v. Globe 
 Venture Syndicate, 1 Ch. 811 (1900) ; 
 Taylor v. Barclay, 2 Sim. 213 (1828) ; 
 City of Berne v. Bank of England, 
 9 Ves. 347 (1804). 
 
 The courts of a country will recog- 
 nize the political status of another 
 country to the extent, and only to the 
 extent and in such manner as it has 
 been recognized or acknowledged by 
 the executive branch of the govern- 
 ment under which the court itself is 
 established. Foster v. Globe Venture 
 Synd., 1 Ch. 811 (1900); Underhill 
 v. Hernandez, 168 U. S. 250, 18 Supp. 
 S3 (1897) ; Taylor v. Barclay, 2 Sim. 
 213 (1828). 
 
813 Departments of Foreign Countet Not Known. § 646 
 
 or of certain lands, 10 as related to the domestic government will be 
 judicially known by all courts. 11 This knowledge on the part of 
 judges of the international relations of the government under 
 which they act is, historically, as has been suggested, 12 a survival 
 of the ideas of the time when judges sat as the direct representa- 
 tives of the king, and might therefore be required to know what 
 the king himself knew in other branches of his sovereignty, e. g., 
 his relation to other nations. The recognition by the national 
 executive of who is the sovereign, de jure or de facto of a territory 
 conclusively binds the judges of the government of the forum, 13 as 
 it binds all other citizens. A government so recognized, 14 its 
 official name and style, 15 boundaries, 16 the existence of its colonial 
 possessions, 17 its flag 18 and other usual evidence of sovereignty will 
 thereupon be judicially known to all courts established under the 
 recognizing government. The existence of a state of peace 19 with 
 such a government will be recognized. But this judicial knowl- 
 edge does not extend so far as to cover the question what are the 
 departments of state in the country so recognized. 20 
 
 10. Jones v. U. S., 137 U. S. 202, 11 
 • S. Ct. 80, 34 L. ed. 691 (1890) 
 
 (Guano Island)'. 
 
 11. "A public act of which all 
 courts of the United States are bound 
 to take notice and to which all courts 
 are bound to give effect." Armstrong 
 v. IT. S., 13 Wall. 154 (1871). 
 
 12. Supra, § 638. 
 
 13. Jones V. U. S., 137 U. S. 202, 
 312, 11 S. Ct. 80, 34 L. ed. 691 
 (1890) ; Mighell v. Sultan of Johore, 
 1 Q. B. 149, 158 (1893) ; Yrisarri v. 
 Clement, 2 C. & P. 223, 225 (1825) ; 
 U. S. v. Trumbull, 48 Fed. 99, 104 
 (1891). 
 
 The existence of a state not recog- 
 nized by the executive authority of 
 the forum must be proved. Jones v. 
 U. S., 13'7 U. S. 202, 212, 11 Sup. 80 
 (1890); Underhill v. Hernandez, 168 
 U. S. 250, 18 Sup. 83 (1897). 
 
 14. Calhoun v. Ross, 60 111. App. 
 309 (1895); Lazier v. Westcott, 26 
 N. Y. 146, 82 Am. Dec. 404 (1862) ; 
 Underhill v. Hernandez, 168 U. S. 250, 
 18 S. Ct. 83, 42 L. ed. 456 (1897); 
 
 U. S. v. Palmer, 3 Wheat. (U. S.) 
 610, 4 L. ed. 471 (1818); U. S. v. 
 Wagner, L. J. 2 Ch. 624 (1866); 
 Yrisarri v. Clement, 3 Bing, 432, 11 
 E. C. L. 213, 2 C & P. 223, 12 E. C. L. 
 538, 11 Moore C. P. 308 (1826) ; 
 Taylor v. Barclay, 2 Sim. 213, 7 L. J. 
 Ch. O. S. 65, 29 Rev. Rep. 82, 2 Eng. 
 Ch. 213 (1828). 
 
 15. TJ. S. v. Wagner, L. J. 2 Ch. 
 624 (1866). 
 
 16. Foster v. Globe Venture Synd., 
 1 Ch. 811 (1900). 
 
 17. Lazier v. Westcott, 26 N. Y. 
 146, 82 Am. Dec. 404 (1862) (Can- 
 ada a British possession) ; Lumley v. 
 Wabash R. Co., 71 Fed. 21 (1895); 
 Ex p. Lane, 6 Fed. 34 (1881). See 
 also Calhoun v. Ross, 60 111. App. 309 
 (1895). 
 
 18. Watson v. Walker, 23 N. H. 
 471 (1851). 
 
 19. Trotta's Adm'r v. Johnson, 
 Briggs & Pitts, 28 Ky. L. Rep. 851, 
 90 S. W. 540 (1906). 
 
 20. Schoerken r. Swift, etc., Co., 7 
 Fed. 469, 19 Blatchf. 209 (1881). 
 
§ 647 
 
 Knowledge; Judicial. 
 
 81-J 
 
 Other acts of state of the chief national executive 21 or by an 
 
 22 
 
 or 
 
 official high in one of the chief departments of government 
 
 of a prominent bureau in such a department, 23 may be judicially 
 
 known by the courts. 
 
 § 647. (Judicial Knowledge of Results of Law; Executive 
 Department) ; State — Who, at any particular time, is the chief 
 executive of the state 1 or, for any given series of years, was the 
 chief magistrate of the state itself, 2 or of any other state or nation 
 which at any time had jurisdiction over it 3 need not be proved. 
 Courts will with equal readiness take judicial knowledge as to 
 who are, or at any time in the past were, officers which the law 
 requires should be commissioned by the governor, 4 at the head of 
 the principal departments of state 5 and who were their deputies, 
 appointed under authority of law. This judicial knowledge 
 
 21. Dole v. Wilson, 16 Minn. 525 
 (1871) (president). 
 
 22. Southern Pac. R. Co. v. Groeck, 
 68 Fed. 609 (1895) (secretary of the 
 interior ) . 
 
 23. Lerch v. Snyder, 112 Pa. St. 
 161, 4 Atl. 336 (1886) (collector of 
 customs ) . 
 
 1. Indiana. — Hizer t. State, 12 Ind. 
 330 (1859). 
 
 Iowa. — State v. Minnick, 15 Iowa 
 123 (1863). 
 
 Kentucky. — Powers v. Com., 110 
 Ky. 386, 61 S. W. 735, 63 S. W. 976, 
 22 Ky. L. Rep. 1807, 23 Ky. L. Hep. 
 146, 53 L. R. A. 245 (1901). 
 
 Mississippi. — Lindsey v. Atty.-Gen., 
 33 Miss. 508 (1857). 
 
 Nebraska. — • State v. Boyd, 34 Neb. 
 435, 51 N. W. 964 (1892). 
 
 New Hampshire. — Wells v. Jack- 
 son Iron Mfg. Co., 47 N. H. 235, 90 
 Am. Dec. 575 (1866). 
 
 Texas. — Dewees v. Colorado County, 
 32 Tex. 570 (1870). 
 
 Wisconsin. — State V. Williams, 5 
 Wis. 308, 68 Am. Dec. 65 (1856). 
 See infra, §§ 652 et seq. "The court 
 must take judicial notice of the 
 changes made in the executive depart- 
 ment." Lindsey v. Atty.-Gen., 33 
 Miss. 508, 528 (1857). 
 
 Any changes in the office of gov- 
 ernor, will be noticed. Lindsey r. 
 Attorney-General, 33 Miss. 508, 528 
 (1857). 
 
 2. Wells v. Jackson I. M. Co., 47 
 N. H. 235, 260 (1866); Dewees v. 
 Colorado County, 32 Tex. 570 (1870). 
 See also Holman v. Burrow, 2 Ld. 
 Raym. 794 (1702); Whaley v. Car- 
 lisle, 17 Ir. C. L. 792 (1866). 
 
 3. Jones v. Gale, 4 Mart. (La.) 
 635 (1817); Hayes r. Berwick, 2 
 Mart. (La.) 133, 5 Am. Dec. 727 
 (1812). 
 
 4. Abrams r. State, 121 Ga. 170, 48 
 S. E. 965 (1904); Osbura e. State, 
 121 Ga. 170, 48 S. E. 965 (1904). 
 
 5. In re Clement, 117 N. Y. Suppl. 
 30, 132 App. Div. 598 (1909) (State 
 Commissioner of Excise ) . " We have 
 more than once held that we would 
 not require evidence of the official 
 capacity of functionaries commissioned 
 in this state, and would take notice 
 of the offices held by them." Follain 
 p. Lefevre, 3 Rob. (La.) 13 (1842). 
 
 6. People v. Johr, 22 Mich. 461 
 (1871) (deputy auditor-general, "be- 
 ing a state officer known to the law.") 
 
815 Acts Affecting Public Judicially Noticed. § 648 
 
 covers the heads of departments, or deputies provided by law, of 
 any other state while the latter exercised the functions of govern- 
 ment over any portion of the territory of the sovereignty of the 
 forum. 
 
 § 648. (Judicial Knowledge of Results of Law; Executive 
 Department; State); Proclamations and Other Executive Acts. — 
 A state court takes judicial cognizance of the proclamations 1 or 
 official messages to the legislature by the chief executive of the 
 jurisdiction. The general orders of military governors command- 
 ing in a state stand in the same position, and are judicially 
 known. 2 
 
 Federal Courts. — It is said that federal courts will not take 
 cognizance of the facts stated in the messages of a state governor, 
 civil or military. 3 
 
 Other executive acts of the chief 'magistrate,' 1 or of his princi- 
 pal officer of state 5 or of prominent general officers, 6 may be no- 
 ticed judicially. The prominence of the official is chiefly import- 
 ant as bearing on the notoriety of the act itself. An act done by 
 one occupying elevated official station is not only apt to be of 
 public importance, but the eminence in station of the actor may 
 make an act of otherwise comparative general indifference, one of 
 public interest. In case of a high official, therefore, an act may 
 be sufficiently notorious to warrant judicial cognizance while it 
 might not be in itself of such a public nature as to seem to the 
 mind of the court to warrant him in dispensing with proof. 
 With this modification in particulars the rule is general that acts 
 of any state functionary which nearly affect the public will be 
 
 1. Hanson v. South Scituate, 115 3. Houston, etc., B. Co. v. Texas, 
 Mass. 336 (1874) ( calling for troops) ; 177 U. S. 66, 20 S. Ct. 545, 44 L. ed. 
 Bosworth v. Union R. Co., 26 R. I. 273 (1899). But see Coeur d'Alene 
 309, 58 Atl. 982 (1904). See also Consol., etc., Co. v. Miners' Union, 51 
 Pohfiim v. Meyers, (Cal. App. 1908) Fed. 260, 19 L. R. A. 382 (1892). 
 
 98 Pac. 65 (proclamation of holiday). 4. State v. Gramelspacher, 126 Ind. 
 
 2. New Orleans Canal, etc., Co. V. 398, 26 N. E. 81 (governor) (1890). 
 Templeton, 20 La. Ann. 141, 96 Am. 5. State v. Scampini, 77 Vt. 92, 59 
 Dec. 385 (1868); Gates v. Johnson Atl. 201 (1904) (secretary of state) ; 
 County, 36 Tex. 144 (1872). But Martin v. State, 51 Wis. 407, 8 N. W. 
 see Johnston v. Wilson, 29 Gratt. 248 (secretary of state) (1881). 
 (Va.) 379 (1877); Burke v. Milten- 6. Roach v. . Fletcher, 11 Tex. Civ. 
 berger, 19 Wall. (U. S.) 519, 22 L. ed. App. 225, 32 S. W. 585 (1895) 
 158 (1873). (agent). 
 
§ 649 
 
 Knowledge ■ Judicial. 
 
 816 
 
 judicially noticed, 7 while those of local importance or limited in- 
 terest will require proof. 8 A judge is more apt to take judicial 
 cognizance of a fact easily ascertainable from the public official 
 records 9 than where learning the truth in regard to it involves 
 assuming a duty of investigation which more reasonably should 
 be discharged by a party. 
 
 § 649. (Judicial Knowledge of Results of Law; Executive 
 Department) ; County — Courts of all grades judicially know the 
 persons who hold the principal executive offices in the counties 
 of the state. 1 The element of notoriety 2 has also a very consider- 
 able influence in this connection. The courts of a county may 
 well deem practically all the officers of its own county as of suffi- 
 cient prominence to warrant dispensing with proof as to who they 
 
 7. Indiana. — State v. Gramelspa- 
 cher, 126 Ind. 398, 26 N. E. 81 (1890) 
 (selection of site for state university). 
 
 Louisiana. — D'Invilliers v. New Or- 
 leans Second Municipality, 5 Eob. 
 (La.) 123 (1843) (issuing paper cur- 
 rency). 
 
 Nebraska. — State v. Savage, 65 
 Neb. 714, 91 N. W. 716 (1902) (as- 
 sessment of taxes) . 
 
 Ohio. — Guckenberger v. Dexter, 8 
 Ohio S. & C. PI. Dec. 530 (1896) 
 (sale of municipal bonds). 
 
 Texas. — Roach v. Fletcher, 11 Tex. 
 Civ. App. 225, 32 S. W. 585 (1895) 
 ( sale of land scrip certificates ) . 
 
 United States. — Railroad, etc., Co. 
 C.Tennessee, 85 Fed. 302 (1897) (as- 
 sessment of taxes) ; Southern Pac. R. 
 Co. v. Groeck, 68 Fed. 609 (1895) 
 (withdrawing public lands from sale). 
 See also New York v. Barker, 
 179 U. S. 279, 21 S. Ct. 121, 45 L. 
 ed. 190 (1900). 
 
 8. Stater. Wise, 7 Ind. 645 (1856) 
 (establishing ferries). 
 
 Maryland. — Chesapeake, etc., Canal 
 Co. v. Baltimore, etc., R. Co., 4 Gill 
 & J. (Md.) 1 (1832) (means em- 
 ployed to carry out a public statute). 
 
 Minnesota. — Dole v. Wilson, 16 
 Minn. 525 (1871) (sale of land scrip 
 under Indian treaty ) . 
 
 pi. — Bledsoe v. Little, 4 
 How. (Miss.) 13 (1839) (lands off- 
 ered for sale). 
 
 New York. — Porter v. Waring, 2 
 Abb. N. Cas. (N. Y.) 230 (1877) 
 (what constitutes a sidewalk). 
 
 Ohio. — Cincinnati, etc., R. Co. r. 
 Hoffhines, 46 Ohio St. 643, 22 N. E. 
 871 (1889) (changing name of a 
 railroad company). 
 
 Texas. — Thompson v. San Antonio, 
 etc., R. Co., 11 Tex. Civ. App. 145, 
 32 S. W. 427 (1895) (regulating 
 freight rates) ; Archer v. State, 9 Tex. 
 App. 78 (1880) (establishing license 
 fees). 
 
 United States. — McKeoin r. North- 
 ern Pac. R. Co., 45 Fed. 464 (1891) 
 (filing a railroad location). 
 
 9. Smitha v. Flournoy, 47 Ala. 
 345 (1872) ; Pleasant Valley Coal 
 Co. v. Salt Lake County, 15 Utah 97, 
 48 Pac. 1032 (1897) ; Martin v. State, 
 51 Wis. 407, 8 N. W. 248 (1881). 
 
 1. Slaughter v. Barnes, (Ky.) 13 
 Am. Dec. 190, 192, note (1821) ; Des- 
 pau v. Swindler, 3 Mart. N. S. 
 (La.) 705 (1825); Lanfear V. Mes- 
 tier, 89 Am. Dec. 658, 682, note 
 (1866). 
 
 8. Infra, § 699. 
 
817 Incumbency of Municipal Offices Noticed. § 650 
 
 are. 3 In case of the officers of other counties a higher degree 
 of official standing is necessary to warrant a similar course ; 4 and, 
 in the absence of statutory requirement, courts will not judicially 
 know who are the deputies appointed by county officials. 5 Chief 
 among county officers judicially known by courts in any county 
 are those at any time, holding the office of sheriff. The latter 
 is not only a court officer, but has been charged, from early times, 
 with other important duties, more purely administrative. 6 The 
 same judicial knowledge accorded the sheriff extends to tax col- 
 lectors 7 or other officials discharging the duties usually included 
 in the office of sheriff. 8 
 
 § 650. (Judicial Knowledge of Results of Law; Executive 
 Department) ; Municipal. — All courts know, as a primary result 
 of legislation, what officers are legally required, at any time, for 
 the administration of municipal government, the respective powers 
 and duties of such officers, their terms of office, amount of salary 
 and similar facts. Any relation which the law has established 
 
 3. Alabama. — Russell v. Hunts- 
 vllle, etc., Co., 137 Ala. 627, 34 So. 
 855 (1902). 
 
 California. — Wetherbee v. Dunn, 32 
 Cal. 106 (1867). 
 
 Illinois. — Hertig v. People, 159 111. 
 237, 50 Am. St. 162, 42 N. E. 879 
 (1896). 
 
 Kentucky. — Slaughter v. Barnes, 3 
 A. K. Marsh. (Ky.), 412, 13 Am. Dec. 
 190, note (1821). 
 
 Oregon. — Dennison v. Story, 1 
 Or. 272 (1859). See also Koenig 
 v. State, 33 Tex. Crim. R. 367, 47 Am. 
 St. 35 (1894). 
 
 4. White v. Rankin, 90 Ala. 541, 8 
 So. 118 (1889); Cary v. State, 76 
 Ala. 78 (1884) ; State v. Ledford, 28 
 N. C. (6 Ired.) 5 (1845); Browne 
 v. Philadelphia Bank, 6 Serg. & R. 
 (Pa.) 484, 9 Am. Dee. 463 (1821). 
 
 5. Alabama. — Land v. Patteson, 
 Minor (Ala.), 14 (1820). 
 
 Arkansas. — State Bank v. Curran, 
 10 Ark. 142 (1849). 
 
 California. — Joyce v. Joyce, 5 Cal. 
 449 (1855). 
 
 Kentucky. — Slaughter v. Barnes, 3 
 
 Vol. I. 52 
 
 A. K. Marsh. (Ky.), 412, 13 Am. 
 Dee. 190 (1821). 
 
 Texas. — Alford v. State, 8 Tex. 
 App. 545 (1880). 
 
 Wisconsin. — Ward v. Henry, 19 
 Wis. 76, 88 Am. Dec. 672 (1865). 
 But see also: 
 
 California. — Himmeltnan v. Hoad- 
 ley, 44 Cal. 213 (1872). 
 
 Michigan. — People v. Johr, 22 
 Mich. 461 (1871). 
 
 Nebraska. — Davis v. Watkins, 56 
 Neb. 288, 76 N. W. 575 (1898). 
 
 Utah. — People v. Lyman, 2 Utah, 
 30 (1877). 
 
 Wisconsin. — Martin v. C. Aultman 
 Co., 80 Wis. 150, 49 N. W. 749 
 (1891). 
 
 6. Doe v. Riley, 28 Ala. 164, 65 Am. 
 Dec. 334 (1856) ; Slaughter v. Barnes, 
 (Ky.) 13 Am. Dec. 190, 192, note 
 (1821); Alexander v. Burnham, 18 
 Wis. 199 (1864). 
 
 7. Burnett v. Henderson, 21 Tex. 
 588 (1858). 
 
 8. Feld v. Loftis, 140 111. App. 530 
 (1908) [judgment affirmed, 88 N. E. 
 281 (1909)] (keeper of county jail). 
 
§ 651 Knowledge ; Judicial. 818 
 
 between incumbency of one municipal office and that of another, 
 is a proper subject of judicial knowledge. For example, the courts 
 of Indiana " take notice, as matter of law, that the trustee of a 
 civil township is also trustee of the school township." 1 What in- 
 dividuals, at any time, are the municipal officers will be known to 
 the courts of the municipality itself. 2 It has been said that judi- 
 cial knowledge will not be taken as to who are constables. The 
 fact is not "of publick notoriety." 3 The courts of a county in 
 which a given city is located will judicially know who is, from 
 time to time, its mayor. 4 
 
 § 651. (Judicial Knowledge of Results of Law; Executive 
 Department); Public Surveys.— Knowledge of the existence of 
 public surveys made under national authority, as an act of parlia- 
 ment, 1 or of Congress, 2 or under state authority, 3 will be judicially 
 taken by all courts 4 as a secondary legal result of great public 
 notoriety. The possession and opening up for development of 
 large tracts of public lands in the United States has necessarily 
 given especial prominence to this branch of the court's knowledge 
 in the sections of the national territory in which a patent based 
 upon the public survey is the foundation of land ownership, and 
 the divisions established by it are coincident with the political 
 divisions for governmental purposes. For the same reason, salient 
 results of these surveys in particular jurisdictions are noticed. 
 Not only is the position of the boundaries of states, counties, 
 
 1. Inglis r. Hughes, 61 Ind. 212 Illinois. — Gardner r. Eberhart, 82 
 (1878). 111. 316 (1876) , 
 
 2. Fluegal v. Lards, 108 Mich, 682, Indiana. — Burton r. Ferguson, 69 
 66 N. W. 585 (1896) (city marshal) . Ind. 486 (1880); Murphy v. Hen- 
 
 3. Doe V. Blackman, 1 D. Chipman dricks, 57 Ind. 593 (1877) (north- 
 (Vt.) 109 (1797). western territory) . 
 
 4. Lucas r. Boyd, (Ala. 1908) 47 Iowa. — Hypfner v. Walsh, 3 Greene 
 So. 209; People v. Hall, (Colo. 1909), 509 (1852). 
 
 100 Pac. 1129. Minnesota. — Quinn r. Champagne, 
 
 1. Birrell v. Dryer, 9 App. Cas. 38 Minn. 322, 37 N. W. 451 (1888) 
 345, 5 Aspin. 267, 51 L. T. Bep. (N. (general system of governmental sur- 
 S.) 130 (1884) (admiralty chart). veys). 
 
 2. Alabama. — Ledbetter i\ Bor- Wisconsin. — Atwater ('. Schenck, 9 
 land, 128 Ala. 418, 29 So. 579 (1900). Wis. 160 (1859). 
 
 Arkansas. — Bittle v. Stuart, 34 3. Bank of Lemoore r. Fulgham, 
 
 Ark. 224 (1879). (Cal. 1907) 90 Pac. 936. 
 
 California. — Rogers v. Cady, 104 4. Wright v. Phillips, 2 Greene 
 
 Cal. 288, 38 Pac. 1 (1.894); Faekler (Iowa) 191 (1849) (justice of the 
 
 v. Wright, 86 Cal. 210, 24 Pac. 996 peace). 
 (1890). 
 
819 
 
 Teems Employed in Public Surveys. 
 
 § 651 
 
 towns, township and other municipalities, as related to the princi- 
 pal lines, established by these surveys — the consideration of which 
 seems more appropriate in connection with the geography of these 
 political divisions of government, 5 known to all courts of localities 
 within which these facts are of public interest, but the position of 
 the meridian, 6 range 7 and section 8 lines established in such locali- 
 ties are regarded in a similar way. In the same manner the 
 nomenclature, 9 including abbreviations, adopted by the government 
 surveyors, the numbering 10 and relative position 11 of territorial 
 divisions, as counties, 12 towns, townships whole 13 or fractional, 14 
 and the like, need not be proved. Incidentally the court judicially 
 knows the actual 15 and relative 16 size, of such divisions ; and also 
 their position both as regards each other 17 and also in relation 
 to the meridian lines 18 or points of the compass. 19 
 
 On the other hand, facts of a limited public interest as the 
 topography of a certain locality, 20 its minor divisions, 21 the posi- 
 tion of a particular lot upon the surface of the ground, 22 or 
 whether a certain piece of land is within the public domain, 23 fall 
 outside the range of the court's judicial knowledge. 
 
 5. Infra, § 737. 
 
 6. Muse v. Richards, 70 Miss. 581, 
 12 So. 821 (1893). 
 
 7. Muse v. Richards, 70 Miss. 581, 
 12 So. 821 (1893). 
 
 8. Hill v. Bacon, 43 111. 477 
 (1867) ; Meacham v. Sunderland, 10 
 111. App. 123 (1888) ; Muse v. Rich- 
 ards, 70 Miss. 581, 12 So. 821 (1893). 
 
 9. Quinn v. Windmiller, 67 Cal. 
 461, 8 Pac. 14 (1885). 
 
 10. Smitha v. Flournoy, 47 Ala. 
 345 (1872); Kile v, Yellowhead, 80 
 111. 208 (1875) ; Mossman v. Forrest, 
 27 Ind. 233 (1866) ; Albert v. Salem, 
 39 Or. 466, 65 Pac. 1068, 66 Pac. 
 233 (1901). 
 
 11. King v. Kent, 29 Ala. 542 
 (1857) ; Mossman v. Forrest, 27 Ind. 
 233 (1866). 
 
 12. Brannan v. Henry, (Ala. 1905) 
 39 So. 92; Huxford v. Southern Pine 
 Co., 124 Ga. 181, 52 S. E. 439 (1905) ; 
 Stanford v. Bailey, 122 Ga. 404, 50 
 S. E. 161 (1905) ; O'Brien v. Krock- 
 inski, 50 111. App. 456 (1893); Bu- 
 chanan v. Whithan, 36 Ind. 257 
 (1871). 
 
 13. Peck v. Sims, 120 Ind. 345, 22 
 N. E. 313 (1889). 
 
 14. Webb v. Mullins, 78 Ala. Ill 
 (1884). 
 
 15. Quinn v. Windmiller, 67 Cal. 
 461, 8 Pac. 14 (1885); Parker v. 
 Chancellor, 73 Tex. 475, 11 S. W. 503 
 (1889). 
 
 16. Hill k. Bacon, 43 111. 477 
 ( 1867 ) ; Parker v. Chancellor, 73 
 Tex. 475, 11 S. W. 503 (1889). 
 
 17. Muse v. Richards, 70 Miss. 581, 
 12 So. 821 (1893). 
 
 18. O'Brien v. Krockinski, 50 III. 
 App. 456 (1893). 
 
 19. Kile v. Yellowhead, 80 111. 208 
 (1875); Buchanan v. Whitham, 36 
 Ind. 257 (1871). 
 
 20. Wilcox v. Jackson, 109 111. 261 
 (1883). 
 
 21. Stanberry v. Nelson, Wright 
 (Ohio) 766 (1834). 
 
 22. Goodwin v. Scheerer, 106 Cal. 
 690, 694, 40 Pac. 18 (1895). 
 
 23. Schwerdtle v. Placer Co., 108 
 Cal. 589, 41 Pac. 448 (1895). 
 
§ 63:2 
 
 Kxowledge; Judicial. 
 
 820 
 
 An administrative assumption of regularity exists in favor of 
 the surveys made under official authority. 2 * This may assist to 
 explain the readiness with which judicial or common knowledge 
 is taken of the accuracy of maps, plans, topographical surveys 
 and the like printed under official authority. The general methods 
 and results of government surveys may well be matters for either 
 judicial or common knowledge. 25 
 
 § 652. (Judicial Knowledge of Results of Law; Executive 
 Department) ; Rules and Regulations; Nation. — The procedure 
 adopted in and the regulations prescribed by the great depart- 
 ments of national government 1 as the department of state, 2 de- 
 partment of the treasury, 3 department of the interior, 4 post- 
 
 24. Town of West Seattle r. West 
 Seattle Land Improvement Co., 38 
 Wash. 359, 80 Pae. 549 (1905) (two 
 miles around Seattle). Infra, |§ 1193 
 et seq. 
 
 25. Little v. Williams, (Ark. 1908) 
 113 S. W. 340. A court will take 
 judicial notice of maps published by 
 state authority. Davis v. State, 
 (Wis. 1908) 115 X. W. 150. 
 
 The facts set out in an admiralty 
 chart respecting a particular portion 
 of the sea may be taken by the court 
 as judicially known. " I think that 
 the court should take judicial notice 
 of the geographical position and the 
 general names applied to such dis- 
 tricts as this, [St. Lawrence] in short, 
 of all that we see on the admiralty 
 chart of this part of the sea. I do not 
 know whether the first discoverers of 
 America called the gulf that of St. 
 Lawrence, and then gave the same 
 name to the river, or vice versa, nor 
 do I think it material. The name has 
 for many years been applied to both. 
 I think, that applying the name as 
 we find it used, in charts and by 
 geographers, to a well defined district, 
 it includes both the river and the 
 gulf." Birrell r. Dryer. 9 App. Cas. 
 345-347, 353 (1884). 
 
 1 Caha r. U. S., 152 U. S. 211. 14 
 S. Ct. 513, 38 L. ed. 415 (1893) ; U. 
 S. r. Eaton, 144 U. S. 677, 12 S. Ct. 
 
 764, 36 L. ed. 591 (1891); Wilkins 
 V. U. S., 96 Fed. 837, 37 C. C. A. 588 
 (1899). 
 
 2. Zevely r. Weimer, (Ind. T. 
 1904) 82 S. W. 941. 
 
 3. District of Columbia. — Prather 
 v. TJ. S., 9 App. Cas. (D. C.) 82 
 (1896). 
 
 Kentucky. — Moore r. Worthington, 
 2 Duv. (Ky.) 307 (1865). 
 
 Maine. — Low r. Hanson, 72 Me. 
 104 (1881). 
 
 Massachusetts. — Sears r. Dewing, 
 14 Allen (Mass.) 413, 424 (1867). 
 
 United States. — Dominici r. T_". S., 
 72 Fed. 46 (1896). 
 
 Regulations adopted by the Bureau 
 of Internal Revenue must be proved. 
 Com. v. Crane, 158 Mass. 218, 33 S. 
 W. 388 (1893). 
 
 4. California. — Kimball t\ McKee, 
 149 Cal. 435, 86 Pac. 1089 (1906) 
 (land office). 
 
 District of Columbia. — Prather r. 
 U. S.. 9 App. Cas. (D. C.) 82 (1896). 
 
 Indian Territory. — Zevely r. Wei- 
 mer, (Ind. T. 1904) 82 S. W. 941; 
 Weimer v. Zevely, (Ind. T. 1905) 138 
 Fed. 1006. 
 
 Missouri. — Campbell r. Wood, 116 
 Mo. 196, 202, 22 S. W. 796 (1893) 
 (instructions of surveyor general to 
 his deputies). 
 
 Montana. — U. S. r. Williams, 6 
 Mont. 379, 12 Pac. 851 (1887). 
 
821 
 
 KlJLES AND KeGTJLATIONS OF DEPARTMENTS. 
 
 652 
 
 office, 5 or of war or the navy, will be judicially known. Judicial 
 knowledge has, however, been refused, even in the federal courts 6 
 and the requirement made that these rules and regulations should 
 be proved as facts and introduced into the record on appeal. In 
 general, however, where a statute gives a department or other 
 agency of government the right to pass regulations intimately 
 affecting the conduct of large sections of the public, courts whose 
 duty it is to enforce such regulations will judicially know them. 7 
 As a matter of administration, this judicial knowledge is taken 
 in part because the action of such departments intimately affects 
 the public, and, consequently is known to it. Another reason is 
 that the power to enact these regulations not only to control the 
 action of the public in doing business with a department, or any 
 of its bureaus, but equally to pass ordinances for conduct of the 
 community, as where the lighthouse board determines the num- 
 ber and kind of lights which shall be placed upon drawbridges 
 across navigable waters, 8 regulations are made by federal author- 
 
 Neiraska. — Larson r. Pender First 
 Nat. Bank, (Neb. 1902) 92 N. W. 
 729 (Indian bureau). 
 
 New Meooico. — U. S. v. Gumm, 9 
 N. M. 611, 58 Pac. 398 (1899) 
 ( timber regulations ) . 
 
 Washington. — Whitney v. Spratt, 
 25 Wash. 62, 64 Pac. 919, 87 Am. St. 
 Rep. 738 (1901) (land office). 
 
 United States. — Caha v. U. S., 152 
 U. S. 211, 14 S. Ct. 513, 38 L. ed. 
 415 (1893) (interior regulations for 
 land office suits) ; Bigelow v. Chat- 
 terton, 51 Fed. 614, 2 C. C. A. 402 
 (1892) (delay in issuing patents 
 from land office). See also U. S. v. 
 Bedgood, 49 Fed. 54 (1891). 
 
 The main rules of practice of the 
 land office are of general notoriety. 
 The principal results which are com- 
 monly created under them, need, by 
 consequence, no proof. Parkersville 
 Drainage Dist. v. Wattier, (Or. 1906) 
 86 Pac. 775 (appropriation of water 
 rights on public domain). See also 
 Nurnberger v. United States, (N. D. 
 1907) 156 Fed. 721, 84 C. C. A. 377 
 (general land office). 
 
 The practice of the patent office 
 
 as to the consecutive numbering of 
 patents falls within the scope of ju- 
 dicial knowledge. A. Smith, etc., Car- 
 pet Co. v. Skinner, 91 Hun (N. Y.) 
 641, 36 N. Y. Suppl. 1000 (1895). 
 
 Department of justice. — A court 
 will judicially know that the action 
 of the president of the United States 
 in passing upon an application for 
 pardon may properly be taken through 
 the department of justice. Perovich 
 v. Perry, 167 Fed. 789 (1909). 
 
 Interstate Commerce Commission. — 
 The court knows that the Interstate 
 Commerce Commission has much to do 
 with the regulation of freight rates 
 on articles transported in commerce 
 between the states or with foreign 
 nations. Law Reporting Co. v. El- 
 wood Grain Co., (Mo. App. 1909) 
 115 S. W. 475. 
 
 5. Carr v. First Nat. Bank, (Ind. 
 App. 1905) 73 N. E. 947. 
 
 6. Nagle v. United States, (U. S. 
 C. C. A., N. Y. 1906) 145 Fed. 302. 
 
 7. State v. Southern Ry. Co., (N. 
 C. 1906) 54 S. E. 294. 
 
 8. Smith v. Shakopee, 103 Fed. 240, 
 44 C. C. A. 1 (1900). 
 
§ 653 Knowledge; Judicial. 822 
 
 ity for the quarantine and transportation of infected cattle, 9 or 
 the British orders in council are adopted by virtue of an act of 
 Parliament, 10 has often been granted by the terms of a public 
 statute. The latter reason alone is not sufficient, for when the 
 action of an administrative board, as supervising inspectors of 
 steam vessels, 11 come but little into direct touch with the public, 
 their regulations will not receive judicial notice. On the con- 
 trary, where a great department of government, such as that of 
 agriculture, is expressly empowered to regulate a matter which 
 intimately concerns the public, e. g., the transportation of cattle, 12 
 the courts of a state will judicially notice these regulations. It 
 naturally follows that the practice of the departments will be 
 judicially cognized and given suitable weight by the courts in 
 the construction of a statute. 18 
 
 § 653. (Judicial Knowledge of Results of Law; Executive 
 Department; Rules and Regulations; Nation); Administrative 
 
 Boards.- — The rules and regulations adopted by administrative 
 boards, departments of state or other executive agencies of gov- 
 ernment are thus judicially cognized by the court; — but no very 
 definite line can be drawn between the cases where notice is taken 
 and, on the other hand, where proof is required. It is largely a 
 matter of what an individual judge deems to be a reasonable exer- 
 cise of his administrative powers. The commonly applied test is 
 whether the rules and regulations are such as may be assumed to 
 affect and, consequently, to be known by, a large proportion of the 
 community. On the other hand, regulations which affect only 
 
 9. Wabash R. Co. r. Campbell, 219 tice of their existence and provisions. 
 111. 312, 76 N. E. 346 (1905). U. S. v. Moody, (Mich. 1908) 164 Fed. 
 
 10. Reg. v. The Ship Minnie, 4 Can. 269. See also Beck 17. Johnson, (Ky. 
 Exch. 151 (1894). While the Articles 1909) 169 Fed. 154. 
 
 of War printed by the royal printer, 11. The E. A. Packer, 140 U. S. 
 
 will be judicially noticed, the book 360, 11 S. Ct. 794, 35 L. ed. 453 
 
 called "Rules and Regulations for the (1890) ; The Clara, 55 Fed. 1021, 5 
 
 Government of the Army " will not be C. C. A. 390 ( 1893 ) . 
 
 noticed in the same way. Bradley t\ 12. State r. Southern Ry. Co., (N. 
 
 Arthur, 4 B. & C. 304 (1825) ; R. V. C. 1906) 54 S. E. 294. See also 
 
 Withers, 5 T. R. 446 (1814). Kansas City Southern Ry. Co. v. 
 
 Authority of Congress.— Regula- State, (Ark. 1909) 119 S. W. 288 
 
 tions made by an executive depart- (commissioner of agriculture) . 
 
 mont in pursuance of authority dele- 13. Griner r. Baggs & Perry, (Ga. 
 
 gated by Congress have the force of App. 1908) 61 S. E. 147. 
 law, and the courts take judicial no- 
 
823 National Seals Need Not be Peoved. §§ 654, 655 
 
 the internal administration of the office adopting them, 1 or a lim- 
 ited portion of the public, will not be judicially known. In any 
 case, unless expressly required to take judicial notice of the 
 action of an administrative board a court may decline to do so 
 and require that the fact be proved. 2 
 
 § 654. (Judicial Knowledge of Results of Law; Executive 
 Department; Rules and Regulations) ; State. — Eules for the 
 transaction of business 1 adopted by the chief departments of 
 state, 2 or important state 3 or county 4 officials, may be judicially 
 recognized by the courts. Regulations may properly be prescribed 
 by executive departments for other purposes than to facilitate the 
 business of the department itself. They may prescribe or pro- 
 hibit conduct of the public in their relations with each other or 
 to the state. Cognizance is especially easy where the power to 
 prescribe regulations is expressly conferred by statute. 5 For ex- 
 ample, quarantine regulations, e. g., those affecting the transpor- 
 tation of diseased cattle, 6 will be noticed. The regulations of 
 official boards which come but little into contact with the general 
 public 7 must be proved. 
 
 § 655. (Judicial Knowledge of Results of Law; Executive 
 Department); Signatures and Seals; National. — The great seal of 
 
 1. Hensley v. Tarpey, 7 Cal. 288 shown plats of cities and towns or 
 (1857) (removing original papers lands additional thereto will be no- 
 from the files). ticed. Mode v. Beasley, 143 Ind. 306, 
 
 2. Robinson v. Baltimore & 0. R. 42 N. E. 727 (1895) ; Miller v. In- 
 Co., 64 W. Va. 406, 63 S. E. 323 dianapolis, 123 Ind. 196, 24 N. E. 
 (1908). 228 (1889). 
 
 1. People v. Palmer, 6 N. Y. App. 5. Larson v. Pender First Nat. Bk. 
 Div. 19, 39 N. Y. Suppl. 631 (1896) (Neb. 1902) 92 N. W. 729. 
 (custody of records maintained by 6. Wabash R. Co v. Campbell, 117 
 clerks). 111. App. 630 [affirmed, 219 111. 312, 
 
 2. Seaboard Air Line Ry. v. Shaekel- 76 N. E. 346 (1905)]. 
 
 ford, 5 Ga. App. 395, 63 S. E. 252 7. New York City Health Dept. v. 
 
 (1908) (regulations) ; City of Jef- City Real Property Invest. Co., 86 N. 
 
 fersonville v. Louisville & J. Bridge Y. Suppl. 18 (1904) (health depart- 
 
 Co., 169 Ind. 645, 83 N. E. 337 ment) ; People V. Dalton, 46 N. Y. 
 
 (1908) (reports of state board of tax App. Div. 264, 61 N. Y. Suppl. 263 
 
 commissioners); Larson v. Pender (1899) (civil service commissioners) ; 
 
 First Nat. Bank, (Neb. 1902) 92 N. Josh v. Marshall, 33 N. Y. App. Div. 
 
 W. 729. 77, 53 N. Y. Suppl. 419 (1898) (fish 
 
 3. People v. Kent County, 40 Mich. commissioners) ; Palmer v. Aldridge, 
 481 (1879) (supervisors). 16 Barb. (N. Y.) 131 (1852) (canal 
 
 i. That recorders of deeds keep commissioners), 
 plans in their offices on which are 
 
§ 655 Knowledge; Judicial. 82.4 
 
 the nation 1 and the national seal of any government, 2 or any of 
 its provinces, 3 recognized by the executive of the sovereignty of 
 the court of the forum, will be judicially cognized; but the seal 
 of an unacknowledged government must be proved by such testi- 
 mony as the nature of the case admits. 4 
 
 When a judge says in this or any other connection regarding 
 knowledge of official signatures and seals, that he judicially 
 hnows them he is using an expression which, while convenient 
 and too deep-rooted in forensic practice to be disturbed, is, in 
 reality, not in accordance with the truth. He does not know the 
 accuracy of the signature or the authenticity of the seal; or as 
 to the effect of either in identifying or authenticating the docu- 
 ment. What is actually true is that the judge is willing, as a 
 matter of administration, to proceed, in his judicial capacity, 
 as if he did know. In other words, he assumes that in view of 
 the regularity of official business and the other circumstances of 
 the case, the signature or seal, or both, would not be attached to 
 the document unless the truth were as prima facie appears. He 
 deems it good administration, as, indeed, it is, to spend as little 
 of the court's time as possible over matters not really in dispute. 
 Should the other side object to the reception of the evidence and 
 show any reason why this assumption is not correct, in point of 
 fact, it will then be time enough to call upon the proponent to 
 prove the signature and seal. The judge may well deem it a 
 waste of time to require him to do so in the first instance ; — and, 
 moreover, a neglect of his duty to expedite trials. 5 National 
 courts, and, in many instances, courts of state jurisdiction, 6 judi- 
 
 1. Yount v. Howell, 14 Cal. 465 United States. — The Santissima 
 (1859). English courts notice judici- Trinidad, 7 Wheat. 283, 5 L. ed. 454 
 ally the great seal of state. Ld. Mel- (1822) ; U. S. v. Palmer, 3 Wheat, 
 ville's Case, 29 How. St. Tr. 707 610, 4 L. ed. 471 (1818). 
 
 (1806). In the same way no proof England. — Anonymous, 9 Mod. 66 
 
 need be offered of the royal privy seal (1723). 
 
 or signet. Lane's Case, 3 Coke's Rep. 3. Lazier v. Westcott, 26 N. Y. 146, 
 
 17& (1596). 82 Am. Dec. 404 (1862) (Canada). 
 
 2. Connecticut. — Griswold v. Pit- 4. TJ. S. v. Palmer, 3 Wheat. (U. 
 cairn, 2 Com. 85 (1816). S.) 610, 4 L. ed. 471 (1818). 
 
 New Hampshire. — Watson v. Walker, 5. Supra, §§ 544 et seq. 
 
 23 N. H. 471 (1851). 6. Yount V. Howell, 14 Cal. 465 
 
 New York. — Lincoln v. Bartelle, 6 (1859) ; Jones v. Gale, 4 Mart. (La.) 
 
 Wend. 475 (1831). 635 (1817). 
 
 Texas. — Phillips v. Lyons, 1 Tex. 
 392 (1846). 
 
825 Judicial Knowledge of State Seals. §§ 656, 657 
 
 cially notice the signature even by initials, 7 and the seals, of 
 national officials, of the higher grades 8 such as the chief execu- 
 tive, 9 or the head of departments of state, or of bureaus under 
 them, 10 asking no further proof. In the same way the courts of a 
 jurisdiction, state or national, would judicially know, for adminis- 
 trative purposes, the signatures and seals of consuls, 11 and other 
 diplomatic representatives, including substitutes appointed in ac- 
 cordance with some provision of law, whether such officials them- 
 selves are elected or appointed. 
 
 § 656. (Judicial Knowledge of Results of Law; Executive 
 Department; Signatures and Seals; National); Executive Mag- 
 istrates of Foreign State — Except where other provision is made 
 by statute, 1 the seal of the chief magistrate, or an executive govern- 
 mental department, 2 of a foreign state or of any municipality 
 existing therein 3 will not be noticed, but is a subject of proof. 
 
 § 657. (Judicial Knowledge of Results of Law; Executive 
 
 Department; Signatures and Seals); State The great seal of 
 
 state of the sovereignty of the forum, 1 the seal of every state 2 and 
 
 7. Liddon v. Hodnet, 22 Fla. 442 1. Duffey v. Bellefonte Presb. Cong., 
 (1886) (president of the United 48 Pa. St. 51 (1864) (mayor of Wil- 
 States). mington, Del.). See also Hadfield v. 
 
 8. Anonymous, 1 Wkly. Rep. 186 Jameson, 2 Munf. (Va.), 53, 70 
 (1852) (commissioner to administer (1809). Where the condemnation of 
 oaths) ; Ferguson v. Benyon, 16 Wkly. a vessel for a fraud on the revenue 
 Rep. 71 (1867) (commissioner to ad- laws of St. Domingo during the 
 minister oaths). A telegram signed French occupancy of the island was a 
 with the surname of the Attorney-Gen- fact in issue, the attestation of the 
 eral of the United States, purporting proper British authorities who had 
 to state the president's decision on subsequently conquered and then held 
 an. application by a convicted pris- the island, was deemed suffioient, 
 oner for a commutation of sentence, though " certified only under the gov- 
 will be presumed authentic. Perovich ernor's seal at arms, instead of a 
 v. Perry, 167 Fed. 789 (1909). colonial or public seal." 
 
 9. Yount v. Howell, 14 Cal. 465 2. Church v. Hubbart, 2 Cranch 
 (1859) (president of the United (U. S.) 187, 2 L. ed. 249 (1804); 
 States) ; Gardner v. Barney, 6 Wall. Schoerken v. Swift, etc., Co., 7 Fed. 
 (U. S.) 499, 18 L. ed. 890 (1867) 469, 19 Blatchf. 209 (1881). 
 (president of the United States). 3. Chew V. Keck, 4 Rawle (Pa.) 
 
 10. York, etc., Line R. Co. v. Wi- 163 (1833) (corporate seal of Lon- 
 nans, 17 How. (U. S.) 30, 15 L. ed. don, Eng). 
 
 27, 30 (1854) (commissioner of pat- 1. Chicago, etc., R. Co. v. Keegan, 
 
 ents). 152 111. 413, 39 N. E. 33 (1894). 
 
 11. Barber v. Mexico International 2. U. S. v. Amedy, 11 Wheat. 392 
 Co., 73 Conn. 587, 48 Atl. 758 (1901). (1826). 
 
§ 658 
 
 Knowledge; Judicial. 
 
 826 
 
 territory 3 in the American Union, will be judicially noticed by 
 all courts, state and federal, in the United States. So also the 
 signature and public 4 seal of the present or any past governor of 
 the state. 5 Even when under a former government, 6 and those of 
 leading officers of state, 7 present, or past, 8 or of their substitutes, 9 
 will be noticed by all courts within a state of the Union. 
 
 § 658. (Judicial Knowledge of Results of Law; Executive 
 
 Department; Signatures and Seals); County The signature 
 
 and seals of the principal county executive officials, 1 as recorder 
 
 3. Maine. — Robinson v. Gilman, 20 
 Me. 299 (1841). 
 
 New Hampshire. — State r. Carr, 5 
 N. H. 367 (1831). 
 
 New York.— Coit r. Millikin, 1 
 Den. (N. Y.) 376 (1845). 
 
 Teams. — Phillips r. Lyons, 1 Tex. 
 392 (1846). 
 
 United States. — Patterson v. Winn, 
 S Pet. (U. S.) 233, 8 L. ed. 108 
 (1831); U. S. v. Amedy, 11 Wheat. 
 (U. S.) 392, 6 L. ed. 502 (1826); 
 1 U. S. St. at L. 122 [U. S. Comp. 
 St. (1901), p. 677], construed in U. 
 S. v. Johns, 4 Dall. (U. S.) 412, 1 
 L. ed. 888, 26 Fed. Cas. No. 15,481 
 (1806). 
 
 4. An unofficial seal must be proved. 
 Beach v. Workman, 20 N. H. 379 
 (1850). 
 
 5. Powers v. Com., 110 Ky. 386, 61 
 S. W. 735, 63 S. W. 976, 22 Ky. L. 
 Rep. 1807, 53 L. R. A. 245 (1901); 
 Jones v. Gale, 4 Mart. (La.) 635 
 (1817); Wells v. Jackson Iron Mfg. 
 Co., 47 N. H. 235, 90 Am. Dec. 575 
 (1866). 
 
 6. Jones v. Gale's Curatrix, 4 Mart. 
 (La.) 635 (1817) (Spanish governor). 
 
 7. Alabama. — Cary v. State, 76 
 Ala. 78 (1884). 
 
 Arkansas. — Kaufman v. Stone, 25 
 Ark. 336 (1869) (commissioner of 
 deeds). 
 
 California. — Wetherbee V. Dunn, 32 
 Cal. 106, 108 (1867). 
 
 Louisiana. — Dwight v. Splane, 11 
 Rob. (La.) 487 (1845) (commissioner 
 of deeds). 
 
 Michigan. — People v. Johr, 22 Mich. 
 461 (1871) (auditor general). 
 
 Tennessee. — ■ State v. Evans, 8 
 Humphr. (Tenn.) 110 (1847) (at- 
 torney general) ; Bennett v. State, 
 Mart. & Y. (Tenn.) 133 (1827) (at- 
 torney general) ; State v. Cooper, 
 (Tenn. Ch. App. 1899) 53 S. W. 391 
 ( registers in State land office ) . 
 
 Texas. — Roach r. Fletcher, 11 Tex. 
 Civ. App. 225, 32 S. W. 585 (1895) 
 (agent of provisional government of 
 Texas). "Courts are authorized and 
 required, to take judicial notice of 
 the various commissioned officers of 
 the state, and to know the extent of 
 their authority, their official signa- 
 tures, and their respective terms of 
 office, — when such terms commence, 
 and when they expire. The dates of 
 these commissions are matters of pub- 
 lic record in the executive department 
 of the state government, being ac- 
 cessible to inquiry by all who may 
 be concerned, and the law fixes the 
 duration of each official term." Cary 
 v. State, 76 Ala. 78 (1884). 
 
 8. Smyth t'. New Orleans C. & B. 
 Co., 35 C. C. A. 646, 93 Fed. 899 
 (1899) (government secretary of 
 Louisiana as a Spanish colony). 
 
 9. People V. Johr, 22 Mich. 461 
 (1871) (deputy auditor general). 
 
 1. Himmelmann is. Hoadley, 44 Cal. 
 213 (1872) ; Wetherbee v. Dunn, 32 
 Cal. 106 (1867); State V. Evans, 8 
 Humphr. (Tenn.) 110 (1847). 
 
827 Signatures of Municipal Officers. § 659 
 
 of deeds, 2 registers, 3 sheriff, 4 tax collector 5 and the like need not 
 be proved. Judicial knowledge is also taken of the signatures and 
 seals if any of the deputies of such county officers 6 appointed by 
 virtue of statute, and acting for them. 7 In case of important 
 county offices, closely in touch with the general public, the same 
 cognizance will be taken by national courts. 8 
 
 Tlie administrative nature of the judicial assumption is shown 
 by the fact that it contains little or no element of probative force. 
 It follows that it cannot be used to establish the res gestae of a 
 given transaction. It will be observed hereafter that the res 
 gestae or constitutent facts cannot be established as matters of com- 
 mon knowledge. 9 In like manner, although the official signaturea 
 on a county wa>rrant will, under other circumstances, be judicially 
 known, formal proof of them must be made where their genuine- 
 ness is placed in issue by the pleadings. 10 
 
 § 659. {Judicial Knowledge of Results of Law; Executive 
 Department; Signatures and Seals); Cities, Towns, etc. — 
 
 The official seals of city, town and other municipal officers will 
 be noticed judicially. ISTo proof need be offered of the signaturea 
 of such city, town or other municipal officers nor of the signatures 
 
 2. Scott v. Jackson, 12 La. Ann. 5. Wetherbee v. Dunn, 32 Cal. 106 ' 
 640 (1857). (1867) (levee); Walcott v . Gibbs, 97 
 
 3. Francher v. De Montegre, 1 Head III. 118 (1880); Templeton v. Mor- 
 (Tenn.) 40 (1858). gan, 16 La. Ann. 438 (1862) (levee 
 
 4. Alabama. — Ingram v. State, 27 tax collector). 
 
 Ala. 17 (1855); Miller v. McMillan, 6. "The courts will take judicial 
 
 4 Ala. 527 (1842). notice of the officers of the county 
 
 Illinois. — Thielmann v. Burg, 73 and the genuineness of their signa- 
 
 111. 293 (1874). tures; and when the law provides for 
 
 Louisiana. — Graham v. Gibson, 14 the appointment of a deputy by one 
 
 La. 146 (1839) ; Wood v. Fitz, 10 of these officers, courts will also ju- 
 
 Mart. (La.) 196 (1821). dicially recognize such deputy and the 
 
 Tennessee. — Major v. State, 2 Sneed genuineness of his signature." Him- 
 
 (Tenn.) 11 (1854). melmann V. Hoadley, 44 Cal. 213, 226 
 
 Texas.— Alford v. State, 8 Tex. (1872). 
 
 App. 545 (1880). 7. Himmelmann v. Hoadley, 44 Cal. 
 
 Wisconsin. — Martin v. Aultman, 80 213, 226 (1872) ; Martin v. Aultman, 
 
 Wis. 150, 49 N. W. 749 (1891). The 80 Wis. 150, 49 N. W. 749 (1891). 
 
 signature will be judicially noticed 8. Alcock v. Whatmore, 8 Dowl. P. 
 
 though the title is incorrectly given C. 615 (1840). 
 
 or indicated by initials, if duly of- 9. Infra, § 700. 
 
 ficial, even in cases where the name 10. Apache County v. Barth, 177 
 
 is itself abbreviated, or given in in- U. S. 538, 20 S. Ct. 718, 44 L. ed. 878 
 
 itials. Miller v. McMillan, 4 Ala. (1899) [reversed in (Ariz. 1898) 53 
 
 527 (1842). Pac. 187]. 
 
§§ 660, 661 Knowledge; Judicial. 828 
 
 of their deputies appointed under legal authority. 1 The official 
 seals of domestic cities, towns and other municipalities, will be 
 judicially known by the courts as an administrative matter. For 
 example, the courts of England will judicially know, in this 
 sense, the seal of the city of London. 2 
 
 § 660. (Judicial Knowledge of Results of Law); legislative 
 Department; General Facts — The existence of the national and 
 its own state 1 legislature, the number of members in its several 
 branches, 2 general facts regarding its membership, as that a cer- 
 tain body of men comprise the legislature, 3 and when a certain 
 session ended, 4 will be noticed by all the courts. 
 
 But facts pertaining to individuals as that a particular person 
 is a member, 5 or with relation to the internal machinery of law 
 making 6 are outside the category ; — except where the fact is one 
 of notoriety, either by reason of its historical' importance 7 or other- 
 wise. 
 
 Municipalities. — The legislative branch of a municipal govern- 
 ment, as the aldermen of a city, 8 will be judicially noticed. 
 
 § 661. (Judicial Knowledge of Results of Law; Legislative 
 Department) ; Journals. — Journals of a branch of the legislature 
 
 1. Himmelmann v. Hoadley, 44 Cal. germane to and bears on the question 
 213 (1872) (deputy superintendent of the validity of a legislative appor, 
 of streets). tionment act. State v. Schnitger, 
 
 2. Woodmass v. Mason, 1 Esp. 53 (Wyo. 1908) 95 Pac. 698, 699. To 
 (1793). determine the validity of a legislative 
 
 1. People v. Burt, 43 Cal. 560 apportionment statute a court will 
 (1872). judicially know the members of the 
 
 House of Commons. — The estab- legislature. State v. Schnitger, (Wyo. 
 
 lished privileges of the House of Com- 1908) 95 Pac. 698. 
 
 mons need not be proved to an English 4. Perkins v. Perkins, 7 Conn. 558, 
 
 court. Bradlaugh v. Gossett, 12 Q. B. 18 Am. Dec. 120 (1829). 
 
 D. 271 (1884); Stockdale v. Han- 5. Prentis v. Com., 5 Band. (Va.) 
 
 sard, 9 Ad. & E. 1 (1839). 697, 16 Am. Dec. 782 (1827) ; State 
 
 2. State v. Mason, 155 Mo. 486, 55 v. Polacheck, 101 Wis. 427, 77 N. W. 
 B. W. 636 (1900). 708 (1898). 
 
 3. State v. Kennard, 25 La. Ann. 8. Judah v. Vincennes University, 
 238 (1873). The terms of state sena- 16 Ind. 56 (1861) (proper ways of 
 tors will be the subject of judicial influencing legislation) ; State v. Dow, 
 cognizance. State v. Schnitger, (Wyo. 53 Me. 305 (1S65) (committee re- 
 1908) 95 Pac. 698. The court will ports). 
 
 take judicial notice of the membership 7. Walden v. Canfield, 2 Bob. La. 
 
 of the legislature and the terms of 466, 469 (1842) (Edward Livingston 
 
 the senators as the senate is consti- a senator). 
 
 tuted and the journal of either branch 8. Fox r. Com., 32 Leg. Int. (Pa.) 
 
 of the legislature in so far as it is 257, 1 W. N. C. 243 (1873). 
 
329 
 
 Judges Know Legislative Journals. 
 
 § 661 
 
 are public records. " They prove their own authenticity." 1 
 Being kept in virtue of a provision of law, judicially known to 
 the judge, their existence and function in legislation are also judi- 
 cially known. 2 Judges of a majority of American states 3 hold 
 that they may resort to these journals for the purpose of ascer- 
 taining what is the law which they are charged with the responsi- 
 bility of knowing at their peril; 4 — when a statute went into 
 effect whether it was properly enacted, and facts of similar na- 
 ture. In so doing, they judicially notice facts brought to their 
 attention on such inspection, and give effect to them even to the 
 extent of controlling the official certificate of enactment. 5 
 
 1. Grob v. Cushman, 45 111. 119 
 (1867) ; State v. Denny, 118 Ind. 449 
 (1888) ; Chesapeake, etc., Canal Co. 
 v. Baltimore, etc., R. E. Co., 4 Gill & 
 J. 1, 63 (1832). 
 
 2. State v. Swiggart, 118 Tenn. 556, 
 102 S. W. 75 (1907). 
 
 3. Alabama. — Stein Vr— Leeper, 78 
 Ala. 517 (1885). 
 
 Arkansas. — Worthen v. Badgett, 32 
 Ark. 496 (1877). 
 
 California. — Sherman v. Story, 30 
 Cal. 253, 275 (1866). 
 
 Florida. — State v. Hocker, 36 Fla. 
 358, 18 So. 767 (1895). 
 
 Indiana. — City of Evansville v. 
 State, 118 Ind. 426, 434, 21 N. E. 
 267 (1888). 
 
 Iowa. — Koehler v. Hill, 60 Iowa 
 543, 14 N. W. 738, 15 N. W. 609 
 (1883). 
 
 Kansas. — In re Vanderberg, 28 
 Kan. 243 (1882) ; Division of Howard 
 County, 15 Kan. 194 (1875). 
 
 Louisiana. — Barnard v. Gall, 43 
 La. Ann. 959, 10 So. 5 (1891). 
 
 Maryland. — Legg v. Annapolis, 43 
 Md. 203 (1874). 
 
 Michigan. — Hart v. McElroy, 72 
 Mich. 446, 40 N. W. 750 (1888). 
 
 Mississippi.— Green v. Weller, 32 
 Miss. 650 (1856). 
 
 Missouri. — McCaffery v. Mason, 155 
 Mo. 486, 55 S. W. 636 (1900). 
 
 Nebraska. — State i>. Frank, 61 Neb. 
 679, 85 N. W. 956 (1901). 
 
 New Hampshire. — Opinion of Jus- 
 tices, 52 N. H. 622 (1873). 
 
 New Jersey. — Pangborn v. Young, 
 32 N. J. L. 29 (1866). 
 
 New York. — People v. Chenango, 8 
 N. Y. 317 (1853). 
 
 Ohio.— Miller v. State, 3 Ohio St. 
 475 (1854). 
 
 Oregon. — City of Portland v. Yieks, 
 -(Or.-19.04)- 75 Pae. 706. 
 
 Pennsylvania. — Southwark Bank v. 
 Com., 26 Pa. St. 446 (1856). 
 
 South Carolina. — State v. Piatt, 2 
 S. C. 150, 16 Am. Rep. 647 (1870). 
 
 South Dakota. — Somers v. State, 5 
 S. D. 321, 58 N. W. 804 (1894). 
 
 Tennessee. — Williams v. State, 6 
 Lea 549 (1880). 
 
 Utah. — Ritchie v. Richards, 14 
 Utah 345, 47 Pac. 670 (1896). 
 
 Vermont. — In re Welman, 20 Vt. 
 653, 29 Fed. Cas. No. 17,407 (1844). 
 
 West Virginia. — Osburn v. Staley, 
 5 W. Va. 85, 13 Am. Rep. 640 (1871). 
 
 Wisconsin. — Dane County v. Rein- 
 dahl, 104 Wis. 302, 80 N. W. 438 
 (1899); McDonald v. State, 80 Wis. 
 407, 50 N. W. 185 (1891). 
 
 Wyoming. — State v. Schnitger, 95 
 Pac. 698 (1908). 
 
 United States. — Post v. Supervis- 
 ors, 105 U. S. 667 (1881) ; Blake f. 
 New York Nat. City Bank, 23 Wall. 
 307, 23 L. ed. 119 (1874); Gardner 
 v. The Collector, 6 Wall. (U. S.) 499 
 (1867); Gardner v. Barney, 6 Wall. 
 499, 18 L. ed. 890 (1867). 
 
 4. Supra, §§ 571 et seq. 
 
 5. The right of the legislature to 
 amend its journal so as to conform 
 
§ 661 Knowledge; Judicial. 830 
 
 In other jurisdictions different views prevail. Xot only is the 
 certificate of the proper official that the act has duly become a 
 law been accepted as final, 6 and the journals when relied upon 
 to prove the falsity of the statement held irrelevant (though this 
 ground is not always the one assigned) ; but the journals, even 
 when used for a legitimate purpose, have been refused the status 
 of public records. 7 In these states they have been treated merely 
 as public documents, 8 which were to be proved by evidence in the 
 usual way 9 upon an issue as to the validity of the statute regularly 
 raised. 10 
 
 The question, it will he noted, is really one of administration. 
 So far as principle may properly be predicated in connection 
 with a matter so Targely of constitutional and statutory regula- 
 tion, it would seem to lie on the side of the majority opinion. 
 The judge charged with knowledge of law as part of his adminis- 
 trative function may, in accordance with the general rule 11 con- 
 sult any source of information deemed by him calculated to yield 
 it. The legislative journals seem well adapted to that end. As 
 in other cases of such action by the court, fairness to the parties 
 might suggest that the basis of judicial knowledge should be 
 brought to their attention; such a course would prevent surprise 
 and conduce to full consideration. It is not necessary, however, 
 
 to the facts at the same session, is not Minnesota. — Burt v. Winona, etc., 
 
 disputed. Turley v. Logan, 17 111. R. Co., 31 Minn. 472, 18 N. W. 285, 
 
 151 (1855). 289 (1884). 
 
 G. Harwood v. Wentworth, 162 U. Mississippi. — Green v. Weller, 32 
 
 S. 547, 16 Sup. Ct. 890 (1895) ; Field Miss. 650, 686 (1856). 
 
 V. Clark, 143 U. S. 649 (1891). See United States.— Re Duncan, 139 U. 
 
 also Legg v. Mayer, 42 Md. 203, 220 S. 449, 457, 11 Sup. Ct. 573 (1890). 
 
 (1874). Original journals of the House *of 
 
 7. Sherman v. Story, 30 Cal. 253, Representatives or Senate concerning 
 89 Am. Dec. 85 (1866) ; Pangborn v. the passage of statutes cannot be 
 Young, 32 N. J. L. 29 (1866); Rex made the subject of judicial notice. 
 v. Arundel, Hob. K. B. 109 (1617). Erford v. City of Peoria, 229 111. 546, 
 
 8. Grob V. Cushman, 45 111. 119 82 N. E. 374 (1907). 
 
 (1867); Evans v. Browne, 30 Ind. 10. Illinois Cent. R. Co. v. People, 
 
 514, 95 Am. Dec. 710 (1869); Cole- 143 111. 434, 33 N. E. 173 (1892); 
 
 man v. Dobbins, 8 Ind. 156, 161 Auditor v. Haycraft, 14 Bush (Ky.) 
 
 (1856). 384 (1878) ; Webster r. City of Hast- 
 
 9. Illinois.— Grob i'. Cushman, 45 ings, 56 Neb. C69, 77 N. W. 127 
 111. 119 (1867). (1898); People r. Supervisors, 8 N. 
 
 Indiana.— Coleman r. Dobbins, 8 Y. 317 (1853). 
 Ind. 156 (1856). 11. Supra, § 635. 
 
 Kentucky. — Auditor v. Haycraft, 14 
 Bush (Ky.) 284 (1878). 
 
831 Jurisdiction of Domestic Courts. §§ 662-664 
 
 that the journals themselves should be introduced in evidence. A 
 rule of practice would answer every purpose. 
 
 § 662. (Judicial Knowledge of Results of Law; Legislative 
 Department); Legislative Proceedings — Where a court is re- 
 quired to take judicial notice of all public or private official acts 
 of the legislature the judge may resort to the journal of a branch 
 of the legislature and will thereupon take judicial notice of the 
 fact which it learns there that the branch in question has done 
 certain official acts other than the enactment of laws; — e. g., 
 expelled certain of its members. 1 An English court, in like man- 
 ner, judicially knows the order and course of proceedings in 
 Parliament. 2 
 
 Municipal legislative bodies stand in a somewhat similar posi- 
 tion. Thus, where a city council is required by law to meet at 
 certain intervals, 3 the fact will be known to the court. 
 
 § 663. (Judicial Knowledge of Results of Law; Legislative 
 Department) ; Direct Results of Legislation. — The judge knows 
 judicially the direct results of legal enactments by public statutes, 
 e. g., that the sale of intoxicating liquor is prohibited in a par- 
 ticular county 1 of the state. That certain counties, cities, towns 2 
 and the like, are municipal corporations, need not be proved. 
 Nor need the statute be introduced in evidence. 3 
 
 § 664* (Judicial Knowledge of Results of Law) ; Judicial De- 
 partment; General Facts. — Both in range of primary and second- 
 ary facts established by legal enactment, the familiarity of the 
 court with matters relating to the judicial department of govern- 
 ment shows itself in an unusually extended judicial knowledge. 
 Among results of a primary nature established by law are the 
 existence, organization, jurisdiction and powers of the judge's 
 
 1. French v. State Senate, 146 Cal. class are those having less than a 
 604, 80 Pac. 1031, 69 L. R. A. 556 given population it need not be proved 
 (1905). to a court that a town in that class 
 
 2. Lake v. King, 1 Wms. Saund. has less than that number of inhabit- 
 1316 (1846). ants. Schweirman v. Town of High- 
 
 3. Stoner v. City Council of City of land Park, (Ky. 1908) 113 S. W. 507. 
 Los Angeles, (Cal. App. 1908)* 97 3. Mobile, J. & K. C. R. Co. v. 
 Pac. 692 Bromberg, (Ala. 1904) 37 So. 395. 
 
 1. Bass v. State, 1 Ga. App. 728, See also In re Mohawk River Bridge 
 790, 57 S. E. 1054 (1907). Connecting Towns of Rotterdam and 
 
 2. City of Brownsville v. Arbuckle, Glenville, 112 N. Y. Suppl. 428, 128 
 99 S. W. 239, 30 Ky. L. Rep. 414 App. Div. 54 (1908) (construction 
 (1907). Where towns of the sixth of canal). 
 
§ 665 
 
 Knowledge; Judicial. 
 
 832 
 
 own court, 1 and of other courts established by the constitution 2 
 or statutes of the state 3 or nation 4 under the authority of which 
 the court is organized. The existence of all courts established by 
 Act of Parliament will be judicially noticed in England. 5 
 
 § 665. (Judicial Knowledge of Results of Law; Judicial 
 Department; General Facts); Inferior Courts. — The same rule 
 or practice applies to courts of inferior jurisdiction, 1 as county 2 
 or municipal 3 courts. In the same way, a court of quarter sessions 
 judicially knows the petty sessional divisions of a county. 4 
 
 England. — Tregany v. Fletcher, 1 
 Ld. Raym. 154 (1697) (exchequer in 
 Wales). See also U. S. v. Beebe, 2 
 Dak. 392, 11 N. W. 505 (1880). "We 
 all know that the circuit courts of 
 the several states are courts of gen- 
 eral jurisdiction, as well as we know 
 that courts of justice of the peace are 
 not: and why should judges assume 
 a degree of ignorance on the bench 
 which would be unpardonable in them 
 when off of it? " Jarvis v. Robinson, 
 21 Wis. 523 (1867). 
 
 Bankruptcy courts -are within the 
 rule. — Lathrop v. Stuart, 14 Fed. 
 Cas. No. 8,113, 5 McLean 167 (1850). 
 " State courts are bound to take ju- 
 dicial notice of the existence of the 
 federal courts." Mims v. Swartz, 37 
 Tex. 13 (1872). 
 
 5. Tregany i: Fletcher, 1 Ld. Raym. 
 154 (1694). 
 
 1. Nelson v. Ladd, 4 S. D. 1 ( 1893 ) . 
 
 2. St. Louis, etc., R. Co. v. Magness, 
 68 Ark. 289, 57 S. W. 933 (1900); 
 Nelson v. Ladd, 4 S. D. 1, 54 N. W. 
 809 ( 1893 ) ; Long v. State, 1 Tex. 
 App. 709 (1877); Reg. r. Whittles, 
 13 Q. B. 248, 13 Jur. 403, 18 L. J. 
 M. C. 96, 66 E. C. L. 248 (1849) 
 (petty sessions). 
 
 3. Hearson v. Graudine, 87 111. 115 
 (1877) ; Heffernan v. Hervey, 41 W. 
 
 Va. 766, 24 S. E. 592 (1896). 
 
 4: R. v. Whittles, 13 Q. B. 248 
 (1849). On the contrary, it has been 
 held that the courts will not notice 
 judicially the nature and jurisdiction 
 of local inferior courts. Moravia v. 
 Sloper, Willes 37 (1737). 
 
 1. State v. Schlessinger, 38 La. 
 Ann. 564 (1886) ; Carberry T. Cook, 
 3 Com. L. Rep. 995 (1906). 
 
 2. Tucker v. State, 11 Md. 322 
 (1857). 
 
 3. Alabama. — Ex p. Peterson, 33 
 Ala. 74 (1858). 
 
 District of Columbia. — Lanckton v. 
 V. S., 18 App. Cas. 348 (1901). 
 
 Illinois. — Russell v. Sargent, 7 III. 
 App. 98 (1880). 
 
 Iowa. — Upton v. Paxton, 72 Iowa 
 295, 33 N. W. 773 (1887). 
 
 Maryland. — Tucker v. State, 11 Md. 
 322 (1857). 
 
 New York. — In re Hackley, 21 How. 
 Pr. 103 (1861). 
 
 Pennsylvania. — Kilpatrick r. Com., 
 31 Pa. St. 198 (1858). 
 
 South Dakota. — Nelson v. Ladd, 4 
 S. D. 1, 54 N. W. 809 (1893). 
 
 Texas-. — Long v. State, 1 Tex. App. 
 709 (1877). 
 
 Vermont. — State r. Marsh, 70 Vt. 
 288, 40 Atl. 836 (1898). 
 
 England. — Caldwell v. Hunter, 10 
 Q. B. 83 (1847); Place r. Potts, 8 
 Exch. 705, 17 Jur. 1168 (1853); 
 Tregany v. Fletcher, 1 Ld. Raymd. 
 154 (1697). 
 
 4. Alabama. — Womack v. Dearman, 
 7 Port. (Ala.) 513 (1838) (federal 
 courts). 
 
 Georgia. — Headman v. Rose, 63 Ga. 
 458 (1879). 
 
 Wisconsin. — Jarvis v Robinson, 21 
 Wis. 523 (1867). 
 
 United States. — Ledbetter v. U. S., 
 108 Fed. 52, 47 C. C. A. 191 (1901) 
 (federal courts) ; Lathrop i\ Stuart, 
 14 Fed. Cas. No. 8,113, 5 .McLean 167 
 (1850) (federal courts). 
 
833 Jurisdiction of Foreign Courts. §§ 666-668 
 
 § 666. (Judicial Knowledge of Results of Law; Judicial 
 Department; General Facts); Special Tribunals. — In the same 
 manner, no proof need be offered as to the existence, jurisdiction, 
 and the like, of federal commissioners, 1 justices of the peace 2 and 
 tribunals of special functions as probate 3 courts, of inquest 4 or 
 other irregular judicial bodies. 5 The rule that where a special 
 and limited jurisdiction is conferred legal authority to act in any 
 particular instance must be shown or the act will be merely a 
 nullity, may be put into the form of saying that the court cannot 
 take judicial notice of such proceeding; e. g., in case of a grand 
 jury. 6 
 
 § 667. (Judicial Knowledge of Results of Law; Judicial 
 Department; General Facts); Federal Courts. — The jurisdiction 
 of the federal courts over places within the limits of a state ceded 
 to the national government by the state legislature is also a pri- 
 mary result of the public law of the forum and will be known 1 
 upon fundamental principles. 2 Acquisition of title by purchase 
 or by the exercise of eminent domain by national authority being, 
 in themselves, acts m pais are secondary rather than primary re- 
 sults of legislation, and the jurisdiction of a federal court, so ac- 
 quired, must be proved. 3 
 
 § 668. (Judicial Knowledge of Results of Law; Judicial 
 
 Department; General Facts); Foreign Courts The jurisdiction 
 
 of a foreign court is not noticed. 1 But the courts of any forum 
 recognize, as a fact of notoriety, " that tribunals are established 
 in the several states, for the adjustment of controversies and the 
 
 1. Ea p. Lane, 6 Fed. 34 (1881). 6. Chicago, W. & V. Goal Co. v. 
 Commissioners' courts are judicially People, 114 111. App. 75 (1904) [judg- 
 
 noticed in England. Ex p. Dubois, 7 ment affirmed, 73 N. E. 770, 214 111. 
 
 Rev. Leg. 430 (1875). 421 (1905)]. 
 
 2. Olmstead v. Thompson, 91 Ala. 1. Lasher v. State, 30 Tex. App. 
 130, 8 So. 755 (1890) ; Goodsell v. 387, 17 S. W. 1064, 28 Am. St. Rep. 
 Leonard, 23 Mich. 374 (1871). 922 (1891). 
 
 3. La Salle v. Milligan, 143 111. 321, 2. Supra, § 571. 
 
 32 N. E. 196 (1892) ; State v. Green, 3. People v. Collins, 105 Cal. 504, 
 
 52 S. C. 520, 30 S. E. 683 (1898). 39 Pac. 16 (1895). 
 
 4. State v. Marsh, 70 Vt. 288, 40 1. Newell v. Newton, 10 Pick. 470 
 Atl. 836 (1897). (1830). The seat or proceedings of a 
 
 5. It is a corollary from this knowl- foreign court will not be noticed, 
 edge that a judge will know that Henry v. Adey, 3 East 221 (1803) ; 
 there is no court of a certain name Ganer v. Lanesborough, Peake 17 
 in the jurisdiction. Tucker v. State (1790). 
 
 11 Md. 322 (1857). 
 
 Vol. I. 53 
 
§§ 669, 670 Knowledge; Judicial. 834 
 
 ascertainment of rights ;" 2 and that the same is true of the Do- 
 minion of Canada. 3 Other notorious facts concerning courts of 
 a sister state or foreign country, as that courts of general juris- 
 diction are courts of record* are equally known. That tribunals 
 of inferior jurisdiction in another state are courts of record 5 will 
 not be officially known. 
 
 § 669. (Judicial Knowledge of Results of Law; Judicial 
 Department); Districts. — The location and boundaries of the 
 judicial districts, into which the nation 1 or a state 2 or a territory 
 is divided, are established by statute and are, therefore, primary 
 results of legislation of which judicial notice is necessarily taken, 3 
 This implies knowledge of the relation of the boundary lines of 
 such divisions to the political divisions of the state into counties, 
 townships, etc., which is considered elsewhere. 4 Where a par- 
 ticular municipality is mentioned in a public statute as within 
 the jurisdiction of a particular court, the judges of the state will 
 take judicial notice that such is the fact. 5 
 
 § 670. (Judicial Knowledge of Results of Law; Judicial 
 Department); Terms — Courts, whether of general or inferior 1 
 jurisdiction, for the same reason, judicially know the times ap- 
 pointed by statute for holding terms of any court lawfully estab- 
 lished by state or national 2 authority in their jurisdiction. 3 It is 
 
 2. Dozier v. Joyce, 8 Port. (Ala.) R. Co. f. Hyatt, 48 Neb. 161, 67 N. 
 
 303, 312 (1838). To the same effect, W. 8 (1896). 
 
 see Jarvis v. Robinson, 21 Wis. 523, 3. Chicago, etc., R. Co. r. Hyatt, 48 
 
 94 Am. Dec. 560 (1S67). Neb. 161, 67 N. W. 8 (1896). 
 
 8. Lazier r. Westcott, 26 N. Y. 146, 4- Infra, § 737. 
 
 82 Am. Dec. 404 (1862). 5. Davis t\ State, (Wis. 1908) 115 
 
 4. Morse r. Hewett. 28 Mich. 4S1 >>'• VT. 150. 
 
 (1874); Shotwell v. Harrison, 22 *• Ex p. Vincent, 43 Ala. 402 
 
 Mich 410 (1871) (1869). See also Ex p. Dubois, 7 
 
 5. Holly r. Bass, 68 Ala, 206 Eev - Le §- 43 ° < 1875 > 
 
 (1880); Hill r. Taylor, 77 Tex. 295. 
 14 S. W. 366 (1890). 
 
 2. Ledbetter v. U. S., 108 Fed. 52, 
 47 C. C. A. 191 (1901); Lindsay v. 
 
 Williams, 17 Ala. 229 (1S50) ; Ross 
 
 1. State v. Arthur, (Iowa 190a) ,, Austill) 2 Cal . 183 (1852) . « And 
 105 N. W. 422; U. S. r. Johnson, 26 Qf ^ timeg ^ ^ ^ placeg 
 Fed. Cas. No. 15,488, 2 Sawy. 482 ^ m . fa gesgions appointed by law 
 (1873). See also U. S. r. Beebe, 2 are to , be held ., Kidder ,, B laisdell, 
 Dak. 292, 11 N. W. 505 (18S0). 45 Me. 461 (1S5S). See also Meadows 
 
 2. Alabama, etc.. Ins. Co. r. Cobb, ,-. Osterkamp, (S. D. 1909) 122 X. W. 
 57 Ala. 547 (1877) (chancery dis- 419. 
 
 tricts) ; State r. Pope, (Mo. App. S. Alabama. — McMullan v. Long, 
 
 1905) S5 S. W. 633; Chicago, etc., (Ala. 1905) 39 So. 777. 
 
835 
 
 Teems of Infeeioe Couets Noticed. 
 
 670 
 
 indifferent, in this connection, whether the term is that of the 
 judge's own court* or that of a court whose action is under 
 review. 6 The rule applies equally to a court of limited jurisdic- 
 tion. 6 
 
 California. — Ross v. Anstill, 2 Cal. 
 183, 191 (1852). 
 
 Georgia. — Edwards v. State, 123 
 Ga. 542, 51 S. E. 630 (1905). 
 
 Illinois. — Fry v. Radzinski, 219 111. 
 526, 76 N. E. 694 (1906). 
 
 Indiana. — Anderson v. Anderson, 
 141 Ind. 567, 40 N. E. 131 (1895); 
 Spencer v. Curtis, 57 Ind. 221, 227 
 (1877). 
 
 M aine.— Kidder v. Blaisdell, 45 
 Me. 461, 470 (1858). 
 
 South Carolina. — State v. Toland, 
 36 S. C. 515, 523, 15 S. E. 599 (1892). 
 
 Virginia. — Thomas v. Com., 90 Va. 
 92, 94, 17 S. E. 788 (1893). 
 
 4. Anderson v. Dickson, 8 Ala. 733 
 (1845) ; Harwood v. Toms, 130 Mo. 
 225, 32 S. W. 666 (1895) ; Foster V. 
 Frost, 15 N. C. 424 (1834). ' See also 
 Em p. Dubois, 7 Rev. Leg. 430 (1875). 
 
 5. Alabama. — Olmstead v. Thomp- 
 son, 91 Ala. 130, 8 So. 755 (1890) ; 
 Rodgers v. State, 50 Ala. 102 (1874) 
 (circuit court of a particular county) . 
 
 Arkansas. — State v. Hammett, 7 
 Ark. 492 (1847). 
 
 California. — Talbert v. Hopper, 42 
 Cal. 397 (1871) ; Boggs v. Clark, 37 
 Cal. 236 (1869). 
 
 Colorado. — Van Duzer v. Towne, 12 
 Colo. App. 4, 55 Pac. 13 (1898); 
 Cooper v. American Cent. Ins. Co., 
 3 Colo. 318 (1877). 
 
 District of Columbia. — I<anckton v. 
 U. S., 18 App. Cas. 348 (1901). 
 
 Indiana. — ■ Moss v. Sugar Ridge Tp., 
 Clay County, 161 Ind. 417, 68 N. E. 
 896 (1903); Taylor v. Canaday, 155 
 Ind. 671, 59 N. E. 20 (1900) ; And- 
 erson v. Anderson, 141 Ind. 567, 40 
 N. E. 131, 1082 (1895). See also 
 Moss v. Sugar Ridge Tp., 161. Ind. 
 417, 68 N. E. 896 (1903). 
 
 Kansas. — Scruton v. Hall, 6 Kan. 
 App. 714, 50 Pac. 964 (1897). 
 
 Kentucky.— Com. v. Pritchett, 11 
 Bush (Ky.) 277, 281 (1875). 
 
 Maine. — Kidder v. Blaisdell, 45 
 Me. 461 (1858). 
 
 Massachusetts. — Com. v. Stevens, 
 142 Mass. 457, 8 N. E. 344 (1886). 
 
 Michigan. — Tromble v. Hoffman, 
 130 Mich. 676, 90 N. W. 694 (1902). 
 
 Missouri. — ■ State v. Broderick, 70 
 Mo. 622 (1879) ; Harwood v. Toms, 
 130 Mo. 225, 32 S. W. 666 (1895). 
 
 New Hampshire. — Fa'byan v. Rus- 
 sell, 38 N. H. 84 (1859). 
 
 Hew York. — ■ Matter of Hackley, 21 
 How. Pr. 103 (1861). 
 
 South Carolina. — State v. Toland, 
 36 S. C. 515, 15 S. E. 599 (1892). 
 
 South Dakota. — Nelson v. Ladd, 4 
 S. Dak. 1, 54 N. W. 809 ( 1893 ) . 
 
 Tennessee. — Pugh v. State, 2 Head 
 227 (1858). 
 
 Texas. — Accousi v. G. A. Stowers 
 Furniture Co., (Tex. Civ. App. 1904) 
 83 S. W. 1104; Emery v. League, 
 (Tex. Civ. App. 1903) 72 S. W. 603; 
 Davidson v. Peticolas, 34 Tex. 27 
 (1870). 
 
 Virginia. — Thomas v. Com., 90 Va. 
 92, 17 S. E. 768 (1893). 
 
 Wyoming. — Natrona County v. 
 Shaffner, 10 Wyo. 181, 68 Pac. 14 
 (1901) ; Donovan v. Terr., 3 Wyo. 91 
 (1884). 
 
 United States.— Ledbetter v. United 
 States, 108 Fed. 52 (1901). 
 
 6. Alabama. — Rodgers v. State, 50 
 Ala. 102 (1874). 
 
 Colorado. — Van Duzer v. Towne, 12 
 Colo. App. 4, 55 Pac. 13 (1898). 
 
 Indiana. — Moss v. Sugar Ridge Tp., 
 161 Ind. 417, 68 N. E. 896 (1903). 
 
 Missouri.— State v. Broderick, 70 
 Mo. 622 (1879). 
 
 Tennessee.— Pugh v. State, 2 Head 
 227 (1858). 
 
 Texas. — Davidson v. Peticolas, 34 
 Tex. 27 (1870) (district court). 
 
 Wyoming.— Donovan v. Territory, 
 3 Wyo. 91, 2 Pac. 532 (1884). 
 
§§ 671-673 Knowledge; Judicial. 836 
 
 § 671. (Judicial Knowledge of Results of Law; Judicial 
 
 Department; Terms); Administrative Boards The same reason 
 
 and the same rule apply in the case of the legally preappointed 
 sittings of administrative boards, exercising judicial functions, 
 as county commissioners 1 or supervisors. 2 The places at which 
 these sittings are appointed to be held 3 will also be judicially 
 known. These are among the primary effects of law. 
 
 § 672. (Judicial Knowledge of Results of Law; Judicial 
 Department; Terms); length of Terms. — Judicial knowledge of 
 the established terms of courts and the like extends to cover their 
 length, when the fact is determined by law; 1 — subject, of course, 
 to the court's power of adjournment. 2 
 
 The rule is the same as to terms of administrative boards pos- 
 sessing judicial powers. 
 
 Term Time and Vacation. — The coincidence of the days of the 
 week or month, with the days appointed for a term or sitting and 
 consequently whether an act done on a certain day was done in 
 term time or vacation 3 are also facts of the almanac 4 and are con- 
 sidered in that connection. 
 
 § 673. (Judicial Knowledge of Results of Law; Judicial 
 Department) ; Sessions; Length of Actual Sitting. — The actual 
 length of a session or sitting of a court, is a secondary conse- 
 quence, as it were, of legislation; — which cannot judicially be 
 known. 1 In the same way the time at which a legally constituted 
 
 1. Kane County v. Young, 31 111. 2. Harrison r. Meadors, 41 Ala. 374 
 194 (1863); Collins t\ State, 58 Ind. (1867). 
 
 5 (1877). 3. Rogers r. Venis, 137 Ind. 221, 
 
 2. State V. Smith, (Miss. 1906) 40 36 N. E. 841 (1893) , Barnwell r. 
 So. 22. Marion, 58 S. C. 459, 36 S. E. 813 
 
 3. Ross r. Anstill, 2 Cal. 183, 191 (1900) ; Donovan i: Terr., 3 Wyo. 91, 
 (1852). 2 Pac. 532 (1884). 
 
 1. McMullan v. Long, (Ala. 1905) 4. Infra, § 727. 
 
 39 So. 777; Rogers v. State, 50 Ala. 1. Alabama. — Harrison r. Meadors, 
 
 103 (1874); Durre v. Brown, 7 41 Ala. 274 (1867). 
 
 Ind. App. 127 (1893); Fabyan v. Kansas. — • Dudley r. Barney, 4 Kan. 
 
 Russell, 38 N. H. 84 (1859); State App. 122, 46 Pac. 178 (1896). 
 
 V. Maier, 36 W. Va. 757, 15 S. E. Missouri. — Hadley r. Bernero, 97 
 
 991 (1892). See also Estwick r. Mo. App. 314, 71 S. W. 451 (1902). 
 
 Cooke, 2 lid. Raym. 1557 (1701). Ohio.— Gilliland r. Sellers, 2 Ohio 
 
 Appellate courts take notice of the St. 223 (1853). 
 
 beginning, but not of the ending, of Utah. — Felt r. Cook. (Utah 1906) 
 
 circuit court terms. Breimeyer r. 87 Pac. 1092. But see contra, Spencer 
 
 Star Bottling Co., 136 Mo. App. 84, r. Curtis, 57 Tnd. 231, 327 (1877). 
 
 117 S. W. 119 (1909). " This court judicially knows that the 
 
837 
 
 Personalty of Judiciary Noticed. 
 
 674 
 
 body, like a grand jury, 2 the date of whose meetings are not fixed 
 by law, in fact met, or the time to which any court or board, 
 other than tbe court in question, 3 actually adjourned- its sitting 4 
 must be proved. 
 
 § 674. (Judicial Knowledge of Results of Law; Judicial 
 Department) ; Judges and Magistrates — While the number of 
 judges established for a particular court, 1 the length of their term 
 of office, 2 the amount of their salaries 3 and the manner of their 
 selection 4 and qualifications are primary results of legislation and 
 therefore cognized as " matter of law," knowledge as to what per- 
 sons compose the judiciary of the state or nation cannot well be 
 so regarded. It is, however, deemed a matter of notoriety, cer- 
 tainly in the legal community 5 of which judicial notice is taken, 
 although the fact, in relation to the legislation itself, is essentially 
 
 fall term of the circuit court of 
 Lowndes County begins on the fourth 
 Monday in October in each year, and 
 may continue three weeks ; and that 
 November 5th, 1873, was a day of the 
 second week of said term.'' Rodgers 
 v. State, 50 Ala. 102 (1874). But 
 see Gilliland v. Sellers, 2 Ohio St. 
 223 (1853). 
 
 2. Matter of Hackley, 21 How. Pr. 
 (N. Y.) 103 (1861). 
 
 Facts regarding the holding of 
 grand jury terms which are primary 
 results of law, as that a grand jury 
 elected at a particular time serves 
 for a given period, will be noticed. 
 Dorman v. State, 56 Ind. 454 (1877). 
 
 3. Hadley v. Bernero, 97 Mo. App. 
 314, 71 S. W. 451 (1902). 
 
 4. Baker v. Knott, 3 Ida. 700, 35 
 Pac. 172 (1893). 
 
 1. Vahle v. Brackenseik, 145 111. 231 
 (1893); State v. Pope, (Mo. App. 
 1905) 85 S. W. 633. Where the terms 
 of all justices of the peace by law 
 expire on a certain day the court will 
 take notice of that fact. Stubbs v. 
 State, 53 Miss. 437 (1876). 
 
 2. Alabama. — -Ex p. Peterson, 33 
 Ala. 74 (1858). 
 
 California. — People v. Ebanks, 120 
 Cal. 626, 52 Pac. 1078 (1898). 
 
 Illinois. — Vahle v. Brackenseik, 145 
 111. 231, 34 N. E. 524 (1893). 
 
 Indiana. — Cincinnati, etc., R. Co. 
 v. Grames, 8 Ind. App. 112, 34 N. E. 
 613, 37 N. E. 421 (1893). 
 
 Iowa. — Upton v. Paxton, 72 Iowa 
 295, 33 N. W. '773 (1887). 
 
 Maryland. — Tucker v. State, 11 Md. 
 322 (1857). 
 
 Mississippi. — • Stubbs r. State, 53 
 Miss. 437 (1876). 
 
 Pennsylvania. — Kilpatrick v. Com., 
 31 Pa. St. 198 (1858). The judges 
 of an appellate court will judicially 
 notice the expiration of the term of 
 a trial judge pending the allowance 
 of a bill of exceptions taken before 
 him. Northwestern Port Huron Co. 
 v. Zickrick, (S. D. 1908) 115 N. W. 
 525. 
 
 3. MeKinney v. O'Conner, 26 Tex. 
 5 (1861). 
 
 4. Mayes v. Palmer, 206 Mo. 293, 
 103 S. W. 1140 (1907) (appointment 
 to fill vacancy caused by death of 
 predecessor in offlce). 
 
 5. In Alabama the judges know the 
 names of all the judiciary of the 
 State. Ward v. State, (Ala. 1905) 
 39 So. 923. 
 
675 
 
 Knowledge; Judicial. 
 
 838 
 
 secondary. The courts of England, 6 Canada 7 and America 8 know 
 who are or at any time were, 9 either officially or as a locum 
 tenens, 10 judges of their own tribunals 11 or of any superior court 
 of record within the jurisdiction, state or national, 12 including 
 courts of probate. 13 In the same way they judicially know who 
 was the presiding officer at a given date, 14 at what time, 15 and 
 under what law 16 he was selected, 17 whether a proper commis- 
 sion has issued 18 and at what time a particular judge resigns his 
 office 19 or, for any other reason, ceased to be a judge. 20 
 
 § 675. (Judicial Knowledge of Results of Law; Judicial 
 Department; Judges and Magistrates); Inferior Courts. — With 
 regard to justices of inferior courts, a difference of opinion ap- 
 parently exists in various jurisdictions as to the judicial knowl- 
 edge of judges of courts of record with regard to them. In 
 
 6. Skipp r. Hooke, 2 Stra. 1080 
 
 (1737) ; Elderton's Case, 2 Ld. Raym. 
 978 (1703). See also Van Sandau 
 v. Turner, 6 Q. B. 773, 786 (1845) 
 
 (Court of Review in Bankruptcy). 
 
 7. Watson v. Hay, 5 N. Brunsw. 
 559 (1847) ; Fay r. Miville, 2 Rev. 
 Leg. 333 (1816). Tremaine v. Tonnan- 
 cour, 2 Rev. Leg. 471. 
 
 8. Colorado. — Means i\ Stow, 29 
 Colo. 80, 66 Pae. 881 (1901). 
 
 Florida. — Perry v. Bush, 35 So. 225 
 (1903) (presiding judges). 
 
 Illinois. — Vahle v. Brackenseik, 145 
 111. 231, 34 N. E. 524 (1893). 
 
 Indiana. — Indianapolis St. R. Co. 
 v. Lawn, 30 Ind. App. 515, 66 N. E. 
 508 (1903). 
 
 Iowa.— Upton t». Paxton, 72 Iowa 
 295, 33 N. E. 773 (1887). 
 
 Louisiana. — Dwight r. Splane, 11 
 Rob. 487 (1845). 
 
 Maryland.— Tucker v. State, 11 
 Md. 322 (1857). 
 
 'North Carolina. — State r. Ray, 97 
 N. C. 510, 1 S. E. 876 (1887). 
 
 Texas. — Dela Rosa v. State, (Cr. 
 App. 1893) 21 S. W. 192. 
 
 Vermont. — State i\ Marsh, 70 Vt. 
 288, 40 Atl. 836 (1897). 
 
 9. Indianapolis St. R. Co. v. Lawn, 
 30 Ind. App. 515, 66 N. E. 508 
 ( 1903') ; Barnwell v. Marion, 58 S. C. 
 
 459. 36 S. E. 818 (1900); Watson 
 V. Hay, 5 N. Brunsw. 559 ( 1847 ) . 
 
 10. Bell t'. State, 115 Ala. 25, 22 
 So. 526 (1896). 
 
 11. Gilliland r. Sellers, 2 Ohio St. 
 223 (1853). 
 
 12. Vahle v. Brackenseik, 145 111. 
 231 (1893) ; Barnwell r. Marion, 58 
 S. C. 459, 36 S. E. 818 (1900) ; Led- 
 better V. V. S., 108 Fed. 52, 47 C. C. 
 A. 191 (1901). 
 
 13. McCarver P. Hertzberg, 120 Ala. 
 523, 25 So. 3 (1898). 
 
 14. Kilpatrick r. Com., 31 Pa. 198 
 (1858) (president of Court of Com- 
 mon Pleas). 
 
 15. Fay o. Miville, 2 Rev. Leg. 
 333; Tremaine v. Tonnacour, 2 Rev. 
 Leg. 471. 
 
 16. Clark v. Com., 29 Pa. St. 129 
 (1858). 
 
 17. De la Rosa r. State, (Tex. Crim. 
 App. 1893) 21 S. W. 192 (appoint- 
 ment of A. as district judge). 
 
 18. Follain ». Lefevre, 3 Rob. (La.) 
 13 (1842). 
 
 19. Ex V- Peterson, 33 Ala. 74 
 (1858) (circuit judge) ; People v. Mc- 
 Oonnell, 155 111. 192, 40 N. E. 608 
 (1895). 
 
 20. People v. Ebanks, 120 Cal. 626, 
 52 N. W. 1078 (1898) (Superior 
 Court). 
 
839 
 
 Infeeior Magistrates Judicially Known. 
 
 675 
 
 America, according to the prevailing view, though there is author- 
 ity to the contrary, 1 judicial cognizance is taken as to who are 
 justices of inferior tribunals 2 or even as to who are justices of 
 the peace. 3 With especial frequency judicial knowledge is taken 
 of magistrates commissioned for or acting in the county in which 
 the court is sitting.* Probably the view in England is to a con- 
 trary effect. 5 In the same way judicial notice has been taken as 
 
 1. Ripley v. Warren, 2 Pick. (Mass.) 
 692, 596 (1824) (doubt suggested as 
 to court's knowledge as to who was 
 first justice of a lower court). See 
 also County of San Joaquin v. Budd, 
 96 Cal. 47 (1892). 
 
 2. Alabama. — Ea> p. Peterson, 33 
 Ala. 74 (1858). 
 
 California. — People v. Ebanks, 120 
 Cal. 626, 52 Pac. 1078 (1898). See 
 also Wyatt V. Arnot, (App. 1907) 
 94 Pac. 86 (superior court). 
 
 Florida. — Perry v. Bush, (1903) 
 35 So. 225 
 
 Illinois. — Fisher v. City of Chicago, 
 213 111. 268, 72 N. E. 680 (1904) 
 (county judge) ; People v. McConnell, 
 155 111. 192, 40 N. E. 608 (1895). 
 
 Indiana. — Indianapolis St. R. Co. 
 v. Lawn, 30 Ind. App. 515, 66 N. E. 
 508 (1903). 
 
 Kentucky. — Kennedy v. 'Com., 78 
 Ky. 447 (1880) (circuit judge). 
 
 Louisiana. — Despau v. Swindler, 3 
 Mart. (N. S.) 705 (1825). 
 
 Massachusetts. — Com. v. Jeffts, 14 
 Gray 19 (1859). The rule was 
 quceried in Eipley v. Warren, 2 Pick. 
 692 (1884). 
 
 Missouri — Viertel v. Viertel, 212 
 Mo. 562, 111 S. W. 579 (1908). 
 
 Pennsylvania. — Kilpatrick v Com., 
 31 Pa. St. 198 (1858). 
 
 South Carolina. — Barnwell v. Mar- 
 ion, 58 S. C. 459, 36 S. E. 818 (1900). 
 
 South Dakota. — Nelson v. Ladd, 4 
 S. D. 1, 54 N. W. 809 (1893). "The 
 rule is that courts will take notice 
 of what ought to be generally known 
 within the limits of their jurisdiction. 
 There seems to us to be as much 
 reason for our having knowledge of 
 
 who are in fact the judges of our con- 
 stitutional courts, as for our having 
 judicial knowledge of the heads of de- 
 partments, sheriffs, etc., knowledge of 
 whom is always presumed." Kilpat- 
 rio V. Com., 31 Pa. St. 198 (1858) ; 
 Cincinnati, etc., R. R. v. Grames, 8 
 Ind. App. 112 (1893). 
 
 That there is no judge of a par- 
 ticular name will, therefore, be ju- 
 dicially noticed. Follain v. Lefevre, 
 3 Rob. (La.) (1842). 
 
 3. Arkansas. — Webb v. Kelsey, 66 
 Ark. 180, 49 S. W. 819 (1899). 
 
 California. — Ede i>. Johnson, 15 Cal. 
 53 (1860). 
 
 Illinois. — Gilbert v. National Cash- 
 Register Co., 176 111. 288, 52 N. E. 
 22 (1898). 
 
 Louisiana. — Dwight t\ Splane, 11 
 Rob. 487 (1845). 
 
 Mississippi. — Coleman v. Gordon, 
 (1894) 16 So. 340. 
 
 Pennsylvania. — Hibbs v. Blair, 14 
 Pa St. 413 (1850). That a successor 
 has been appointed or elected at 
 time evidence is offered is not ma- 
 terial. Ryan v. Young, (Ala. 1906) 
 41 So. 954 (commissioner). 
 
 4. Gilbert v. Nat'l C. R. Co., 176 
 111. 288, 52 N. E. 22 (1898) ; Graham 
 l'. Anderson, 42 111. 514 (1867). 
 
 5. Skipp v. Hooke, 2 Str. 1080 
 (1738). See also Van Sandau v. 
 Turner, 6 Q. B. 773, 9 Jur. 296, 14 
 L. J. Q. B. 154, 51 E. C. L. 773 
 (1845). 
 
 English courts have taken cogni- 
 zance of justices of the peace. Elder- 
 ton's Case, 2 Ld. Raym. 978, 980 
 (1703). 
 
§ 676 Knowledge; Judicial. 840 
 
 to who are the magistrates of parishes. 6 The knowledge of who 
 are judges is not only taken by a judge in a judicial capacity but 
 is taken of the judge as judge, i. e., his judicial official status. 
 When a judge of whom, in his judicial function, notice is taken 
 appears in an individual capacity, he stands on the same footing, 
 so far as regards judicial cognizance, as other men. 7 The court's 
 knowledge does not attach to him personally; it is connected with 
 the mutual interrelation of two parts of a judicial machinery, the 
 smooth running of which is facilitated by such a recognition. 
 Other States. — But judicial cognizance cannot be»taken as to 
 who are judges, even of courts of record, 8 in another state. A 
 fortiori, they cannot judicially notice who are the magistrates who 
 are commissioned to act in the jurisdiction of a sister state. 9 
 
 § 676. (Judicial Knowledge of Results of Law; Judicial 
 Department) ; Attorneys and Counsel. — Judicial notice is taken 
 of who is attorney-general, 1 but not of who are deputies. 2 No 
 necessity exists for proving any changes in the incumbency of 
 the office. 3 Judges know, judicially, who are the prosecuting at- 
 torneys of the state 4 and their assistants 5 or deputies appointed 
 under authority of law. 6 The legally established length of term 
 of office for these officials is a primary result of legislation of which 
 notice is taken, as of a matter of law. 7 For like reasons, a court 
 will notice who are the attorneys 8 or counsellors admitted to its 
 
 G. Despau v. Swindler, 3 Mart. (N. 4. State v. Kinney, 81 Mo. 101 
 
 S.) 705 (1825). (1883); Simms v. Quebec, etc., R. 
 
 7. Shropshire v. State, 12 Ark. 190 Co., 22 L. C. Jur. 20 (1878). The 
 (1851); San Joaquin County v. Budd, court will know judicially who are 
 96 Cal. 47, 30 Pac. 967 (1893) ; Ells- the prosecuting attorneys of partieu- 
 worth v. Moore, 5 Iowa 486 (1857). lar counties in the state. State v. 
 
 8. Fellows v. Menasha, 11 Wis. 558 Campbell, 210 Mo. 202, 109 S. W. 
 (1860). 706 (1908). 
 
 9. In re Keeler, 14 Fed. Cas. No. 5. People r. Lyman, 2 Utah 30 
 7,637, Hempst. 306 (1843) (justices (1S77). 
 
 of the peace). 6. State v. Guglielmo, (Or. 1905) 
 
 1. Curry v State, 7 Baxt. (Tenn.) 79 Pac. 577. 
 
 154, 156 (1874) ; Bennett r. State, 7. State v. Seibert, 130 Mo. 202, 32 
 
 Mart & Y. (Tenn.) 133, 135 (1827); S. W. 670 (1895). 
 
 State i\ Evans, 8 Humphr. (Tenn.) 8. Illinois. — Ferris r. Commercial 
 
 110 (1847). Nat. Bank, 158 111. 237, 41 N. E. 
 
 2. Crawford v State, 155 Ind. 692, 1118 (1895.). 
 
 S7 N. E. 931 (1900). Louisiana. — Dixey v. Irwin, 23 La. 
 
 3. State v. Evans, 8 Humphr. Ann. 426 (1871). 
 
 (Tenn) 110 (1847) (resignation and Missouri. — State v. Sanders, 62 Mo. 
 
 appointment to fill vacancy). App. 33 (1895). 
 
841 SIGNATURES OF ATTORNEYS AND COUNSEL. § 677 
 
 bar, and are regularly licensed ; 9 but does not know those legally 
 practicing before the bar of an inferior domestic tribunal. 10 But this 
 knowledge is official and applies merely to the professional capac- 
 ity of the lawyer as an officer of the court — that his standing 
 may be regarded, his signature assumed genuine as a certificate to 
 pleadings and the like. As an individual he stands as any other 
 individual would stand. Facts as to his personal history are not 
 officially known to the court. Whether he is still in active prac- 
 tice 11 or continues to reside in the state, 12 must be proved, if 
 claimed. 
 
 § 677. (Judicial Knowledge of Results of Law; Judicial 
 Department; Attctneys and Counsel); Signatures and Seals. — 
 In like manner, the signature of attorneys admitted to practice 
 in the court will, when attached to pleadings 1 or otherwise used, 
 as an attorney, often be noticed judicially. This will not be done 
 where the signature is made by the attorney in his personal 
 capacity; 2 — as where he appears pro se. 3 The signature of a 
 prosecuting attorney, in his official capacity, will be noticed,* 
 although the description of the office is incorrect. 8 
 
 Pennsylvania. — Philadelphia v. that one appearing or acting as an 
 
 Jacobs, 22 Wkly. Notes Cas. 348 attorney is or is not duly licensed. 
 
 (1888). Nolan v. St. Louis & S. F. R. Co., 
 
 Wisconsin. — Cothren v. Connaugh- (Okl. 1907) 91 Pac. 1128. 
 
 ton, 24 Wis. 134 (1869). 10. Clark v. Morrison, (Ariz. 1898) 
 
 England. — Ex p. Hore, 3 Dowl. P. 52 Pac. 985. See also Sutton v. Chi- 
 
 C 600 (1835); Em p. King, 3 Dowl. cago, etc., R. Co., 98 Wis. 157, 73 
 
 P. C. 41 (1834). Shoreditch Vestry N. W. 993 (1898). 
 
 V. Hughes, 17 C. B. N. S. 137, 33 11. Cothren v. Cornaughton, 24 
 
 L. J. C. P. 349 (1864) (practice of Wis. 134, 138 (1869). 
 
 solicitors). It will he judicially 12. Sutton v. Chicago, etc., R. Co., 
 
 known that by law attorneys are re- 98 Wis. 157, 73 N. W. 993 (1898). 
 
 quired to be 21 years of age. State 1. Markes V. Epstein, 13 N. Y. Civ. 
 
 v. Gebhardt, 219 Mo. 708, 119 S. W. Proc. 293 (1888); Strippelmann v. 
 
 350 (1909). Clark, 11 Tex. 296 (1854). 
 
 English Court. — An English Court 2. Masterson v. lie Claire, 4 Minn, 
 
 will judicially know the privileges of 163 (1860). 
 
 its solicitors. Stokes v. Mason, 9 3. Aklerson «. Bell, 9 Cal. 315 
 
 East 426 (1808); Ogle v. Norcliffe, (1858); Masterson v. Le Claire, 4 
 
 2 Ld. Raym. 869 (1701). Minn. 163 (1860). • 
 
 9. Ferris v. Bank, 158 111. 237, 41 4. State V. Kinney, 81 Mo. 101 
 
 N. E. 1118 (1895). Sloan v. Hal- (1883). 
 
 lowell, 83 Nebr. 762, 120 N. W. 449 5. State l\ Kinney, 81 Mo. 101 
 
 (1909). The judges of a territory (1883). 
 will take judicial notice of the fact 
 
;§ 678,679 
 
 Knowledge; Judicial. 
 
 842 
 
 § 678. (Judicial Knowledge of Results of Law; Judicial 
 Department); Clerks. — Judges judicially know who are the 
 clerks of the various courts, 1 whether state 2 or federal, 3 of the 
 forum, and who are their deputies. 4 Keither will it be required 
 that the names 5 should be proved. When the clerk is acting in 
 his official capacity, the judge, in the exercise of his administrative 
 powers, may assume 6 that it is correct, i. e., know it for judicial 
 purposes. The knowledge is not actual, it is not common, i. e., 
 that of notoriety. It is official, i. e., administrative, judicial. The 
 name of a clerk of court, as that of an individual is not a su'bject 
 of judicial cognizance. 7 As a rule, presenting but few exceptions, 8 
 courts do not judicially notice who are the clerks of court in other 
 states ; and it has been assumed 9 that the clerk of an inferior 
 court would not be judicially noticed. 
 
 § 679. (Judicial Knowledge of Results of Law; Judicial 
 Department) ; Court Officers and Officials. — Judges will, speaking 
 in general terms, know for judicial purposes who are the cus- 
 tomary 1 and legally appointed officers and officials of their own 
 
 1. White v. Rankin, 90 Ala. 541, 
 8 So. 118 (1890) ; Major v. State, 2 
 Sneed (Tenn.) 11 (1854). See also 
 State i\ Kinney, (S. D. 1907) 113 
 N. W. 77. " It is certainly true that 
 the courts will judicially recognize 
 the public officers of the state, under 
 whose laws and organization they act 
 as the chief executive, the heads of 
 departments; judges of courts of 
 general jurisdiction; attorneys for 
 the state, sheriffs, and we see no 
 reason why clerks of the courts should 
 not also be included." Major v. 
 State, 2 Sneed 11 (Tenn.) (1854). 
 
 2. Alabama. — White v. Rankin, 90 
 Ala. 541, 8 So. 118 (1890). 
 
 California. — Campbell r. West, 86 
 Cal. 197, 24 Pac. 1000 (1890). 
 
 New York. — Mackimon ;;. Barnes, 
 66 Barb. 91 (1867). 
 
 Tennessee. — State r. Cole, 9 Humph. 
 626 (1849); Major r. .State, 2 Sneed 
 11 (1854). 
 
 Texas. — Goodwin «>. Harrison, 28 
 Tex. Civ. App. 7, 66 S. W. 308 
 (1902). 
 
 West Virginia. — Central Land Co. 
 V. Calhoun, 16 W. Va. 361 (1880). 
 
 3. U. S. v. U. S. Bank, 11 Rob. 
 (La.) 418 (1845) ; Ledbetter v. U. S., 
 108 Fed. 52, 47 C. C. A. 191 (1901). 
 
 4. Himmelmann v. Hoadley, 44 Cal. 
 213 (1872); State Bank v. Watson, 
 15 La. 38 (1840) ; State v. Barrett, 40 
 Minn. 65, 41 N. W. 459 (1889); 
 Drumheller v. Mumaw, 9 Pa. St. 
 19 (1848). 
 
 5. Mountjoy v. State, 78 Ind. 172 
 (1881). 
 
 6. Supra, § 638. 
 
 7. Com. v. Fray, 126 Mass. 235 
 (1879). 
 
 8. Munroe v. Eastman, 31 Mich. 
 283 (1875); Morse r. Hewett, 28 
 Mich. 481 (1874). 
 
 9. Davis r. McEnaney, 150 Mass. 
 451, 23 N. E. 221 (1890) (police 
 court). 
 
 1. A commissioner to administer 
 affidavits has been refused judicial 
 recognition. Frost v. Hayward, 2 
 Dowl. P. C. (N. S.) 566, 6 Jur. 1045, 
 12 L. J. Exch. 84, 10 M. & W. 673 
 (1842). 
 
843 Domestic Practice Judicially Known. §§ 680, 681 
 
 courts 2 and of other courts of state 3 or national * jurisdiction ex- 
 ercising judicial functions within the state. The fact is one of 
 notoriety ; — especially among those connected with the practical 
 administration of justice. 
 
 § 680. (Judicial Knowledge of Results of Law; Judicial 
 Department); Sheriffs, Constables, etc. — The office of sheriff is 
 one of such public and general importance as to be cognized not 
 only as a well known, element in the governmental equipment of 
 a county and part of its history, 1 but as intimately connected with 
 the machinery of the courts, charged with the duty of executing 
 their orders or process. The court, therefore, judicially and of- 
 ficially knows who is sheriff of a particular county, 2 and in cer- 
 tain jurisdictions his legally appointed deputies; 3 — though the 
 second branch of the proposition is not generally agreed.* 
 
 Constables. — Constables acting as court officers 5 stand in the 
 same position. 
 
 The length of the term of these respective offices is a primary 
 fact, directly established by law and is known, as a matter of law, 6 
 and is therefore subject of the court's judicial knowledge. 
 
 § 681. (Judicial Knowledge of Results of Law; Judicial 
 Department) ; Practice. — Judges judicially notice the rules regu- 
 lating the practice of their own courts, 1 but not of those of in- 
 
 2. Cary v. State, 76 Ala. 78 (1884); 3. Martin v. Aultman, 80 Wis. 150, 
 Thielmann v. Burg, 73 111. 293 (1874); 49 N. W. 749 (1891). 
 
 Hammann v. Mink, 99 Ind. 279 4. Land v. Patteson, Minor (Ala.) 
 
 (1884) ; State v. Postlewait, 14 Iowa 14 (1820) ; State Bank v. Curran, 10 
 
 446 (1862); Miller v. Matthews, 87 Ark. 142 (1849). 
 
 Md. 464, 40 Atl. 176 (1898). Incumbency in the office of deputy 
 
 3. Despau v. Swindler, 3 Mart. (N. marshal will not be judicially known. 
 S.) (La.) 705 (1825). But see Nor- Ward v. Henry, 19 Wis. 76, 81 (1865). 
 veil i\ McHenry, 1 Mich. 227 (1849). Such an officer is not " commis- 
 
 4. Buford v. Hickman, 4 Fed. Cas. sioned in the name of the state or 
 No. 2,114a, Henrpst. 232 (1834) (a required by statute to take any oath 
 territorial court knows the officers of of office." State Bank v. Curran, 10 
 the United States courts) . Ark. 142 (1849). 
 
 1. Infra, § 653. 5. Harris v. Buehler, 1 Pennew. 
 
 2. Ingram v. State, 27 Ala. 17 (Del.) 346, 40 Atl. 733 (1898); 
 (1855) ; Thompson V. Haskell, 21 111. Graham v. Gibson, 14 La. 146 (1839). 
 
 215, 74 Am. Dec. 98 (1859). Courts 6. Ragland v. Wynn, 37 Ala. 32 
 
 judicially know that the sheriff is (1860). 
 
 constituted by law keeper of the jail 1. Packet Co. v. Sickles, 19 Wall, 
 of his county and that, as such, he (U. S.) 611 (1873); Pugh v. Robin- 
 has charge and custody of all prison- son, 1 T. R. 116, 118 (1786). 
 ers confined in it. Ex parte Bar- 
 gagliotti, (Cal. App. 1907) 92 Pac. 96. 
 
§ 681 Knowledge; Judicial. 844 
 
 ferior tribunals, 2 unless required to do so by statute or the exist- 
 ence of some revisory or other special relation between the two 
 courts. In the same way the judge of a federal court judicially 
 knows the practice and procedure of his own tribunal, but not 
 those of a state court. 3 Assuming that the rules and regulations 
 of a long established national court can be judicially known as a 
 matter of notoriety, at least in the legal community, the same 
 course cannot be taken with regard to the procedure and practice 
 adopted by a recent statutory tribunal. 4 
 
 Absence of authority on the part of a court to do a definite act 5 
 is a primary result of legislation, i. e., is matter of law. 
 
 An appellate court judicially knows the rules and practice of 
 the court whose proceedings it has the duty of revising. 6 The 
 supreme court may judicially recognize the long established prac- 
 tice of an administrative board 7 and the construction which it has 
 given to particular statutes. 
 
 Federal courts do not, in general, judicially know the rules of 
 practice voluntarily adopted in a state court. 8 
 
 Other Domestic Courts. — A judge knowing the procedure estab- 
 lished in his own court 9 will assume, in the absence of statutory 
 or other controlling regulation, that the practice of other domestic 
 
 2. Bowen v. Webb, (Mont. 1906) son, 1 T. R. 116 (1786). It is a 
 85 Pac. 739. matter of judicial knowledge that the 
 
 3. Randall v. New England O. of trial docket is used by the judge for 
 P., 118 Fed. 782 (1902) ; Yarnell v. making memoranda of orders and 
 Felton, 104 Fed. 161 (1900). judgments rendered in pending cases, 
 
 4. Van Sandau v. Turner, 6 Q. B. and that judgments are written in 
 773, 784 (1845) (court of review in the book in which is kept the minutes 
 bankruptcy). of each day's proceedings during the 
 
 5. Chitty v. Dendy, 3 A. & E. 319, term and the orders and judgments 
 1 H. & W. 169, 4 L. J. K. B. 195, 4 in the order in which they are en- 
 N. & M. 842, 30 E. C. L. 161 (1835) tered, which book is the sole memorial 
 (allow double pleading). of their existence. Winn v. Mc- 
 
 6. Johnson- Wynne Co. r. Wright, Craney, (Ala. 1908) 46 So. 854. All 
 28 App. Cas. (D. C.) 375 (1906). English judges judicially notice the 
 
 7. Copper Queen Consol. Min. Co. practice of the superior courts. Pugh 
 v. Territorial Board of Equalization, v. Robinson, 1 T. R. 118 (1808); 
 (Ariz. 1906) 84 Pac. 511 (equaliza- Dobson v. Bell, 2 Lev. 176 (1802). 
 tion). But it is doubtful whether a judge 
 
 8. Yardell v. Felton, 104 Fed. 161 can judicially find the practice of a 
 (1900). court to be otherwise than has been 
 
 9. Rout r. Ninde, 111 Tnd. 597, 598, decided by a jury. Caldwell v. 
 13 N. E. 107 (1887); Contee P. Pratt, Hunter, 10 Q. B. 86 (1848). 
 
 9 Md. 67, 73 (1856); Pugh r. Robin- 
 
845 
 
 Peactice in Fokeign Country Not Known. § 681 
 
 courts, 10 whether sitting at law or in equity, 11 is, in a general way, 
 the same as that of his own. Courts of general jurisdiction will 
 not judicially know the rules of practice adopted by inferior 
 tribunals. 12 
 
 Sister State; Foreign Country. — But without statutory regula- 
 tion, 13 he will not judicially cognize with precision the rules and 
 regulations adopted by other tribunals in the same jurisdiction, 
 whatever their authority, 14 or know or make any assumption as to 
 the procedure or practice of courts in a sister state 15 or foreign 
 country. 
 
 10. Newell v. Newton, 10 Pick. 
 (Mass.) 470 (1830). 
 
 ll.Contee r. Pratt, 9 Md. 67 (1856); 
 Oliver v. Palmer, 11 Gill & J. (Md.) 
 426 ( 1841 ) . Common law judges did 
 not take judicial notice of the prac- 
 tice in equity but the latter was 
 proved by witnesses learned on the 
 subject. Tucker v. Inman, 4 M. & 
 Gr. 1049 (1842) (Lord Eldon) ; Dicas 
 v. Brougham, Ld., 1 M. & Rob. 309 
 (1833) (equity counsel). A similar 
 course has been adopted in regard to 
 the enrollment office of the court of 
 chancery. Williams v. Lloyd, 1 M. 
 & Gr. 671 (1840). It would seem, 
 upon principle, that the different 
 branches of the high court established 
 under the Judicature Act should 
 take judicial notice of the practice 
 of all other divisions. Pilkington v. 
 Cooke, 16 M. & W. 615 (1847). 
 
 In respect to the practice of a 
 court of admiralty, a common law 
 judge has voluntarily undertaken to 
 inform himself on the matter which 
 is practically equivalent to taking 
 judicial notice of it. Place v. Potts, 
 8 Exch. 705, 22 L. J. Ex. 269 (1853). 
 
 12. Powell v. Springston Lumber 
 Co., (Idaho 1906) 88 Pac. 97. The 
 appellate court will not take judicial 
 notice of the rules of the circuit 
 court. Bonney v. McClelland, 138 111. 
 App. 449 (1908) [judgment affirmed, 
 235 111. 259, 85 N. E. 242]. 
 
 13. Kindel v. Le Bert, 23 Colo. 385, 
 48 Pac. 641, 58 Am. St. Hep. 234 
 (1897). 
 
 14. California. — Sweeney v. Stan- 
 ford, 60 Cal. 362 (1882). 
 
 Colorado. — Kindel v. Le Bert, 23 
 Colo. 385, 48 Pac. 641, 58 Am. St. 
 Kep. 417 (1897) (circuit court). 
 
 Illinois. — Gudgeon v. Casey, 62 111. 
 App. 599 (1895). 
 
 Indiana. — Rout v. Ninde, 118 Ind. 
 123, 20 N. E. 704 (1888). 
 
 Kansas. — ■ Mcintosh v. Crawford 
 County Com'rs, 13 Kan. 171 (1874). 
 
 Kentucky. — Cornelison v. Foushee, 
 101 Ky. 257, 40 S. W. 680, 19 Ky. L. 
 Rep. 417 (1897) (circuit court). 
 
 Louisiana. — Bowman v. Flowers, 2 
 Mart. (N. S.) 267 (1824). 
 
 Maryland. — Cherry v. Baker, 17 
 Md. 75 (1860). 
 
 Nebraska. — Dunn v. Bozarth, 59 
 Neb. 244, 80 N. W. 811 (1899). 
 
 Tennessee. — Harris v. Burris, 1 
 Tenn. Cas. 80 (1858). 
 
 England. — Van Sandau v. Turner, 
 6 Q. B. 773, 9 Jur. 296, 14 L. J. Q. B. 
 154, 51 E. C. L. 773 (1845); Sar- 
 gent v. Wedlake, 11 C. B. 732, 73 
 E. C. L. 732 (1851); Re Ramsden, 
 10 Jur. 879, 15 L. J. Q. B. 234, 1 
 Saund. & C. 133 (1846). 
 
 15. Newell v. Newton, 10 Pick. 
 (Mass.) 470 (1830) ("pending" 
 does not imply proper service as it 
 would in the forum). "The courts 
 of one State cannot judicially take 
 notice of the laws and practice of an- 
 other.'' Newell v. Newton, 10 Pick. 
 470 (1830). 
 
§ 682 Knowledge; Judicial. 846 
 
 § 682. (Judicial Knowledge of Results of Law; Judicial 
 Department); Court Eeeords, Papers, etc — It is not, in general 
 necessary or usual that a judge should require that the record of 
 a ease in his own court, after it has been extended, or the original 
 papers in it, 1 docket entries, etc., 2 which compose the record until 
 it has been extended, should be formally proved to him by evi- 
 dence. 3 Indeed, evidence on the point may properly be rejected 
 by him. 4 Their existence, as a secondary result of legislation, is 
 cognizable by the judge as matter of law. Facts contained on the 
 record or in the papers must be proved by the record or papers, 5 
 other proof being excluded by the rules of law relating to the 
 use and effect of a record. Inspection by the judge is the natural 
 and often the necessary mode of proving a fact of record — such 
 being, indeed, an ancient mode of trial. 6 When a fact of record 
 is made constituent 7 by being placed in issue, the exclusive means 
 of establishing such facts is the personal examination of the judge. 
 
 Administration. — < The court, however, may not only act judi- 
 cially but by way of administration. He may feel that it is 
 scarcely worth while to compel parties to make formal proof, some- 
 times difficult, of undisputed matters of fact which he himself 
 may settle, once for all, at a glance. Both as a matter, at times, 
 of legal requirement and by reason of the difficulty of making 
 other proof and the ease and appropriateness of this method of 
 establishing facts on a court record or in court papers, judges 
 take judicial notice of such records and papers. 8 They will, under 
 
 1. Maguire v. State, 47 Md. 485 4. Spengler v. Kaufman, 43 Mo. 
 
 (1877); Washington, etc., Steam App. 5(1890). 
 
 Packet Co. r. Sickles, 24 How. (U. 6. See Doctjmentaby Evidence. 
 
 S.) 333, 16 L. ed. 650 (1860). 6. Supra, § 151. 
 
 2. State v. Logan, 33 Md. 1 (1870). 7. Supra, § 47. 
 
 3. California. — Hollenbach ». Schna- 8. California. — Hollenbach v. Schna- 
 bel, 101 Cal. 312, 35 Pac. 872, 40 bel, 101 Cal. 312, 35 Pac. 872, 40 
 Am. St. Rep. 57 (1894). But see Am. St. Rep. 57 (1891). 
 
 People c. Dela Guerra, 24 Cal. 73 Illinois. — Hangsleben t\ People, 89 
 
 (1864). HI. 164 (1878). See also Bank of 
 
 Illinois.— Robinson r. Brown, 82 Eau Claire v. Reed, 232 111. 238, 83 
 
 111. 279 (1876). N. E. 820 (1908); Waterbury Nat. 
 
 Iowa.— Conlee Lumber Co. v. Bank v. Reed, 231 111. 246, 83 N. E. 
 
 Meyer, 74 Iowa 403, 38 N. W. 117 188 (1907) ; Reed v. "Waterbury Nat. 
 
 (1888). Bank, 135 111. App. 165 (1907) 
 
 Mississippi. — McGuire v. State, 76 [judgment affirmed, Waterbury Nat. 
 
 Miss. 504, 25 So. 495 (1898). Bank v. Reed, 231 111. 246, 83 N. E. 
 
 Missouri.— State v. Ulrich, 110 188 (1907)]. 
 Mo. 350, 19 S. W. 656 (1892). 
 
847 
 
 Judicial Knowledge of Court Papess. 
 
 § 683 
 
 proper circumstances, examine the records, 9 papers or docket en- 
 tries 10 on file in a case either sua sponie, 11 or at the suggestion of 
 counsel. 12 Facts so ascertained will be taken as proven ; 13 — it 
 being sufficient that the record or papers should be produced 14 
 and identified to the satisfaction of the judge. 15 This may be 
 either on the mere inspection of the presiding justice, 16 a state- 
 ment which he is content to believe, or, on the contrary, he may, 
 if he sees fit, require that this identification be established by 
 evidence. 17 As a rule, a judge's right to take judicial cognizance 
 of records, papers, etc., is limited to those relating to the case on 
 trial and to facts relied upon by a party. 
 
 § 683. (Judicial Knowledge of Results of Law; Judicial 
 Department; Court Records; Papers, etc.) ; Own Court; Same 
 Case. — It will not be necessary to prove to a judge the record or 
 papers in a case before him for trial, 1 whether originally filed in 
 
 Iowa. — State v. Schilling, 14 Iowa 
 455 (1863). 
 
 Louisiana. — Minor v. Stone, 1 La. 
 Ann. 283 (1846). 
 
 "Nebraska. — Stewart v. Rosengren, 
 92 N. W. 586 (1903). 
 
 Texas. — Blum v. Stein, 68 Tex. 
 608, 5 S. W. 454 (1887). See also 
 Edgar v. McDonald, (Tex. Civ. App. 
 1908) 106 S. W. 1135. 
 
 England. — Craven v. Smith, L. R. 
 4 Exch. 146, 38 L. J. Exch. 90, 20 
 L. T. Rep. N. S. 400, 17 Wkly. Rep. 
 710 (1869). 
 
 9. Dewey v. St. Albans Trust Co., 
 60 Vt. 1, 12 Atl. 224, 6 Am. St. Rep. 
 84 (1887). 
 
 10. Dewey v. St. Albans Trust Co., 
 60 Vt. 1, 13 Atl. 234, 6 Am. St. Rep. 
 84 (1887); Armstrong v. Colby, 47 
 Vt. 359 (1875). 
 
 11. Denny v. State, 144 Ind. 503, 
 42 N. E. 929, 31 L. R. A. 726 (1895) ; 
 Dewey v. St. Albans Trust Co., 60 
 Vt. 1, 12 Atl. 224, 6 Am. St. Rep. 
 84 (1887). 
 
 12. Denny v. State, 144 Ind. 503, 
 
 42 N. E. 929, 31 L. R. A. 726 (1895) ; 
 Cluggish v. Koons, 15 Ind. App. 599, 
 
 43 N. E. 158 (1896). 
 
 13. Neville e. Kenny, 125 Ala. 149, 
 88 So. 452, 82 Am. St. Rep. 230 
 (1899). 
 
 14. Watkins v. Martin, 69 Ark. 311, 
 65 S. W. 103, 425 (1901). 
 
 15. Hollenbaeh v. Schnabel, 101 
 Cal. 312, 35 Pac. 872, 40 Am. St. 
 Rep. 57 (1894); Boteler v. State, 8 
 Gill & J. (Md.) 359 (1836); Mc- 
 Guire v. State, 76 Miss. 504, 25 So. 
 495 (1898). 
 
 16. Boteler v. State, 8 Gill & J. 
 (Md.) 359 (1836); Farrar v. Bates, 
 55 Tex. 193 (1881). 
 
 17. Farrar v. Bates, 55 Tex. 193 
 (1881). 
 
 1. Florida. — McNist v. State, (Fla. 
 1904) 36 So. 176. 
 
 Illinois. — Bailey v. Kerr, 180 111. 
 412, 54 N. E. 165 (1899); Robinson 
 v. Brown, 83 111. 279 (1876). See 
 also Ferriman v. People, 128 III. App. 
 230 (1906) (contempt). 
 
 Kansas. — State V. Bowen, 16 Kan. 
 475 (1876). 
 
 Louisiana. — Minor v. Stone, 1 La. 
 Ann. 283 (1846). 
 
 Missouri. — Ollesheimer v. Thomp- 
 son, etc., Co., 44 Mo. App. 172 (1891). 
 
 Texas. — Farrar v. Bates, 55 Tex. 
 193 (1881). 
 
 United States. — Pittel v. Fidelity, 
 etc., Ass'n, 86 Fed. 255 (1898) ; In re 
 Bennett, 84 Fed. 324 (1897). 
 
683 
 
 Knowledge; Judicial. 
 
 848 
 
 his own court or transmitted from another, e. g., 2 the probate 
 papers relating to a given estate in connection with which the 
 litigation in suit arises. 3 He will, as a rule, judicially notice 
 their existence* and any facts which appear on their inspec- 
 tion, 5 either as endorsements of the date of filing, 6 amount of 
 
 2. Boteler c. State, 8 Gill & J. 
 (Md.) 359 (1836); Ledbetter r. U. 
 S., 108 Fed. 52, 47 C. C. A. 191 
 (1901) (circuit court of appeals). 
 
 3. Knight v. Hamaker, 40 Oreg. 
 424, 67 Pac. 107 (1901). 
 
 4. California. — Hollenbaeh v. Schna- 
 bel, 101 Cal. 312, 35 Pac. 872, 40 
 Am. St. Rep. 57 (1894). See also 
 Buhman v. Nickels & Brown Bros., 
 (App. 1908) 95 Pac. 177. 
 
 Illinois. — Taylor v. Adams, 115 111. 
 570, 4 N. E. 837 (1886). 
 
 Iowa. — State v. Postlewait, 14 Iowa 
 446 (1862). 
 
 Maryland. — Boteler v. State, 8 Gill 
 & J. (Md.) 359 (1836). 
 
 Nebraska. — Stewart v. Rosengren, 
 (Neb. 1902) 92 N. W. 586. Whether 
 judicial cognizance, even of the rec- 
 ord itself, may be required, is uncer- 
 tain. Re Osbourne, 115 Fed. 1 (1902). 
 
 5. California. — Hollenbach v. Schna. 
 bel, 101 Cal. 312, 35 Pac. 872, 40 
 Am. St. Eep. 57 (1894). 'See also 
 Buhman v. Nickels & Brown Bros., 
 (Cal. App. 1908) 95 Pac. 177. 
 
 Illinois. — • World's Columbian Ex- 
 position Co. v. Lehigh, 94 111. App. 
 433 (1900). 
 
 Iowa. — Conlee Lumber Co. t". 
 Meyer, 74 Iowa 403, 38 N. W. 117 
 (1888). 
 
 Kansas. — State v. Thomas, (Kan. 
 1906) 86 Pac. 499; State r. Stevens, 
 56 Kan. 720, 44 Pac. 992 (1896). 
 
 Kentucky. — Monticello Nat. Bank 
 t. Bryant, 13 Bush 419 (1877). 
 
 Louisiana. — Pagett v. Curtis, 15 
 La. Ann. 451 (1860). 
 
 Minnesota. — Rees r. Lowenstein, 39 
 Minn. 401, 40 N. W. 370 (1888). 
 
 Mississippi. — ■ McGuire r. State, 76 
 Miss. 504, 25 So. 495 (1898). 
 
 Missouri. — • State v. Ulrich, 110 Mo. 
 350, 19 S. W. 656 (1892). 
 
 Nebraska. — George t. State, 59 
 Neb. 163, 80 N. W. 486 (1899). 
 
 New York. — Farmers' L. & T. Co. 
 f. Hotel Brunswick Co., 42 N. Y. 
 Suppl. 693, 12 App. Div. 628 (1896). 
 
 Oregon. — Knight v. Hamaker, 40 
 Or. 424, 67 Pac. 107 (1901). 
 
 South Dakota. — Searls v. Knapp, 
 5 S. D. 325, 58 N. W. 807, 49 Am. St. 
 Rep. 873 (1894). 
 
 Texas. — Richardson v. State, (Tex. 
 Cr. App. 1905) 85 S. W. 282 (former 
 trial); Blum v. Stein, 68 Tex. 608, 
 5 S. W. 454 (1887). 
 
 Utah. — 'Warren v. Robinson, 21 
 Utah 429, 61 Pac. 28 (1900). 
 
 ~Washington.— State v. Jones, 20 
 Wash. 576, 56 Pac. 369 (1899). 
 
 Yiisconsin. — Brucker v. State, 19 
 Wis. 539 (1865). 
 
 United States. — 'Wilson r. Calcula- 
 graph Co., 153 Fed. 961, 83 C. C. A. 
 77 ( 1907 ) ; In re Bennett, 84 Fed. 
 324 (1897). 
 
 England. — Craven r. Smith, L. R. 
 4 Exch. 146, 38 L. J. Exch. 90, 20 
 L. T. Rep. (N. S.) 400, 17 Wkly. 
 Rep. 710 (1869). A trial court will 
 take judicial notice of the remittitur 
 from the supreme court. State r. 
 Hunter, 82 S. C. 153, 63 S. E. 685 
 (1909). 
 
 6. Arkansas. — Yell r. Lane, 41 Ark. 
 53 (1883). 
 
 California. — Altoona Quicksilver 
 Min. Co. i'. Integral Quicksilver Min. 
 Co., 114 Cal. 100, 45 Pac. 1047 (1896). 
 
 Louisiana. — Wegmann's Succession, 
 110 La. 930, 34 So. 878 (1902) (filed 
 too late). 
 
 Missouri. — Chapman r. Currie, 51 
 Mo. App. 40 (1892). 
 
 New York. — Fellers v. Lee, 2 Barb. 
 (N. Y.) 488 (1848). 
 
 Pennsylvania. — Withers r. Gillespy, 
 7 Serg. & R. (Pa.) 10 (1821). 
 
849 
 
 Facts Learned from Inspection of Record. § 683 
 
 claim, 7 and the like. The judge will know judicially any fact 
 that can be gathered from the face of the record or papers, 8 e. g., 
 defects on the record. 9 
 
 Acts in pais concerning a cause cannot be noticed by the court 
 though done in the clerk's office. 10 
 
 Former Action. — He may in this way ascertain from inspec- 
 tion any facts which may appear from the papers regarding the 
 former action in the case of any court, 11 judge, 12 magistrate 13 or 
 
 7. Chicago, etc., R. Co. V. Minard, Iowa. — Haaren v. Mould 122 N\ W. 
 
 20 111.9 (1858). 921 (1909) (liquor injunction). 
 
 8. California. — Hollenbach v. Schna- Kansas. — State v. Bowen, 16 Kan. 
 
 bel, 101 Cal. 312, 35 Pac. 872, 40 
 Am. St. Rep. 57 (1894) (barred by 
 statute of limitations ) . 
 
 Illinois. — McNulta v. Lockridge, 32 
 111. App. 86 [affirmed in 137 111. 270, 
 27 N. B. 452, 31 Am. St. Rep. 362] 
 (1889) (appointment of receiver). 
 
 Kansas. — State v. Kesner, ( Kan. 
 1905) 82 Pac. 720. 
 
 Louisiana. — Baron v. Baum, 44 La. 
 Ann. 295, 10 So. 766 (1892) (want 
 of parties). 
 
 Nebraska. — George v. State, 59 
 Neb. 163, 80 N. W. 486 (1899) 
 (former jeopardy). 
 
 South Dakota. — MoClain v. Wil- 
 liams, 10 S. D. 332, 73 N. W. 72, 
 43 L. R. A. 287, 289 (1897) (case 
 is pending) ; Sear Is v. Knapp, 5 S. D. 
 325, 58 N. W. 807, 49 Am. St. Rep. 
 873 (1894) (barred by statute of 
 limitations ) . 
 
 Texas. — Blum v. Stein, 68 Tex. 608 
 (1887) (payment of money into 
 court). 
 
 Washington. — Doremus v. Root, 23 
 Wash. 710, 63 Pac. 572, 54 L. R. A. 
 649 (1901) (discharge of joint 
 debtor). 
 
 9. State v. Ulrich, 110 Mo. 350, 19 
 S. W. 656 (1892) ; Searls v. Knapp, 
 5 S. D. 325, 58 N. W. 807, 49 Am. 
 St. Rep. 873 (1894). 
 
 10. Foster v. Chicago, etc., R. Co., 
 10 Tex. Civ. App. 476, 31 S. W. 529 
 (1895). 
 
 11. California. — Hollenbach v. Schna- 
 bel, 101 Cal. 312, 35 Pac. 872, 40 
 Am. St. Rep. 57 (1894). 
 Vol. I. 54 
 
 475, (1876) (new trial on plea of 
 former jeopardy). 
 
 Kentucky. — Louisville, etc., R. Co. 
 V. Com., 4 Ky. L. Rep. 627 (1883). 
 
 Louisiana. — Pagett v. Curtis, 15 
 La. Ann. 451 (1860) (order). 
 
 Missouri. — State v. Ulrich, 110 
 Mo. 350, 19 S. W. 656 (1892). 
 
 Nebraska. — George v. State, 59 
 Neb. 163, 80 N. W. 486 (1899) 
 
 New York. — Farmers' L. & T. Co. 
 v. Hotel Brunswick Co., 42 N. Y. 
 Suppl. 693, 12 App. Div. 628 (1896). 
 See also In re Ordway, 196 N. Y. 95, 
 89 N. E. 474 (1909) [order reversed, 
 115 N. Y. Suppl. 817, 131 App. Div. 
 339]. 
 
 Texas. — Johnson v. W. H. Goolsby 
 Lumber Co., (Civ. App. 1909) 121 
 S. W. 883 (attachment). 
 
 Utah. — State v. Bates, 22 Utah 65, 
 61 Pac. 905, 83 Am. St. Rep. 768 
 (1900). 
 
 Washington. — Doremus v. Root, 23 
 Wash. 710, 63 Pac. 572 (1901) 
 (judgment acquitting co-defendant) ; 
 State v. Jones, 20 Wash. 576, 56 
 Pac. 369 (1899). 
 
 12. Baily v. Kerr, 180 111. 412, 54 
 N. E. 165 (1899); State v. Ulrich, 
 110 Mo. 350, 19 S. W. 656 (1892); 
 In re Bennett, 84 Fed. 324, 327 (1897). 
 See also State v. Bennett, 114 Cal. 
 56, 45 Pac. 1013 (1896). 
 
 13. State v. Stevens, 56 Kan. 720, 
 44 Pac. 992 (1896); Bristol v. 
 Fischel, 81 Mo. App. 367 (1899). 
 
§ 684 
 
 Knowledge; Judicial. 
 
 850 
 
 board. 14 A judge may use at a subsequent hearing of a case, facts 
 which he learned at a prior hearing of it. 15 
 
 An appellate court will usually take notice of the record appear- 
 ing on its files of a former appeal in the same case; 16 — so far as 
 to notice the existence of the earlier proceeding and what was 
 done in the premises, 17 the legal relation of the parties at different 
 times 18 and their good faith, 19 the identity of the subject-matter, 
 and the like. But the evidence taken in the case as it appeared 
 on the former occasion cannot be used in the appeal then for 
 hearing. 20 
 
 § 684. (Judicial Knowledge of Results of Law; Judicial 
 
 Department; Court Records, Papers, etc.; Own Court); Other 
 
 Oases — Among the primary objects which the community seeks 
 
 to attain by establishing courts is justice without violence. The 
 
 right of the parties to conduct their litigation according to their 
 
 respective skill or knowledge is necessarily subordinate to this 
 
 14. St. Louis, etc., R. Co. v. Mar- 
 tin, 29 Kan. 750 (1883) (county com- 
 missioners) . 
 
 County commissioners may prop- 
 erly take judicial notice of the action 
 taken in a former hearing regarding 
 the layout of a particular highway 
 but cannot be compelled to do so. 
 McKaig v. Jordan, (Ind. 1909) 87 
 N. E. 974. 
 
 15. State v, Richardson, (Or. 1906) 
 85 Pac. 225. 
 
 16. Arkansas. — Gaus v. Holland, 37 
 Ark. 483 (1881). 
 
 Indiana. — Hancock v. Diamond 
 Plate Glass Co., (Ind, App. 1905) 75 
 N. E. 659; Mississinewa, etc., Co. v. 
 Andrews, 28 Ind. App. 496, 63 N. E. 
 831 (1902); Cluggish v. Coons, 15 
 Ind. App. 599, 43 N. E. 158 (1896). 
 
 Iowa. — Poole r. Seney, 70 Iowa 
 875, 24 N. W. 520 (1886). 
 
 Louisiana. — Bell v. Williams, 10 
 La. 514 (1837). 
 
 Minnesota. — Thornton v. Webb, 13 
 Minn. 498 (1868). 
 
 Missouri. — Dawson v. Dawson, 29 
 Mo. App. 521 (1888). 
 
 South Dakota. — McClain r. Wil- 
 liams, 10 S. D. 332, 73 N. W. 72 
 (1897). 
 
 Texas.— Wood v. Cahill, 21 Tex. 
 Civ. App. 38, 50 S. W. 1071 (1899). 
 An appellate court notices judicially 
 only those matters that the trial 
 court is obliged to notice. Lowns- 
 dale v. Grays Harbor Boom Co., 54 
 Wash. 542, 103 Pac. 833 (1909). 
 
 17. McNish v. State, (Fla. 1904) 
 36 So. 176. An appellate court may 
 examine a former opinion rendered in 
 the same case in order to determine 
 what matters were considered in it. 
 McKinnon v. Johnson, 57 Fla. 120, 48 
 So. 910 (1909). The supreme court 
 should take judicial notice of its 
 own orders and decrees made on a 
 former hearing in the same case. 
 State v. Hunter, 82 S. C. 153, 63 
 S. E. 685 (1909). 
 
 18. Baze v. Island City Mfg. Co., 
 (Tex. Civ. App. 1906) 94 S. W. 460; 
 
 Avocato v. Dell' Ara, (Tex. Civ. App. 
 
 1904) 84 S. W. 444; Hennessy v. 
 
 Tacoma Smelting & Refining Co., 
 (Wash. 1904) 129 Fed. 40. 
 
 19. Gay v. Gay, (Cal. 1905) 79 Pac. 
 885. 
 
 20. Cleveland, etc., R. Co. v. 
 Wynant, 134 Ind. 681, 691, 34 N. E. 
 569 (1893). See also Fry v. Chicot 
 County, 37 Ark. 117 (1881). 
 
851 
 
 Judge Not at Liberty to Ascertain Facts. § 684 
 
 main object; but, in its appropriate sphere of operation, this right 
 of the parties is supreme. It has on the whole been deemed better 
 calculated to advance the interests of society in the attainment 
 of justice that parties should conduct litigation, to a very large 
 extent, in their own way with the incidental blunders and failures 
 in reaching the truth, than that the judge should act as magisier 
 litis and constantly intervene in a controlling manner with facts 
 or suggestions. 1 The line of thought survives from the periods of 
 legal evolution when procedure was combative; the dnties of the 
 judge being to see fair play in the fight made by the parties, 
 i. e., that the rules prescribed for the contest were duly observed. 
 So far as the rule is justified' at all in a more scientific age seeking 
 truth as of the highest utility, it is upon purely practical grounds. 2 
 As the judge is not at liberty to interject into a case, except as 
 witness, facts of which he is possessed, 3 it follows that he cannot 
 search the records or files of his court in other cases in order to 
 give one or other of the parties the benefit of the facts so ascer- 
 tained, 4 or judicially know an act which is of record in his court 
 
 1. A judge may insist, however, 
 upon calling a witness which the par- 
 ties do not see fit to call. Selph v. 
 State, 22 Fla. 537, 548 (1886); Ful- 
 lerton v. Fordyce, 144 Mo. 519, 44 S. 
 W. 1053 (1898) (evidence of a phy- 
 sician as to an examination pre- 
 viously made by order of court) ; 
 Coulson v. Dishorough, 2 Q. B. 316, 
 318 (1894). He may direct that 
 necessary proof be furnished. Hos- 
 kins V. State, 11 Ga. 92, 97 (1852). 
 The judge may also make these orders 
 when sitting without a jury. Ba- 
 dische A. & S. Fabrik v. Levinstein, 
 L. R. 24 Ch. D. 156, 167 (1883). The 
 judge may put additional questions 
 to a witness produced by a party. 
 Littleton v. Clayton, 77 Ala. 571, 575 
 (1884) ; Sparks V. State, 59 Ala. 82, 
 87 (1877). 
 
 To same effect see: 
 
 Iowa. — Haaren v. Mould, 122 N. W. 
 921 (1909). 
 
 Kentucky. — Brashears r. Frazier, 
 33 Ky. L. Rep. 662, 110 <S. W. 826 
 (1908). 
 
 New Jersey. — City of Paterson v. 
 
 East Jersey Water Co., (Ch. 1908) 
 70 Atl. 472. 
 
 Texas. — Dupree v. State, (Cr. App. 
 1909) 120 S. W. 871, 875; Elmore v. 
 Rugley, (Civ. App. 1908) 107 S. W. 
 151 (institution of suit). 
 
 Washington. — Pacific Iron & Steel 
 Works v. Goerig, 104 Pae. 151 (1909). 
 
 West Virginia. — Pickens v. Coal 
 River Boom & Timber Co., 65 S. E. 
 865 (1909). 
 
 2. Compare remarks of Lord Esher, 
 M. R., in Coulson v. Disborough, 3 
 Q. B. 316, 318. 
 
 3. Supra, § 574. 
 
 i. Arkansas. — Hall v. Cole, 71 Ark. 
 601, 76 S. W. 1076 (1903). 
 
 California. — Lake Merced Water 
 Co. v. Cowles, 31 Cal. 214 (1866) 
 (pending of petition to condemn 
 land). 
 
 Florida. — McNish ». State, (Fla. 
 1904) 36 So. 176. 
 
 Iowa. — Baker v. Mygatt, 14 Iowa 
 131 (1862) (affidavit filed). 
 
 Nebraska. — Allison v. Fidelity Mut. 
 Fire Ins. Co., (Neb. 1905) 104 N. 
 W. 753. "We apprehend that the 
 
684 
 
 Knowledge; Judicial. 
 
 852 
 
 even though it be one which has been done by himself. 5 Courts, 
 therefore, whether of probate 6 or acting according to the course of 
 the common law, do not take judicial cognizance of the records of 
 the court in other cases, 7 even though they concern the same sub- 
 ject matter 8 or are connected with it in some other manner. 9 
 Even where it is between the same parties, 10 or, as in bankruptcy 
 proceedings, 11 quasi in rem, 12 another action in the same court 
 is not judicially noticed. There are certain exceptions to the 
 rule, in which, however, the reasons upon which it is based failed 
 to apply. 
 
 Exceptions; (1) Notoriety — Where the fact is one of noto- 
 riety, judicial cognizance may be taken. 13 
 
 court could not under any circum- 
 stances take judicial notice of the 
 fact, except it were for mere calendar 
 purposes." Lake Merced Water Co. 
 v. Cowles, 31 Cal. 215 (1866). 
 
 5. Streeter r. Streeter, 43 111. 155 
 (1867). 
 
 6. Daniel t. Bellamy, 91 N. C. 78 
 (1884). 
 
 7. Arkansas. — Gibson r. Buckner, 
 65 Ark. 84, 44 S. W. 1034 (1898). 
 
 California. — Ralphs r, Hensler, 97 
 Cal. 296, 32 Pac. 243 (1893). 
 
 Colorado. — Downing v. Howlett, 6 
 Colo. App. 291, 40 Pac. 505 (1895). 
 
 Illinois. — Streeter v. Streeter, 43 
 111 155 (1867). 
 
 Iowa. — Lawless v. Stamp, 108 Iowa 
 601, 79 N. W. 365 (1899); Granger 
 v. Griffin, 78 Iowa 759, 43 N. W. 
 297 (1889). 
 
 Kansas. — State v. Bowen, 16 Kan. 
 475 (1876). 
 
 Kentucky. — National Bank of 
 Monticello t;. Bryant, 13 Bush 419 
 (1877). 
 
 Maryland. — Anderson v. Cecil, 86 
 Md. 490, 38 Atl. 1074 (1897). 
 
 Missouri. — Spurlock v. Missouri 
 Pac B. Co., 76 Mo 67 (1882). 
 
 North Carolina. — Daniel r. Bel- 
 lamy, 91 N. C. 78 (1884). 
 
 South Dakota. — Grace v. Ballau, 4 
 S. D. 333, 56 N. W. 1075 (1893). 
 
 Texas. — Goodwin v. Harrison, 28 
 Tex. Civ. App. 7, 66 S. W. 308 (1902). 
 
 Wisconsin. — McCormick t\ Hern- 
 don, 67 Wis. 648, 31 N. W. 303 
 (1887). 
 
 8. Banks v. Burnam, 61 Mo. 76 
 (1875) (contract, rescission, and spe- 
 cific performance). 
 
 9. Com. v. Hill, 11 Cush. (Mass.) 
 137 (1853); In re Bennett, 84 Fed. 
 324 (1897). 
 
 10. Murphy v Citizens' Bank, 
 (Ark. 1907) 100 S. W. 894. But see, 
 to the contrary, Estudillo v. Security 
 Loan & Trust Co., 149 Cal. 556, 87 
 Pac. 19 (1906). A trial court will 
 not judicially notice the record in 
 another cause, though it be between 
 the same parties and in the same 
 suit. Lownsdale v. Grays Harbor 
 Boom Co., 54 Wash. 542, 103 Pac. 
 833 (1909). 
 
 11. Hunter v. Lissner, 1 Ga. App. 
 1, 58 S. E. 54 (1907). 
 
 12. Ollschlager's Estate, (Or. 1907) 
 89 Pac. 1049 (administration) . 
 
 13. Arkansas. — Allen v Swope, 64 
 Ark. 576, 44 S. W. 78 (1898) ; Davies 
 V. Hunt, 37 Ark. 574 (1881). 
 
 California. — Gambert r. Hart, 44 
 Cal. 542, 549 (1872). 
 
 Indian Territory. — Crawford i*. 
 Duckworth, 3 Ind. Ter. 10, 53 S. W. 
 465 (1899). 
 
 Louisiana. — Mower v. Kemp, 42 
 La. Ann. 1007, 8 So. 830 (1890). 
 
 Maryland. — Story r. Ulman, 88 
 Md. 244, 41 Atl. 120 (1898). 
 
853 
 
 Records of Other Cases in Federal Courts. § 684 
 
 Exceptions; (2) Actions in Bern. — In actions involving adjudi- 
 cations in rem, as a status of citizenship, 14 bankruptcy, 15 dedica- 
 tion, 16 prize, 17 the validity of a patent, 18 or that certain premises 
 are licensed, 19 the judge has a freer hand in this respect. The 
 reason is that the social rather than the personal element of liti- 
 gation predominates in this class of action. The primary object 
 of ascertaining the truth is not sought by giving the parties entire 
 control of the litigation, but the rights of the community, as a 
 whole, are deemed paramount. Under these circumstances judi- 
 cial cognizance may be taken of records, papers, etc., on file in 
 other cases in the same court. 20 
 
 Federal Courts. — 'It is natural, therefore, that the federal 
 judges experience little difficulty in taking judicial cognizance of 
 the records, papers, etc., of their courts in other cases, 21 though 
 such a course is not at all times required. 22 Nor, in case of the 
 circuit court of appeals, permissible. 23 Such also is the rule in 
 the supreme court of the United States. 24 
 
 Texas. — Hatch v. Dunn, 11 Tex. 
 708 (1854). 
 
 United States.— Re Durrant, 84 
 Fed. 314 (1897). 
 
 14. Crawford v. Duckworth, 3 In- 
 dian Ter. 10, 53 S. W. 465 (1899) 
 (defendant declared not to be a citi- 
 zen of the Cherokee nation). A 
 court will judicially know that it 
 has disbarred an attorney. Danforth 
 l>. Egan, (S. D. 1909) 119 N. W. 1021. 
 
 15. Baily v. Kerr, 180 111. 412, 54 
 N. E. 165 (1899) ; In re Osborne, 115 
 Fed. 1, 52 C. C. A. 595 (1902). 
 
 16. Story V. Ulman, 88 Md. 244, 41 
 Atl. 120 (1898) (street). 
 
 But see, as to condemnation pro- 
 ceedings, where the court declined to 
 notice a petition pending in the same 
 court to condemn the same land. 
 Lake Merced W. Co. v. Cowles, 31 
 Cal. 215 (1866). 
 
 17. The Minna, 17 Fed. Cas. No. 
 9,634 (1863). 
 
 18. Cushman Paper-Box Mach. Co. 
 V. Goddard, 95 Fed. 664, 37 C. C. A. 
 221 (1899). 
 
 The state of the art . . . may 
 be shown by the court's records in 
 other cases. Cushman P. B. M. Co. v. 
 Goddard, 37 C. C. A. 221, 95 Fed. 664 
 
 (1899) ; Cushman, etc., Co. v. God- 
 dard, 95 Fed. 664 (1899). 
 
 19. People v. Board of Excise, 17 
 Misc. (N. Y.) 98, 40 N. Y. St. 741 
 (1896). 
 
 20. Story v. Ulman, 88 Md. 244, 41 
 Atl. 120 (1898). 
 
 21. Pitkin v. Cowen, 91 Fed. 599 
 (1899) (appointment of a receiver) ; 
 Pittel v. Fidelity, etc., Ins. Co., 86 
 Fed. 255, 30 C. C. A. 21 (1898) (res 
 adjudicata) ; In re Durrant, 84 Fed. 
 314 (1897) ; Louisville Trust Co. v. 
 Cincinnati, 76 Fed. 296, 318, 22 C. C. 
 A. 334 (appointment of a receiver) 
 (1896). See also Bohart v. Hull, 2 
 Indian Terr. 45, 47 S. W. 306 ( 1898 ) . 
 
 That the court sits at different 
 places within the district is not ma- 
 terial. Bohart v. Hull, 2 Indian Terr. 
 45, 47 S. W. 306 (1898). 
 
 22. In re Osborne, 115 Fed. 1, 52 
 C. C. A. 595 (1902). 
 
 23. In re Manderson, 51 Fed. 501, 
 2 C. C. A. 490 (1892) ; Fitzgerald v. 
 Evans, 49 Fed. 426, 1 C. C. A. 307 
 (1892). 
 
 24. In re Boardman, 169 U. S. 39, 
 18 S. Ct. 291, 42 L. ed. 653 (1898) ; 
 Craemer v. Washington, 168 U. S. 
 
§ 685 Knowledge; Judicial. 854 
 
 Exceptions; (3) Questions of Administration. — For a similar 
 reason, the rule excluding judicial cognizance of the court's rec- 
 ords in other cases fails also to apply when the question is not as 
 to the rights of a party but as to the proper administration of 
 justice; — for example, as to whether an indictment is pending 
 against a juryman. 25 No rule, moreover, is violated where the 
 judge examines the records of his court at the suggestion of a 
 party for the ascertainment of a fact upon which the latter relies. 
 This is entirely justified as an exercise of the judge's adminis- 
 trative function. So where a judge is required either to reverse 
 or to modify a decree, he may examine other proceedings between 
 the parties for the sake of gaining light whereby to exercise an ad- 
 ministrative power. 26 
 
 § 685. (Judicial Knowledge of Results of Law; Judicial 
 Department; Court Records, Papers, etc.; Own Court); Sup- 
 plementary Proceedings Supplementary proceedings follow, in 
 
 the matter of judicial cognizance, the rule just stated. The judge, 
 in trying them, takes notice of other records, papers, etc., of his 
 court, or declines to do so, in accordance with whether the supple- 
 mentary proceedings are a continuation of the original litigation 
 or are, on the contrary, separate and complete' in themselves. If 
 the subsequent proceedings are a continuation of the original 
 action, as is frequently the case in garnishment, or trustee proceed- 
 ings, 1 contempt proceedings, 2 or actions against stockholders under 
 judgments against the corporation, 3 the judge judicially notices the 
 
 124, 18 S. Ct. 1, 42 L. ed. 407 (1897) ; 460; Kelly v. Gibbs, 84 Tex. 143, 19 
 
 Aspen Min., etc., Co. v. Billings, 150 S. W. 380, 563 (1892). 
 
 U. S. 31, 14 S. Ct. 4, 37 L. ed. 986 Wisconsin.— Mace v. Roberts, 97 
 
 (1893). Wis. 199, 72 N. W. 866 (1897). 
 
 25. State v. Jackson, 35 La. Ann. 2. Lester v. People, 150 111. 408, 37 
 
 769 (1883). N. E. 1004 (1894); Ferguson v. 
 
 2G. In re Transfer Penalty Cases, Wheeler, (Iowa 1904) 101 N. W. 
 
 92 N. Y. Suppl. 322 (1905). 638. In proceedings for violating an 
 
 1. Iowa. — Kenosha Stove Co. v. injunction before the issuing court, 
 
 Shedd, 82 Iowa 540, 48 N. W. 933 it may notice the injunction decree. 
 
 (1891). Bunting v. Powers, (Iowa 1909) 120 
 
 Minnesota. — S. E. Olson Co. v. N. W. 679; Ochampaugh v. Powers, 
 
 Brady, 76 Minn. 8, 78 N. W. 864 (Iowa 1909) 120 N. W. 680. 
 
 (1899). 3. Pease v. Underwriters' Union, 1 
 
 Missouri. — Dinkins v. Crunden-Mar- 111. App. 287 ( 1878 ) ; Ollesheimer v. 
 
 tin Woodenware Co., 99 Mo. App. 310, Thompson Mfg. Co., 44 Mo. App. 172 
 
 73 S. W. 246 (1903). (1890). 
 
 Texas. — Daze v. Island City Mfg. 
 Co., (Tex. Civ. App. 1906) 94 S. W. 
 
855 Eecords of Other Courts Xot Known. §§ 686, 687 
 
 record in the principal action and evidence to prove it may be re- 
 jected. 4 If, on the other hand, proceedings, 5 even in garnishment, 6 
 are in their nature independent, judicial cognizance is not taken 
 of the record in the earlier suit. 
 
 § 686. (Judicial Knowledge of Results of Law; Judicial 
 Department; Court Records, Papers, etc.); Other Courts. — For 
 
 still stronger reasons, courts do not take judicial notice of the 
 records, papers, etc., of other courts; 1 — unless such knowledge is 
 required by statute. 2 The rule is the same, even though the 
 earlier proceeding was held before the judge himself. 3 If such 
 a statutory requirement as to judicial knowledge exists, a state 
 court will officially notice the record, etc., of a federal court in 
 the state. 4 Otherwise this cognizance is not taken of the records 
 of the national courts; 5 — 'including their proceedings in bank- 
 ruptcy. 6 Conversely, federal courts do not take notice of the rec- 
 ords of the state courts of their own state, 7 nor of those of other 
 federal courts, including those of bankruptcy. 8 
 
 § 687. (Judicial Knowledge of Results of Law; Judicial 
 Department; Court Records, Papers, etc.; Other Courts); 
 
 Sister State or Foreign Country. — Courts do not judicially know 
 
 4. Spengler v. Kaufman, 43 Mo. 6. Georgia. — Kent v. Downing, 44 
 App. 5 (1890). Haaren v. Mould, Ga. 116 (1871). 
 
 (Iowa 1909) 122 N. W. 921. Kentucky. — Davis v. Smallgood, 3 
 
 5. Anderson V. Cecil, 86 Md. 450, Ky. L. Rep. 539 (1882). 
 
 38 Atl. 1074 (1898); State v. Hud- Massachusetts. — Cutter v. Evans, 
 
 son County Electric Co., 61 N. J. L. 115 Mass. 27 (1874). 
 
 114, 38 Atl. 818 (1897) (contempt). Missouri. — Haber v. Klauberg, 3 
 
 6. Pease v. Underwriters' Union, 1 Mo. App. 342 (1877). 
 
 111. App. 387 (1878) ; 0. L. Packard United States.— Eyster v. Gaff, 91 
 
 Mach. Co. v. Law, 100 Wis. 644, 76 U. S. 521, 23 L. ed. 403 (1875) ; Doe 
 
 N. W. 596 (1898). r. Childress, 21 Wall. 642, 22 L. ed. 
 
 1. Hall v. Cole, 71 Ark. 601, 76 549 (1874). 
 
 S. W. 1067 (1903); People v. Dela 7. Stewart v. Masterson, 131 U. S. 
 
 Guerra, 24 Cal. 73 (1864) ; Jones v. 151, 9 S. Ct. 682, 33 L. ed. 114 (1888). 
 
 Jones, 45 Md. 144 (1876) ; State v. 8. Eyster v. Gaff, 91 U. S. 521, 23 
 
 District Court, 18 Nev. 286, 3 Pac. L. ed. 403 (1875). In a plenary ae- 
 
 417 (1884). tion in a Circuit Court by a, trustee 
 
 2. Ohm v. San Francisco, (Cal. in bankruptcy, the court cannot take 
 1890) 25 Pac. 155. judicial notice of matters of record 
 
 8. State v. Edwards, 19 Mo. 674 in the district court in the bank- 
 
 (1854). ruptcy proceedings. McDonald v. 
 
 4. Ohm v. San Francisco, (Cal. Clearwater Shortline By. Co., 164 
 1890) 25 Pac. 155. Fed. 1007 (1908). 
 
 5, Vassault v. Seitz, 31 Cal. 825 
 (1866). 
 
§§ 688, .689 
 
 Knowledge; Judicial. 
 
 856 
 
 of the proceedings in the courts outside their jurisdiction. 1 
 Occasionally famous litigation may become a matter of notoriety ; 
 and, therefore, of common knowledge. 
 
 § 688. (Judicial Knowledge of Results of Law; Judicial 
 Department); Signatures and Seals; National Courts. — The seal 
 of a court of admiralty 1 or of vice admiralty, 2 being of interna- 
 tional jurisdiction and recognized by the executive department of 
 the nation will be judicially noticed by all courts. The seal of 
 the superior court at Westminster need not be proved in an Eng- 
 lish court. 3 A judge will judicially know the signature of another 
 judge who is a member of a national court; and may, by statute, 
 be required to do so. 4 
 
 § 689. (Judicial Knowledge of Results of Law; Judicial 
 
 Department; Signatures and Seals); State Courts No proof 
 
 need be offered of the genuine character of the seals of domestic 
 tribunals. A court notices judicially its own seal. While state 
 courts in the American Union require no proof of the official seals 
 of federal courts, 1 so, conversely, in a federal tribunal the seal of 
 
 1. Cumberland Telephone & Tele- 
 graph Co. v. St. Louis, I. M. & S. Ry. 
 Co., (La. 1906) 41 So. 493. 
 
 1. Thompson v. Stewart, 3 Conn. 
 171, 181, 8 Am. Dec. 168 (1819) ; 
 Lincoln v. Battelle, 6 Wend. (N. Y.) 
 475 (1831); Crondson v. Leonard, 4 
 Cranch (U. S.) 435, 2 L. ed. 670 
 (1808); Rose v. Himely, 4 Cranch 
 (U. S.) 41, 2 L. ed. 608 (1808); 
 Church v. Hubbart, 2 Cranch (U. S.) 
 187, 2 L. ed. 249 (1804); Green v. 
 Waller, 2 Ld. Raym. 891 (1703) ; The 
 Maria, 1 Rob. Adm. 287 (1799). As 
 to the seals of courts of admiralty, 
 the ecclesiastical courts or of the 
 great sessions of Wales, see Kempton 
 v. Cross, Cas. temp. Hardw. 108 
 (1869); Curtis v. March, 28 L. J. 
 
 Exch. 36 (1858); Green v. Waller, 2 
 Ld. Raym. 893 (1701); Olive v. 
 Gwin, 2 Sid. 145, Hardres 118 (1658). 
 
 2. Yeaton v. Fry, 5 Cranch (U.S.) 
 335, 3 L. ed. 117 (1809). 
 
 3. Tooker v. Beaufort, Dk. of Say. 
 297 (1859). 
 
 4. Where a judge is required to 
 take judicial note of a signature of 
 another judge, he must take cog- 
 nizance of the tatter's signature 
 affixed by means of a stamp. Blades 
 v. Laurence, L. R., 9 Q. B. 374 (1874). 
 
 1. Womack v. Dearman, 7 Port. 
 (Ala.) 513 (1838) ; Adams v. Way, 
 33 Conn. 419 (1866); Dwight V. 
 Splane, 11 Rob. (La.) 487 (1845); 
 Delafield v. Hand, 3 Johns. (N. Y.) 
 310, 313 (1808). "It will not be 
 denied that the constitution of the 
 United States and the laws of con- 
 gress passed in pursuance thereof, 
 will be judicially recognized by the 
 courts of this state. The several 
 courts of the United States are called 
 into existence by act of congress un- 
 der the constitution, and their powers 
 and duties specifically defined by stat- 
 ute; such courts, therefore, together 
 with their seals, will also be judi- 
 cially recognized." Adams v. Way, 
 33 Conn. 419 (1866). 
 
857 
 
 Signatures of Judges Judicially Known. § 689 
 
 a state court 2 or of other federal courts 3 will be noticed. But 
 the .private seal of a judge 4 or clerk or the official seal of a foreign 
 municipal court 5 must be proved. The signature, however, of any 
 judge who is judicially known to the court, 6 even in case of a jus- 
 tice of the peace, 7 or of the court officers or officials of the judge's 
 own court or of any other court officers in the state exercising judi- 
 cial functions within the state, 8 or even acting in an official ca- 
 pacity, 9 require no proof. Thus, the signature of the clerk 10 or 
 one of his deputies 11 acting in their official capacity will be 
 
 2. " Circuit and district courts of 
 the United States certainly cannot 
 be considered foreign in any sense of 
 the term, either in respect to the 
 state courts in which they sit, or as 
 respects the circuit or district court 
 of another circuit or district. On the 
 contrary, they are domestic tribunals, 
 whose proceedings all other courts of 
 the country are bound to respect, 
 when authenticated by the certificate 
 of the clerk under the seal of the 
 court, the rule being that the circuit 
 court of one circuit or the district 
 court of one district is presumed to 
 know the seal of the circuit or dis- 
 trict court of another circuit or dis- 
 trict, in the same manner as each 
 court within a state is presumed to 
 know and recognize the seal of any 
 other court within the same state." 
 Turnbull v. Payson, 95 U. S. 418 
 (1877). 
 
 3. Turnbull v. Payson, 95 U. S. 418 
 (1877). 
 
 4. Barrett Nav. Co. v. Shower, 8 
 Dowl. P. C. 173 (1840). 
 
 5. Delafield v. Hand, 3 Johns. 
 (N. Y.) 310 (1808). See also Col- 
 lins v. Mathew, 5 East 473 (1804); 
 Henry v. Adey, 3 East 221, 4 Esp. 
 220 (1803). 
 
 6. I>wight v. Splane, 11 Rob. (La.) 
 487 (1845); Despau v. Swindler, 3 
 Mart. (N. S.) (La.) 705 (1825); 
 People v. Bloedel, 16 N. Y. Suppl. 
 837 (1891). 
 
 7. Despau v. Swindler, 3 Mart. 
 N. S. (La.) '705 (1825). While a 
 court will take judicial notice of who 
 
 are justices of the peace, where a 
 warrant is signed with the name of 
 a justice of the peace, without his 
 initials of office, the court cannot 
 take judicial notice that the signa- 
 ture is that of a justice of the peace, 
 since it cannot judicially know that 
 there is but one person by that 
 name. Reach v. Quinn, (Ala. 1909) 
 48 So. 540. 
 
 8. Alderson v. Bell, 9 Cal. 315 
 (1858); Hipes v. State, 73 Ind. 39 
 (1880) ; State v. Postlewait, 14 Iowa 
 446 (1862) ; Wood i?. Fitz, 10 Mart. 
 (La.) 196 (1821). 
 
 9. Wood v. Fitz, 10 Mart. 196 
 (1821). 
 
 The administrative nature of the 
 entire assumption is shown by the 
 fact that the signature of a party to 
 an acceptance of service is, it is said, 
 judicially known. Tischner v. Rut- 
 ledge, 35 Wash. 285, 77 Pac. 388 
 (1904). 
 
 10. Illinois. — Dyer v. Last, 51 111. 
 179 (1869). 
 
 Indiana. — Mountjoy v. State, 78 
 Ind. 172 (1881). 
 
 Minnesota. — Sherrerd v. Frazer, 6 
 Minn. 572 (1861). 
 
 South Dakota. — State v. Kinney, 
 113 N. W. 77 (1907). 
 
 Texas. — Goodwin v. Harrison, 28 
 Tex. Civ. App. 7, 66 S. W. 308 (1902). 
 
 West Virginia. — Central Land Co. 
 V. Calhoun, 16 W. Va. 361 (1880). 
 
 11. Himmelmann v. Hoadley, 44 
 Cal. 213 (1872); State v. Barrett, 
 40 Minn. 65, 41 N. W. 459 (1889). 
 
690 
 
 Knowledge; Judicial. 
 
 858 
 
 noticed ; — even though the designation of the office be omitted, 12 or 
 is incorrectly stated 13 or the name or designation of the office be 
 supplied by initials 14 or some other abbreviation. 15 
 
 § 690. (Judicial Knowledge of Results of Law; Judicial 
 Department; Signatures and Seals); Notaries Public. — The 
 
 official signature and seal of a notary public 1 have been treated as 
 matters of judicial knowledge ; — i. e., of administrative 
 assumption. 
 
 12. Dyer v. Last, 51 111. 179 (1869); 
 Marsee v. Middleborough Town, etc., 
 Co., 65 S. W. 118,. 23 Ky. L. Rep. 
 1258 (1901); State v. Barrett, 40 
 Minn. 65, 41 N. W. 459 (1889) 
 (deputy clerk signing merely as 
 " deputy " ) ; Central Land Co. v. Cal- 
 houn, 16 W. Va. 361 (1880). 
 
 13. State v. Barrett, 40 Minn. 65, 
 41 N. W. 459 (1889) (deputy sign- 
 ing as "clerk"). 
 
 14. Marsee v. Middleborough Town, 
 
 etc., Co., 65 S. W. 118, 23 Ky. L. Rep. 
 1258 (1901). 
 
 15. Buell v. State, 72 Ind. 523 
 (1880). 
 
 1. Pardee v, Schanzlin, (Cal. App. 
 1906) 86 Pac. 812; McDonald v. Peo- 
 ple, 123 111. App. 346 [affirmed in 
 222 111. 235, 78 N. E. 609] (1906); 
 Black v. Minneapolis & St. L. R. Co., 
 (Iowa 1903) 96 N. W. 984; Brown 
 Mfg. Co. v. Gilpin, 120 Mo. App. 130, 
 96 S. W. 669 (1906). 
 
Synopsis. ■ 
 
 CHAPTER IX. 
 
 KNOWLEDGE; COMMON. 
 
 Common knowledge, 691. 
 
 a vital atmosphere, 692. 
 
 administrative advantages, 693. 
 
 general 'propositions of experience, 694. 
 What knowledge is common, 695. 
 
 knowledge as affected by jurisdiction, 696. 
 
 restricted communities, 697. 
 
 potential knowledge, 698. 
 
 A. General notoriety, 699 
 
 classes of facts so established; res gestae, 700. 
 facts of optional admissibility, 701. 
 
 B. What facts are covered by the rule, 702. 
 
 (1) nature, 703. 
 
 divisions of time, 704. 
 properties of matter, 705. 
 solid, 706. 
 liquid, 707. 
 
 intoxicating liquors, 708. 
 judicial knowledge, 709. 
 alcohol, 710. 
 distilled liquors, 711. 
 fermented liquors, 712. 
 maZi liquors, 713. 
 " 6eer," 714. 
 Za^er beer, 715. 
 bitters, tonics, etc., 716. 
 medicines, etc., 717. 
 wines, 718. 
 gaseous, 719. 
 (^ science, 720. 
 
 uniformity necessary, 721. 
 mathematical science, 722. 
 established standards, 723. 
 capacity, 7'23. 
 extension, 724. 
 
 [859] 
 
Knowledge; Common. 860 
 
 B. What facts are covered by the rule. 
 
 (2) science, 
 established standards. 
 
 value, 725. 
 
 weight, 726. 
 facts of the almanac, 727. 
 
 movements of the heavenly bodies, 728. 
 photography, 729. 
 statistics, 730. 
 
 census, 731. 
 
 mortality tables, 732. 
 
 trade tables, 733. 
 
 (3) facts of geography; in general, 734. 
 nations, 735. 
 
 state, 736. 
 
 political divisions, 737. 
 
 commercial centers, 738. 
 
 natural features, 739. 
 
 rivers, 740. 
 
 railroads, 741. 
 
 distances and relative positions, 742. 
 counties, 743. 
 aiies., 744. 
 
 boundaries, 745. 
 
 streets, blocks, etc., 746. 
 
 factors m determining whether notice is taken, 
 747. 
 
 wards, noted places, etc., 748. 
 
 foreign cities, 749. 
 tou'ns, 750. 
 toivnships, 751. 
 villages, boroughs, etc., 752. 
 (^ /ads o/ human experience, 753. 
 
 standards of reasonable conduct, 754. 
 /£,) /&cte o/ socwZ K/e, 755. 
 customs, 756. 
 
 financial, 757. 
 
 ZocaZ, 758. 
 /me arte, 759. 
 gaming, 760. 
 
861 Synopsis. 
 
 B. What facts are covered by the rule. 
 (5) facts of social life, 
 language, 751. 
 
 abbreviations, 761. 
 words, 762. 
 phrases, 763. 
 literature, 764. 
 mechanic arts, 765. 
 medicine, 766. 
 phenomena of life, 767. 
 animal, 767. 
 i human, 768- 
 
 (a) moral nature, 768. 
 
 (b) mind, 769. 
 
 (c) body, 770. 
 
 disease injuries, etc, 771. 
 
 vegetable, 772. 
 I politics, 773. 
 
 religion, 774. 
 things of ccmxmon life, 775. 
 
 amusements, 775. 
 
 clothing, 776. 
 
 /ood, 777. 
 
 household conveniences, 778. 
 
 tazes, 779. 
 
 tobacco, 780. 
 
 wZwe o/ property, 781. 
 wealth, 782. 
 r ^6j /ads o/ history, 783. 
 worfd, 784. 
 
 minor facts, 785. 
 nation, 786. 
 
 commerce, 787. 
 
 foreign affairs, 788. 
 
 wars, insurrections, etc., 789. 
 
 &aZn'£ and customs, 790. 
 
 war o/ /Tie rebellion, 791. 
 stoe, 792. 
 
 settlement, 792. 
 
 Zand tftWes, 793. 
 
Knowledge; Common. 862 
 
 B. What facts are covered by the rule. 
 (6) facts of history, 
 state. 
 
 industrial development, 794. 
 mining, 795. 
 railroads, 796. 
 
 later history, 797. 
 
 politics, 798. 
 
 great national parties, 799. 
 results of elections, 800. 
 
 religion, 801. 
 county, 802. 
 
 officials, 803. 
 
 population, public buildings, etc., 804. 
 
 minor details, 805. 
 cities, towns and small localities, 806. 
 
 commercial growth, 806. 
 
 minor facts, 807. 
 
 officials, 808. 
 /7,) facts of business, 809. 
 
 evidence of skilled witness not required, 810. 
 agriculture, 811. 
 
 animals, 812. 
 
 crops, 813. 
 
 sfoc/i; raising, 814. 
 banking, 815. 
 building trades, 816. 
 education, 817. 
 insurance, 818. 
 
 /w-e, 818. 
 
 K/e, 819. 
 mechanic arts, 820'. 
 mercantile agencies, 821. 
 mining, 822. 
 
 minor business facts, 823. 
 professional services, 824. 
 
 ZefirfflJ, 824. 
 
 medical, 825. 
 railroading, 826. 
 
 construction, 827. 
 
863 Synopsis. 
 
 B. What facts are covered by the rule. 
 (7) facts of business. 
 railroading. 
 
 customs, 828. 
 equipment, 829. 
 operation, 830. 
 
 freight transportation, 831. 
 passenger service, 832. 
 real estate, 833. 
 stock transactions, 834. 
 street railways, 835. 
 equipment, 836. 
 operation, 837. 
 surveying, 838. 
 telegraphing, 839. 
 trading, 840. 
 
 course of mail, 841. 
 established routes, 842. 
 express companies, 843. 
 knowledge approximate merely, 844. 
 length of transit, 845. 
 meaning of phrases, 846. 
 methods, 847. 
 (7. flow actual knowledge may be acquired, 848. 
 ('J J judge may decline to know fact, 849. 
 (#,) may require aid of parties, 850. 
 
 matter of law, 851. 
 f5,) examination by judge, 852. 
 official records, 853. 
 almanacs, 854. 
 historical ivorks, 855. 
 function of the jury, 856. 
 
 " hearsay rule " inapplicable, 857. 
 froo&s no£ evidence, 858. 
 standard treatises, 859. 
 probative facts, 859a. 
 
 inexact sciences, 859b. 
 
 eajactf sciences, 859c. 
 
 historical works, 859d. 
 
 market reports, 859e. 
 
 registers of pedigree, record, etc., 859/. 
 
§ 691 Knowledge ; Common. 864 
 
 C. How actual knowledge may be acquired. 
 
 function of the jury, 
 standard treatises. 
 
 deliberative facts, 859g. 
 
 (1) Direct increase of special knowledge, 
 
 85 9 h. 
 
 (2) indirect supplementation by reducing 
 
 common knowledge to possession, 859i. 
 dictionaries, 859/. 
 epxyclopaedias, etc., 85 9&. 
 histories, etc., 85 9 Z. 
 law dictionaries, 859m. 
 law reports, 859m.. 
 statutory modifications, 859o. 
 administrative advantages of receiving treatises, 860. 
 incidental use, 861. 
 more valid objections, 862. 
 
 no exception to hearsay rule, 863. 
 relief through administration, 864. 
 testimony of skilled witnesses, 865. 
 
 D. How far knowledge is binding, 866. 
 
 matter of fact, 867. 
 matter of laiv, 868. 
 
 E. Cognizance as affected by action of the parties, 869. 
 
 § 691. Common Knowledge Common knowledge is general 
 
 knowledge. It is the knowledge that every one has. 1 The subject, 
 as has been intimated, has no special relation to the law of evi- 
 dence. 2 A trial at law takes the world as a whole precisely as it 
 finds it. With only a small portion of its happenings does the 
 law of evidence purport to deal. These it calls the res gestae? As 
 
 1. " All men know tliem and there- sion, and of which no particle of 
 fore they need not be proved." South ' evidence,' strictly so called, is ever 
 & N. Ala. R. R. Co. r. Wood, 74 Ala. formally presented in court. And 
 449 (1883). then, in addition, it has to be put in 
 
 2. Neville v. Kenney, 125 Ala. 149, possession of new material. It is this 
 28 So. 452, 454 (1899). ".In seeking necessity, that of furnishing new mat- 
 to ascertain the unknown from the ter, which gives occasion for rules of 
 known, a judicial tribunal is called evidence." Thayer, Prelim. Treat., 
 on to use, apply, rellect upon, and 270. 
 
 compare a great body of facts and 3. Supra, § 47. 
 
 ideas of which it is already in posses- 
 
865 Seasoning Presupposes Common Knowledge. § 691 
 
 to them disputes may arise; questions of the truth about facts, as 
 to the powers of observation, habits of veracity, and the like, of 
 those who undertake to prove these res gestae facts to the tribunal. 
 To such facts alone does the necessity for proof attach; and only 
 with proof does the law of evidence concern itself. Judges, coun- 
 sel and witnesses submitting the evidence to the tribunal, and the 
 tribunal itself in deciding upon it must make a familiar, uncon- 
 scious and generally unnoted use of a large number of other facts, 
 the existence of which is not in dispute.* Witnesses must address 
 the court in language, the meaning of which is assumed to be un- 
 derstood. They must draw common inferences from observation, 
 the accuracy of which no one disputes; 5 allusions are constantly 
 made to systems of coinage, tables of length, capacity, area and 
 the like, to historical events, geographical features, and so forth, 
 which no one fails to appreciate. Only by assuming the reality 
 and correctness of common knowledge can the settlement of what 
 the res gestae are and what they mean in terms either of fact or 
 law, possibly be reached within any reasonable limits of time. 
 Indeed, the requirement of substantive law, that reason must 
 be employed by all branches of the tribunal exercising administra- 
 tive or judicial functions, 6 is in reality in itself equivalent to and 
 involves a permission and insistence, that the common knowledge 
 of the community should be used equally both by judge and jury. 
 Reasoning, for example, involves the use of terms. Physical facts 
 of all descriptions are thus necessarily placed at the disposal of 
 courts. That form of reasoning known as inference 7 demands, when 
 applied to moral conduct or the logical or probative relevancy 8 
 of one fact to the existence of another a presupposition that cer- 
 tain general propositions of experience are known to every one con- 
 nected with the trial. The same forensic necessity introduces 
 into a trial a large number of deliberative facts. 9 To reach a just 
 conclusion, for example, as to the relative probability of two con- 
 flicting stories involves a careful adjustment, often almost intui- 
 tively conducted, of facts into the environment, of time, space and 
 causation, which they must have had, if the truth regarding them 
 
 4. "The administration of justice 5, Infra, §§ 1837 et seq. 
 
 becomes possible only by assuming 6. Supra, §§ 385 et seq. 
 
 that certain things have been regu- 7. Infra, §§ 1797 et seq. 
 
 larly and definitely settled, and are 8. Supra, § 59. 
 
 so to remain." State v. Wagner, 61 9. Supra, § 52. 
 Me. 178 (1873). 
 
 Von. I. 55 
 
§ 692 Knowledge; Common. 866 
 
 has been told. Again, correct reasoning as to the credibility of 
 witnesses involves knowledge of the more complicated psycholo- 
 gical phenomena — the motives which actuate conduct, — the 
 passions which blind, the prejudices that mislead. The common, 
 knowledge of mankind in general, and of the community in 
 particular, both as to the physical and the psychological realms 
 of nature, must therefore be at the disposal of the tribunal in the 
 gathering, sifting and weighing process which is a necessary pre- 
 liminary to the ascertainment of truth. 10 
 
 § 692. (Common Knowledge) ; A Vital Atmosphere. — Neither 
 a trial nor an appellate court can adequately discharge their ap- 
 propriate functions without constantly drawing upon their com- 
 mon or general knowledge. At every stage of the trial constant 
 use is made of facts, which no one disputes because everybody 
 knows. Otherwise, the investigation would instantly and auto- 
 matically stop. It is this great mass of undisputed fact which con- 
 stitutes the vital element in which all parts of the complex ma- 
 chinery discharge their respective functions. The unknown fact 
 — the truth of the disputed proposition — is determined by the 
 use of known terms in language of recognized meaning. The 
 relevancy and value of the evidentiary facts is dependent, as a 
 rule, upon the truth of well-known propositions of experience. A 
 large number of facts, assumed to be in accordance with the gen- 
 eral understanding as to them, are used in supplementing, testing, 
 explaining or otherwise affecting the facts testified to by the wit- 
 nesses. The illustrations, analogies or arguments of counsel, the 
 charge of the court, the deliberations of the jury rest for their 
 force on an accepted basis of common experience, what is sup- 
 posed to be generally known. This is, as it were, the atmosphere 
 in which a trial necessarily takes place. Without it, no forensic 
 contest could be carried to any definite result. 1 
 
 10. "Whereabout in the law does tion of both subjects. That habit is 
 
 the doctrine of judicial notice belong? quite modern." Thayer, Prelim. 
 
 Wherever the process of reasoning has Treat., p. 278. 
 
 a place, and that is everywhere. Not 1. " The law, being a human con- 
 peculiarly in the law of evidence. It trivance and outgrowth, resting, a3 if 
 does, indeed, find in the region of evi- by gravity, on human nature, human 
 dence a frequent and conspicuous ap- experience, and the principles that 
 plication; but the habit of regarding regulate human thoughts, takes all 
 this topic as » mere title in the law these things for granted." Thayer, 
 of evidence obscures the true concep- Prelim. Treat., 516. 
 
867 Jury's Use of Common Knowledge. § 693 
 
 § 693. (Common Knowledge); Administrative Advantages. — 
 
 "Were the forensic use of common knowledge not necessary, it 
 should be adopted and given force and extension by reason of the 
 marked advantages which it places within the reach of the ad- 
 ministrative powers of a presiding judge. Few of the adminis- 
 trative duties of such a magistrate are more impressive, especially 
 for the expediting of trials, than the necessity of seeing that any 
 case before him keeps constantly, as it were, turning upon its' 
 hinge. That is, attention should be focused at all times on proof 
 of the constituent facts or set of such facts as to which the parties 
 are in dispute. The jury should at no time be allowed to digress 
 to proof of facts which all persons know to be true, or as to which 
 the parties do not care to enter into a contest. Whether the reason 
 for lack of dispute be waiver 1 or common knowledge (so far as 
 these may be distinguished) a presiding judge may, with pro- 
 priety hasten to place the uncontroverted fact beyond the .possi- 
 bility of exerting a confusing influence on the real dispute be- 
 tween the parties. In this consideration, lies much of the forensic 
 value of this use of common knowledge. However varied facts 
 of usual experience may be in other particulars, they present 
 the common feature that the only question with regard to them 
 is one of " looking it up." They are not disputatious, about which 
 a difference of opinion may reasonably exist. The truth of the 
 matter is definitely settled, one way or the other. Indeed it is 
 this element which leads a judge to feel that time would be wasted 
 were strict proof required in many cases where judicial cognizance 
 is said to be taken, i. e., where use is made of the tribunal's gen- 
 eral or common knowledge. As a method of expediting trials 2 
 and sustaining meritorious causes in an appellate court 3 the ad- 
 vantages of steadily extending the forensic use of common knowl- 
 edge are obvious. The province of the jury, orderly administra- 
 tion and preservation of the rights of the parties alike require 
 that the judge should be the mouthpiece of the mixed tribunal. 
 Facts which the judge rightly regards as commonly known go to 
 the jury a3 established, without further proof, and the judge may 
 charge the jury to that effect. 4 But the jury must also make con- 
 
 1. Infra, § 869. 4. People v. Mayea, 113 Cal. 61S, 45 
 
 2. Supra, §§ 544 et seq. Pac. 860 (1896) ; State v. Laffer, 38 
 
 3. Campbell v. Wood, 116 Mo. 196, Iowa 482 (1874). 
 22 8. W. 796 (1893) ; Hunter v. New 
 
 York, etc., R. Co., 116 N. Y. 615, 23 
 N. B. 9, 6 L. R. A. 246 (1889). 
 
§ 694 
 
 Knowledge; Common. 
 
 868 
 
 etant use of the knowledge of the community at large. Such 
 knowledge the jury not only may but should use in reaching a 
 decision upon the evidence ; 5 — drawing, as it were, from the stock 
 of general knowledge, 6 gained by observation 7 and experience. 8 
 This is especially appropriate, as it is the distinctive function of 
 the jury to apply to the case the standards by which the com- 
 munity regulates its conduct. 9 
 
 § 694. (Common Knowledge); General Propositions of Ex- 
 perience — The community has certain axioms upon which many 
 of its conclusions are predicated and by which, as by a standard, 
 it estimates the propriety of conduct. To these axioms, usually 
 sub silentio appeal is constantly being made, by all connected with 
 a trial. These results of common experience are the constant 
 guide of the jury at all stages of the trial; in judging of the 
 credibility of the witnesses, 1 the probability of their story, 2 as to 
 the effect and bearing of the individual facts adduced in evidence. 3 
 The relevancy and probative force of evidence, that which makes 
 it evidence, the force of every argument, that which makes it an 
 
 5. Craver r. Hornburg, 26 Kan. 94 
 (1881); McGarrahan v. New York, 
 etc., R. Co., 171 Mass. 211, 220, 50 
 N. E. 611 (1898). 
 
 6. Green V. Chicago, 97 111. 370 
 (1881); McGarrahan v. R. Co., 171 
 Mass. 211, 50 N. E. 610 (1898). 
 
 7. Huntress v. Boston, etc., R. Co., 
 66 N. H. 185, 34 Atl. 154, 49 Am. St. 
 Rep. 600 (1890). 
 
 8. Jenney Electric Co. v. Branham, 
 145 Ind. 314, 41 N. E. 448, 33 L. R. A. 
 395 (1896) ; Manning v. Ry. Co., 166 
 Mass. 230, 44 N. E. 135 (1896) (that 
 the trolley stick is not torn from the 
 conductor's hands unless there is care- 
 lessness). Parks v. Boston, 15 Pick. 
 (Mass.) 198, 199, 209 (1834); State 
 v. Lingle, 128 Mo. 528, 31 S. W. 20 
 (1895) ; Huntress v. Boston, etc., R. 
 Co., 66 1ST. H. 185, 34 Atl. 154, 49 
 Am. St. Rep. 600 (1890) ; Willis v. 
 Lance, 28 Or. 371, 43 Pac. 384, 487 
 (1896). 
 
 9. Leary v. Fitchburg R. Co., 173 
 Mass. 373, 53 N. E. 817 (1899) 
 (alighting from cars) : Lamaroux v. 
 Ry. Co., 169 Mass. 338, 47 N. E. 1009 
 
 (1897) (usual conduct at railroad 
 crossing) ; Lillibridge v. MeCann, 117 
 Mich. 84, 75 N. W. 288 (1898) 
 
 (danger of sleeping on straw with a 
 lighted pipe) ; Illinois Central R. Co. 
 v. Greaves, 75 Miss. 360, 22 So. 792 
 
 (1897) ; Willis v. Lance, 28 Or. 371, 
 43 Pac. 487 (1896) (wind-record). 
 
 1. Jenney Electric Co. v. Branham, 
 145 Ind. 314, 41 N. E. 448, 33 L. R. A. 
 395 (1896) ; Schmidt v. Ins. Co., 1 
 Gray (Mass.) 129 (1854) ; Wharton 
 v. State, 45 Tex. 2, 4 (1876). 
 
 2. R. v. Sutton, 4 M. & S. 523, 537, 
 542 (1816). 
 
 3. Stevens v. State, 3 Ark. 66 
 (1840) ; Green v. Chicago, 97 111. 370 
 (1881); McGarrahan v. New York, 
 etc., R Co., 171 Mass. 211, 50 N. E. 
 611 (1898) ; Lillibridge v. MeCann, 
 117 Mich. 84, 75 N. W. 288, 72 Am. 
 St. Rep. 553, 41 L. R. A. 381 (1898) ; 
 Whitney v. U. S„ 167 U. S. 529, 546, 
 17 Sup. 857 (1896) (that pasturage 
 on public unfenced lands is slight evi- 
 dence of possession) ; Head t\ Har- 
 grave, 105 U. S. 45, 26 L. ed. 1028 
 (1881). 
 
869 Common Knowledge that of Ideal Judge. § 695 
 
 argument, and available for the use of counsel, 4 rests on some 
 such basis of experience, a proposition of general knowledge 
 known to the jury, and which constitutes the major premise of 
 the syllogism upon which logical reasoning is based. When the 
 evidence is submitted as a whole these postulates of general 
 experience are the final test which the jury will apply in its act 
 of judging as to the truth of the propositions in issue. 5 This por- 
 tion of common knowledge of the community stands therefore in a 
 general way, to the probative or constituent facts in the relation 
 of the major to the minor premises of the syllogism. The function 
 of evidence is merely to produce to the tribunal a minor premise. 
 This is that which is apparent on the surface of a trial. The 
 major premise is, however, absolutely essential and, for this, 
 resort is mainly had to the common knowledge of the jury. 6 Thu 
 differences between the parties are usually as to the existence of 
 the minor premise. The major is frequently axiomatic, disputed 
 by no one. 
 
 § 695. What Knowledge Is Common. — The test of what knowl- 
 edge is common is not furnished by any individual judge or any 
 particular jury. Neither of these judicial tribunals may ever 
 have heard of the fact claimed to be " commonly known." Their 
 ascertainment may require a long course of laborious investiga- 
 tion. Common knowledge covers such facts of notoriety and gen- 
 eral acceptance as the ideal judge and jury should know; — the 
 knowledge each would have if he were a perfect representative 
 of the community. 1 The tribunal, both court and jury, 2 will as- 
 
 4. State e. Lingle, 12S Mo. 528, 31 trovert, much the same result is at- 
 S. W. 20 (1894) ; State v. Marsh, 70 tained by failing to produce evidence 
 Vt. 288, 40 Atl. 837 (1898) (inquest against the positive claim of the party- 
 methods), relying on the fact. The court feels 
 
 5. McGarrahan v. New York, etc., justified as an administrative matter, 
 P. Co., 171 Mass. 211, 50 N. E. 611 in assuming it to be true, not because 
 (1898) ; Parks v. Boston, 15 Pick. it is a fact of common knowledge, but 
 (Mass.) 198 (1834). because it is practically conceded. 
 
 6. Supra, § 694. The desire of a court on appeal to 
 1. Undoubtedly this definition fails save a case deemed meritorious from 
 
 to cover all cases where the court reversal on account of a technical fail- 
 assumes a fact to be true without evi- ure of proof has had an effect in the 
 dence. In such instances waiver, same direction. 
 
 plays, at times, an important part. 2. Com. v. Peckham, 2 Gray (Mass.) 
 
 Where counsel are not prepared to 514 (1854) (gin intoxicating) ; Mur- 
 
 admit eo nomine, the existence of a dock v. Sumner, 22 Pick. (Mass.) 156 
 
 fact, which in reality they do not con- (1839) ; Spengler v. Williams, 67 
 
§ 696 
 
 Knowledge; Common. 
 
 870 
 
 sume such facts to be true, without evidence, 3 unless and until 
 the judge demands that proof be furnished as to them. To such 
 facts, the observations of Lord Ellenborough in Peltier's Case (28 
 State Trials, 616) (1803), speaking of an admission that Na- 
 poleon Bonaparte was Chief Consul and France and England 
 at peace on a certain date, may well be applied. " They were 
 capable of easy proof if they had not been admitted. Their 
 notoriety seems to render the actual proof very unnecessary." 
 
 § 696. (What Knowledge is Common); Knowledge as Affected 
 
 by Jurisdiction. — Courts of general jurisdiction do not treat as 
 matters of common knowledge facts of merely local notoriety. 
 Within limits not well defined, and following, in part, the analogy 
 of the court's knowledge of law, 1 it is, as a rule, rather the com- 
 munity for which than the community in which the judge is sit- 
 ing which determines the range of tbe facts which he will treat 
 as common knowledge. A court of general jurisdiction will not 
 regard" it as commonly known that there are banks in a certain 
 
 Miss. 1, 6 So. 613 (1889) (attractive- 
 ness to children of loosely piled lum- 
 ber). 
 
 3. Alabama. — Gordon v. Tweedy, 74 
 Ala. 232, 41 Am. Rep. 813 (1883). 
 
 Connecticut. — State V. Main, 69 
 Com. 123, 37 Alt. 80, 61 Am. St. Rep. 
 30, 36 L. R. A. 623 (1897). 
 
 Illinois. — City of Chicago r. Duffy, 
 117 111. App. 261 (1904) ; Secrist V. 
 Petty, 109 111. 188 (1883). 
 
 Indiana. — State v. Downs, 148 Ind. 
 324, 47 N. E. 670 (1897). 
 
 Kansas. — Sun Ins. Office f. West- 
 ern Woolen Mill Co., (Kan. 1905) 82 
 Pac. 513. 
 
 Nebraska. — Redell v. Moores, 63 
 Neb. 219, 88 N. W. 243, 93 Am. St. 
 Rep. 431 (1901). 
 
 United States. — King r. Gallun, 109 
 U. S. 99, 3 S. Ct. 85, 27 L. ed. 870 
 (1883). 
 
 England. — Crawcour r. Salter, 18 
 Ch. D. 30, 51 L. J. Ch. 495, 45 L. T. 
 Rep. N. S. 62, 30 Wkly. Rep. 21 
 (1881) ; Ex p. Powell, 1 Ch. D. 501, 
 45 L. J. Bankr. 100, 34 L. T. Rep. 
 
 N. S. 224, 24 Wkly. Rep. 378 (1875) ; 
 Lumley v. Gye, 2 E. & B. 216, 267, 17 
 Jur. 827, 22 L. J. Q. B. 463, 1 Wkly. 
 Rep. 432, 75 E. C. L. 216 (1853). 
 All things which are or should be well 
 known in the community. Chicago v. 
 Duffy, 117 111. App. 261 (1904). 
 Such things as all persons of ordinary 
 intelligence are presumed to know 
 need not be proved. State v. Dunn, 
 221 Mo. 530, 120 S. W. 1179 (1909). 
 
 Judicial knowledge has been said 
 to be superior as a means of estab- 
 lishing facts. It stands for proof and 
 so displaces evidence. State v. Main, 
 69 Conn. 123, 136, 37 Atl. 80, 61 Am. 
 St. Rep. 30, 36 L. R. A. 623 (1897). 
 " Jurors are not to be presumed to 'be 
 ignorant of what everybody else 
 knows.'' Com. v. Peckham, 2 Gray 
 514, per Metcalf, J. The court 
 notices, without more " the usual and 
 normal state of things.'' Ryder v. 
 Womburel, L. R. 4 Ex. 32 (necessaries 
 for an infant). 
 
 1. Supra, § 583. 
 
871 Notoriety in Restricted Communities. § 697 
 
 town, 2 a railroad fenced at a given spot, 3 or that a particular tract 
 of land must be irrigated to raise crops on it. 4 The judge of such 
 a court will not know local conditions as to agriculture, the state 
 of the weather in a particular neighborhood, what prices the 
 inhabitants get for their crops. 5 Neither will he know as to the 
 mail service, 8 and the like, in a small community. The judge of 
 a local court with equal propriety might regard as commonly 
 known facts of the same class because tbe local community, for 
 which he is acting, is thoroughly familiar with them. The state 
 court itself will regard as matters of common knowledge precisely 
 similar facts when known through the state, 7 or generally known 
 throughout a large city in which it is sitting. 8 
 
 The same considerations naturally have a bearing upon actual 
 knowledge, or belief, on the part of the judge which, in turn, 
 operates in deciding whether, in any particular case, it is safer 
 to require evidence of a fact. 
 
 § 697. (What Knowledge is Common); Restricted Communi- 
 ties. — On the contrary, facts may be regarded as commonly 
 known even by a judge of general jurisdiction; — provided they 
 are so known and understood in a limited community with which 
 the judge is specially familiar and, for which, in a real sense, he 
 may be regarded as sitting. Thus, the legal profession is, to a 
 certain extent, the community of all judges. It is not necessary 
 to prove to a judge facts of a technical nature notorious in the 
 legal profession. In the same way courts dealing customarily 
 with special subjects, as maritime or patent cases, regard as gen- 
 erally known facts commonly agreed upon among persons ex- 
 perienced in the particular branch in which the presiding judge 
 is himself expert. In this connection, these persons constitute 
 the judge's " community." 
 
 2. Bartholomew v. Everett First 19 N. W. 288, 50 Am. Rep. 752 
 Nat. Bank, 18 Wash. 683, 52 Pao. (1884). 
 
 239 (1898). 7. Prescott Irr. Co. v. Flathers, 20 
 
 3. Texas Cent. F». Co. v. Childress, Wash. 454, 55 Pac. 635 (1899) (sage 
 64 Tex. 346 (1885). brush land requires irrigation in order 
 
 4. Slattery v. Harley, 58 Neb. 575, to grow crops). 
 
 79 N. W. 151 (1899) ; McGhee Irr. 8. Morel v. Stearns, 37 Misc. (N. 
 
 Bitch Co. V. Hudson, 85 Tex. 587, 22 Y.) 486, 75 N. Y. Suppl. 1082 (1902) 
 
 8. W. 398 (1893). (course of mail in New York city) ; 
 
 5. McCormick Harvesting Mach. Co. Walker v. Walker, 3 Abb. N. Oas. 
 v. Jacobson, 77 Iowa 582, 43 N. W. (N. Y.) 12 (1877) (fall in real es- 
 499 (1889). tate prices in New York city). 
 
 8. Ferrier v. Storer, 63 Iowa 484, 
 
§ 698 Knowledge; Common. 872 
 
 § 698. (What Knowledge is Common) ; Potential Knowledge. 
 — The average community, in addition to facts directly known, 
 has a certain knowledge as to the reach of the knowable, especially 
 along scientific, historical or technical lines, and knows where 
 reliable information concerning them is stored. As to these f acts, 
 about which no dispute exists which are definitely settled, in a 
 particular way, the easy and sensible thing for a court to do 
 is what any intelligent person would do in his private affairs ; — 
 " look it up " in an encyelopcedia, atlas, scientific treatise or other 
 work of standard authority. The knowledge so acquired is 
 deemed common knowledge. In other words, regarding many 
 facts, generally known and accepted by the community, its 
 knowledge is rather potential than actual. 1 The thing which 
 really is notorious is not the fact itself but the source of 
 information as to it. If a date is called for, or information 
 sought as to changes of the moon, tbe average member of the com- 
 munity knows that he has merely to go to the almanac -and find 
 out. If he desires to know the population of his town, he consults 
 the census table. For historical events, he resorts to the general 
 or local history or the encyelopcedia. If he wishes to know the 
 location of a place or the meaning of a word, he examines the 
 geography or the dictionary. In any dispute not judicial, be- 
 tween members of the community, the result of such a reference 
 would at once be accepted as final. In any scientific system of 
 forensic evidence the same proceeding should be possible. It can- 
 not be doubted that upon logical grounds the statement found in 
 the almanac, census table, history, dictionary, geography, etc., is 
 a probative fact. It is made by a person, or persons, of adequate 
 knowledge, with no motive to misrepresent. The statement has re- 
 mained unchallenged by those familiar with or interested in the 
 subject-matter. In most instances, the further peculiarity is pre- 
 sented that this is not only a legitimate but a necessary method 
 of proving the facts in question. A witness of special skill — an 
 " expert " so-called 2 — assuming that it were reasonable and possi- 
 ble to require and feasible to secure his attendance, could merely 
 verify the authority of the books referred to or, in case of a con- 
 flict of authority, state an " opinion " as to which of two views is 
 
 1. Scientific terms. — If a person de- power of the presiding judge enables 
 
 sires to know the meaning of a scien- him to do the same. State v. Wilhite, 
 
 tine term, he looks it up in an ap- (Iowa 1907) 109 N. W. 730. 
 
 propriate treatise. The administrative 2. Infra, § 1805. 
 
873 Peobative and Deliberative Facts. § 699 
 
 correct. It is a marked peculiarity of the English law of evidence 
 that any proof of many facts of common knowledge, other than 
 by this expensive method of expert testimony is practically im- 
 possible of attainment. What stands in the way of receiving as 
 evidence a relevant and necessary statement of the treatise itself, 
 is the "rale" against hearsay. 3 The declarant, i. e., the writer 
 of the printed statement, is not under oath and subject to 
 cross-examination. The elements of relevancy and necessity essen- 
 tial to constitute, in most cases, an exception to the hearsay rule, 
 and usually, sufficient for that purpose,* are here presented. It 
 would be obviously fairer to the litigants that the treatises, 
 almanacs, official reports, tables and other documents should, so far 
 as practicable, be introduced in evidence, that the element of sur- 
 prise may be minimized or eliminated. No such exception has, 
 however, been established. In view of the fundamental principle 
 of judicial administration that a party shall be entitled to intro- 
 duce the best evidence of a fact practically within his power, 5 the 
 expedient has been adopted of circumventing the operation of the 
 hearsay rule by treating certain classes of these facts as within 
 the scope of judicial cognizance. The court examines the recog- 
 nized source of information and assumes, as an administrative 
 matter, the fact there stated to be correct. This course is made 
 easier by the circumstance that the facts so ascertained are not 
 among the res gestae. 6 
 
 § 699. A. General Notoriety — It has been suggested that the 
 use of common knowledge of fact should be limited to matters of 
 general notoriety, 1 and that care be employed to guard against 
 laxity in determining what facts shall be deemed notorious. 2 
 Every reasonable doubt as to whether sufficient notoriety exists 
 should, it is said, be resolved in the negative. 3 The general ad- 
 ministrative rule, as will be made plain by the cases hereafter 
 
 3. Infra, §§ 2698 et seq. part of the common knowledge of well- 
 
 4. Infra, §§ 2762 et seq. informed persons, at least." Georgia, 
 
 5. Supra, § 334. etc., R. R. v. Gaines, 88 Ala. 377 
 
 6. Supra, § 47. (1889) ; Morris V. Edwards, 1 Ohio, 
 1. There is a prudent limitation to 189 (1823). 
 
 be put upon this principle so as to 2. Brown v. Piper, 91 U. S. 37, 43 
 
 oonfine it to matters of a general and (1875). 
 
 public nature or such as do not con- 3. Timson v. Manufacturers' etc. 
 
 cern individuals or local communities. Co., 220 Mo. 580, 117 N. Y. Suppl. 
 
 The facts must be of such age or dura- 30 (1909). 
 
 tion as to have become established as 
 
§ 700 
 
 Kif owledge ; Common. 
 
 874 
 
 cited, is, however, well settled; 4 — that where a fact collaterally 
 or deliberatively relevant is notorious in* the court's general or 
 restricted community no proof of it need be offered. 
 
 § 700. (A. General Notoriety); Classes of Facts so Estab- 
 lished; Res Gestae — As elsewhere stated 1 use may be made of 
 common knowledge in the establishment of facts which are out- 
 side the necessity for strict proof. Where the fact in question is 
 one of the res gesim? or a probative one necessary to proof of 
 the res gestce, 3 a fortiori where it is a constituent fact, either 
 party is entitled to insist within the limits prescribed by reason, 
 that proof shall be furnished as to its existence. It is not, there- 
 fore, established by the use of common knowledge. Thus it can- 
 not be taken for granted, by the use of such information, that 
 a party has performed his contract, 4 that a destroyed painting 
 was indecent, 5 that to hold certain political views in a certain 
 county at a given time was dangerous to life and property, 6 that 
 
 4. Illinois. — Pierce v. Coryn, 139 
 111. App. 445 (1908). 
 
 Missouri. — Reineman v. Larkin, 
 2,22 Mo. 156, 121 S. W. 307 (1909) ; 
 Timson v. Manufacturers' Etc. Co., 
 220 Mo. 580, 119 S. W. 565 (1909). 
 
 New Jersey. — Connett v. United 
 Hatters of N. A. (Ch. 1909) 74 Alt. 
 188 (Strike in large city). 
 
 New York. — In re Clement, 117 N. 
 Y. Suppl. 30, 132 App. Div. 598 
 (1909). 
 
 United States. — Town of Fletcher 
 v. Hickman, 165 Fed. 403, 91 C. C. A. 
 353 (1908). 
 
 1. Supra, § 693. 
 
 2. Supra, § 47. 
 
 Georgia. — Moore v. State, 126 Ga. 
 414, 55 S. E. 327 (1906) (former 
 eounty prohibited sale of liquor). 
 
 Iowa. — State v. Blydenburg, (Iowa 
 1907) 112 N. W. 634. 
 
 Kentucky.— Guinn V. Cumberland 
 County Court, 28 Ky. L. Rep. 759, 90 
 B. W. 274 (1906). 
 
 Maine. — Chase v. Maine Cent. R. 
 Co., 77 Me. 62, 52 Am. Rep. 744 
 (1885). 
 
 New Hampshire. — ■ Huntress v. Bos- 
 ton, etc., B. Co., 66 ST. H. 185, 34 
 Atl. 154, 49 Am. St. Rep. 600 (1890). 
 
 New York. — Reynolds v. New York 
 Cent., etc., R. Co., 58 N. Y. 248 
 (1874) ; Johnson v. Hudson River R. 
 Co., 20 N. Y. 65, 75 Am. Dec. 375 
 (1859). But see 
 
 United States. — Minnesota v. Bar- 
 ber, 136 U. S. 313 (1890). On a 
 criminal proceeding for receiving 
 stolen cotton, the court will not dis- 
 pense with proof that cotton is a 
 thing of value. Wright v. State, 1 
 Ga. App. 158, 57 S. E. 1050 (1907). 
 " A matter which could legitimately 
 be the subject of inquiry in a court 
 could not well be said to be so well 
 established and to have acquired such 
 notoriety as to come within the judi- 
 cial knowledge of the court." Chi- 
 cago, etc., R. R. v. Champion, (Ind. 
 1892) 32 N. E. 874. But see also 
 Com. v. Peckham, 2 Gray (Mass.) 514 
 (1854) (gin) (intoxicating quality 
 of certain liquor ) . 
 
 3. Supra, § 51. 
 
 4. Tunnison v. Field, 21 111. 108 
 (1859). 
 
 5. Shiverick v. Gunning Co., 58 
 Neb. 29, 78 N. W. 460 (1899). 
 
 6. " This fact ought to have been 
 proved, and not been thus assumed by 
 the court as a historical fact, of which 
 
S75 
 
 Ees Gestxe and Common Knowledge. 
 
 § 700 
 
 any other disputed material fact existed. 7 A judge cannot be 
 asked to know local conditions without proof for the purpose of 
 deciding whether a local ordinance is, or is not, unreasonable. 8 To 
 say, as is sometimes done, that a party cannot take issue on a fact 
 contrary to what the judge feels to be the common knowledge of 
 the community, 9 seems to be of doubtful correctness. Though 
 courts have shown themselves restive at being called upon to hear 
 evidence to establish a fact which they thought they knew did 
 not exist, 10 the true rule would be to the effect that the court 
 cannot use, as a matter of common knowledge, a fact involved in 
 the issue ; — i. e., a res gestce or constituent fact. Subject to the 
 requirement of the use of reason, 11 it seems to be the clear right 
 of a party to show the truth of a proposition of fact which the 
 court believes is generally known to be untrue. If the litigant 
 is willing to assume that burden, with all the logical difficulties 
 it imposes, it is within his right so to contend and to offer evi- 
 
 the court could take judicial notice." 
 Simmons v. Trumbo, 9 W. Va. 358 
 (1876). 
 
 7. McKinnon «:. Bliss, 21 N. Y. S06 
 (1860); Gregory v. Baugh, 4 Rand. 
 (Va.) 611 (1827). 
 
 See also, to the same effect, Hill v. 
 Hoefer (Cal. App. 1908), 96 Pac. 116; 
 Hill v. Barner (Cal. App. 1908), 96 
 Pac. Ill ; Town of Windfall City v. 
 State, 172 Ind. 302, 88 N. E. 505 
 (1909) ; (newspaper has circulation). 
 
 Criminal cases. — The administra- 
 tive importance of the observance of 
 this rule is especially marked in 
 criminal prosecutions. Thus, for ex- 
 ample, on such an issue it will not 
 he known, as a matter of common 
 knowledge, that an axe is a deadly 
 weapon. Bush v. State, (Tex. Cr. 
 App. 1908), 107 IS. W. 348. 
 
 The court will not judicially know 
 the solvency of a party. State v. 
 Clements (Mont. 1908), 95 Pac. 845. 
 
 8. City of St. Louis v. St. Louis 
 Theatre Co., 203 Mo. 690, 100 S. W. 
 627 (1907). 
 
 9. Board of Commissioners v. Bur- 
 ford, 93 Ind. 383 (1883) ; Cooke v. 
 Tallman, 40 Iowa 133 (1874) ; Attor- 
 ney-General v. Foote, 11 Wis. 14, 78 
 
 Am. Dec. 689 (1860). See also U. S. 
 v. Green, 113 Fed, 683 (1902). Ju- 
 dicial notice has, moreover, been 
 spoken of as a species of evidence. 
 Gay v. 'City of Eugene (Or. 1909), 
 100 Pac. 306. It has even been 
 claimed that judicial notice is su- 
 perior to evidence as it stands for 
 proof and fulfils the object which 
 evidence is designed to fulfil and 
 makes proof unnecessary. Beardsley 
 v. Irving, 81 Conn. 489, 71 Atl. 580 
 (1909). 
 
 10. Stanley v. McElrath, (Cal. 
 1889) 22 Pac. 673; Board of Commis- 
 sioners v. Burford, 93 Ind. 383 (1883); 
 Com. v. Marzynski, 149 Mass. 68, 73, 
 21 N. E. 228 (1889) ; Com. v. Crow- 
 ley, 145 Mass. 430, 14 N. E. 459 
 (1888) ; Com. v. Peckham, 2 Gray 
 514 (1854); Jones v. United States, 
 137 U. S. 202, 11 Sup. Ct. 80, 84, 85 
 (1890). Judicial notice is said to be 
 merely a rule of evidence; and, if 
 facts judicially noticed are disput- 
 able, the other party may rebut 
 them. Timson v. Manufacturers' 
 Coal & Coke Co., 220 Mo. 580, 119 
 S. W. 565 (1909). 
 
 11. Supra, § 385. 
 
§§ 701, 702 Knowledge; Common. • 876 
 
 deuce to substantiate his contention. The court cannot deprive 
 him of it by declaring the matter to be one within the scope of 
 common knowledge ; — declining to hear evidence on the sub- 
 ject and summarily rejecting the contention. Human experience 
 fails to confirm the view that the generally accepted opinions or 
 even universally assumed facts are invariably in accordance with 
 the reality of things. While each community has nothing else to 
 go by, it may well concede to the litigant the right of seeking 
 to establish that the received view is erroneous. It is not within 
 the function of the presiding justice to so far control a party's 
 right to prove his case or disprove that of his antagonist, as to 
 make any fact in the res geske beyond the domain of allegation 
 and proof. It may he eminently proper to place the burden of 
 evidence 12 upon the party who seeks to controvert a fact of com- 
 mon knowledge. 
 
 Actions in Rem. — The same rule in the use of common knowl- 
 edge to establish facts in the res gestw applies to actions in rem, 
 so far as relates to the claim of any party to the proceeding. In 
 like manner, in actions of interpleader 13 and other proceedings 
 quasi in rem, or for possession of a fund a party is entitled to 
 submit evidence in substantiation of all the material or constit- 
 uent allegations of the right or liability on which he relies. 
 
 § 701. (A. General Notoriety; Classes of Facts so Estab* 
 
 I i shed) ; Facts of Optional Admissibility. — If, on the other hand, 
 the fact in question be one of optional probative relevancy, 1 which 
 the judge may reject or not, as he sees fit, he may, as a necessary 
 consequence, require or dispense with strict proof of it at his 
 option. In other words, he may allow general knowledge to take 
 the place of proof, if he deems it good administration to do so. 
 
 § 702. B. What Facts are Covered by the Rule — " Courts will 
 not pretend to be more ignorant than the rest of mankind." 1 
 
 12. Infra, §§ 967 et seq. dicial notice of it on the question of 
 
 13. Smith v. Grand Lodge A. O. the validity of the patent, except as to 
 TJ. W. of Missouri, 134 Mo. App. 181, matters of general knowledge. Amer- 
 101 S. W. 662 (1907). ican Sulphite Pulp Co. v. De Grasse 
 
 Patents.— As a rule, the res gestae Paper Co., (N. Y. 1907) 157 Fed. 660 
 
 of a patent right cannot he established [decree reversed (C. C.) 151 Fed. 47 
 
 hy way of common or judicial knowl- (1907)]. 
 
 edge. Where neither the pleadings 1. Infra, §§ 1748 et seq. 
 
 nor proof in a suit for infringement 1. Fisher v. Jansen, 30 111. App. 91 
 
 of a patent bring into the record the (1888). 
 prior art, the court cannot take ju- 
 
877 
 
 Classification of Common Knowledge. 
 
 702 
 
 Speaking broadly, the entire range of human knowledge com- 
 monly accepted as true in the community for which the court sits 
 is regarded by it as generally known and its correctness is as- 
 sumed in dealing with the res gestce which are proved to the 
 tribunal. 2 The actual decisions as to common knowledge, certain 
 of which are shortly to be stated, are merely illustrative and im- 
 pose no limitation upon either the theoretical or actual scope of 
 the very comprehensive procedural rule, which receives the entire 
 range of human knowledge as an aid to the deliberations of the 
 courts. An attempt to classify human knowledge in this connec- 
 tion must necessarily be in a sense arbitrary. It falls naturally, 
 however, into certain broad divisions, distinct as a whole, though 
 often indistinct in outline of boundary from cognate classes. Such 
 are facts relating to (1) nature; (2) science; (3) geography; 
 (4) human experience ; (5) social life; (6) history; (7) business. 
 
 2. Alabama. — Wetzler v. Kelly, 83 
 Ala. 440, 3 So. 747 (1887). 
 
 California. — Baker v. Hope, 49 Cal. 
 598 (1875). 
 
 Colorado. — Griffith v. Denver Con- 
 sol. Tramway Co., 14 Colo. App. 504, 
 61 Pac. 46, 48 (1900). 
 
 Connecticut. — Wordin's Appeal, 71 
 Conn. 531, 43 Atl. 659, 71 Am. St. 
 Rep. 219 (1899). 
 
 District of Columbia. — Dye v. Vir- 
 ginia Midland R. Co., 20 D. C. 63 
 (1891). 
 
 Georgia.— Wight v. Wolff, 112 Ga. 
 169, 37 S. E. 395 (1900). 
 
 Illinois. — Chicago, etc., R. Co. v. 
 Warner, 108 111. 538 (1884). 
 
 1 ndiana. — Jamieson v. Indiana Nat- 
 ural Gas, etc., Co., 128 Ind. 555, 28 
 N. E. 76, 12 L. R. A. 652 (1891). 
 
 Kentucky. — Burns v. Ingersoll, 6 
 Ky. L. Rep. 742 (1885). 
 
 Louisiana. — Youree v. Vicksburg, 
 etc., R. Co., 110 La. 791, 34 So. 779 
 (1903). 
 
 Maine. — White v. Fhcenix Ins. Co., 
 83 Me. 279, 22 Atl. 167 (1891). 
 
 Massachusetts. — Com. v. Pear, 183 
 Mass. 242, 66 N. E. 719 (1903). 
 
 Michigan. — Gilbert v. Flint, etc., R. 
 Co., 51 Mich. 488, 16 N. W. 868, 47 
 Am. Rep. 592 (1883). 
 
 Minnesota. — Betcher v. Capital F. 
 Ins. Co., 78 Minn. 240, 80 N. W. 971 
 (1899). 
 
 Mississippi. — Spengler v. Williams, 
 67 Miss. 1, 6 So. 613 (1889). 
 
 Missouri. — • State v. Hayes, 78 Mo. 
 307 (1883). 
 
 Nebraska. — State v. Savage, 65 
 Neb. 714, 91 N. W. 716 (1902). 
 
 New Jersey. — Ware v. Chew, 43 
 N. J. Eq. 493, 11 Atl. 746 (1887). 
 
 New York. — Howard v. Moot, 64 
 N. Y. 262 {affirming 2 Hun 475, 5 
 Thomps. & C. 89] (1876). 
 
 Oregon. — Walsh v. Oregon R., etc., 
 Co., 10 Or. 250 (1881). 
 
 Texas. — Smith v. Townsend, Dall. 
 Dib. 569 (1844). 
 
 Virginia. — Thomas v. Com., 90 Va. 
 92, 17 S. E. 788 (1893). 
 
 Washington. — Bowman v. Spokane 
 First Nat. Bank, 9 Wash. 614, 38 
 Pac. 211, 43 Am. St. Rep. 870 
 (1894). 
 
 United States. — Minnesota v. Bar- 
 ber, 136 U. S. 313, 10 S. Ct. 862, 34 
 L. ed. 455 (1890). 
 
 England. — Henry v. Cole, 2 Ld. 
 Raym. 811, 7 Mod. 103 (1702). 
 
703 
 
 Knowledge ; Common. 
 
 878 
 
 § 703. (B. What Facts are Covered by the Rule); (1) 
 
 Nature. — Notorious facts regarding the order of nature need not 
 be proved. The natural order of events, so far as invariable, 1 and 
 obvious to common apprehension are commonly known. 2 Of this 
 nature is the succession of the seasons. 3 
 
 In other words, the physical world, the operation of the estab- 
 lished laws of nature,* including the application, in a familiar 
 form, of combustion, 5 force, 6 gravitation, 7 momentum, 8 are not 
 proper subjects of special knowledge; — or, as is usually said, 
 to be proved by expert testimony. 
 
 Regularly recurring and approximately uniform succession of 
 weather conditions, as heavy rains at a particular season of the 
 
 1. Seufferle t\ MacFarland, 28 App. 
 Cas. (D. C.) 94 (1906); Rex v. 
 Luffe, 8 EaBt 193, 9 Rev. Rep. 406 
 (1807). " The natural laws of which 
 courts take judicial notice are such 
 as are of uniform occurrence and in- 
 variable in their action." Chicago, 
 etc., R. R. c. Champion, (Ind. 1892) 
 32 N. E. 874 (motion of a freight 
 car under given conditions ) . 
 
 The effect of placing obstructions 
 in streams, so far as uniform, will be 
 commonly known. Tewksbury v. 
 Schulenberg, 41 Wis. 584 (1877) 
 ( dams ) . 
 
 2. Lake Shore, etc., R. Co. v. Mil- 
 ler, 25 Mich. 274, 292 ( 1872 ) ; Bur- 
 well V. Brodie, 134 N. C. 540, 47 
 S. E. 47 (1904) (planting time). 
 
 8. Tomlinson r. Greenfield, 31 Ark. 
 657 (1876) ; Ross v. Boswell, 60 Ind. 
 835 (1877); Abel v. Alexander, 45 
 Ind. 523 (1874); Raridan v. Central 
 Iowa R. Co., 69 Iowa 527 (1886). See 
 also Barber Asphalt Pav. Co. v. City 
 of Wabash (Ind. App. 1909), 86 N. 
 E. 1034; First Nat. Bank v. Rogers 
 (Okla. 1909), 103 Pac. 582 (succes- 
 sion of seasons). 
 
 Agricultural seasons, not being fixed 
 by dates, cannot be judicially known 
 with precision. Gove v. Downer, 59 
 Vt. 139, 7 Atl. 463 (1886) (pasture 
 season ) . 
 
 4. Cooper v. Mills County, 69 Iowa 
 350, 28 N. W. 633 (1886) (action of 
 
 currents). Judicial notice must be 
 taken of the primary physical laws. 
 Rome Ry. & Light Co. v. Keel, 3 Ga. 
 App. 769, 60 S. E. 468 (1908). 
 
 5. Boothby v. Lacasse, 94 Me. 392, 
 47 Atl. 916 (1900) (fire); Welch r. 
 Franklin Ins. Co., 23 W. Va. 288 
 (1883). 
 
 6. Alabama. — Golson t\ State, 124 
 Ala. 8, 26 So. 975 (1899) (bullet) ; 
 Holmes i. State, 100 Ala. 80, 14 So. 
 864 (1893) (hoe as a dangerous 
 weapon ) . 
 
 California. — Richardson v. Eureka, 
 96 Cal. 443, 31 Pac. 458 (1892) set- 
 tling of building) . 
 
 lo wa. — Weane i\ Keokuk, etc., R. 
 Co., 45 Iowa 246 (1876). 
 
 Michigan. — Passmore V. Passmore, 
 60 Mich. 463, 27 N. W. 601 (1886). 
 
 Mississippi. — Majors v. State, 
 (1904) 35 So. 825. 
 
 Texas. — San Antonio & A. P. R. 
 Co. v. Mertink, (Tex. Civ. App. 1907) 
 102 S. W. 153 [reversed in 105 S. W. 
 485] (suction of rapidly moving 
 body) . 
 
 Missouri. — Winters v. Hannibal, 
 etc., R. Co., 39 Mo. 468 (1867). 
 
 7. Paducah St. R. Co. v. Graham, 
 15 Ky. L. Rep. 748 (1894) (fall from 
 car). 
 
 8. Chicago, etc., R. Co. v. Lewan- 
 dowski, 190 111. 301, 60 N. E. 497 
 (1901) (train of cars). 
 
879 
 
 Coincidences of Days of Week and Month. 
 
 704 
 
 year, 8 may be a subject of common knowledge. But mere maxims 
 of personal experience — as that a foggy night is followed by 
 a foggy morning 10 — must be established by proof. 
 
 The operation of natural laws, fairly invariable in their action, 
 may, as in case of the action of water in running streams, under 
 varied common conditions, 11 be facts of notoriety. 
 
 § 704. (B. What Facts are Covered by the Rule; [/] 
 Nature) ; Divisions of Time — The divisions of time into days, 
 weeks, months, years and the like; 1 of days into hours, minutes 
 and seconds, 2 the duration of these periods, respectively, and their 
 order of succession, the order of the months, 3 the coincidence of 
 particular days of the month with days of the week, 4 or of the 
 days of the week with those of the month, 5 or of the days, either 
 
 9. Elaer v. Village of Gross Point, 
 223 111. 230, 79 N. B. 27 (1906). 
 
 10. Texas & N. O. R. Co. v. Lang- 
 ham, (Tex. Civ. App. 1906) 95 S. W. 
 686. 
 
 11. Morton v. Oregon Short Line 
 Ry. Co., 48 Or. 444, 87 Pac. 151, 
 7 L. R. A. (N. S.) 344 (1906) 
 ( freshet ) . It need not be proved that 
 when the specific gravity of a log be- 
 comes greater than that of water, it 
 sinks to the bottom; or that if the 
 stream has any considerable current, 
 the log is apt to become embedded in 
 the bottom. Whitman v. Muskegon 
 Log Lifting & Operating Co., 152 
 Mich. 645, 116 N. W. 614, 15 Detroit 
 Leg. N. 383 (1908). 
 
 1. Alabama. — -Koch v. State, 115 
 Ala. 99, 22 So. 471 (1896). 
 
 Indiana.-^- Williamson v. Branden- 
 berg, 6 Ind. App. 97, 32 N. E. 1022 
 (1892). 
 
 Iowa. — -Mcintosh r. Lee, 57 Iowa 
 356, 10 N. W. 895 (1881). 
 
 Louisiana. — Whaley v. Houston, 12 
 La. Ann. 585 (1857). 
 
 Maine. — 'Bar Harbor First Nat. 
 Bank v. Kingsley, 84 Me. Ill, 24 
 Atl. 794 (1891). 
 
 Maryland. — ■ Philadelphia, etc., R. 
 Co. v. Lehman, 56 Md. 209, 40 Am. 
 Rep. 415 (1881). 
 
 Minnesota. — Webb v. Kennedy, 20 
 Minn. 419 (1874). 
 
 New York. — Cohn i\ Kahn, 14 
 Misc. 255, 35 N. Y. Suppl. 829 (1895). 
 
 Pennsylvania. — Hautsch v. Levari, 
 1 Woodw. 456 (1869). 
 
 2. Hedderich v. State, 101 Ind. 564, 
 1 N. E. 47, 51 Am. Rep. 768 (1884) ; 
 Safford V. Douglas, 4 Edw. (N. Y.) 
 537 (1844) (fractions of a day judi- 
 cially noticed). 
 
 Judicial cognizance is not taken of 
 the hours of the day in England. 
 Collier v. Nokes, 2 C. & K. 1012, 5 
 Exch. 275, 61 E. C. L. 1012 (1849). 
 
 3. Hoyle v. Lord Cornwallis, 1 Str. 
 387 (1720) ; Harvey v. Broad, 2 Salk. 
 626 (1704). 
 
 4. Ryer v. Prudential Ins. Co., 95 
 N. Y. Suppl. 1158, 110 App. Div. 897 
 
 (1905); Rice v. Mead, 22 How. Pr. 
 
 (N. Y.) 445 (1862). See also Dime 
 Deposit, etc., Bank v. Arnold, 6 Lack. 
 Leg. N. (Pa.) 210, 7 North. Co. Rep. 
 
 (Pa.) 281, 14 York Leg. Rec. (Pa.) 
 101 (1898). See also Beardsley v. 
 Irving, 81 Conn. 489, 71 Atl. 580 
 
 (1909); Hanson v. Shackelton, 4 
 Dowl. 48 (1835) (certain day of 
 month falls on Sunday). 
 
 5. Alabama. — Brennan v. Vogt, 97 
 Ala. 647, 11 So. 893 (1893). 
 
 Florida. — Dawkins v. Smithwick, 4 
 Fla. 158 (1851). 
 
 Georgia. — Dorough v. Equitable 
 Mortg. Co., 118 Ga. 178, 45 S. E. 22 
 (1903). 
 
§ 705 
 
 Knowledge ; Common. 
 
 880 
 
 of the month or week to a given event such as a term of court 6 
 are commonly, "judicially," known. 
 
 Difference of time caused by differences in longitude 7 will be 
 regarded as commonly known. 
 
 Term Time or Vacation. — Coupled with judicial knowledge of 
 the times legally appointed for holding sessions of court, 8 the 
 judge knows without proof on what day of the week or month 
 a given day of a particular term has occurred or will hereafter 
 occur ; 9 and, vice versa, on what term of court a particular month 10 
 or day of the month, 11 falls. By consequence it knows whether an 
 act done on a particular day was done in term time or in vaca- 
 tion. 12 
 
 § 705. (B. What Facts are Covered by the Rule; [/] 
 Nature); Properties of Matter. — A court, suo motu, will know 
 whatever everyone, as a rule, knows about the characteristic prop- 
 erties of material substances, in solid, liquid, 1 gaseous, etheric or 
 
 Indiana. — Swales v. Grubbs, 126 
 Ind. 106, 25 N. E. 877 (1890). 
 
 Iowa. — Mcintosh v. Lee, 57 Iowa 
 356, 10 N. W. 895 (1881). 
 
 Maine. — Bar Harbor First Nat. 
 Bank r. Kingsley, 84 Me. Ill, 24 
 Atl. 794 (1891). 
 
 Maryland. — Philadelphia, etc., Co. 
 v. Lehman, 56 Md. 309, 40 Am. Bep. 
 415 (1881). 
 
 Mississippi. — Morgan v. Burrow, 
 (1894) 16 So. 432. 
 
 Missouri. — Jordan r. Chicago, etc., 
 B. Co., 92 Mo. App. 84 (1902). 
 
 New Jersey. — Beed r. Wilson, 41 
 N. J. L. 29 (1879). 
 
 New York. — Byer v. Prudential Ins. 
 Co., 85 N. Y. App. Div. 7, 82 N. Y. 
 Suppl. 971 (1903). 
 
 Ohio. — Warren v. Fountain Square 
 Theatre Co., 5 Ohio S. & C. PI. Dec. 
 S59, 7 Ohio N. P. 538 (1900). 
 
 Pennsylvania. — Wilson r. Van Leer, 
 127 Pa. St. 371, 17 Atl. 1097, 14 Am. 
 St. Bep. 854 (1889). 
 
 England. — Hanson r. Shackelton, 4 
 Dowl. P. C. 48, 1 H. & W. 542 (1835). 
 
 6. Bethune v. Hale, 45 Ala. 522 
 (1871). 
 
 What are legal days will be judi- 
 cially known to the court, though, in 
 
 part, as facts established by law. 
 Schlingmann v. Fiedler, 3 Mo. App. 
 577 (1877). 
 
 7. Curtis i\ March, 3 H. & N. 866, 
 4 Jur. (N. S.) 1112, 28 L. J. Exch. 
 36 (1858). The longitude of a par- 
 ticular place, as east or west of Green- 
 wich, Eng., and its consequent differ- 
 ence in time, will be known as a 
 matter of common knowledge. Curtis 
 v. March, 28 L. J. Ex. 36 (1858) per 
 Pollock, C. B. 
 
 8. Supra, § 670. 
 
 9. Lewis r. Wintrode, 76 Ind. 13 
 (1881). 
 
 10. Durre r. Brown, 7 Ind. App. 
 127, 34 N. E. 577 (1893). 
 
 11. Bodgers r. State, 50 Ala. 102 
 (1874) ; Taylor v. Canaday, 155 Ind. 
 671, 57 N. E. 524, 59 N. E. 20 
 (1900) ; Barnwell v. Marion, 58 S. C. 
 459, 36 S. E. 818 (1900). 
 
 12. Van Duzer v. Towne, 12 Colo. 
 App. 4, 55 Pac. 13 (1898); Buckles 
 v. Kentucky Northern Bank, 63 111. 
 268 (1872) ; Williams r. Hubbard, 1 
 Mich. 446 (1850) ; Hadley v. Bernero, 
 
 97 Mo. App. 314, 71 S. W. 451 
 
 (1902). 
 
 1. Hughes r. Muscatine County, 44 
 Iowa 672 (1876) ( buoyancy of water). 
 
881 
 
 Injurious Qualities of Tobacco Known. § 706 
 
 electrical 2 forms. In many instances this knowledge is merely 
 knowing the names of things in general use. It is recognizing 
 the connotations of a specified class of objects. 
 
 § 706. (B. What Facts are Covered by the Rule; [/] 
 Nature; Properties of Matter); Solid. — Regarding solids, the 
 court will notice facts with which the community is familiar; — 
 as that certain substances are opaque, 1 durable 2 or calculated to 
 control the movements of gases. 3 The court will know that other 
 solid substances like dynamite 4 are dangerous by reason of their 
 liability to create an explosion. 5 So it need not be proved to the 
 
 " Certain witnesses were permitted, 
 against plaintiff's objection, to ex- 
 press in their evidence an opinion as 
 to the immediate cause of the falling 
 of the bridge, that it was caused by 
 the water and ice raising the bents, 
 whereby the stringers were displaced. 
 It appears to us that this is not a 
 matter of which experts should be 
 permitted to testify. It would fol- 
 low as a natural consequence, that if 
 the ice was raised by the water, and 
 the bents were so constructed that 
 they rested upon the ice, or rather 
 the ice could not rise without raising 
 the bents, the bridge would be elevated 
 by the ice. The effect of the force 
 of the water was well understood by 
 the jury, and could have been de- 
 termined without the aid of experts. 
 They should have had the facts as to 
 the construction of the bridge, the 
 character of the ice, the rise of the 
 water, etc., presented in evidence, and 
 then have been permitted to find the 
 effects produced by the physical con- 
 ditions found by them to have had 
 existence. They required no opinion 
 of experts to enable them to deter- 
 mine whether water and ice, under 
 given conditions, would or would not 
 raise the bents of the bridge. This 
 question they could well determine 
 upon being informed of all the facts. 
 The evidence under consideration was 
 erroneously admitted." Hughes v. 
 
 Vol. I. 56 
 
 Muscatine Co., 44 Iowa 672-676 
 (1876). 
 
 2. Electricity. — That an electrically 
 charged light wire is dangerous when 
 it contacts with a telephone wire 
 need not be proved. (Central Union 
 Telephone Co. v. City of Conneaut, 
 167 Fed. 274 (1909). 'Certain of 
 the more obvious properties of elec- 
 tricity employed in usual ways are 
 matters of common knowledge. 
 
 1. Ware v. Chew, 43 N. J. Eq. 493, 
 11 Atl. 746 (1887) (brick wall). 
 
 2. Worden's Appeal, 71 Conn. 531, 
 42 Atl. 659, 71 Am. St. Eep. 219 
 (1899) (asphalt); Newlin v. St. 
 Louis & S. F. K. Co., 222 Mo. 375, 
 121 S. W. 125 (1909) (rotting of 
 wood ) . 
 
 3. Willis v. Lance, 28 Or. 371, 43 
 Pac. 483, 487 (1896) (deflect currents 
 of air). 
 
 4. Fitzsimons, etc., Co. v. Braun, 
 199 111. 390, 65 N. E. 249, 59 L. R. A. 
 421 [affirming 94 111. App. 533] 
 (1902). 
 
 5. But facts of limited acceptance, 
 as that certain solids, under excep- 
 tional circumstances, develop unusual 
 properties, as liability to explosion 
 ( Cherokee, etc., Coal., etc., Co. v. Wil- 
 son, 47 Kan. 460, 28 Pac. 178 [1891] 
 [fire dust], or to inflict serious in- 
 jury (Harris v. Cameron, 81 Wis. 
 239, 51 N. W. 437 [1892] [air gun] ) 
 must be proved. 
 
§§ 707, 708 Knowledge; Common. 882 
 
 court that substances like tobacco, 6 with the various forms of 
 which the court is familiar, 7 are injurious to health by reason of 
 their effects on the human system. 
 
 § 707. (B. What Facts are Covered by the Rule; [/] 
 
 Nature; Properties of Matter); liquid No proof need be 
 
 offered of the well-known qualities of common forms of matter in 
 a liquid state. Thus, unless the legislature has declared other- 
 wise, 1 courts will know that coal oil is inflammable, 2 but not that 
 an inflammable quality attaches to other substances not commonly 
 so regarded, especially where the fact is strenuously controverted 
 as one of the res gestae. 3 The court will not require evidence that 
 eea water is calculated to damage dry goods. 4 In the same way, 
 a court requires no evidence that sulphuric 5 or other acids are 
 corosive; nor need proof be offered that certain liquids packed in 
 bottles are subject to effervescence and that this fact removes 
 danger of bursting. 6 
 
 § 708. (B. What Facts are Covered by the Rule; [1] 
 Nature; Properties of Matter; Liquid); Intoxicating Liquors. — 
 
 Hotly contested differences of opinion have arisen as to the court's 
 
 G. State v. Johnson, 118 Mo. 491, etc., Ins. Co., 8 Daly (N. Y.) 471 
 
 24 S. W. 229, 40 Am. St. Rep. 405 (1879). The court knowa that crude 
 
 ( 1893 ) . oil is of an inflammable nature. Texas 
 
 The injurious nature of cigarettes & N. 0. R. Co. v. Bellar, (Tex. Civ. 
 
 is not known by the supreme court of App. 1908) 112 S. W. 323. The 
 
 the United States. Austin v. Ten- judge knows equally well, that the 
 
 nessee, 179 U. S. 343, 21 S. Ct. 122, temperature is important in determ- 
 
 45 L. ed. 224 (1900). It is known ining the amount of coal oil which 
 to the Supreme Court of Tennessee. would evaporate or soak into an 
 Austin v. State, 101 Tenn. 563, 48 article on which it is poured.. State 
 S. W. 305, 70 Am. St. Rep. 703, 50 v. Nord'all, 38 Mont. 327, 99 Pae. 960 
 L. R. A. 478 (1898). (1909). 
 
 7. Com. v. Marzyuski, 149 Mass. 3. Mosley v. Vermont Mut. F. Ins. 
 
 68, 21 N. E. 228 (1889) (cigars and Co., 55 Vt. 142 (1882) (gin and 
 
 tobacco are not " drugs and medi- turpentine avoiding a contract of fire 
 
 cines") ; In re Jacobs, 98 N. Y. 98, insurance). 
 
 50 Am. Rep. 636 (1885) (cigars); 4. Bradford v. Cunard Steamship 
 
 Austin v. Tennessee, 179 U. S. 343, 21 Co., 147 Mass. 55, 16 N. E. 719 
 
 S. Ct. 132, 45 L. ed. 224 [affirming (1888). 
 
 101 Tenn. 563, 48 S. W. 305, 70 Am. 5. State v. Nerzinger, 220 Mo. 36, 
 
 St. Rep. 703, 50 L. R. A. 478] (1900). 119 S. W. 379 (1909). 
 
 1. Wood r. North Western Ins. Co., 6. Buckley v. Garden City Co., Ill 
 
 46 N Y. 421 (1871). N. Y. Supp. 23, 127 App. Div. 52 
 
 2. State v. Hayes, 78 Mo. 307 (1908). 
 (1883); Bennett r. North British, 
 
883 
 
 Intoxicating Quality Judicially Known. 
 
 709 
 
 knowledge, judicial or common, of the intoxicating quality of 
 various alcoholic beverages. 1 The complicating circumstance is 
 usually presented that the question most frequently arises in crimi- 
 nal cases, or in civil cases involving a statutory penalty or for- 
 feiture, either in express terms or indirectly by refusing a vendor 
 payment for articles of monetary value sold and delivered to the 
 defendant. In all such connections the inertia of the court 2 
 may, very properly, be greatly increased, even where the fact is 
 not one of the res gestae? as it most frequently is.* For example, 
 the fact that certain malt liquors, such as ale, 5 lager beer 6 or 
 porter 7 possess intoxicating quality is too commonly known to re- 
 quire proof ; — unless the fact be a res gestce or constituent one. 
 But the judge cannot take as being commonly known the fact that 
 all malt liquors are intoxicating. 8 
 
 § 709. (B. What Facts are Covered by the Rule; [/] 
 Nature; Properties of Matter; Liquid; Intoxicating Liquors); 
 
 Judicial Knowledge. — On the other hand, the legislature in at- 
 tempting to prohibit the sale of intoxicating liquors has frequently 
 
 1. See Lemly v. State, 69 Miss. 
 628, 20 L. R. A. 645, and note (1892). 
 For an illuminating and valuable 
 treatise on this subject reference may 
 be had to Joyce on Intoxicating 
 Liquors. 
 
 2. Infra, § 1016. 
 
 3. Supra, § 47. 
 
 4. The contrary has been held. 
 Peterson v. State, 63 Neb. 251, 88 
 N. W. 549 ( 1901 ) ; Maier v. State, 2 
 Tex. Civ. App. 296 (1893); U. S. v. 
 Ducournau, 54 Fed. 138 (1891). 
 
 5. Wiles v. State, 33 Ind. 206 
 (1870); People v. Hawley, 3 Mich. 
 330 (1854); Blatz v. Rohrbach, 116 
 N. Y. 450, 23 N. E. 1049 (1889); 
 Killip v. McKay, 13 N. Y. St. 5 
 (1888) ; Rau v. People, 63 N. Y. 277 
 (1875); Johnston v. State, 23 Ohio 
 St. 556 (1873). To the contrary, see 
 State V. Biddle, 54 N. H. 379 (1874). 
 See Garst v. State, 68 Ind. 101 
 (1879); Shaw V. State, 56 Ind. 188 
 (1877); Haines v. Hanrahan, 105 
 Mass. 480 (1870); State v. Lemp, 
 16 Mo. 389 (1852) ; Barnes v. State, 
 
 (Tex.) 44 S. W. 491 (1898); State 
 V. Barron, 37 Vt. 57 (1864). 
 
 6. That lager beer is a malt liquor 
 has been treated as a subject for com- 
 mon knowledge. " The government 
 might almost as well be required to 
 prove that gin or whiskey or brandy 
 is a strong liquor as to prove that 
 lager beer is a malt liquor." State v. 
 Goyette, 11 R. I. 592 (1877). See 
 also Adler v. State, 55 Ala. 16, 23 
 (1876). 
 
 7. Blatz v. Rohrbach, 116 N. Y. 
 450, 22 N. E. 1049, 6 L. R. A. 669 
 ( 1889 ) ; Nevin u. Ladue, 3 Den. 
 (N. Y.) 437 (1846). 
 
 8. Eaves v. State, 113 Ga. 749, 39 
 S. E. 318 (1901); State v. Sioux 
 Falls Brewing Co., 5 S. D. 39, 45, 58 
 N. W. 1 (1894). Where the statute 
 regulating the sale of intoxicating 
 liquor fails to enumerate " beer " the 
 court may very properly decline to 
 take judicial knowledge of its intoxi- 
 cating quality. Dallas Brewery v. 
 Holmes Bros., (Tex. Civ. App. 1908), 
 112 S. W. 123. 
 
§ 709 
 
 Knowledge ; Common. 
 
 884 
 
 seen fit to declare, either in express terms or by necessary im- 
 plication or statutory construction, that certain malt liquors, 
 e. g., ale 1 or lager beer, shall be taken as intoxicating. Under 
 these conditions the intoxicating quality of such beverages is 
 taken from the list of matters of common knowledge and trans- 
 ferred to that of judicial, properly so called. 
 
 Federal Courts. — Federal courts, taking judicial notice of the 
 matters of law known to the state courts of the same jurisdiction, 2 
 have found it easy to take the same judicial knowledge of notorious 
 facts of common knowledge. Thus, where the court of Hawaii 
 has treated the fact that okolihoa beverage made from the ti root 
 is a highly intoxicating spirituous liquor, to be a matter of judicial 
 knowledge, a federal court sitting for Hawaii will not require 
 proof of it. 3 
 
 In general, where a statute enumerates any liquors, distilled, 
 fermented, 4 malt, 5 or vinous, as among those the sale of which 
 
 1. State v. Wadsworth, 30 Conn. 
 65 (1861). 
 
 2. Supra, §§ 584 et seq. 
 
 3. The Kawailani, 63 C. C. A. 347, 
 128 Fed. 879 (1904). "In respect to 
 the nature of the liquor in question, 
 it appeared without conflict in the 
 evidence that it is the product of 
 the ti root grown in the Hawaiian 
 Islands, and known as ' okolihoa,' and 
 80 well known there that the Supreme 
 Court of the Republic of Hawaii, in 
 deciding the case of a defendant con- 
 victed of the offense of distilling 
 spirituous liquor without a license, 
 in violation of a certain section of the 
 Session Laws of the Republic of 1892, 
 spoke of it as 'a well-known spiritu- 
 ous liquor of great strength, and very 
 intoxicating.' Rep. Ha. v. Akoni, 11 
 Hawaii 53. In that case the liquor 
 itself was produced before the jury 
 for examination, just as the liquor 
 in question here was produced before 
 the court, and examined by the wit- 
 nesses, one at least of whom testified 
 that it was okolihoa. In Common- 
 wealth v. Peckham, 2 Gray, 514, the 
 court held that an allegation, in an 
 indictment, of an unlawful sale of 
 intoxicating liquor, is supported by 
 
 proof of a sale of gin, without proof 
 that gin is intoxicating, saying: 
 ' Jurors are not presumed to be igno- 
 rant of what everybody else knows, 
 and they are allowed to act upon 
 matters within their general knowl- 
 edge without any testimony on those 
 matters. Now, everybody who knows 
 what gin is knows not only that it is 
 a liquor, but also that it is intoxi- 
 cating. And it might as well have 
 been objected that the jury could not 
 find that gin was a liquor, without 
 evidence that it was not a solid sub- 
 stance, as that they could not find 
 that it was intoxicating, without 
 testimony to show it to be so. No 
 juror can be supposed to be so igno- 
 rant as not to know what gin is. 
 Proof, therefore, that the defendant 
 sold gin, is proof that he sold intoxi- 
 cating liquor. If what he sold was 
 not intoxicating liquor, it was not 
 gin.'" The Kawailani, 63 C. C. A. 
 347, 349 (1904). 
 
 4. State v. Fvederickson, 101 Me. 
 37, 63 Atl. 535 (1907) (cider); 
 State r. Lemp, 16 Mo. 389 (1852) 
 (beer). Where "beer" is enume- 
 rated as an intoxicating liquor it 
 lias been held that if the accused 
 
885 
 
 How Judicial Knowledge is Created. 
 
 § 709 
 
 is prohibited as intoxicating, the intoxicating quality of such a 
 liquor is made a direct result of a law which the court is called 
 upon to enforce. 6 Knowledge of it is, therefore, judicial. 7 The 
 
 claims that he has sold a kind of beer 
 which is not intoxicating the burden 
 of evidence is on him to show such 
 to be the fact. State v. Cloughly, 73 
 Iowa 626, 35 N. W. 652 (1887). The 
 knowledge as to the intoxicating qual- 
 ity of cider is, under such circum- 
 stances judicial. 
 
 Iowa. — State v. Hutchinson, 72 
 Iowa 561, 34 ST. W. 421 (1887). 
 
 Maine. — State v. Roach, 75 Me. 
 123 ( 1883 ) ; State v. McNamara, 69 
 Me. 133 (1879). 
 
 Massachusetts. — Com. v. McGrath, 
 185 Mass. 1, 69 N. E. 340 (1904) ; 
 Com. v. Brothers, 158 Mass. 200, 206, 
 33 N. E. 386 (1893) ; Com. v. Dean, 
 14 Gray (Mass.) 99 (1859). 
 
 Michigan. — People v. Kinney, 124 
 Mich. 486, 83 N. W. 147 (1900) ; 
 People v. Adams, 95 Mich. 541, 55 
 N. W. 461 (1893). 
 
 Vermont. — State v. Thornburn, 75 
 Vt. 18, 52 Atl. 1039 (1903) ; State 
 V. Waite, 72 Vt. 108, 47 Atl. 397 
 (1900). See also State v. Spaulding, 
 61 Vt. 505, 17 Atl. 844 (1889). 
 
 5. Connecticut. — State v. Brown, 
 51 .Conn. 1 (1883) ; State v. Wads- 
 worth, 30 Conn. 55 (1861). 
 
 Indiana. — Douglas v. State, 21 Ind. 
 App. 302, 52 N. E. 238 (1898); 
 Walsh v. State, 126 Ind. 71, 25 N. E. 
 883, 9 L. R. A. 664 (1890). 
 
 Massachusetts. — Com. v. Snow, 133 
 Mass. 575 (1882); Com. v. Anthes, 
 12 Gray (Mass.) 29 (1858) (lager 
 beer ) . 
 
 Missouri. — State v. Watts, 101 
 Mo. App. 658, 74 S. W. 377 (1903). 
 
 Rhode Island. — State v. Morehead, 
 23 R. I. 272, 47 Atl. 545 (1901) ; 
 State v. Rush, 13 R. I. 198 (1883). 
 
 6. Supra, § 637. 
 
 7. Com. v. Timothy, 8 Gray (Mass.) 
 480 (1857). "The statute provides 
 that the words ' intoxicating liquors ' 
 as used therein, ' shall be construed 
 to mean alcohol, wine, beer, spirit- 
 
 uous, vinous and malt liquors, and 
 all intoxicating liquors, whatever.' 
 Alcohol is therefore an intoxicating 
 liquor, regardless of the fact that the 
 quantity drank at any one time 
 would not have that effect. It is im- 
 material, in a statutory sense, what 
 effect alcohol may have on the human 
 system; it is an intoxicating liquor. 
 However much it may be diluted, it 
 must remain an intoxicant when used 
 as a beverage. That is to say the 
 statute provides that alcohol is an 
 intoxicant whenever and however 
 used as a beverage; and no matter 
 how it may be diluted or disguised 
 it so remains simply because the 
 statute so declares. The liquor in 
 question contained alcohol, and there- 
 fore it, as a matter of law, was in- 
 toxicating." State v. Certain Intoxi- 
 cating Liquors, 76 Iowa 243, 41 N. W. 
 6, 2 L. R. A. 408 (1888), per Seevers, 
 J., quoted in Joyce on Intoxicating 
 Liquors. "When it appears that a, 
 liquor comes within the scope of the 
 forbidden enumeration, that moment 
 its intoxicating character becomes 
 fixed by law and its non-intoxicating 
 character, as a matter of fact, be- 
 comes entirely immaterial with re- 
 spect to the application of the 
 statute." State v. Frederiekson, 101 
 Me. 37, 63 Atl. 535 (1907), per 
 Spear, J. 
 
 Evidence as to the intoxicating 
 quality of an enumerated liquor is ir- 
 relevant and inadmissible. State v. 
 Wittmar, 12 Mo. 407 (1849). 
 
 The same result is reached where a 
 general class of liquors is declared 
 to be intoxicating with exceptions 
 which do not cover the liquor in 
 question. Wiles v. State, 33 Ind. 
 206 (1870) ; State v. Lager Beer, 68 
 N. H. 377, 39 Atl. 255 (1894) ; Jones 
 v. Surprise, 64 N. H. 243, 9 Atl. 384 
 (1886). 
 
§ 710 Knowledge; Common. 886 
 
 same idea is put into a slightly different form by the Supreme 
 Court of Alabama; "When a prohibition statute names, desig- 
 nates, or enumerates the kinds, classes, or species of beverages 
 or liquors against which its provisions are directed, then there 
 is no room for further inquiry into the scope of such a statute. 
 When it clearly appears that a given article, liquor, or beverage 
 comes within the scope of the forbidden enumeration and is in- 
 toxicating, its properties become immaterial to courts and juries 
 because fixed by the law-making power of the state." 8 The effect 
 of such a statutory provision may even be to create judicial 
 knowledge contrary to common; — as where a statute provides 
 that a smaller percentage of alcohol than suffices to constitute an 
 intoxicating liquor according to common understanding shall be 
 so regarded as a matter of law. 9 
 
 § 710. (B. What Facts are Covered by the Rule; [/] 
 Nature; Properties of Matter; Liquid; Intoxicating Liquors); 
 
 Alcohol. — It is known beyond question that alcohol itself is in- 
 toxicating. It has been held to be so in certain states, 1 in part 
 because so defined by statute, 2 while its intoxicating quality has 
 been refused the status of a fact of common knowledge in other 
 jurisdictions. 3 No evidence need be offered that alcohol is a 
 
 8. Marks v. State, (Ala. 1909), 111. 389 (1863); Lemly v. State, 70 
 864, 867, per Mayfield, J. Miss. 241, 12 So. 22, 20 L. R. A. 645 
 
 9. These statutes may lawfully de- (1892). "The weight of the author- 
 fine " intoxicating liquors " as " any ities seems to be to the effect that, 
 liquor or mixture of liquors which unless otherwise made by the lan- 
 shall contain more than two per cent guage or provisions of the statute, 
 by weight of alcohol." State v. it [alcohol] will be included in the 
 Gravelin, 16 R. I. 407, 16 Atl. 914 terms 'spirituous' and ' intoxicat- 
 (1889) ; State v. Guinness, 16 R. I. ing ' liquors." Marks v. State, (Ala. 
 401, 16 Atl. 910 (1889). See State 1909) 48 So. 864, per Mayfield, J. 
 
 *. MeKenna, 16 R. I. 398, 17 Atl. 51 2. State v. Intoxicating Liquors, 76 
 
 (1889). Iowa 243, 41 N. W. 6 (1888). 
 
 1. Snider v. State, 81 Ga. 753, 7 3. Winn v. State, 43 Ark. 151 
 
 S. E. 631, 12 Am. St. 350 (1888); (1884) ; Bennett V. People, 30 111. 389 
 
 State v. Intoxicating Liquors, 76 Iowa (1863); State v. Witt, 39 Ark. 216 
 
 243, 41 N. W. 6, 2 L. R. A. 408 (1882) ; State r. Martin, 34 Ark. 340, 
 
 (1888); Greiner-Kelley Drug Co. v. 341 (1879). The same rule has been 
 
 Truett, (Tex. Civ. App. 1903) 75 laid down in Mississippi. "Alcohol 
 
 S. W. 536; Sebastian v. State, 44 Tex. is an ingredient or quality of vinous 
 
 Cr. 508, 72 S. W. 849 (1903). And and spirituous liquors of all kinds, 
 
 see Winn v. State, 43 Ark. 151 but alcohol, specially, is neither one 
 
 (1884) ; State v. Witt, 39 Ark. 216 nor the other. It is a distinct thing. 
 
 (1882); State v. Martin, 34 Ark. It is the intoxicating principle of 
 
 340 (1879); Bennett v. People, 30 vinous and spirituous liquors but is 
 
887 
 
 Nature of Spirituous Liquoes Known. 
 
 711 
 
 spirituous liquor. 4 It is " a volatile organic body, a limpid color- 
 less liquid, hot and pungent to the taste, having a slight, but not 
 offensive, scent. It has but one source, fermentation, and is 
 extracted from its by-products by distillation; its purity and 
 strength depending upon the degree of perfection or completeness 
 of distillation." 5 Alcohol is universally known to be the intoxi- 
 cating element in all intoxicating liquors in common use, what- 
 ever may be their differences in other particulars. 6 Proof of 
 such a fact is, therefore, unnecessary, and evidence to establish 
 it is inadmissible. 7 
 
 § 711. (B. What Facts are Covered by the Rule; [J] 
 Nature; Properties of Matter; Liquid; Intoxicating Liquors); 
 
 Distilled liquors — What liquors are spirituous or distilled is a 
 matter of common knowledge. Indeed, in many cases, so much is 
 connoted by the very name. For this reason, it is not necessary 
 to prove that whiskey, 1 rum, 2 brandy 3 and gin 4 are spirituous. 
 
 not such liquor in the contemplation 
 of the statutes." Lemly i\ State, 70 
 Miss. 241, 12 So. 22, 20 L. R. A. 654 
 (1892), per Campbell, J., quoted in 
 Joyce on Intoxicating Liquors. 
 
 4. Snider v. State, 81 Ga. 753, 7 
 S. E. 631, 12 Am. St. Rep. 350 (1888). 
 
 5. Marks v. State, (Ala. 1909) 48 
 So. 864, per Mayfield, J. Alcohol is, 
 " a volatile organic body constantly 
 formed during the fermentation of 
 the vegetable juices, containing sugar 
 in solution. In popular language, it 
 is the intoxicating principle of fer- 
 mented liquor. It is exclusively pro- 
 duced by the process of fermenta- 
 tion." Eureka Vinegar Co. v. Gazette 
 Printing Co., 35 Fed. 570, 571 
 (1888), quoted in Joyce on Intoxi- 
 cating Liquors. "Alcohol, this essen- 
 tial element in all spirituous liquor, 
 is a limpid colorless fluid. To the 
 taste it is hot and pungent, and it 
 has a slight and not disagreeable 
 scent. It has but one source — the 
 fermentation of sugar and saccharine 
 matter. It comes through fermenta- 
 tion of substances that contain sugar 
 proper, or that contain starch, which 
 may be turned into sugar. All sub- 
 stances that contain either sugar or 
 
 starch, or both, will produce it by 
 fermentation. It is a mistake to sup- 
 pose, as many persons do, that it is 
 really produced by distillation. It ia 
 produced only by fermentation, and 
 the process of distillation simply 
 serves to separate the spirit — the 
 alcohol from the mixture, whatever it 
 may be, in which it exists." State 
 v. Giersch, 98 N. C. 720, 723, 724, 
 4 S. E. 193 (1887), per Merrimon, J. 
 
 6. Com. i: Morgan, 149 Mass. 314, 
 316, 21 N. E. 369 (1889). 
 
 7. Snider v. State, 81 Ga. 753, 7 
 S. E. 631, 12 Am. St. Rep. 350 
 (1888). See Sebastian v. State, 44 
 Tex. Cr. 508, 72 S. W. 849 (1902). 
 
 1. Alabama. — Wall v. State, 78 
 Ala. 417 (1885). See also Marks v. 
 State, (Ala. 1909) 48 So. 864. 
 
 Arkansas. — Edgar V. State, 37 Ark. 
 219 (1881). 
 
 Florida. — Frese v. State, 23 Fla. 
 267, 2 So. 1 (1887). 
 
 Georgia. — Hodge v. State, 116 Ga. 
 852, 43 S. E. 255 (1902). 
 
 Indiana. — Schlicht v. State, 56 Ind. 
 173 (1877); Eagan v. State, 53 Ind. 
 162 (1876) ; Carmon v. State, 18 Ind. 
 450 (1862). 
 
§ 711 
 
 Knowledge; Common. 
 
 888 
 
 Being spirituous, they are also intoxicating. As a rule, the intox- 
 icating quality of distilled liquors, as brandy, 5 gin, 6 rum, 7 
 whiskey 8 need not be established by evidence. 
 
 Massachusetts. — Com. v. Morgan, 
 149 Mass. 314, 21 N. E. 369 (1889). 
 
 Missouri. — > State v. Williamson, 21 
 Mo. 496 (1855). 
 
 Nebraska. — Peterson v. State, 63 
 Neb. 251, 88 N. W. 549 (1901). 
 
 Texas. — Aston v. State, (Cr. App. 
 1899) 49 S. W. 385. 
 
 United States. — U. S. v. Ash, 75 
 Fed. 651 (1896). 
 
 No evidence need be produced as to 
 the spirituous nature of whiskey. 
 Freiberg v. State, 94 Ala. 91, 10 So. 
 703 (1891) ; Netso v. State, 24 Fla. 
 363, 5 So. 8, 1 L. R. A. 825 (1888) ; 
 Fears v. State, 125 Ga. 740, 54 S. E. 
 661 ( 1906 ) ; Hodge v. State, 116 Ga. 
 852, 43 S. E. 255 (1902). This is a 
 matter of the common knowledge of 
 the meaning of words. Infra, § 762. 
 The term whiskey has but a single 
 meaning and it denotes a spirituous 
 beverage. Frese v. State, 23 Fla. 267, 
 2 So. 1 (1887). 
 
 2. State v. Wadsworth, 30 Conn. 
 55 (1861); State v. Mooty, 3 Hill 
 (S. C.) 187 (1836). See also U. S. 
 v. Angell, 11 Fed. 34 (1881). 
 
 3. State v. Tisdale, 54 Minn. 105, 
 55 S. W. 903 (1893) ; State v. Mun- 
 ger, 15 Vt. 290 (1843). 
 
 4. State v. Wadsworth, 30 Conn. 
 55 (1861). "Everybody, who knows 
 what gin is, knows not only that it 
 is a liquor, but also that it is intoxi- 
 cating." Com. v. Peckham, 2 Gray 
 (Mass.) 514 (1854). 
 
 5. Connecticut. — State f. Wads- 
 worth, 30 Conn. 55 (1861). 
 
 Georgia. — Bradley v. State, 121 
 Ga. 201, 48 S. E. 981 (1904). 
 
 Indiana.— Fenton v. State, 100 
 Ind. 598 (1884). 
 
 Kansas. — Intoxicating Liquor Cases, 
 25 Kan. 751, 37 Am. Rep. 284 (1881). 
 
 Minnesota. — State v. Tisdale, 54 
 Minn. 105, 55 N. W. 903 (1893) 
 (California brandy). 
 
 New York. — Blatz c. Rohrbach, 116 
 N. Y. 450, 22 N. E. 1049, 6 L. R. A. 
 669 ( 1889 ) ; Eau v. People, 63 N. Y. 
 277 (1875). 
 
 Tesoas. — Dallas Brewery v. Holmes 
 Bros., (Civ. App. 1908) 112 S. W. 
 122. 
 
 Vermont. — State v. Munger, 15 Vt. 
 290 (1843).. 
 
 Virginia. — Thomas v. Com., 90 Va. 
 92, 94, 17 S. E. 788 (1893) (apple 
 brandy). 
 
 The use of a prefix does not affect 
 the general knowledge of the com- 
 munity. If the liquor is " brandy " 
 at all, it is intoxicating. Howell v. 
 State, 124 Ga. 698, 52 S. E. 649 
 (1905) (peach brandy) ; Fenton v. 
 State, 100 Ind. 598 (1884) (black- 
 berry) ; State v. Tisdale, 54 Minn. 
 105, 55 N. W. 903 (1893) (French; 
 California or any other) ; Thomas v. 
 Com., 90 Va. 92, 17 S. E. 788 (1894) 
 (apple brandy). The addition of 
 fruit is known not to affect the in- 
 toxicating quality of the liquor itself. 
 Ryall p. State, 78 Ala. 410 (1884); 
 Musick v. State, 51 Ark. 165, 10 
 S. W. 225 (1888) (cherries); Rabe 
 r. State, 39 Ark. 204 (1882); Pet- 
 terway v. State, 36 Tex. Cr. R. 97, 
 35 S. W. 646 (1896). 
 
 6. Connecticut. — State t\ Wads- 
 worth, 30 Conn. 55 (1861). 
 
 Kansas. — Intoxicating Liquor Cases, 
 25 Kan. 751, 37 Am. Rep. 284 
 (1881). 
 
 Massachusetts. — Com. v. Peckham, 
 2 Gray (Mass.) 514 (1854). 
 
 New York. — Blatz v. Rohrbach, 116 
 N. Y. 450, 22 N. E. 1049, 6 L. R. A. 
 669 (1889) ; Rau v. People, 63 N. Y. 
 277 (1875). 
 
 Vermont. — State v. Munger, 15 Vt. 
 290 ( 1843 ) ; Hoagland v. Canfield, 
 (N. Y. 1908) 160 Fed. 146. See also 
 Dallas Brewery t\ Holmes Bros., 
 (Tex. Civ. App. 1908) 112 S. W. 122. 
 
,889 Mixed Beverages Known to be Intoxicating. § 711 
 
 Mixed beverages may possess, in the common knowledge of the 
 community, an intoxicating quality. Of this nature is a " whiskey 
 
 Cr. App. 1906) 91 S. W. 581; Dout- 
 hitt v. State, (Cr. App. 1901) 61 
 S. W. 404; Maddox v. State, (Cr. 
 App. 1900) 55 S. W. 832; Aston v. 
 State, (Cr. App. 1899) 49 S. W. 
 385. See also Smith v. State, 56 Tex. 
 Cr. R 501, 120 S. W. 881 (1909); 
 Dallas Brewery V. Holmes Bros., 
 (Civ. App. 1908 ) 112 S. W. 122. 
 
 Wisconsin. — Briffitt V. State, 58 
 Wis. 39, 16 N. W. 39, 46 Am. Rep. 
 621 (1883). 
 
 United States. — U. S. f. Ash, 75 
 Fed. 651 (1896). 
 
 It is not a drug. Gault v. State, 
 34 Ga. 533 (1866). Judicial notice 
 may be taken that whiskey is a 
 spirituous, alcoholic, and intoxicating 
 liquor. O'Connell v. State, 5 Ga. 
 App. 234, 62 S. E. 1007 (1908). The 
 court will take judicial knowledge 
 that such well known beverages as 
 whiskey, brandy, gin and the like 
 are intoxicating. Dallas Brewery v. 
 Holmes Bros., (Tex. Civ. App. 1908) 
 112 S. W. 122. 
 
 "Spirituous liquor" is that which 
 is in whole or in part composed of 
 alcohol, extracted by distillation, 
 such as whiskey, brandy, or rum; 
 these being regarded as spirituous 
 and intoxicating liquors, without the 
 necessity of proof. Marks v. State, 
 (Ala. 1909) 48 So. 864. All varieties 
 of whiskey are commonly known to be 
 intoxicating. Edgar v. State, 37 Ark. 
 219 (1881) ; Fears i?. State, 125 Ga. 
 740, 54 S. E. 661 (1906) (corn 
 whiskey) ; Schlicht v. State, 56 Ind. 
 173 ( 1877 ) ; Carmon v. State, 18 
 Ind. 450 (1862) ; State v. Williamson, 
 21 Mo. 496 (1855). "This court will 
 neither stultify itself nor impeach its 
 own veracity by telling you [the jury] 
 that it has not judicial knowledge 
 that the liquor commonly known as 
 ' whisky ' is an intoxicating liquor or 
 that the drink commonly called a 
 whisky cocktail is an intoxicating 
 drink. On the contrary the court as- 
 
 The testimony of a skilled witness is 
 not required. The inference of an or- 
 dinary observer is sufficient. Com. v. 
 Timothy, 8 Gray (Mass.) 480 (18 57). 
 
 7. State v. Wadsworth, 30 Conn. 
 55 (1861) ; State v. Munger, 15 Vt. 
 290 (1843). 
 
 8. Alabama. — Freiberg v. State, 94 
 Ala. 91, 10 So. 703 (1891) ; Freiberg 
 v. State, 94 Ala. 91, 10 So. 703 
 (1891). 
 
 Arkansas. — Edgar v. State, 37 Ark. 
 219 (1881). 
 
 Florida. — Netso v. State, 24 Fla. 
 363, 5 So. 8, 1 L. E. A. 825 (1888) ; 
 Frese v. State, 23 Fla. 267, 2 So. 1 
 (1887). 
 
 Georgia. — ■ Fears v. State, 125 Ga. 
 740, 54 S. E. 661 (1906) (corn 
 whiskey is spirituous) ; Hodge v. 
 State, 116 Ga. 852, 43 S. E. 255 
 (1902); Kinnebrew v. State, 80 Ga. 
 232 (1887). 'See also Bradley v. 
 State, 121 Ga. 201, 48 S. E. 981 
 (1904). 
 
 Indiana. — State c. Jones, 3 Ind. 
 App. 121, 29 N. E. 274 (1891); 
 Schlicht v. State, 56 Ind. 173 (1877); 
 Eagan v. State, 53 Ind. 162 (1876). 
 See also Carmon v. State, 18 Ind. 450 
 (1862). 
 
 Kansas. — State v. Hickman, 54 
 Kan. 225, 38 Pac. 256 (1894); In- 
 toxicating Liquor Cases, 25 Kan. 751, 
 37 Am. Rep. 284 (1881). 
 
 Massachusetts. — Commonwealth v. 
 Curran, 119 Mass. 206 (1875). 
 
 Missouri. — ■ State v. Williamson, 21 
 Mo. 496 (1855). 
 
 Nebraska. — • Peterson v. State, 63 
 Neb. 251, 88 N. W. 549 (1901). 
 
 Nevada. — State v. Murphy, 23 Nev. 
 390, 48 Pae. 628 (1897). 
 
 New Hampshire. — State v. York, 
 74 N. H. 125, 65 Atl. 685 (1907). 
 
 New York. — Blatz v. Rohrbach, 116 
 N. Y. 450, 22 N. E. 1049, 6 L. R. A. 
 669 (1889) ; Rau v. People, 63 N. Y. 
 277 (1875). 
 
 Texas.— Wilcoxson v. State, (Tex. 
 
§ 712 
 
 Knowledge; Common. 
 
 890 
 
 cocktail." 9 Mixed beverages not in common use will not be taken 
 to be intoxicating as claimed witbout proof. A judge, for ex- 
 ample, does not judicially know tbe intoxicating nature of 
 "metbeglin" or mead. 10 
 
 § 712. (B. What Facts ate Covered by the Rule; [/] 
 Nature; Properties of Matter; Liquid; Intoxicating Liquors); 
 
 Fermented Liquors. — Cider 1 and beer 2 are well known to be fer- 
 
 sumes judicial knowledge that both 
 are intoxicating." United States v 
 Ash, 75 Fed. 651, 652 (1896), pel 
 Delaney, J. 
 
 9. Galloway v. State, 23 Tex. App. 
 398, 5 S. W. 246 (1887); U. S. V. 
 Ash, 75 Fed. 651 (1896). See also 
 State v. Pigg, (Kan. 1908) 97 Pac. 
 859 (Manhattan cocktail). 
 
 10. Marks v. State, (Ala. 1909) 48 
 So. 864. 
 
 1. State v. McLafferty, 47 Kan. 
 140, 27 Pac. 843 (1891); State v. 
 Schaefer, 44 Kan. 90, 24 Pac. 92 
 
 (1890); State v. Crawley, 75 Miss. 
 919, 23 So. 625 (1898) ; Eureka Vin- 
 egar Co. v. Gazette Printing Co., 35 
 Fed. 570 (1888). Cider is not a 
 spirituous, vinous or malt liquor. 
 Feldman v. Morrison, 1 111. App. 460 
 
 (1877). "Cider is neither produced 
 by distillation nor by fermentation, 
 and although liable to fermentation, 
 and when subjected to distillation, it 
 is capable of producing a spirituous 
 liquor, yet the ultimate product is no 
 more like cider than rum is like the 
 juice of sugar cane from which it is 
 manufactured, neither is cider the re- 
 sult of any process of fermentation 
 whatever, nor is it in any proper 
 sense a mixture of any liquor other 
 than water, which is common to all 
 spirituous liquors, wines, ale, porter, 
 beer, and all drinks of like nature." 
 State v. Oliver, 26 W. Va. 422, 53 
 Am. Rep. 79, n. (1885), per Woods, 
 J., quoted in Joyce on Intoxicating 
 Liquors. " In a popular sense, the 
 term ' cider ' includes the expressed 
 juice of apples, either fermented or 
 unfermented, and hence the terms 
 ' sweet cider ' and ' hard cider ' are 
 
 in popular use to distinguish between 
 the juice of the apple before and after 
 fermentation. In strictness, the juice 
 of the apple before fermentation is 
 simply apple juice, and it is only by 
 fermentation that it becomes cider; 
 and when the word ' cider ' alone is 
 used in law or commerce, it is com- 
 monly understood to mean the fer- 
 mented juice of apples." Eureka 
 Vinegar Co. v. Gazette Printing Co., 
 35 Fed. 570, 571 (1888), per Cald- 
 well, J. 
 
 As a res gestae fact, the question 
 of the spirituous or vinous nature of 
 particular cider sold may properly 
 be left to the jury as a matter of 
 evidence. Com. v. Reyburg, 122 Pa. 
 St. 299, 16 Atl. 351, 2 L. R. A. 415 
 (1888). So of its intoxicating qual- 
 ity. Hewitt v. People, 89 111. App. 
 367 (1899); State v. Schaefer, 44 
 Kan. 90, 24 Pac. 92 (1890) (hard 
 cider) ; City of Topeka v. Zufall, 40 
 Kan. 47, 19 Pac. 359, 1 L. R. A. 387 
 (1888) (peach cider) ; Com. r. Chap- 
 pel, 116 Mass. 7 (1874); State v. 
 Biddle, 54 N. H. 379 (1874). In 
 case of " hard " cider, the burden of 
 evidence may well be placed upon the 
 accused. State v. Schaefer, 44 Kan. 
 90, 24 Pac. 92 (1890). 
 
 Hard cider is commonly known to 
 be a fermented liquor and to come 
 within the prohibition of the sale of 
 this class of liquors. State v. 
 Schaefer, 44 Kan. 90, 24 Pac. 92 
 
 (1890) ; People l\ Foster, 64 Mich. 
 715, 31 N. W. 596 (1887); Eureka 
 Vinegar Co. r. Gazette Printing Co., 
 35 Fee 1 570 (1888). 
 
 2. Waller r. State, 38 Ark. 656 
 
 (1882); State r. Effinger, 44 Mo. 
 
891 
 
 Malt Liquors Commonly Known. 
 
 § 713 
 
 merited liquors. It is said that there is a presumption of law, 
 meaning probably an assumption of administration, that fermented 
 liquors are intoxicating. 3 Undoubtedly certain fermented bever- 
 ages, cider 4 and the like, are known to the courts as to other intel- 
 ligent members of the community, to be capable of producing 
 intoxication, under certain conditions. But whether cider, without 
 further designation, is intoxicating is a matter of doubt. No 
 alcoholic content being implied in the term itself, and the actual 
 amount being constantly subject to change, the percentage of alco- 
 hol must be established by evidence. 5 Ordinary cider has been 
 held to contain over one per cent., 6 and " hard cider " is intoxi- 
 cating, as a matter of common knowledge. 7 
 
 § 713. (B. What Facts are Covered by the Rule; [I] 
 Nature; Properties of Matter; Liquid; Intoxicating Liquors); 
 
 Malt liquors — What liquors are oommonly designated as malt 
 liquors is well known to the court. Xo proof need, therefore, be 
 offered that ale, 1 and beer, 2 specifically, including lager beer, 3 fall 
 
 App. 81 (1891); People v. O'Reilly, 
 129 App. Div. 532, 114 N. Y. Suppl. 
 258 (1908); Blatz v. Rohrbach, 116 
 N. Y. 450, 22 N. E. 1049, 6 L. R. A. 
 669 (1889). 
 
 3. State v. Volmer, 6 Kan. 371 
 (1870). See also State J?. Spaulding, 
 61 Vt. 505, 17 Atl. 844 (1889). 
 
 4. Illinois. — Hewitt v. People, 87 
 111. App. 367 [affirmed in 186 111. 
 336, 57 N. E. 1077] (1899); Feld- 
 man v. Morrison, 1 111. App. 460 
 (1877). 
 
 Iowa. — State v. Valure, 95 Iowa 
 401, 64 N. W. 280 (1895) ; State v. 
 Hutchinson, 72 Iowa 561, 34 N. W. 
 421 (1887). 
 
 Kansas. — State v. McLafferty, 47 
 Kan. 140, 27 Pac. 843 (1891); To- 
 peka t\ Zufall, 40 Kan. 47, 19 Pac. 
 359, 1 L. R. A. 387 (1888) (peach 
 eider). 
 
 Neio Hampshire. — State v. Biddle, 
 54 N. H. 379 (1874). 
 
 5. Illinois. — Feldman v. Morrison, 
 1 111. App. 460 (1877); State V. 
 Hutchinson, 72 Iowa 561, 34 N. W. 
 421 (1887). 
 
 Kansas. — Topeka v. Zufall, 40 Kan. 
 47 (1888). 
 
 Maine. — State v. Page, 66 Me. 418 
 (1876). 
 
 Massachusetts. — Com. v. Chappel, 
 116 Mass. 7 (1874); Com. v. Dean, 
 14 Gray 99 (1859). 
 
 New Hampshire. — State v. Biddle, 
 54 N. H. 379 (1874). 
 
 Mississippi. — State v. Crawley, 75 
 Miss. 919, 23 So. 625 (1898). 
 
 Pennsylvania. — Commonwealth v. 
 Reyburg, 122 Pa. St. 299 (1889). 
 
 6. Com. v. McGarth, 185 Mass. 1, 
 69 N. E. 340 (1904). 
 
 7. Eureka Vinegar Co. v. Gazette 
 Printing Co., 35 Fed. 570 (1888). 
 
 1. Wiles v. State, 33 Ind. 206 
 (1870). See also State v. Gill, 89 
 Minn. 502, 95 N. W. 449 (1903). 
 
 Malt liquor is commonly known to 
 be a general term for an alcoholic 
 beverage produced merely by the fer- 
 mentation of malt as opposed to those 
 obtained by the distillation of malt 
 or mash. Marks v. State, (Ala. 1909) 
 48 So. 864 [citing Allred v. State, 89 
 Ala. 112, 8 So. 56 (1889); May- 
 field's Dig. 463; Tinker's Case, 90 
 Ala. 647, 8 So. 814 (1889)]; Allred 
 v. State, 89 Ala. 112, 8 So. 56 (1889); 
 Adler v. State, 55 Ala. 16 (1876); 
 
§ 713 
 
 Knowledge; Common. 
 
 892 
 
 within this class. The intoxicating quality of certain malt 
 liquors has frequently proved a res gestae fact, beyond the scope 
 of the use of knowledge, whether judicial or common. The cir- 
 
 Sarlls v. U. S., 152 U. S. 570, 573, 
 14 Sup. Ct. 720, 38 L. Ed. 556 
 (1893); U. 6. t: Ducournau, 54 Fed. 
 138 (1891). But a court cannot 
 know, as a matter of common knowl- 
 edge that all malt liquors are in- 
 toxicating. Eaves v. State, 113 Ga. 
 749, 39 S. E. 318 (1901); Shaw v. 
 State, 56 Ind. 188 (1877). 
 
 Porter is commonly known in the 
 community to be a malt liquor. In 
 certain courts it is also notorious 
 that it is capable of producing in- 
 toxication. Blatz v. Rohrbach, 116 
 N. Y. 540, 22 N. E. 1049, 6 L. R. A. 
 669 (1889). 
 
 2. Indiana. — Welsh v. State, 126 
 Ind. 71, 25 N. E. 883, 9 L. R. A. 
 664 (1890); Stout r. State, 96 Ind. 
 407 (1884); Myers f. State, 93 Ind. 
 251 (1883). 
 
 , Kansas. — State v. Teissedre, 30 
 Kan. 476, 2 Pac. 650 (1883). 
 
 Kentucky. — Locke v. Com., 74 S. 
 W. 654, 25 Ky. L. Rep. 76 (1903); 
 Pedigo v. Com., 70 S. W. 659, 24 
 Ky. L. Rep. 1029 (1902). 
 
 Nebraslca. — Peterson v. State, 63 
 Neb. 251, 88 N. W. 549 (1901). 
 
 New Jersey. — Murphy v. Montclair 
 Tp., 39 N. J. L. 673 (1877) (malt). 
 
 North Dakota. — State r. Currie, 8 
 N. D. 545, 80 N. W. 475 (1899). 
 
 Texas. — Maier v. .State, 2 Tex. Civ. 
 App. 296, 21 S. W. 974 (1893). 
 
 Wisconsin. — Briffitt r. State, 58 
 Wis. 39, 16 N. W. 39, 46 Am. Rep. 
 621 (1883). 
 
 United States. — U. S. v. Ducour- 
 nau, 54 Fed 138 (1891). The prac- 
 tice is the same in the federal courts. 
 United States v. Ducournau, 54 Fed. 
 138 (1891). 
 
 Other courts have declined to take, 
 as commonly known, the malt charac- 
 ter of a term so all inclusive as 
 " beer " without conditioning prefix. 
 Netso v. State, 24 Fla. 363, 5 So. 
 
 8, 1 L. R. A. 825 (1880); Hansberg 
 r. People, 120 111. 21, 8 N. E. 857, 6 
 Am. Rep. 549 (1886); State v. Bes- 
 wick, 13 R. I. 211, 43 Am. Rep. 26 
 ( 1883 ) ; State v. Sioux Falls Brew- 
 ing Co., 5 S. D. 39, 58 N. W. 1, 26 
 L. R. A. 138 (1894). Judges have 
 even declined to rule, in any case, as 
 to what liquors may properly be 
 classed as malt. Eaves v. State, 113 
 Ga. 749, 39 S. E. 318 (1901); Shaw 
 V. State, 56 Ind. 188 (1877) ; State v. 
 Starr, 67 Me. 242 (1877); Barnes V. 
 State (Tex. Cr. App. 1898), 44 S. W. 
 491. 
 
 3. Tinker v. State, 90 Ala. 647, 8 
 So. 855 (1901); Watson v. State, 
 55 Ala. 158 (1876); Waller V. State, 
 38 Ark. 656 (1882) ; Netso v. State, 
 24 Fla. 363, 5 So. 8, 1 L. R. A. 825 
 ( 1888 ) ; State v. Rush, 13 R. I. 198 
 (1883) ; State v. Goyette, 11 R. I. 
 592 (1878). See also Adler V. State, 
 55 Ala. 16 (1876); State v. More- 
 head, 22 R. I. 2782, 47 Atl. 545 
 (1901). "Lager beer is certainly 
 universally known here as a malt 
 liquor; and it would be as vain and 
 useless to offer evidence that such is 
 its character, as that whisky is a 
 distillation of grain, or wine of fer- 
 mented juice of the grape, or cider 
 the expressed juice of the apple. The 
 word is now found in the dictionaries 
 commonly used; and from its intro- 
 duction into this country as a bever- 
 age, that it is a malt liquor is known 
 wherever it is drunk, or is an article 
 of commerce. Courts cannot profess 
 ignorance of the meaning of words of 
 popular use, and about the significa- 
 tion of which no intelligent member 
 of the community would hesitate. 
 Evidence that lager beer was a malt 
 liquor was not necessary to support 
 the indictment." Watson v. State, 55 
 Ala. 158 (1876), per Brickell, J., 
 quoted in Joyce on Intoxicating 
 
893 
 
 Geneeic Use of the Teem " Beee. 
 
 § 714 
 
 cumstance has greatly complicated the normal use of common 
 knowledge on the subject. The question has often been left to the 
 jury to decide upon all the evidence in the case. 4 A judge may 
 "well be justified in declining to rule regarding the matter as one 
 of knowledge at all, 5 except as gained through evidence. That 
 " beer " is a malt liquor is a matter of common knowledge. 6 But 
 ■whether " Hop-Jack," " Hop Ale " T and similar beverages are or 
 are not intoxicating must be proved. 
 
 § 714. (B. What Facts are Covered by the Rule; [/] 
 Nature; Properties of Matter; Liquid; Intoxicating Liquors; 
 Malt Liquors); "Beer." — Obviously, if one is forbidden to sell 
 a given liquor, on the ground, in the legislative mind, that it was 
 intoxicating, it is entirely immaterial should the defendant suc- 
 ceed in showing that the legislature was wrong. The question be- 
 comes largely a matter of words when the inquiry as to what 
 liquors the court knows are intoxicating, or not intoxicating, is 
 carried into what is generically called " beer." 'Standing alone, 
 
 1/iquors. It need not be proved that 
 lager beer is not a spirituous liquor. 
 Sarlls v. United States, 152 U. S. 570, 
 572, 14 Sup. Ct. 720, 38 L. ed. 556 
 (1893). The contrary that lager beer 
 is a spirituous liquor, has, however, 
 been decided. State v. Gierseh, 98 
 N. C. 720, 4 S. E. 193 (1887). 
 Should it be shown that spirits have 
 been mixed with lager beer, the re- 
 sult might well be a " spirituous " 
 liquor. Tinker v. State, 90 Ala. 647, 
 8 So. 855 (1890). See State v. 
 Brindle, 28 Iowa 512 (1870). 
 
 4. Connolly v. Atlanta, 79 Ga. 664, 
 4 S. E. 263 (1887); Godfreidson v. 
 People, 88 111. 284 (1878) ; Glasscock 
 v. State, (Tex. Cr. App. 1898) 43 S. 
 W. 989. 
 
 To the same effect, see also the fol- 
 lowing cases: 
 
 Maine. — State v. Starr, 67 Me. 242 
 <1877). 
 
 Massachusetts. — Haines v. Hanra- 
 ham, 105 Mass. 480 (1870). 
 
 Michigan. — People v. Hawley, 3 
 Mich. 330 (1854). 
 
 New York. — Blatz v. Rohrbach, 
 
 116 N. Y. 450, 22 N. E. 1049, 6 
 L. R. A. 669 (1889). 
 
 Vermont. — State V. Barron, 37 Vt. 
 57 (1864). 
 
 Unless, however, ale has been 
 mixed with spirits, it is not known, 
 as a matter of general knowledge, 
 to be " spirituous." Walker v. Pres- 
 cott, 44 N. H. 511 (1863); Fleming 
 v. New Brunswick, 47 N. J. L. 231 
 ( 1885 ) . Under the phrase " strong 
 or spirituous liquors " ale of a cer- 
 tain strength has been known to 
 come. Board of Commissioners v. 
 Freehoff, 17 How. Prac. (N". Y.) 442 
 (1859). Citing Nevin v. Ladue, 3 
 Den. 437 (1846). The contrary has 
 been held. People v. Crilly, 20 Barb. 
 246(1855). See also Nevin v. Ladue, 
 3 Ben. 437 (1846), per Strong, J. 
 
 5. Eaves v. State, 113 Ga. 749, 39 
 S. C. 318 (1901). 
 
 G. Lambie v. State, (Ala. 1907) 44 
 So. 51. See also People v. O'Reilly, 
 114 N Y. Suppl. 258, 129 App. Div. 
 522 (1908). 
 
 7. Daniel v. State, (Ala. 1907) 43 
 So. 22. 
 
714 
 
 Knowledge ; Common. 
 
 894 
 
 the term " beer " does not designate an intoxicant j 1 though there 
 is strong authority to the contrary effect. 2 
 
 Statutory Influence. — Statutes regulating the traffic in intoxi- 
 cating liquors are frequently so framed as to declare, expressly or 
 by implication, that various grades of beer are intoxicating. 3 
 Under such circumstances the knowledge of the tribunal is 
 judicial. It has been held that proof or disproof are equally in- 
 
 1. Florida.— Xetso v. State, 24 Ha. 
 363, 5 So. 8 (1S88). 
 
 Georgia. — Du Vail v. Augusta, 115 
 Ga. 813, 42 S. E. 265 (1902). 
 
 Illinois. — Hansberg t". People, 120 
 111. 21, 60 Am. Rep. 549 (1886). 
 
 Massachusetts. — Com. v. Hardiman, 
 9 Gray (Mass.) 136 (1857). 
 
 Nebraska. — Kerkow v. Bauer, 15 
 Neb. 150, 155, 18 N. W. 27 (1883). 
 
 New York. — Blatz r. Rohrbach, 116 
 N. Y. 450, 22 N. E. 1049 (1889). 
 
 Ohio. — State v. Ritzman, 8 Ohio 
 S. & C. PI. Dec. 685 (1896). 
 
 Rhode Island. — State v. Beswick, 
 13 R. I. 211, 220 (1380); State I'. 
 Sioux Falls Brewing Co., 5 S. D. 39, 
 58 N. W. 1, 26 L. R. A. 138 (1894). 
 
 2. Indiana. — Dant v. State, 106 Ind. 
 79 (1885) ; Myers V. State, 93 Ind. 
 251 ( 1883 ) ; Douglas r. State, 21 Ind. 
 App. 302, 52 N. E. 238 (1898). 
 
 Kansas. — State v. Teissedre, 
 Kan. 476 (1883). 
 
 Minnesota. — State i: Dick, 
 Minn. 375, 50 N. W. 362 (1891). 
 
 Missouri. — State r. Effinger, 44 Mo. 
 App. 81 (1890). See also State r. 
 Mitchell, 134 Mo. App. 540, 114 
 S. W. 1113 (1908). 
 
 Nebraska. — Sothman r. State, 66 
 Neb. 302, 92 N. W 303 (1902) ; 
 Peterson V. State, 63 Neb. 251, 88 
 N. W. 549 (1901). 
 
 Ncio Jersey. — Murphy r. Inhab- 
 itants, etc., 39 N. J. L. 673 (1877). 
 
 New York. — Hoagland v. Canfield, 
 (N. Y. 190S) 160 Fed. 146. 
 
 North Dakota. — State v. Currie, 8 
 N. D. 545, 80 N. W. 475 (1899). 
 
 Oklahoma. — Markinson r. State, 
 (Okl. Cr. App. 1909) 101 Pac. 353. 
 
 Oregon. — State v. Carmody, (Or. 
 1907) 91 Pac. 441; s. c, 91 Pac. 446. 
 
 30 
 
 47 
 
 Texas. — White r. Manning, (Tex. 
 Civ. App. 1907) 102 S. W. 1160; 
 Maier v. State, 2 Tex. Civ. App. 296, 
 21 S. W. 974 (1893). 
 
 Wisconsin. — Briffitt v. State, 58 
 Wis. 39, 46 Am. Rep. 621 (1883). 
 
 United States. — United States v. 
 Ducournau, 54 Fed. 138 (1891). See 
 also State v. May, 52 Kan. 53, 34 Pac. 
 407 (1893) ; State v. Jenkins, 32 Kan. 
 477, 4 Pac. 809 (1884); State v. 
 Teissedre, 30 Kan. 476, 2 Pac. 650 
 ( 1883 ) ; People v. Wheelock, 3 Park. 
 Cr. (N. Y.) 9 (1855). Judicial notice 
 may be taken that an ordinary beer, 
 containing such a percentage of al- 
 cohol as, by common knowledge, may 
 produce intoxication when the beer is 
 drunk in such quantities as it may 
 ordinarily be drunk, is an intoxicat- 
 ing liquor. O'Connell r. State, 5 Ga. 
 App. 234, 62 S. E. 1007 (1908). 
 When the word " beer " is used, with- 
 out any qualifying term, the court 
 takes notice that " beer " is a malt 
 liquor, containing sufficient alcohol to 
 produce intoxication. State r. City 
 Club, 83 S. C. 509, 65 S. E. 730 
 (1909). 
 
 3. Indiana.— Welsh r. State, 126 
 Ind. 71, 25 X. E. 883, 9 L. R. A. 664 
 (1890); Douglas r. State, 21 Ind. 
 App. 302, 52 N. E. 238 (1898). 
 
 loica. — State v. Cloughly, 73 Iowa 
 626, 35 N. W. 652 (1887). 
 
 Minnesota. — State r. Dick, 47 Minn. 
 375, 50 N. W. 362 (1891). 
 
 Missouri. — State v. Besheer, 69 Mo. 
 App. 72 (1897); State r. Houts, 36 
 Mo. App. 265 (1889). 
 
 Nebraska. — Kerkow r. Bauer, 15 
 Neb. 150, 18 N. W. 27 (1883). 
 
895 
 
 Lagee Beeb Known to be Intoxicating. 
 
 714 
 
 admissible 4 in any such case. If the defendant was forbidden to 
 sell a given liquor, the only question is as to whether he has 
 sold it. 
 
 Prefixes to "Beer." — Where the species of beer is indicated 
 by a prefix, the opportunity for the existence of sufficient notoriety 
 to warrant judicial cognizance is made more probable. Thus, the 
 majority of courts know that " lager beer " is intoxicating, 5 while 
 " hop pop," 6 " rice beer " 7 and the like 8 are not known to possess 
 that quality. 
 
 4. Com. v. Snow, 133 Mass. 575 
 (1882) ; Com. v. Bubser, 14 Gray 
 (Mass.) 83 (1859) ; Com. v. Anthes, 
 12 Gray (Mass.) 29 (1858); State 
 V. Thornton, 63 N\ H. 114 (1884). 
 
 5. Infra, § 715. 
 
 6. People v. Rice, 103 Mich. 350, 
 61 N". W. 540 (1894). 
 
 7. Bell v. State, 91 Ga. 227, 231, 
 18 S. E. 288 (1892). "Some bev- 
 erages such as whiskey, brandy, etc., 
 are in such common and notorious use 
 as intoxicants that no proof is requi- 
 site to stamp them with this char- 
 acter. But rice beer is comparatively 
 a rare liquor. Whether it will pro- 
 duce intoxication or not ought to be 
 proved." Bell v. State, 91 Ga. 227 
 (1892). 
 
 A statute may conclude the ques- 
 tion by a direct declaration or the 
 necessary inference arising from » 
 particular collocation of words, in 
 which case the knowledge is judicial. 
 Supra, § 637 ; Kerkow v. Bauer, 15 
 Neb. 150, 155, 18 X. W. 27 (1883). 
 
 8. Connolly v. Atlanta, 79 Ga. 664, 
 4 S. E. 263 (1887) (new era beer) ; 
 Com. v. Gavin, 160 Mass. 523, 36 
 N. E. 484 (1891); Com. v. O'Kean, 
 152 Mass. 584, 26 N. E. 97 (1891) 
 (hop beer) ; Com. v. Bios, 116 Mass. 
 56 (1874) (Schenck beer) ; Howorth 
 v. Minns, 51 J. P. 7, 56 L. T. Rep. 
 ST. S. 316 (1887) (botanic beer). 
 
 Similar beverages designated as 
 " beer " to which general knowledge 
 fails to attach, may call for proof 
 of intoxicating quality. Campbell v. 
 City of Thomasville, (Ga. 1909) 64 
 
 S. E. 815 ("near beer"); State v. 
 MeCafferty, 63 Me. 223 (1874) 
 ("hop beer"); People v. Wheelock, 
 3 Park Cr. (N. Y.) 9, 15 (1855) 
 ("Dutch beer"). Certain designa- 
 tions, such as " strong " are, it is 
 said, known to indicate an intoxicat- 
 ing liquor. People v. Hawley, 3 Mich. 
 330 (1854) ; Blatz v. Rohrbach, 116 
 N. Y. 450, 22 N. E. 1049, 6 L. R. A. 
 669 (1889) ; Board of Commissioners 
 v. Taylor, 21 N. Y. 173 (1860); 
 Markle v. Town Council of Akron, 14 
 Ohio 586 (1846). 
 
 " Beer " without prefix. — As is 
 stated earlier in this section, the 
 courts are by no means agreed as to 
 whether " beer " without further des- 
 ignation indicates an intoxicating 
 liquor. Eaves v. State, 133 Ga. 749, 
 39 S. E. 318 (1909). "We do not 
 think there is any presumption of 
 law, that when a man speaks of beer 
 he means a malt liquor, but we think 
 that what he means is a question of 
 fact for the jury. It is matter of 
 common knowledge that there are 
 beverages containing neither malt nor 
 any other intoxicating ingredients 
 which are called beers." State v. 
 Beswick, 13 R. I. 211, 43 A. M. Rep. 
 26, n. (1883), per Durfee, J. This 
 is quite in accordance with principle. 
 To assume the existence of a. res 
 gestae fact as one of common knowl- 
 edge seems an improper exercise of 
 administrative power. 
 
 Georgia.— Duvall v. City Council 
 of Augusta, 115 Ga. 813, 42 S. E. 
 265 (1902). 
 
§714 
 
 Knowledge ; Common. 
 
 896 
 
 " Strong Beer " is commonly and sometimes judicially known 
 to be intoxicating. 9 
 
 Illinois. — Hansberg v. People, 120 
 111. 21, 8 X. E. 21, 60 Am. Rep. 549 
 (1SS7). 
 
 Indiana. — Klare v. State, 43 Ind. 
 4S3 (1873). 
 
 Xew York. — Blatz r. Rohrbach, 
 116 X. Y. 450, 22 X. E. 1049, 6 
 L. R. A. 669 (1889). 
 
 South Dakota. — State v. Sioux 
 Falls Brew. Co., 5 S. D. 39, 58 X. W. 
 1, 26 L. R. A. 138 (1894). 
 
 Supra, § 700. 
 
 " The court can indulge in no pre- 
 sumption in the case except as to the 
 innocence of the accused, and until 
 it appears by sufficiency of proof that 
 the particular beverage sold was of an 
 intoxicating kind the presumption of 
 innocence controls the case." Blatz 
 V. Rohrbach, 116 X. Y. 450, 22 X. E. 
 1049, 6 L. R. A. 669 (1889). 
 
 On the contrary, "beer" without 
 further designation, is said to be or- 
 dinary " bock-becr " or " lager-beer." 
 When the meaning is different a pre- 
 fix such, as " spruce," " root " or the 
 like is attached. Locke r. Com., 25 
 Ky. L. Rep. 76, 74 S. W. 654 (1903). 
 Rulings have been made to the effect 
 that proof of a, sale of " beer " is, as 
 a matter of common knowledge, 
 equivalent to showing the sale of an 
 intoxicating liquor. 
 
 Indiana. — Stout r. State, 96 Ind. 
 407 (1884). 
 
 Xebraska. — Sothman v. State, 66 
 Neb. 302, 92 X. W. 303 . ( 1902 ) ; 
 Peterson v. State, 63 Neb. 251, 8S 
 N. W. 549 (1902) ; Kerkow v. Bauer, 
 15 Neb. 150, 155, 18 N. W. 27 (1883). 
 
 New York. — People v. Wheelock, 3 
 Park Cr. R. 9 (1855). 
 
 Oregon. — State v. Carmody, 50 
 Oreg. 1, 91 Pac 446 (1908). 
 
 Texas. — Maier v. State, 2 Tex. Civ. 
 App. 896, 21 S. W. 974 (1893). 
 
 Washington. — State v. Moran, 46 
 Wash. 596, 90 Pac. 1044 (1907). 
 
 Wisconsin. — Briffitt r. State, 58 
 Wis. 39, 16 N. W. 39, 46 Am. Rep. 
 621 (1883). 
 
 " When, therefore, a witness testi- 
 fies to the sale or giving away of 
 beer under circumstances which make 
 the sale or giving away of any in- 
 toxicating liquor unlawful, the prima 
 facie inference is that the beer was 
 of that malted and fermented quality 
 declared by the statute to be an in- 
 toxicating liquor, and the court try- 
 ing the case ought to take judicial 
 notice of the inference which thus 
 arises from the use of the word 
 ' beer ' in its primary and general 
 sense." Myers v. State, 93 Ind. 251 
 (1883), per Xiblack, J., quoted in 
 Joyce on Intoxicating Liquors. 
 
 Judicial knowledge. — The phrase- 
 ology of statutes connecting common 
 with judicial knowledge may have a 
 strong or controlling influence in a 
 particular case. Douglas r. State, 21 
 Ind. App. 302, 52 X. E. 238 (1898) ; 
 Kerkow tr. Bauer, 15 Xeb. 150, IS 
 N. W. 27 (1883) ; Dallas Brewery v. 
 Holmes Bros., (Tex. Civ. App. 1908) 
 112 S. W. 122; supra, § 709. 
 
 Res gestae. — In other cases, weight 
 should properly be given to the con- 
 sideration that the fact of the in- 
 toxicating quality of a particular 
 liquor may be part of the res gestce 
 and, therefore, beyond the range of 
 common knowledge. Supra, § 700. 
 Even where it is said that judicial 
 knowledge is taken of the intoxicat- 
 ing quality of " beer " the right of 
 one accused to disprove this res gestae 
 fact is conceded. State r. May, 52 
 Kan. 53, 34 Pac. 407 (1893); State 
 r. Jenkins, 32 Kan. 477, 4 Pac. 809 
 (18S4) ; State r. Teissedre, 30 Kan. 
 477, 2 Pac. 650 (18S3) : State f. 
 Volmer, 6 Kan. 371 (1870); State 
 v. Currie, 8 X. D. 545, 80 X. W. 475 
 (1899) ; Maier v. State, 2 Tex. Civ. 
 App. 296, 21 S. W. 974 (1893). 
 
 9. People v. Hawley. 3 Mich. 330 
 (1854) ; Blatz r. Rohrbach. 116 N. "_'. 
 450, 22 X. E. 1049, 6 L. R. A. 669 
 (1889) ; Rau v. People, 63 N. Y. 277 
 (1875); Nevin v. Lndue, 3 Den. 
 
897 Bitters, Tonics and Othee Compounds. §§ 715, 716 
 
 § 715. (B. What Facts are Covered by the Rule; [1] 
 Nature; Properties of Matter; Liquid; Intoxicating Liquors; 
 Malt Liquors); Lager Beer. — A famous battle ground, as to the 
 court's common knowledge and the judge's judicial knowledge re- 
 garding the intoxicating quality of various liquors, has been lager 
 beer. In several states it is known, commonly, or judicially, to 
 be intoxicating. 1 In certain other jurisdictions it is not known 
 to possess this quality. 2 
 
 § 716. (B. What Facts are Covered by the Rule; [/] 
 Nature; Properties of Matter; Liquid; Intoxicating Liquors; 
 Malt Liquors); Bitters, Tonics, etc. — Whether compounds into 
 
 (N. Y.) 43, 437 (1846); Markle v. 
 Akron, 14 Ohio 586 (1846). But see 
 also Tompkins County v. Taylor, 21 
 N. Y. 173 (1860) ; Cayuga County v. 
 Freeoff, 17 How. Pr. (N. Y.) 442 
 (1859); People v. Crilley, 20 Barb. 
 (N. Y.) 246 (1855). 
 
 1. Alabama. — -Watson v. State, 55 
 Ala. 158 (1876). 
 
 Arkansas. — Waller v. State, 38 Ark. 
 656 (1882). 
 
 Florida. — Netso v. State, 24 Fla. 
 363, 5 So. 8 (1888). 
 
 Georgia. — Cripe v. State, 4 Ga. 
 App. 832, 63 S. B. 567 (1908). 
 
 New York. — Contra, People v. Zei- 
 ger, 6 Park. Crim. (N. Y.) 355 
 (1865) ; People v. Hart, 24 How. Pr. 
 (N. Y.) 289 (1862). See also Peo- 
 ple v. O'Reilly, 194 N. Y. 592, 88 
 N. E. 1128 (1909) [order affirmed, 
 114 N. Y. Suppl. 258, 129 App. Div. 
 522 (1908)]. 
 
 North Carolina. — State v. Giersch, 
 98 N. C. 720, 4 S. E. 193 (1887). 
 
 Rhode Island. — ■ State v. Morehead, 
 22 R. I. 272, 47 Atl. 545 (1900); 
 State v. Rush, 13 R. I. 198 (1881). 
 
 South Dakota. — State v. Church, 6 
 g. D. 89, 60 N. W. 143 (1894). 
 
 Vermont. — State v. Kibling, 63 Vt. 
 636, 22 Atl. 613 (1891). But see 
 Tinker v. State, 90 Ala. 647 (1890) ; 
 Rau v. People, 63 N. Y. 277 (1875). 
 See also Smith v. State, 113 Ga. 758, 
 39 S. E. 249 (1901). 
 
 " We have no more hesitation in 
 
 holding that the drink known as 
 ' lager beer ' is intoxicating than we 
 should have in holding that ' spruce 
 beer ' is not, and we should put both 
 rulings upon the same ground, to 
 wit, that such is the common under- 
 standing resulting from common ob- 
 servation." State v. Church, 6 S. D. 
 89, 60 N. W. 143 (1894), per 
 Kellam, J. 
 
 Accused may dispute. — While the 
 prosecution may, in several jurisdic- 
 tions, rely upon common knowledge 
 to establish the intoxicating quality 
 of lager beer, the fact so far as it is 
 a res gestae one, may be disputed by 
 the accused. Supra, § 700. When 
 evidence to this effect has been intro- 
 duced by the defendant, the govern- 
 ment may prove affirmatively the 
 fact of intoxicating quality. State v. 
 Volmer, 6 Kan. 371 (1870). 
 
 2. Blatz v. Rohribach, 116 N. Y. 
 450, 22 N. E. 1049, 6 L. R. A. 669 
 (1889); People v. Schewe, 29 Hun 
 (N. Y.) 122 (1883) ; Rau v. People, 
 63 N. Y. 27Y (1875). It has been 
 heldi as ought properly to be done in 
 case of a res gestae fact {supra, 
 § 700), that the intoxicating quality 
 of lager beer is a question of fact 
 for the jury. Smith p. State, 113 
 Ga. 758, 39 S. E. 294 (1901); Rau 
 V. People, 63 N. Y. 277 (1875) ; Peo- 
 ple v. Zeiger, 6 Park Cr. R. (N. Y.) 
 355 (1865). 
 
 Vol. I. 
 
 57; 
 
§ 716 Knowledge; Common. 898 
 
 which intoxicating liquor or other alcohol-bearing substances 
 enters as an element — tonics, patent medicines, " bitters " and 
 the like, are intoxicating liquors, or otherwise fall within the 
 designation or prohibition of a statute regulating the traffic in in- 
 toxicating liquors, is a question for evidence ; * it is not a matter 
 of judicial or common knowledge. 
 
 A reasonable test for distinguishing between medicines and 
 beverages is that announced by the supreme court of Kansas : 2 
 " The cases before us group themselves into three classes; and the 
 same division is far reaching and of general application. The 
 first embraces what are generally and popularly known as intoxi- 
 cating liquors, unmixed with any other substances. Thus, in one 
 case the sale of brandy is charged. The second includes articles 
 equally well known, standard articles, and which, while contain- 
 ing alcohol, are never classed as intoxicating beverages. Their 
 uses are culinary, medical, or for the toilet. They are named in 
 the United States dispensatory and other similar standard au- 
 thorities, the formulse for their preparation are there given ; their 
 uses and character are as well recognized and known by their 
 names as those of a horse, a spade, or an arithmetic. The possi- 
 bility of a different and occasional use does not change their recog- 
 nized and established character. A particular spade may be fixed 
 up for a parlor ornament, but the spade does not belong there. 
 So, essence of lemon may contain enough alcohol to produce in- 
 toxication, more alcohol proportionately than many kinds of wine 
 or beer. It is possible that a man may get drunk upon it, but it 
 is no intoxicating liquor. Bay rum, cologne, paregoric, tinctures 
 generally, all contain alcohol, but in no fair or reasonable sense 
 are they intoxicating liquors or mixtures thereof. The third class 
 embraces compounds, preparations, in which the alcoholic stimu- 
 lant is present, which are not of established name and character, 
 which are not found in the United States dispensatory, or other 
 like standard authorities, and which may be purely medicinal in 
 their purpose and effect, or mere substitutes for the usual intoxi- 
 cating beverages. If not intoxicating liquors they may be 
 
 1. Alabama.— Alfred v. State, 89 Kansas.— Intoxicating Liquor Cases, 
 
 Ala. 112, 8 So. 56 (1889). 25 Kan. 751, 37 Am. Rep. 284 (1881). 
 
 Florida.— Butler v. State, 85 Ma. Teacas.— Johnson r. State, (Cr. App. 
 
 347, 6 So. 67 (1889). 1902) 66 S. W. 552. 
 
 Iowa. — State r. Gregory, 110 Iowa 2. Intoxicating Liquor Cases, 25 
 
 624, 82 N. W. 335 (1900). Kan. 751, 37 Am. Rep. 284 (1881). 
 
899 Percentage of Alcohol Not Conclusive. § 716 
 
 ' mixtures thereof ' within the scope of the statute. Here belong 
 many of the patent medicines, the bitters, cordials, and tonics of 
 the day. Here also are such compounds as that charged in one 
 of the informations before us, a compound of whiskey, tolu and 
 wild cherry. Now, in reference to these several classes, we think 
 these rules may be laid down: The first class is within and the 
 second without the statute, and the court as matter of law may 
 so declare. It is unnecessary, in charging the -sale of whiskey or 
 brandy, etc., to allege that it will produce intoxication; nor will 
 it bring the sale of essence of lemon within the statute to allege 
 that such essence will produce intoxication. The courts will take 
 judicial notice of the uses and character of these articles. You 
 need not prove what bread is, or for what purpose it is used. No 
 more need you, in respect to whiskey or gin on the one hand, or 
 cologne, or bay rum, on the other. They are all articles of estab- 
 lished name and character. In reference to the third class, the 
 question is one of fact, and must be referred to a jury. If the 
 compound or preparation be such that the distinctive character 
 and effect of intoxicating liquor are gone, that its use as an intoxi- 
 cating beverage is practically impossible by reason of the other 
 ingredients, it is not within the statute. The mere presence of 
 alcohol does not necessarily bring the article within the prohibi- 
 tion. The influence of the alcohol may be counteracted by the 
 other elements, and the compound be strictly and fairly only a 
 medicine. On the other hand, if the intoxicating liquor remain 
 as a distinctive force in the compound, and such compound is 
 reasonably liable to be used as an intoxicating beverage, it is 
 within the statute, and this though it contain many other ingredi- 
 ents and ingredients of an independent and beneficial force in 
 counteracting disease or strengthening the system. Intoxicating 
 liquors, or mixtures thereof; this, reasonably construed, means 
 liquors which will intoxicate and which are commonly used as 
 beverages for such purposes, and also many mixtures of such 
 liquors as, retaining their intoxicating qualities, it may fairly be 
 presumed may be used as a beverage and become a substitute for 
 the ordinary intoxicating drinks. Whether any particular com- 
 pound or preparation of this class is then within or without the 
 statute, is a question of fact, to be established by the testimony 
 and determined by the jury. The courts may not say, as a matter 
 of law that the presence of a certain per cent, of alcohol brings 
 
§ 717 Knowledge; Common. 900 
 
 the compound within the prohibition, or that any particular in- 
 gredient does or does not destroy the intoxicating influence of the 
 alcohol, or prevent it from ever becoming an intoxicating bever- 
 age. Of course the larger the per cent, of alcohol and the more 
 potent the other ingredients, the more probably does it fall within 
 or without the statute ; but in each case the question is one of fact, 
 and to be settled as other questions of fact." 
 
 § 717. (B. What Facts are Covered by the Rule; [/] 
 Nature; Properties of Matter; Liquids; Intoxicating Liquors); 
 
 Medicines, etc. — As thus appears, a court is quite as well able to 
 define, as a matter of common knowledge, what shall constitute a 
 medicine, toilet article or flavoring substance used for culinary 
 purposes as it is to know what are commonly classed as intoxicat- 
 ing liquors or beverages. The proper classification will be as- 
 signed to such useful articles although they may also contain 
 sufficient alcohol to be, in point of fact, intoxicating; and may 
 even be used as intoxicating beverages. 1 
 
 Compounds. — Where the customary and distinctive use of a 
 compound containing alcohol in intoxicating quantities is not 
 that of a beverage, but is rather its employment for cooking pur- 
 poses, the court knows, as a matter of notoriety, such a fact. 2 
 Eor example, lemon extract is known to contain a larger per- 
 centage of alcohol than is to be found in most whiskies. 3 It is, 
 nevertheless, not an intoxicating liquor within the meaning of a 
 prohibitory statute. In like manner, tincture of ginger, though 
 capable of producing intoxication, is commonly known not to be 
 an intoxicating liquor. 4 
 
 Medimied liquors. — Attempts at evading the provisions of 
 prohibitory statutes by supplying intoxicating beverages under 
 the thin disguise of medical preparations, has notoriously led to 
 the prohibition by statute of what are termed "medicated 
 liquors." So far as vinous, malt, fermented or distilled liquors 
 
 1. Intoxicating Liquor Cases, 25 2. Holcomb v. People, 49 111. App. 
 
 Kan. 751, 37 Am. Rep. 284 (1881) ; 73 (1892), per Boggs, J. 
 
 Mitchell v. Com., 106 Ky. 602, 51 3. Walker v. Dailey, 101 All. App. 
 
 S. W. 17, 21 Ky. L. Rep. 223 (1899) 575 (1901) ; Holcomb r. People, 49 
 
 (Jamaica ginger); State v. Muncey, 111. App. 73 (1892). 
 
 28 W. Va. 494 (1880) (essence of 4. Bertrand v. State, 73 Miss. 51, 
 
 cinnamon). See also Robers v. State, 18 So. 545 (1895). 
 4 Ga. App. 207, 60 S. E. 1082 (1908); 
 Mason v. State, 1 Ga. App. 534, 58 
 S. E. 139 (1907). 
 
901 Attractiveness foe Use as an Intoxicant. § 71? 
 
 are to be sold under medicinal names the statute prohibitions are 
 intended to apply. 5 The question is one of fact for the jury, 6 
 rather than for the use of common knowledge. The accused is 
 clearly entitled to submit evidence on the point. 7 
 
 Percentage of alcohol. — The tests between genuine medicines 
 and these disguises for intoxicating beverages are several. Promi- 
 nent among them, is the percentage of alcohol present in the com- 
 pound. 8 
 
 Non-standard preparations. — Where the compound in question 
 is one made under a standard formula, given in the United States 
 Dispensatory or other well recognized authority, as an article de- 
 signed for culinary use or toilet purposes, the common knowledge 
 of the community may well be to the effect that a given use is 
 bona fide for these purposes. On the other hand, the preparation 
 of bitters, 9 cordials, tonics and the like, presenting a large con- 
 tent of alcohol in communities where the use of such novel prepa- 
 rations had been unknown prior to the passage of a law prohibit- 
 ing the direct sale of alcoholic beverages may well be regarded 
 by the community at large as colorable. 10 Should the alcohol be 
 practically denalurized, and the preparation no longer attractive 
 as a beverage, a different situation is presented. 11 
 
 Availability as beverage. — Above all, the common use of a par- 
 ticular compound, as an alcoholic beverage, may well be regarded 
 as a highly significant circumstance in determining whether its 
 
 5. The action tsf the United States Kansas. — Intoxicating Liquor Cases, 
 treasury department in taxing a 25 Kan. 751, 57 Am. .Rep. 284 (1887). 
 certain combination of alcoholic liq- 7. Com. v. Pease, 110 Mass. 412 
 uors and other substances as a. pro- ( 1872 ) ; State i\ Muncey, 28 W. Va. 
 prietory medicinal preparation is im- 494 (1886) (essence of cinnamon), 
 material. Wall v. State, 78 Ala. 417 8. Foster v. State, 36 Ark. 258 
 (1885). (1880) ; Colwell v. State, 112 Ga. 75, 
 
 6. Alabama. — Wadsworth v. Dun- 37 S. E. 129 (1900). 
 
 nam, 98 Ala. 610, 13 So. 597 (1893) 9. State v. Wilson, 80 Mo. 303 
 
 (ginseng cordial); Allred v. State, (1883); State v. Lillard, 78 Mo. 136 
 
 89 Ala. 112, 8 So. 56 (1889). (1883). 
 
 Florida.— Butler v. State, 25 Fla. 10. Mason v. State, 1 Ga. App. 534, 
 
 347, 6 So. 67 (1889) (elixir of or- 58 S. E. 139 (1907) ; Gault v. State! 
 
 ange mint). 34 Ga. 533 (1866) ; Com. v. Ramsdell, 
 
 Georgia. — Bradley v. State, 121 Ga. 130 Mass. 68 (1880); Bertrand v. 
 
 201, 48 S. E. 981 (1904) ; Blanken- State, 73 Miss. 51, 18 So. 545 (1895); 
 
 ship v. State, 93 Ga. 814, 21 S. E. King v. State, 58 Miss. 737 (1881). 
 
 130 (1893). 11. Carl r. State, 89 Ala. 93, 8 
 
 Iowa. — State v. Gregory, 110 Iowa So. 156 (1889). 
 624, 82 N. W. 335 (1900). 
 
§ 718 
 
 Knowledge; Common. 
 
 902 
 
 sale is merely an evasion of law. 12 It has even been said that in a 
 case of notoriety, the use of evidence may be dispensed with, 
 reliance being placed upon common knowledge in the community. 
 Thus, in Kentucky, it is said that, without evidence, it is a matter 
 of common knowledge that Jamaica ginger is an intoxicating 
 liquor, and that it is scarcely more necessary to introduce evi- 
 dence to prove it than it would be in case of whiskey. 13 
 
 § 718. (B. What Facts are Covered by the Rule; [1] 
 Nature; Properties of Matter; Liquid; Intoxicating Liquors); 
 
 Wines. — No court will require proof that wines 1 have an intoxi- 
 cating quality. If they had not, they would not be wines. 2 
 
 12. Alabama. — Wadsworth v. Dun- 
 nam, 98 Ala. 610, 13 So. 597 (1893) ; 
 Carl v. State, 89 Ala. 93, 8 So. 156 
 (1889). 
 
 Arkansas. — Davis r. State, 50 Ark. 
 17, 6 S. W. 388 (1887); Foster v. 
 State, 36 Ark. 258 (1880). 
 
 District of Columbia. — Maekall v. 
 District of Columbia, 16 App. D. C. 
 301 (1900). 
 
 Georgia. — Bradley v. State, 121 Ga. 
 201, 48 S. E. 981 (1904) ; Colwell v. 
 State, 112 Ga. 75, 37 S. E. 129 
 (1900). 
 
 Iowa. — State v. Laffer, 38 Iowa 
 422 (1874). 
 
 Massachusetts. — Com. v. Ramsdell, 
 130 Mass. 68 (1880). 
 
 Kansas. — State v. Coulter, 40 Kan. 
 87, 19 Pae. 368 (1888) ; Intoxicating 
 Liquor Case, 25 Kan. 751, 37 Am. 
 Eep. 284 (1881). 
 
 Vermont. — State v.. Kezer, 74 Vt. 
 50, 52 Atl. 116 (1902); Russell 
 v. Sloan, 33 Vt. 656 (1861). 
 
 If the distinctive character of a 
 liquor " as an intoxicating liquor was 
 destroyed that it could not be used as 
 a beverage, and it became in fact a 
 medicine to be used for diseases, and 
 of such a character that it could not 
 in reason, be styled or used as an 
 intoxicating drink, its sale was not 
 a violation of law.'' State r. Laffer, 
 38 Iowa 422 (1874). 
 
 " If the article sold can not be used 
 as an intoxicating drink, it is not 
 
 within the prohibition of the statute, 
 although it contains as one of its in- 
 gredients some spirituous liquor. The 
 sale of such article is not within the 
 mischief intended to be remedied by 
 the statute, nor within the fair 
 meaning of its language." Com. c. 
 Ramsdell, 130 Mass. 68 (1880) per 
 Morton, J., quoted in Joyce on In- 
 toxicating Liquors. 
 
 13. Mitchell v. Com., 106 Ky. 602, 
 51 S. W. 17 (1899). 
 
 1. Arkansas. — Wolf v. State, 59 
 Ark. 297, 27 S. W. 77, 43 Am. St. 34 
 (1894). 
 
 Florida. — Caldwell v. State, 43 Fla. 
 545, 30 So. 814 (1901) (wine). 
 
 Iowa. — State v. Curley, 33 Iowa 
 359 (1871); State v. Stapp, 29 Iowa 
 551 (1870). 
 
 North Carolina. — State v. Packer, 
 80 N. C. 439 (1879) (port). 
 
 Pennsylvania. — Hatfield v. Com., 
 120 Pa. St. 395, 14 Atl. 151 (1888). 
 
 Vermont. — Starace l'. Rossi, 69 Vt. 
 303, 37 Atl. 1109 (1897) (Italian 
 sour wine). But see also Jackson v. 
 State, 19 Ind. 312 (1862); State v. 
 Page, 66 Mc. 418 (1876). 
 
 Home-made blackberry wine is not 
 known, judicially, to be intoxicating. 
 Loid v. State, 104 Ga. 726, 30 S. E. 
 949 (1898). 
 
 2. See also State v. Page, 66 Me. 
 418 (1876) ; Reyfelt r. State, 73 Miss. 
 415, 18 So. 925 (1895). 
 
903 Intoxicating Quality of Home-Made Wines. § 718 
 
 A fortiori it is not a matter generally known that wine is not 
 intoxicating. 3 But wines of domestic household manufacture in 
 which no specific amount of alcohol is contained, e. g., black- 
 berry wine, 4 are not commonly known to possess an intoxicating 
 quality. 
 
 Vinous liquors not spirituous. — As a matter of common knowl- 
 edge, vinous liquors are all those made from the juice of the 
 grape, 5 including, in common acceptation, certain beverages of 
 home manufacture, made by using other fruits than grapes. 6 
 It follows that no evidence need be offered that wine is 
 not a " spirituous liquor." 7 According to common knowledge, 
 it is not. " Spirit," says the Supreme Court of Indiana, 8 "is 
 the name of an inflammable liquor produced by distillation. 
 Wine is the fermented juice of the grape or a preparation of other 
 vegetables by fermentation. We cannot so far confound the sig- 
 nification of these general terms as to call wine a spirituous 
 liquor. We think port wine is not within the purview of the 
 statute." 9 
 
 Intoxicating quality of wines. — It is said above 10 that wines 
 are commonly known to be intoxicating. 11 In case of home-made 
 wines, the question has, however, frequently been left to the 
 
 3. Jackson v. State, 19 Ind. 313 8. State v. Moore, 5 Blackf. (Ind.) 
 (1862). 118 (1839), per Dewey, J. 
 
 4. Loid v. State, 104 Ga. 726, 30 9. To the contrary, see State v. 
 S. E. 949 (1898). Giersch, 98 N. C. 720, 4 S. E. 193 
 
 5. Allred v. State, 89 Ala. 112, 8 (1887) ; "Worcester defines wine (1), 
 So. 56 (1889); Adler v. State, 55 as, 'The fermented juice of the 
 Ala. 16 (1876). Champagne is com- grape; a spirituous liquid resulting 
 monly known to be a liquor. Kizer from the fermentation of grape juice; 
 V. Randleman, 50 N. C. 428 (1858). and (2), "The fermented juice of 
 
 G. Hinton v. State, 132 Ala. 29, certain fruits resembling in many re- 
 31 So. 563 (1901) (blackberry). spects the wine obtained from grapes, 
 Vinous liquor '* ex vi termini, means but distinguished therefrom by nam- 
 liquor made from fruits or berries by ing the source whence it is derived as 
 a process of fermentation, when ginger -wine, gooseberry-wine, currant- 
 sugar and alcohol are added." Marks wine, etc.' " Hinton v. State, 132 
 v. State, (Ala. 1909) 48 So. 864, Ala. 29, 31, 31 So. 563 (1901), per 
 per Mayfield, J. [citing Allred's Case, Haralson, J. 
 89 Ala. 112, 8 So. 56 (1899) ; Ad- 10. Supra n. 2. 
 ler's Case, 55 Ala. 24 (1876) Hinton 11. Wolf v. State, 59 Ark. 297, 27 
 i'. State, 132 Ala. 29, 31 So. 563 S. W. 77, 43 Am. Rep. 34 (1894) ; 
 (1905)]. Caldwell v. State, 43 Fla. 545, 30 
 
 7. Caswell v. State, 8 Humph. So. 814 (1901); State v. Packer, 
 
 (Tenn.) 402 (1841). 80 N. C. 439 (1879), (port wine). 
 
719 
 
 Knowledge ; Common. 
 
 904 
 
 jury; 12 — the alcoholic content of such liquors being by no means 
 standardized. The terms of any particular statute may convert 
 the court's knowledge of the intoxicating quality of wines as a 
 matter of notoriety into the judge's judicial knowledge of the 
 direct results of the law he is to enforce. 13 
 
 Res Gestae facts. — Where the intoxicating quality of a wine is 
 part of the res gestae, the question is one beyond the scope of 
 common knowledge. Evidence as to it should be submitted to 
 the jury. 14 This, for the reasons stated is especially true of 
 domestic or home-made wines. 15 In the same way, the question 
 as to whether a given wine is spirituous, has very properly been 
 regarded as one of fact for the determination of the jury. 16 
 
 § 719. (B. What Facts are Covered by the Rule; [/] 
 Nature; Properties of Matter); Gaseous. — The liability of cer- 
 tain gases, as natural gas, under specified conditions, 1 to explode, 
 as well as the fact that such a gas may safely be conducted in 
 pipes, 2 and that it is generally requisite that some outside agency 
 should bring out the explosive quality, 3 will be treated as matters 
 of common knowledge. So no proof need be offered that oil and 
 gas are uncertain and fugitive.* 
 
 12. State v. Page, 66 Me. 418 
 (1876). 
 
 13. llorley v. Spurgeon, 38 Iowa 
 465 (1874); Reyfelt v. State, 73 
 Miss. 415, 18 So. 925 (1896); 
 Schwab v. People, 4 Hun, (N. Y.) 
 520 (1875); Hatfield i: Com., 120 
 Pa. St. 395, 14 Atl. 151 (1888) ; 
 supra, § 637. 
 
 14. Loid v. State, 104 Ga. 726, 30 
 S. E. 949 (1898) (blackberry wine). 
 
 15. " No court so far as we have 
 been able to ascertain, has held, as 
 matter of law, that home-made 
 blackberry wine is intoxicating. The 
 intoxicating qualities of such wine do 
 not appear to be so well known or 
 recognized by the people generally." 
 Loid v. State, 104 Ga. 726, 30 S. E. 
 949 (1898), per Simmons, J., quoted 
 in Joyce on Intoxicating Liquors. 
 
 16. State v. Loury, 74 N. C. 121 
 (1876) (blackberry wine). 
 
 1. Jamieson v. Indiana Natural 
 Gas, etc., Co., 123 Ind. 555, 28 N. E. 
 76, 12 L. R. A. 652 (1891); Alex- 
 
 andria Min., etc., Co. v. Irish, 16 Ind. 
 App. 534, 44 N. E. 680 (1896). Ju- 
 dicial notice will be taken that gas, 
 unlike oil, cannot be brought to the 
 surface and stored to await a market, 
 but must remain in the ground, and, 
 unless allowed to waste away, taken 
 out only when producer can find a 
 customer. Eastern Oil Co. v. Coule- 
 han, 65 W. Va. 531, 64 S. E. 836 
 (1909). 
 
 2. Indiana, etc., Co. v. Jones, 14 
 Ind. App. 55, 42 N. E. 487 (1895) ; 
 Alexandria, etc., Co. v Irish, 16 Ind. 
 App. 534, 541, 44 N. E. 487 (1896). 
 See also Indiana, etc., Gas Co. v. 
 State, 158 Ind. 516, 63 N. E. 220, 222 
 (1901). That gas pipes always leak 
 is not a subject of judicial cognizance. 
 Indiana, etc., Co. r. Jones, 14 Ind. 
 App. 55, 52 N. E. 487 (1895). 
 
 3. MoGahan v. Indianapolis, etc., 
 Co., 140 Ind. 335, 37 N. E. 601, 29 
 L. R. A. 355 (1894). 
 
 4. Huggins r. Dnly, 99 Fed. 606, 48 
 L. R. A. 355 (1900). 
 
905 Powee of Cold to Abbest Decay. §§ 720, 721 
 
 Particular facts relating to matter in the gaseous form not gen- 
 erally known as that natural gas can percolate through the soil 
 and enter a house in quantity sufficient to cause an explosion, 6 
 should be proved. 
 
 Etheric and Electrical. — Courts know the general properties 
 and effects of electricity. The special manner in which it is gen- 
 erated or transported 6 must be proved. Whether electricity has 
 any and, if so, what, curative properties when applied to the 
 human system, 7 is not commonly known to courts. It need not be 
 proved that electricity is dangerous. 8 It is commonly known and 
 recognized as being of this nature. 
 
 § 720. (B. What Facts are Covered by the Rule); (2) 
 
 Science. — The well established and notorious results of scientific 
 research need not be proved to the tribunal. The conclusions of 
 such investigation, so far as definitely settled regarding matters 
 of general interest, are commonly known. 1 Disputed propositions 
 of scientific knowledge, about which learned men may reasonably 
 differ in opinion, must be proved, if their truth is to be available 
 to the party. 2 
 
 § 721. (B. What Facts are Covered by the Rule; [2] 
 Science); Uniformity Necessary. — The laws of nature, whether 
 ultimate or derivative, are commonly known. 1 Thus, no proof 
 
 5. Mississinewa Min. Co. v. Patton. Larkin, 223 Mo. 156, 121 S. W. 307 
 
 129 Ind. 472, 28 N. E. 1113, 28 Am. (1909); Timson v. Manufacturers' 
 St. Rep. 203 (1891). That coal mines Coal & Coke Co., 220 Mo. 580, 119 
 generate deleterious gases is not a S. W. 565 (1909). 
 
 matter of common knowledge. Tim- 2. State v. Fox, 79 Md. 514, 528, 
 son v. Manufacturers' Coal & Coke 29 Atl. 601 (1894); St. Louis Gas- 
 Co., 220 Mo. 580, 119 S. W. 565 light Co. v. American F. Ins. Co., 33 
 (1909). Mo. App. 348 (1889); Blessing v. 
 
 6. City of Crawfordsville v. Braden, John Trageser, etc., Works, 34 Fed. 
 
 130 Ind. 149, 28 N. E. 849 (1891); (U. S.) 753 (1888); Kaolatype En- 
 Taggart v. Newport St. R. Co., 16 graving Co. v. Hoke, 30 Fed. (U.S.) 
 R. I. 668, 19 Atl. 326 (1885). 444 (1887). See also Sprankle v. 
 
 7. Macomber v. State Board of Bart, 25 Ind. App. 681, 58 N. E. 862 
 Health, 28 R. I. 3, 65 Atl. 263 (1906). (1900) ; Mississinewa, etc., Co. v. Pat- 
 
 8. Warren v. City Electric Ry Co., ton, 129 Ind. 472, 28 N. E. 1113 
 (Mich. 1905) 12 Detroit Leg. N 415, (1891); Northwestern Mfg. Co. v. 
 104 N. W. 613. Chambers, 58 Mich. 381, 55 Am. R. 
 
 1. Luke v. Calhoun County, 52 Ala. 693 (1885). 
 
 115 (1875); Poor v. Watson, 92 Mo. 1. Alabama. — Wetzler v. Kelly, 83 
 
 App. 89 (1901); Cox v. Seyenite Ala. 440, 3 So. 747 (1887). 
 
 Granite Co., 39 Mo. App. 424 (1890) Arkansas. — Person v. Wright, 35 
 
 (gravitation). See also Reineman r. Ark. 169 (1879). 
 
§§ 722-725 Knowledge; Common. 906 
 
 will be asked that oold of a certain degree will arrest the process 
 of decay. 2 But natural laws of a limited and uncertain operation 3 
 a fortiori those whose existence is disputed, 4 must be proved. 
 
 § 722. (B. What Facts are Covered by the Rule; [2] 
 Science) ; Mathematical Science . The general rules of mathe- 
 matical science, such as arithmetic, 1 or of their common applica- 
 tion in any familiar art, e. g., mensuration, 2 need not be proved. 
 
 § 723. (B. What Facts are Covered by the Rule; [2] 
 Science) ; Established Standards ; Capacity. — In part, because 
 established by law and in part because generally known in the 
 community, standard measures of capacity 1 are judicially known, 2 
 
 § 724. (B. What Facts are Covered by the Rule; [2] 
 Science; Established Standards) ; Extension. — Standard meas- 
 ures of extension are both commonly and judicially known. The 
 court, however r cannot be required to make computations based on 
 these standards, as, for example, to determine the area embraced 
 within certain boundaries. 1 
 
 § 725. (B. What Facts are Covered by the Rule; [2] 
 Science; Established Standards) ; Value. — The value of the 
 circulating medium is established by laws which the court admin- 
 
 California. — Mahoney V. Aurreco- 372, 285, 89 Am. Dec. 312 (1866); 
 
 chea, 51 Cal. 429 (1876). Haines V. Gibson, 115 Mich. 131, 73 
 
 Maryland.— Chesapeake, etc., Canal N. W. 126 (ice on April 1st in north- 
 Co. v. Baltimore, etc., R. Co., 4 Gill em Michigan) (1897). 
 & J. 1 (1832). 4. People v. Ebanks, 117 Cal. 652, 
 
 Missouri.— Garth V. Caldwell, 72 49 Pac. 1049, 40 L. R. A. 269 (1897) ; 
 
 Mo. 622 (1880). Chicago, etc., E. Co. v. Champion, 
 
 Texas.— Barr v. Cardiff, (Civ. App. (Ind. Sup. 1892) 32 K. E. 874. 
 
 1903 ) 75 S. W. 341. 1. Falls v. V. S. Saving, etc., Co., 
 
 United States. — Lyon v. Marine, 55 97 Ala. 417, 13 So. 25, 24 L. R. A. 
 
 Fed. 964, 5 C. C. A. 359 (1893). 174 (1892). 
 
 2. Brown v. Piper, 91 U. S. 37, 23 2. Scanlan v. San Francisco Ry. 
 L. ed. 200 (1875). Co., (Cal. 1898) 55 Pac. 694. 
 
 3. Weather conditions.— While each 1. Reid v. McWhinnie, 27 U. C. 
 separate natural meteorological force Q. B. 289 (1868) (a pint is less than 
 would produce, if unconditioned by five gallons). 
 
 others an invariable result, their in- 2. No proof need be offered that a 
 
 tcraction is so complicated that courts ten-cent glass of whiskey contains less 
 
 are unwilling to regard the vicissi- than three gallons. State v. Blands, 
 
 tudes of weather, or changes in cli- 101 Mo. App. 618, 74 S. W. 3 (1903). 
 
 mate as facts commonly known. Santa 1. Tison v. Smith, 8 Tex. 147 
 
 Cruz v. Enright, 95 Cal. 105, 30 Pac. (1852). 
 197 (1892) ; Dixon v. Niccolls, 39 111. 
 
907 
 
 Value of Circulating Medium Known. 
 
 § 725 
 
 isters. 1 For this reason, as well as because the fact is notorious, 
 no proof need be offered as to it. 2 In other words, it is a subject 
 both of common and judicial knowledge. The value of paper 
 currency as measured in gold is matter of general knowledge; 3 
 but the value of bank notes,* though actually part of the circulat- 
 ing medium for exchanges, must be proved. 5 The value of small 
 silver coin in circulation — half dollars, quarters, 6 dimes, and 
 
 1. Alabama.— Gady v. State, 83 
 Ala. 51, 3 So. 429 (1887) (that the 
 paper currency of the United States 
 is prima facie of its face value). 
 
 Georgia. — Mallory v. State, 62 Ga. 
 164 (1878) ("nickels" have a value). 
 
 Illinois. — Collins v. People, 39 111. 
 233 (1866). 
 
 Indiana. — McCarty v. State, 137 
 Ind. 223, 26 N. E. 665 (1890). 
 
 Kansas. — State v. Pigg, 80 Kan. 
 481, 103 Pac. 121 (1909). 
 
 Maryland. — Chesapeake Bank V. 
 Swain, 29 Md. 483, 502 (1868). 
 
 Missouri. — State v. Moseley, 38 
 Mo. 380 (1866) ; U. S. v. Fuller, 4 
 N. M. 358, 20 Pac. 175 (1889). 
 
 South Carolina. — State V. Evans, 15 
 Rich. 31 (1867). 
 
 Tennessee. — Shaw v. State, 3 Sneed 
 86 (1855). 
 
 Texas. — Jones v. State, 39 Tex. Cr. 
 387, 46 S. W. 250 (1898); U. S. V. 
 Burns, 24 Fed. Cas. No. 14,691, 5 
 McLean 23 (1849) (the 50-cent and 
 25-cent pieces of the United States 
 coin are identical with the half dollar 
 and quarter dollars, respectively ) . 
 See also U. S. v. American Gold Coin, 
 24 Fed. Cas. No. 14,439, 1 Woolw. 
 217 (1868). 
 
 England. — Bryant v. Foot, L. R. 3 
 Q. B. 497, 9 B. & S. 444, 37 L. J. 
 Q. B. 217, 18 L. T. Rep. N. S. 587, 16 
 Wkly. Rep. 808 (1868), American 
 courts know judicially that the dollar 
 is the monetary unit in the United 
 States and require no proof of its 
 value or as to that of the other 
 kinds or denominations of the na- 
 tional currency. McDonald v. State, 
 2 Ga. App 633, 58 S. E. 1067 (1907). 
 
 So also, the meaning of the term 
 " greenback " is » matter of common 
 knowledge. McDonald v. State, 2 Ga. 
 App. 633, 58 S. E. 1067 (1907). 
 
 The general appreciation of the 
 value of money since the time of 
 Richard I is a fact of common knowl- 
 edge. Bryant v. Foot, L. R., 3 Q. B. 
 497 (1868), per Kelly, C. B. 
 
 2. Grant V. State, 89 Ga. 393, 15 
 S. E. 488 (1892); MeCarty v. State, 
 127 Ind. 223, 26 N. 'E. 665 (1890) ; 
 Jones v. State, 39 Tex. Cr. 387, 46 
 S. W. 250 (1898). 
 
 3. U. S. v. American Gold Coin, 24 
 Fed. Cas. No. 14,439. Woolw. 217 
 (1868). That United States notes 
 " are prima facie of a commercial 
 value equal to that imputed by their 
 face " is commonly known. Gady v. 
 State, 83 Ala. 51 (1887). 
 
 4. Modawell v. Holmes, 40 Ala. 391 
 (1867). Compare Perrit v. Crouch, 5 
 
 Bush (Ky.) 199 (1868); Jones v. 
 Fales, 4 Mass. 245, 252 (1808); 
 Letcher v. Kennedy, 3 J. J. Marsh. 
 (Ky.) 701 (1830) ; Bell v. Waggener, 
 7 T. B. Mon. (Ky.) 524 (1828) ; 
 Feemster v. Ringo, 5 T. B. Mon. 
 (Ky.) 336 (1827). " We are not at 
 liberty to take judicial notice of the 
 value of the paper of the bank at any 
 particular time." Feemster v. Ringo, 
 5 Mon. (Ky.) 336 (1827). 
 
 5. That there was some deprecia- 
 tion, at a, given time may be a his- 
 torical fact which may be regarded as 
 established without proof. Perrit r. 
 Crouch, 5 Bush (Ky.) 199 (1868). 
 
 G. Sims v. State, 1 Ga. App. 776, 
 57 S. E. 1029 (1907). 
 
*§ 726, 727 
 
 Knowledge ; Common. 
 
 DOS 
 
 even that of smaller coinage 7 is notorious. The equivalents of the 
 circulating medium of the United States in the standard coinage 
 of other countries, such as the British pound, 8 may be taken as 
 known. The court cannot be asked to apply these standards of 
 value to particular commodities 10 or to the value of legal, 11 medi- 
 cal, 12 commercial 13 or other services. 1 * 
 
 § 726. (B. What facts are covered by the Rule; [2] 
 Science; Established Standards); Weight — The court notices 
 the established standards of weight, as well as those of measure. 1 
 It cannot, however, be asked to apply these standards to specific 
 articles; — e. g., as the weight of artificial legs. 2 
 
 § 727. (B. What Facts are Covered by the Rule; [2] 
 Science); Facts of the Almanac — The almanac is part of the law 
 of England 1 and of other jurisdictions which are governed by the 
 English system of jurisprudence. By this is meant that the facts 
 stated in the almaiiac are both commonly and judicially known, 
 and that such facts, when relevant, 2 will be assumed to be correctly 
 stated, even without the production of the almanac itself. 3 The 
 court may use the book to refresh its memory; and even where 
 the almanac is introduced in evidence, the act, though unneces- 
 
 7. Barddell v. State, (Ala. 1906) 
 39 So. 975 (5-cent piece called a 
 "nickel"). 
 
 8. Johnston r. Hedden, 2 Johns. 
 Cas. (N. Y.) 274 (1801). 
 
 9. The value of Canadian currency 
 in money of the United States must 
 be proved in an American court. Ker- 
 mott v. Ayer, 11 Mich. 181 (1863). 
 
 10. Price v. Connecticut Mut. L. 
 Ins. Co., 48 Mo. App. 281 (1891) 
 (life insurance policy) ; Towne !'. St. 
 Anthony, etc., Elevator Co., 8 N. D. 
 200, 77 N. W. 608 (1898) (grain). 
 
 11. Pearson v. Darrington, 32 Ala. 
 227 (1858). ' 
 
 12. Millener V. Driggs, 10 N. Y. St. 
 237 (1887). 
 
 13. Seymour v. Marvin, 11 Barb. 
 (N. Y.) 80 (1851) (commission). 
 
 14. But see Bell v. Barnet, 2 J. J. 
 Marsh. (Ky.) 516 (1829); Adams 
 Express Co. v. Hoeing, 9 Ky. L. Rep. 
 814 (1888). 
 
 1. Mays v. Jennings, 4 Humph. 
 (Tenn.) 102 (1843); Hockin r. 
 Cooke, 4 T. R. 314 (1791); Reed r. 
 McWhinnie, 27 U. C. Q. B. 289 
 (1868). See also Putnam v. White, 
 76 Me. 551 (1884) ; Tison v. Smith, 8 
 Tex. 147 (1852). 
 
 2. Garrow r. Barre R. Co., (Vt. 
 1902) 52 Atl. 537. 
 
 1. Nixon r. Freeman, 5 H. & N. 
 652 (1860); Tutton r. Darke, 5 
 H. & N. 647, 6 Jur. N. 
 L. J. Exch. 271, 2 L. T. 
 361 (1860) ; Brough f. 
 Mod. 80, 81 (1703). 
 
 An act of Parliament establishes 
 the calendar in England. Harvey v. 
 Broad, 6 Mod. 159 (1704). 
 
 2. Dawkins v. Smithwick, 4 Fla. 
 158 (1851). 
 
 3. People v. Chee Kee, 61 Cal. 404 
 (1882) ; Wilson v. Van Leer, 127 Pa. 
 St. 371, 379, 17 Atl. 1097, 14 Am. St. 
 Rep. 854 (1889). 
 
 S. 983, 29 
 Rep. N. S. 
 Perkins, 6 
 
909 Reducing Potential into Actual Knowledge. § 727 
 
 sary, 4 is not illegal. 5 In other words, the same procedure is fol- 
 lowed as if the rising time of the sun or the setting of the moon 
 were a proposition of domestic law, which the court was bound to 
 know; The matter, however, is merely one of scientific fact, 
 which, under the practical conditions of the trial can only be 
 shown by the almanac itself. The time of the rising of the sun 
 is no more a matter of law than is the expectancy of life or any 
 other fact of scientific deduction which is not easily proved in any 
 other way. Nor are facts of the almanac said to be commonly 
 known, because the community, as a whole, actually knows them. 
 It does not know them in the sense that it knows that a man is a 
 biped or that it is dangerous to cross a railroad track without 
 looking for an approaching train. The public merely knows 
 that the laws under which these calculations are made are ascer- 
 tained and known to certain disinterested and specially qualified 
 persons, as is shown by the circumstance that they have been 
 verified for a long series of years by actual results with which 
 they are in part familiar. This, however, furnishes rather a rea- 
 son why the fact of the almanac should not be disputed than why 
 they could be said to be "known to the general community. 
 
 The knowledge of these, and similar facts in the case 
 of the average man is "potential, rather than actual. He does not 
 know the fact itself ; he merely knows where to find it. The judge, 
 as the executive officer of the court, may examine into the matter 
 
 4. " However often departed from Connecticut. — ■ State v. Morris, 47 
 as a matter of convenience, the rule is Conn. 180 (1879). 
 
 that matters of which judicial notice Maryland. — Munshower v. State. 5J 
 
 is taken, including the dates in the Md. 11, 24 (1880). 
 
 almanac, do not require to be put in New York. — Case v. Perew, 46 Hun 
 
 evidence at all." Wilson v. Van Leer, 57,62 (1887). 
 
 127 Pa. St. 371 (1889). Counsel may Pennsylvania. — Wilson v. Van Leer, 
 
 Use an almanac, not previously 127 Pa. 378, 17 Atl. 1097 (1889). 
 
 brought to the attention of the court, England. — Tutton v. Darke, 5 H. & 
 
 in a closing argument. Wilson v. Van N. 649 (1860) ; Brough v. Perkins, 6 
 
 Leer, 127 Pa. St. 371, 17 Atl. 1097, 14 Mod. 81 (1703). 
 
 Am. St. Rep. 854 (1889). In Georgia the same result is at- 
 
 5. State v. Morris, 47 Conn. 179 tained by statute. "The almanac in 
 (1879) ; Lendle v. Robinson, 53 N. Y. such cases is used, like the statute, 
 
 App. Div. 140, 65 N. Y. Suppl. 894 not strictly as evidence, but for the 
 
 (1900) ; Case v. Perew, 46 Hun (N. purpose of refreshing the memory of 
 
 Y.) 57 (1887). the court and jury." State v. Morris, 
 
 Alabama. — Allman v. Owen, 31 Ala. 47 Conn. 174 (1879). 
 167 (1857). 
 
 California. — People v. Chee Kee, 61 
 Cal. 404 (1882). 
 
§ 728 Knowledge ; Common. 910 
 
 or the jury may do the same thing for themselves. No res gestce 
 fact being involved, it is good administration for the expediting 
 of the court's business. 
 
 Judicial Knowledge. — The divisions of time being recognized 
 and, in a just sense, the result of law, it may properly be said 
 that the facts of the almanac are judicially as well as generally 
 known. 
 
 § 728. (B. What Facts are Covered by the Rule; [2] 
 Science; Facts of the Almanac); Movements of the Heavenly 
 Bodies. — Facts of the almanac, as commonly used, include obser- 
 vations as to phenomena connected with the movements of the 
 heavenly bodies as viewed from various point3 on the earth's sur- 
 face and, in certain cases, — as the ebb and flow of the tides — or 
 the growth of vegetation, to effects produced upon the surface 
 itself. Prominent among these are the time of the rising and 
 setting of the sun; 1 or the same facts regarding the moon. 2 In- 
 ferential facts regarding the duration of daylight 3 or moonlight, 
 if any, on a particular day will be taken as being accurate without 
 evidence on the point. In the same sense, a judge knows the dif- 
 
 1. Alabama. — Iiouisville, etc., Ry. 2. Alabama. — Mobile, etc., R. Co. r. 
 
 Co. v. Brinkerhoff, 119 Ala. 606, 24 Ladd, 92 Ala. 287, 9 So. 169 (1890). 
 
 So. 892 (1898). California. — Peoples. Maye9, 113 
 
 California.— People v. Chee Kee, Cal. 618, 45 Pac. 860 (1896). 
 
 61 Cal. 404 (1882). Connecticut. — State v. Morris, 47 
 
 Connecticut. — State v. Morris, 47 Conn. 179 (1879). 
 
 Conn. 179 (1879). See also Beards- Maryland. — Munshower v. State, 
 
 ley v. Irving, 81 Conn. 489, 71 Atl. 55 Md. 11, 39 Am. Rep. 414 (1880). 
 
 580 (1909). Michigan. — De Armond v. Nea- 
 
 Indiana. — Dayton & W. Traction smith, 32 Mich. 231 (1875). 
 
 Co. v. Marshall, (Ind. App. 1905) New York. — Case v. Perew, 46 
 
 75 N. E. 824. Hun 57 (1887). 
 
 ~New York. — Montenes v. Metro- England. — Page v. Faucet, Cro. 
 
 politan St. R. Co., 77 N. Y. App. Div. Eliz. 227 (1587). 
 
 493, 78 N. Y. Suppl. 1059 (1902). 3. Cincinnati, etc., R. Co. r. Worth- 
 
 OMo.— Lake Erie, etc., R. Co. v. ington, 30 Ind. App. 663, 65 N. E. 
 
 Hatch, 6 Ohio Cir. Ct. 230, 3 Ohio 557, 66 N. E. 478 (1902) (3:20 a. 
 
 Cir. Dec. 430 (1892). m., October 12th, not daylight). It 
 
 The contrary doctrine is held in will be known that in the latitude of 
 
 England. — Where the court declines Illinois 5 o'clock in the afternoon of 
 
 to take judicial cognizance of the July 23d is about two hours before 
 
 time of sunrise. Tutton r. Darke, sunset. Palkeneau Const. Co. r. Gin- 
 
 5 H. & N. 647, 6 Jur. N. S. 983, 29 ley, 131 111. App. 399 (1907). 
 L. J. Exch. 271, 2 L. T. Rep. N. S. 
 361 (I860). 
 
911 Accuracy of Photographic Process Known. § 729 
 
 ference between mean high water and mean low water mark at a 
 given point. 4 
 
 Days, weeks, months, etc. Courts notice periods within the cal- 
 endar. 5 They, therefore, take judicial knowledge of times, dates 
 and subdivisons of a year into months, weeks and days. 6 Judges 
 notice, without proof, the number of days in any calendar month. 7 
 As is seen elsewhere 8 implied in such a knowledge of the facts of 
 the almanac is cognizance as to the coincidence of the days of the 
 week with those of the month, of the days of the month with 
 those of the year and the relation of any day to a fixed date such 
 as the opening of a term of court. Such a discovery by means 
 of an almanac of the coincidence of the days of the week with 
 those of the month has been spoken of as " refreshing the memory" 
 of the court. 9 The phrase, however, scarcely seems felicitous. 
 Non constat that the court ever had any memory on the subject 
 whatever. The process more nearly resembles the making actual 
 of knowledge at all times potential. m 
 
 § 729. (B. What Facts are Covered by the Rule; [2] 
 Science) ; Photography. — The scientific principles relating to 
 photography, 1 the mechanical and chemical processes employed 2 
 and the general accuracy of the results, 3 are known to the courts. 
 
 4. Supperle v. MacFarland, 28 App. 115 ( 1875 ) ; Cozzens V. Higgins, 1 
 Cas. (D. C.) 94 (1906). Abb. Ct. of App. Dec. 451 (1866). 
 
 Action of the tides. — The law no- 2. Luke v. Calhoun Co., 52 Ala. 115 
 
 tices the high spring tides, which are ( 1875 ) . 
 
 the fluxes of the sea at those tides 3. Luke v. Calhoun County, 52 Ala. 
 which happen at the two equinoctials, 115 (1875); Cowley v. People, 83 
 the spring tides which happen twice N. Y. 464, 38 Am. Rep. 464 ( 1881 ) ; 
 every month at the full and change Udderzook v. Com., 76 Pa. St. 340 
 of the moon, and the neap or ordi- (1874). "We do not fail to notice, 
 nary tides, which happen at the and we may notice judicially, that all 
 change and full of the moon twice in civilized communities rely upon photo- 
 twenty-four hours. Eichelberger v. graphic pictures for taking and pre- 
 Mills Land & Water Co., (Cal. App. senting resemblances of persons and 
 1909) 100 Pac. 117. animals, of scenery and all natural 
 
 5. State v. Williams, (Nev. 1909) objects, of buildings and other ar- 
 102 Pac. 974. tificial objects." Cowley v. People, 
 
 6. McAllister v. State, (Tex. Cr. 83 N. Y. 464" (1881). "The proc- 
 App. 1909) 116 S. W. 582. ess (photography) has become one in. 
 
 7. 1 Rol. Ab. 524. general use, so common that we can- 
 
 8. Supra, § 704. not refuse to take judicial, cognizance 
 
 9. Beardsley v. Irving, 81 Conn. of it as a proper means of producing 
 489, 71 Atl. 580 (1909). correct likenesses." Udderzook • V. 
 
 10. Swpra, § 698. Com., 76 Pa. St. 340 (1874). 
 1. Luke v. Calhoun County, 52 Ala. 
 
§§ 730, 731 
 
 Knowledge; Common. 
 
 912 
 
 The accuracy of a properly taken X-ray photograph of the bones 
 of a living body will be judicially known. 4 
 
 § 730. (B. What Facts are Covered by the Rule; [2] 
 Science) ; Statistics. — Commonly received facts revealed by the 
 use of statistics as, census tables, 1 the law of averages, 2 expectancy 
 of life, annuity or mortality tables, present the difficulties: of proof 
 characteristic of the other results of scientific research ; 3 — and 
 which has already been observed regarding facts of the almanac, 4 
 and the like. They are, therefore, subjects fairly treated as 
 matters of common knowledge to be acquired by the court, for its 
 own benefit and that of the jury by the exercise of its adminis- 
 trative powers. Certain statistical results, like those set forth in 
 the census tables, are also facts established by a law, which the 
 court is required judicially to know. 
 
 § 731. (B. What Facts are Covered by the Rule; [2] 
 Science; Statistics) ; Census. — For reasons given above — (a) be- 
 cause the facts cannot usually be otherwise proved; (b) because 
 they are facts established by or in pursuance of law, 1 courts take 
 judicial notice of the existence and facts stated in the federal 
 census 2 and of any census taken under the law of the state, 3 
 though covering a limited range. 4 The court will not only notice 
 
 4. Houston & T. C. E. Co. v. 
 Shapard, (Tex. Civ. App. 1909) 118 
 S. W. 596. For an illuminating dis- 
 cussion of the general use of photo- 
 graphs in evidence, see 35 L. K. A. 
 802. 
 
 1. Infra, § 731. 
 
 2. Infra, § 732. 
 
 3. Supra, § 698. 
 
 4. Supra, § 704. 
 
 1. Supra, § 637. 
 
 2. California. — People v. Williams, 
 64 Cal. 87, 27 Pac. 939 (1883). 
 
 Illinois. — Chicago, etc., R. Co. V. 
 Baldridge, 177 111. 229, 52 N. E. 263 
 (1898). 
 
 Indiana. — Whitley County v. Garty, 
 161 Ind. 464, 68 N. E. 1012 (1903); 
 State v. Swift, 69 Ind. 505, 527 
 (1880). 
 
 Iowa. — State r. Braskamp, 87 
 Iowa 588, 54 N. W. 532 (1893). 
 
 Missouri. — State v. Marion Co. 
 Court, 128 Mo. 427, 30 S. W. 103 
 (1895) ; State v. Jackson County Ct., 
 89 Mo. 237, 1 S. W. 307 (1886). 
 
 Oregon. — Stratton v. Oregon City, 
 35 Or. 409, 60 Pac. 905 (1900). 
 
 West Virginia. — Welch v. Wetzel 
 County Ct., 29 W. Va. 63, 1 S. E. 
 337 (1886). But see First Nat. Bank 
 v. Chapman, 173 U. S. 205, 19 Sup. 
 Ct. 407 (1899). 
 
 3. Huntington f. Cast, 149 Ind. 
 255, 48 N. E. 1025 (1898) ; Stratton 
 l\ Oregon City, 35 Or. 409, 60 Pac. 
 905 (1900). 
 
 4. Kokes r. State, 55 Neb. 691, 76 
 N. W. 467 (1898) (school district). 
 
913 Kesttlts Deducible from Mortality Tables. 
 
 732 
 
 the population of the state and its counties, 5 cities, 6 towns 7 and 
 other political divisions, but will know the approximate rate at 
 which the population of these places increases 8 ' or diminishes. As 
 a fact of notoriety, 9 the courts may know the results reached by 
 the census before their official announcement. 10 
 
 § 732. (B. What Facts are Covered by the Rule; [2] 
 Science; Statistics); Mortality Tables. — The court knows of 
 facts established by mortality tables of recognized authority, 1 as 
 
 5. Infra, § 743. 
 
 6. Ferritt v. Ellis, (Iowa 1906) 
 105 N. W. 993; City of Ft. Scott V. 
 Elliott, (Kan. 1903) 74 Pac. 609; 
 State ea> rel. Crow v. Page, (Mo. 
 App. 1904) 80 S. W. 912; infra, 
 § 744. See also Russell v. Poor, 133 
 Mo. App. 723, 119 S. W. 433 (1908) 
 
 (population of Kansas City, Mo.) ; 
 Gannett v. Independent Telephone 
 Co., 106 N. Y. Suppl. 3, 55 Misc. Rep. 
 555 (1907). A court will know that 
 many cities or towns in the state 
 have a population in excess of 5,000. 
 People v. Earl, 42 Colo. 238, 94 Pac. 
 294 (1908). 
 
 For some consideration of the effect 
 of census returns in establishing the 
 fact of age see 9 L. R. A. (N. S.) 
 718. 
 
 7. Infra, § 750. Ferrel r. Ellis, 
 (Iowa 1906) 105 N. W. 993; Page 
 V. McClure, (Vt. 1906) 64 Atl. 451. 
 
 8. In re Senate Bill No. 293, 21 
 Colo. 38, 39 Pac. 522 (1895); Union 
 College v. New York, 73 N. Y. Suppl. 
 51, 65 App. Div. 553 (1901). To be 
 judicially known the average claimed 
 must be under a fixed uniformity, not 
 subject to violent fluctuations. A 
 court, for example, will not judicially 
 know what, on the average, is the 
 percentage of voting population of a 
 State or county who actually vote at 
 annual elections. Kokes v. State, 55 
 Neb. 691, 76 N. W. 467 (1898). 
 
 Actual increase above the census 
 figures, if relied on, must be proved. 
 Adams l\ Elwood, 176 N. Y. 106, 
 68 N. E. 126 (1903). 
 
 Vol. I. 58 
 
 9. Supra, § 699. 
 
 10. State v. Braakamp, 87 Iowa 
 588, 54 N. W. 532 (1893). 
 
 1. Arkansas. — Arkansas M. R. Co. 
 v. Griffith, 63 Ark. 491, 39 S. W. 
 550 (1897). 
 
 California. — Valente v. Sierra Ry. 
 Co., (Cal. 1907) 91 Pac. 481; Town- 
 send v. Briggs, 99 Cal. 481, 484, 34 
 Pac. 116 (1893). 
 
 Connecticut. — Nelson v. Branford 
 L. & W. Co., 75 Conn. 548, 54 Atl. 303 
 (1903). 
 
 Georgia. — Central R. Co. v. Rich- 
 ards, 62 Ga. 307 (1879). 
 
 Illinois. — Joliet v. Blower, 155 111. 
 414, 40 N. E. 619 (1895). 
 
 Iowa. — Kreuger v. Sylvester, 100 
 Iowa 647, 69 N. W. 1059 (1897). 
 
 Kansas. — Atchison, T. & S. F. R. 
 Co. v. Ryan, 62 Kan. 682, 64 Pac. 
 603 (1901). 
 
 Kentucky. — Louisville & N. R. Co. 
 v. Kelly, 100 Ky. 421, 38 S. W. 852 
 (1897). 
 
 Michigan. — Nelson t>. R. Co.. 104 
 Mich. 582, 62 N. W. 993 (1895). 
 
 Missouri. — O'Mellia ).'. R. Co., 115 
 Mo. 205, 222 (1893). 
 
 Neiv York. — People v. Life Ins. Co., 
 78 N. Y. 128 (1879). 
 
 Pennsylvania. — ■Campbell v. York, 
 172 Pa. 205, 33 Atl. 879 (1896). 
 
 Tennessee. — Railroad Co. v. Ayres, 
 84 Tenn. 729 (1886). 
 
 Vermont. — Mills v. Catlin, 22 Vt. 
 107 (1849). 
 
 Wisconsin. — Crouse r. R. Co., 102 
 Wis. 196, 78 N. W. 446 (1899). 
 
 United States. — >Vicksburg R. Co. 
 
§ 732 
 
 Knowledge; Common. 
 
 914 
 
 the Carlisle, 2 American 3 or other standard 4 compilations. 5 It is 
 not essential, as an administrative matter, that preliminary proof 
 should be offered as to the authoritative character of the publica- 
 tion. 6 It follows that the court will know the expectancy of life 
 at & given age, 7 as gathered from these tables. 8 
 
 v. Putman, 118 U. S. 554, 7 Sup. 1 
 (1886). 
 
 England. — Rowley v. R. Co., L. R. 
 8 Exeh. 226 (1873). 
 
 There is authority to the contrary, 
 though by a divided court. Western 
 & A. R. Co. c. Hyer, 113 Ga. 776, 39 
 S. E. 446 (1901). 
 
 See infra, §§ 859c et seq. 
 
 2. Georgia. — Western & A. R. Co. 
 r. Cox, 115 Ga. 715, 42 S. E. 74 
 (1902). 
 
 Nebraska. — Friend r. Ingersoll, 39 
 Neb. 717, 724, 58 N. W. 281 (1894). 
 
 New Jersey. — Camden & A. R. Co. 
 r. Williams, 61 N. J. L. 646, 40 Atl. 
 634 (1898). 
 
 P-ennsylvania. — ■ Steinbrmmer r. R. 
 Co., 146 Pa. 504, 515, 23 Atl. 239 
 (1892). 
 
 United States. — Lincoln v. Power, 
 151 U. S. 436, 441 (1893). 
 
 3. Birmingham M. R. Co. v. Wil- 
 mer, 97 Ala. 165, 170, 11 So. 886 
 (1892). 
 
 4. Keast r. Santa Ysabel G. M. 
 Co.. 136 Cal. 256, 68 Pac. 771 (1902); 
 (Farrs tables) ; Pearl v. R. Co., 115 
 Iowa 535, 88 N. W. 1078 (1902) 
 (generally accepted as standard) ; 
 Scagel r. R. Co., 83 Iowa 380, 49 
 N. W. 990 (1891) (cyclopaedia); 
 Lancaster r. Lancaster's Trustees, 78 
 Ky. 200 (1879) (dower tables). See 
 also Winn c. Cleveland, C, C. & 
 St. L. Ry. Co., 143 111. App. 71 
 (1908) [judgment affirmed, 87 N. E. 
 954 (1909)] (Dr. Wigglesworth ) . 
 
 5. Whether the court shall require 
 preliminary proof of the recognized 
 authority of the tables is dependent 
 upon the judge's knowledge on the 
 subject. Keast r. Santa Ysabel, etc., 
 Co., 136 Cal. 256, 68 Pac. 771 (1902). 
 It is not necessary. Western, etc., 
 
 Ry. Co. v. Cox, 115 Ga. 715 (1902). 
 It has, however, been required. Cam- 
 den, etc., Ry. Co. r. Williams, 61 N. 
 J. L. 646, 40 Atl. 634 (1898). The 
 conditions upon which the results are 
 reached must necessarily be specified. 
 McKenna i. Gas Co., 198 Pa. 31, 47 
 Atl. 990 (1901). 
 
 6. Valente v. Sierra R. Co., (Cal. 
 1907) 91 Pac. 481. 
 
 7. Alabama. — Kansas City, etc., R. 
 Co. r. Phillips, 98 Ala. 159, 13 So. 
 65 (1893). 
 
 Arkansas. — Arkansas Midland R. 
 Co. r. Griffith, 63 Ark. 491, 39 S. W. 
 550 (1897). 
 
 Connecticut. — Nelson V. Branford 
 Lighting, etc., Co., 75 Conn. 548, 54 
 Atl. 303 (1903). 
 
 Georgia. — Western, etc., R. Co. v. 
 Hyer, 113 Ga. 776, 39 S. E. 447 
 (1901). 
 
 Indiana. — • Indianapolis r. Marold, 
 25 Ind. App. 428, 58 N. E. 512 (1900). 
 
 Kentucky. — Alexander i\ Bradley, 
 3 Bush 667 (1868). 
 
 Missouri. — Boettger v. Scherpe, 
 etc., Architectural Iron Co., 136 Mo. 
 531, 38 S. W. 298 (1896). 
 
 New York. — Davis r. Standish, 26 
 Hun 608 (1882). 
 
 W'est Virginia. — Abell !'. Penn. 
 Mut. L. Ins. Co., 18 W. Va. 400 
 (1881). 
 
 Statutory provisions to the same 
 effect have been adopted in North 
 Carolina, North Dakota (Carlisle 
 tables), South Carolina (mortuary 
 table ) . 
 
 8. Mutual Life Ins. Co. t*. Bratt, 
 55 Md. 200, 212 (1880); Kerrigan 
 r. R. Co., 194 Pa. 98, 44 Atl. 1069 
 (1899) ; Berg t\ R. Co., 50 Wis. 427, 
 7 N. W. 347 (1880). 
 
915 Microscopic Knowledge of Topography. §§ 733, 734- 
 
 § 733. (B. What Facts ate Covered by the Rule; Science; 
 Statistics); Trade Tables. — The tabulated results of experience 
 or observation in scientific, 1 mechanical 2 or commercial 3 pursuits, 
 or the results of scientific calculations in these and other depart- 
 ments of human activity, as set forth in interest tables, 4 tables 
 of weights, 5 currency 6 and the like need not be proved. 7 
 
 § 734. (B. What Facts are Covered by the Rule); (3) 
 
 Facts of Geography; In General Two main classes of geograph- 
 ical facts 1 are judicially or commonly known; — (a) those which 
 are established by law; (b) those which the community, as a 
 whole, knows as a matter of notoriety. 2 The two classes cannot, 
 in all cases, be separated ; — it frequently happening that it is pre- 
 cisely the facts established by law which are most notorious 
 through the community. The most which can, perhaps be said in 
 such cases is that the judge, in these instances of blended sources 
 of knowledge, is justified by a double line of forensic or procedural 
 reasoning in dispensing with proof of the geographical fact so cir- 
 cumstanced. 
 
 Courts, in general, know the prominent topographical features 
 of the country covered by their immediate jurisdiction, 3 those of 
 the country as a whole, 4 and of the entire world. The court's 
 
 1. Western Aaaur. Co. V. Mohl- facts of topography (infra, § 739), 
 mann Co., 28 C. C. A. 157, 83 Fed. and to existing facts of prominence 
 811 (1897) (engineering tables). See and general interest in the social or 
 infra, §§ 85.9c et seq. business life of particular localities, 
 
 2. Garwood v. R. Co., 45 Hun 129 within or without the jurisdiction of 
 (1887) (millwright's tables). the court. Infra, § 738. In most 
 
 3. Hatcher v. Dunn, (Iowa 1896) instances, the judge's knowledge of 
 66 S. W. 905 (thermometer used in geography, like that of most persons 
 guaging oils) ; Cherry Point Fish Co. in the community, is general and ap- 
 v. Nelson, 25 Wash. 558, 66 Pac. 55 proximate, rather than exact. 
 (1901) (tide tables for Puget 2. "Public facts and geographical 
 Sound ) . positions " must be deemed commonly 
 
 4. Gallagher v. Ry. Co., 67 Cal. 16, known. The Appolon, 9 Wheat. (U. 
 6 Pac. 869 (1885). S.) 362, 374 (1824). 
 
 5. Gallagher v. Ry. Co., 67 Cal. 16, 3. Trenier v. Stewart, 55 Ala. 458 
 6 Pac. 869 (1885). (1876); Bittle v. Stuart, 34 Ark. 
 
 6. Gallagher v. R. Co., 67 Cal. 16, 224 (1879); Williams v. State, 64 
 6 Pac. 869 (1885). Ind. 553, 31 Am. Rep. 135 (1878); 
 
 7. Fugitive publications of more Bell v. Barnet, 2 J. J. Marsh. (Ky.) 
 questionable reliability (Payson v. 516 (1829). 
 
 Everett, 12 Minn. 219 [1867] [bank 4. U. S. v. La Vengeance, 3 Dall. 
 
 note detector]), will not be used in (U. S.) 297, 1 L. ed. 610 (1796); 
 
 this way. Peyroux v. Howard, 7 Pet. (TJ. S.) 
 
 1. "Geography," in this connection, 324, 8 L. ed. 700 (1833). 
 ■will be extended to cover notorious 
 
735 
 
 Knowledge ; Common. 
 
 916 
 
 vision becomes microscopic in proportion as it comes near to its 
 immediate community. 5 
 
 § 735. (B. What Facts are Covered by the Rule; [3] 
 Facts of Geography) ; Nation. — A court judicially knows, in a 
 general way, the boundaries of the nation and, by consequence, 
 whether certain territory is within or without * these lines. The 
 judge of any court knows also the political divisions into which 
 the nation originally was or since has been 2 divided. A state court 
 knows the boundaries of the United States, at least where these 
 coincide with the state lines. 3 In a general way, they know the 
 geographical distribution of the crop areas of the country, e. g., 
 that the great wheat fields of the United States lie west of the 
 Hudson river.* All courts will judicially know the location, 8 
 name 6 and importance, commercially speaking, 7 of the principal 
 
 5. " The minuteness of such knowl- 
 edge is inversely proportioned to the 
 distance, being much more specific 
 and detailed in regard to the territory 
 over which the court has jurisdiction 
 than with respect to foreign lands, 
 or even different states." " The Law 
 of Judicial Notice," 24 Am. Law Reg. 
 (N. S.) 553,570 (1885). Minuteness 
 of judicial knowledge " is in inverse 
 proportion to the distance." 1 Whart. 
 Evid. § 339. " Courts take judicial 
 notice of facts of current history, of 
 geographical and scientific facts and 
 of facts commonly known to all man- 
 kind. This, because courts should 
 not admit themselves more ignorant 
 than the rest of mankind. We might, 
 if enlightened by subject-matter or 
 context in a document held in judg- 
 ment, assume that the surname of a 
 given Washington was George or a 
 given Lincoln, Abraham — this be- 
 cause the subject-matter or context 
 pointed to George Washington or 
 Abraham Lincoln, but no court has 
 ever arrogated to itself such all-per- 
 vading and all-embracing knowledge 
 of the facts of local history as would 
 be assumed in taking judicial notice 
 of the surname of an individual mem- 
 ber of a partnership in the practice 
 of law at any particular time in any 
 
 given town in the state of Missouri." 
 Reineman v. Larkin, 222 Mo. 156, 121 
 S. W. 307 (1909). 
 
 1. Cooke r. Wilson, 1 C. B. (N. S.) 
 153, 163 (1856) (Colony of Victoria 
 not in England ) . See also Daly c. 
 Old, (Utah 1909) 99 Pac. 460 (ex- 
 tent of territory named in contract) . 
 
 2. " It is a, matter of which this 
 court will take judicial notice, that, 
 by law, the country is divided into 
 collection districts for internal rev- 
 enue purposes, and in some states 
 there are several of these districts 
 with defined geographical boundaries." 
 U. S. v. Jackson, 104 U. S. 41 (1881). 
 
 3. Ogden c. Lund, 11 Tex. 688 
 (1854). 
 
 4. Loher l>. Tyler, 77 Conn. 104, 58 
 Atl. 699. 
 
 5. Peyroux r, Howard, 7 Pet. (U. 
 S.) 324, 342 (1833) (New Orleans 
 within the ebb and flow of the tide). 
 
 6. That there is not another city 
 or town of the same name somewhere 
 else, courts hold that they cannot 
 know. Thus, the court in Texas 
 found itself unable to say that " New 
 Orleans," without more, was the name 
 of a city in Louisiana. Andrews r. 
 Hoxie, 5 Tex. 171, 182 (1849). An 
 English court, though, of course, well 
 aware that there is a Dublin in Ire- 
 
917 Prominent Geographical Features Known. § 735 
 
 cities of the nation outside its own particular jurisdiction. Thus, 
 an American state court will not require evidence of the geograph- 
 ical position 8 of prominent American cities outside its own limits, 
 their relation to tide waters 9 and other facts of common knowl- 
 edge, as the distance between places. 10 The court, however, 
 whether English n or American, 12 cannot go so far as to say that 
 it judicially knows that there is not a place of a similar name 
 elsewhere, within or without, its jurisdiction. 13 This is particularly 
 true where the court is asked to know judicially that a place, 
 identified ouly by name, is in a foreign jurisdiction when a place 
 of the same name is within the jurisdiction of the court. 14 Judges 
 
 land declined " to take judicial no- 
 tice that there is only one Dublin 
 in the world." Kearney v. King, 2 
 B. & Aid. 301 (1819). 
 
 7. Fazakerley v. Wiltshire, 1 Stra. 
 462,469(1721) ( extent of ports ) . 
 
 8. Dickinson f. Mobile Branch 
 Bank, 12 Ala. 54 (1847); Parks V. 
 Jacob Dold Packing Co., 6 Misc. (N. 
 Y.) 570, 27 N. Y. Supp. 289 (1894) 
 (Kansas City and Wichita). 
 
 A federal court, for this reason and 
 also because of the national juris- 
 diction of these tribunals, takes simi- 
 lar cognizance. Orr v. Lacy, 18 Fed. 
 Cas No. 10,589, 4 McLean 243 (1847) 
 ( " New York city " ) ; The Sunswick, 
 
 23 Fed. Cas. No. 13,624, 6 Ben. 112 
 (1872) (Astoria). An United States 
 circuit court sitting in Iowa will ju- 
 dicially know that Asheville, N. C, 
 is more than 100 miles from the place 
 of trial. Mutual Ben. L. Ins. Co. v. 
 Robinson, 58 Fed. 723, 7 C. C. A. 
 444, 22 L. R. A. 325 (1893). 
 
 9. Irwin v. Philips, 5 Cal. 140, 63 
 Am. Dec. 113 (1855); Price v. Page, 
 
 24 Mo. 65 (1856). So of the fed- 
 eral courts. Peyroux v, Howard, 7 
 Pet. (U. S.) 324, 8 L. ed. 700 (1833). 
 
 10. Pettit v. State, 135 Ind. 393, 
 34 N. E. 1118 (1893) (East Port- 
 land, Oregon, to Crawfordsville, In- 
 diana, 2,378 miles) ; Blumenthal v. 
 Meat Co., 12 Wash. 331, 41 Pac. 47 
 (1895); Siegbert v. Stiles, 39 Wis. 
 533,536 (1876) ( separated only by a 
 
 river, crossable in winter, on the ice ) ; 
 Mutual Ben. L. Ins. Co. v. Robinson, 
 7 C. C. A. 444, 58 Fed. 723 (1893) 
 (Dubuque, Iowa, to Asheville, N. C, 
 over 100 miles). See also Philadel- 
 phia, B. & W. R. Co. v. Diffendal, 109 
 Md. 494, 72 Atl. 193 (1909) [re- 
 hearing denied, 109 Md. 494, 72 Atl. 
 458 (1909)]. 
 
 11. Deybel's Case, 4 B. & Aid. 243, 
 6 E. C. L. 468 (1821) (Dublin). See 
 also Kearney v. King, 2 B. & Aid. 
 301 (1819); Humphreys f. Budd, 9 
 Dowl. P. C. 1000, 5 Jur. 630 (1841) ; 
 Brune v. Thompson, 2 Q. B. 789, 42 
 E. C. L. 913, C. & M. 34, 41 E. C. L. 
 24, 2 G. & D. 34 (1842). 
 
 12. Riggin v. Collier, 6 Mo. 568 
 (1840); Yale r. Ward, 30 Tex. 17 
 (1867) ; Whitlock v. Castro, 22 Tex. 
 108 (1858). 
 
 13. Where the place is otherwise 
 sufficiently identified the reason for 
 the rule ceases. The ruling of the 
 Texas court that it could not ju- 
 dicially know that " St. Louis, Mo.," 
 is in the state of Missouri (Ellis v. 
 Park, 8 Tex. 205 [1852]), seems in- 
 defensible and best explained as an 
 inadvertent following of the earlier 
 cases (Andrews r. Hoxie, 5 Tex. 171 
 [1849]; Cook v. Crawford, 4 Tex. 
 420 [1849]), where no such identifi- 
 cation was furnished. 
 
 14. Woodward c. Chicago, etc., R. 
 Co., 21 Wis. 309 (1867). 
 
§ 736 
 
 Knowledge; Cojimox. 
 
 918 
 
 know the prominent geographical features of their country, its 
 great rivers, 15 mountain ranges, 16 lakes, valleys and the like. 
 
 § 736. (B. What Facts are Covered by the Rule; [3] 
 Facts of Geography) ; State. — Among geographical facts estab- 
 lished by law are the boundaries of a state 1 or territory 2 and those 
 over which it claims to exercise ownership or jurisdiction. 3 The 
 court will thus know whether a certain place, 4 territory defined 
 by statute, 5 great natural features of the country ,° or division 
 established by a public survey 7 is within or without 8 these 
 boundaries. 9 
 
 15. Birrell v. Dryer, 9 App. Cas. 
 345, 5 Aspin. 267, 51 L. T. Rep. (N. 
 S.) 130 (1884) ( St. Lawrence river). 
 
 The federal courts, in the same 
 way, know judicially what streams 
 are public navigable waters of the 
 United States. V, S. r. The Montello, 
 11 Wall. (U. S.) 411, 20 L. ed. 191 
 (1ST0). See also Lands v. A Cargo 
 of Two Hundred and Twenty-Seven 
 Tons of Coal, 4 Fed. 478 (1880); 
 King r. American Transp. Co., 14 
 Fed. Cas. No. 7.787, 1 Flipp. 1 (1859). 
 
 At what precise point in its course 
 a river ceases to be navigable, may 
 well fail in that element of notoriety 
 which dispenses with proof. U. S. r. 
 Rio Grande Dam, etc., Co., 174 U. S. 
 690, 698, 43 L. ed. 1136, 19 S. Ct. 
 770 (1898). 
 
 1G. Price r. Page, 24 Mo. 65 (1856) 
 ( Rocky Mountains ) . 
 
 1. State r. Dunwell, 3 R. I. 127 
 (1855) ; Harrold r. Arrington, 64 
 Tex. 233 (1885) ; Thorson v. Peterson, 
 9 Fed. 517, 10 Biss. 530 (1881); 
 King r. American Transp. Co., 14 
 Fed. Cas. No. 7,787, 1 Flipp. 1 
 (1859) ; Toppan v. Cleveland, etc., R. 
 Co., 24 Fed. Cas. No. 14,099, 1 Flipp. 
 74 (1862). Race Island is in the 
 jurisdiction of Illinois. Gilbert v. 
 Moline Water Power & Mfg. Co., 19 
 Iowa 319 (1865). 
 
 2. Harvey v. Territory, 11 Okl. 156, 
 65 Pac. 837 (1901); Hoytt V. Rus- 
 Bell. 117 U. S. 401 (1S85). 
 
 3. Cummings r. Stone, 13 Mich. 
 70 (1864); Bauniann r. Granite Sav. 
 
 Bank, 66 Minn. 227, 6S N. W. 1074 
 (1896) ; State f. Dunwell, 3 R. I. 127 
 (1855); Hoyt v. Russell, 117 U. S. 
 401, 6 S. Ct. 881, 29 L. ed. 914 
 (1885) ; Thorson r. Peterson, 9 Fed. 
 517, 10 Biss. 530 (1SS1). See also 
 U. S. r. Beebe, 2 Dak. 292, UN. W. 
 505 (1880). "The courts are bound 
 to take cognizance of the boundaries 
 in fact claimed by the state." State 
 r. Dunwell, 5 R. I. 127 (1855). It 
 is not, however, essential that the de 
 jure boundary should be established 
 as a preliminary to the court's ju- 
 dicial knowledge. Under the prin- 
 ciple of administrative comity between 
 the different branches of government, 
 elsewhere referred to ($upra, § 638), 
 quoad its courts, the claim of the 
 executive of the State is conclusive. 
 State r. Dunwell, 3 R. I. 127 (1855). 
 
 4. Perry r. State, 113 Ga. 938, 39 
 S. E. 315 (1901); Carey r. Reeves, 
 46 Kan. 571, 26 Pac. 951 (1891). 
 
 5. King r. Kent, 29 Ala. 542, 552 
 (1857). 
 
 6. Cummings r. Stone, 13 Mich. 70 
 (1864) (St. Clair river not all in 
 Michigan). 
 
 7. King r. Kent, 29 -41a. 542 (1857). 
 
 8. Smitha r. Flournoy, 47 Ala. 345 
 (1872); Gilbert v. Moline Water- 
 Power, etc., Co., 19 Iowa 319 (1865) ; 
 Thomas v. Forest City Bank, 4 Ohio 
 Dec. (Reprint) 32, 1 Clev. L. Rec. 
 37 (1855) ; Conner r. State, 23 Tex. 
 App. 378, 3 S. W. 189 (1887) (In- 
 dian Territory). 
 
 9. Where the question whether a 
 
919 
 
 Political Divisions Commonly Known. § 737 
 
 § 737. (B. What Facts are Covered by the Rule; [3] 
 Facts of Geography; State); Political Divisions — Political di- 
 visions of a state as counties, cities, towns, townships as established 
 or even as recognized by law will be judicially known. 1 They may 
 be laid out for election purposes 2 or for the object of more con- 
 veniently administering the functions of government, 3 including 
 the collection of revenue, 4 and will be judicially cognized by the 
 courts of the state, but not by those of another. 5 The same is true 
 
 given occurrence took place within the 
 limits of a state is part of the res 
 gestm, a question is presented for the 
 finding of the jury acting upon proof 
 furnished by the parties. U. S. v. 
 Jackalow, 1 Black (U. S.) 484 (1861). 
 
 1. California. — Payne v. Tread- 
 well, 16 Cal. 320 (1860). 
 
 Illinois. — Linck v. Litchfield, 141 
 111. 469, 31 N. E. 123 (1892). 
 
 Iowa. — Baily v. Birkhofer, 123 
 Iowa 59, 98 N. W. 594 (1904). See 
 also State v. Fishel, (Iowa 1908) 118 
 N. W. 763. 
 
 Kansas. — Kansas City, etc., R. Co. 
 v. Burge, 40 Kan. 730, 21 Pac. 589 
 (1839). 
 
 Louisiana. — State v. DeBaillon, 37 
 La. Ann. 392 (1885). 
 
 Maine. — Harvey v. Wayne, 72 Me. 
 430 (1881). 
 
 Missouri. — State v. Nolle, 96 Mo. 
 App. 524, 70 S. W. 504 (1902); 
 Bishop v. Covenant Mut. L. Ins. Co., 
 85 Mo. App. 302 (1900). 
 
 Nebraska. — In re Nilson's Estate, 
 (Neb. 1908) 116 N. W. 971. 
 
 Texas. — Hall v. Rushing, 21 Tex. 
 (Jlv. App. 631, 54 8. W. 30 (1899). 
 
 United States. — TJ. S. v. Jackson, 
 104 U. S. 41, 26 L. ed. 651 (1881) ; 
 U. S. v. Johnson, 26 Fed. Cas. No. 
 15,488, 2 Sawy. 482 (1873). But see 
 Anderson v. Com., 100 Va. 860, 42 
 S. E. 865 ( 1902 ) . The supreme court 
 of Texas has taken judicial cogniz- 
 ance of the fact that the Indian Ter- 
 ritory was beyond the jurisdiction of 
 Texas. Conner v. State, 23 Tex. Ct. 
 App. 378. It will be judicially known 
 that a given city is within a particu- 
 
 lar county. State v. Meyer, 135 Iowa 
 507, 113 N.W. 322 (1907). Judicial 
 notice will be taken of the boundaries 
 of the state and of the counties in it 
 and also of the geographical locations 
 and positions of towns and cities. 
 Reed v. Territory, (Okl. Cr. App. 
 1908) 98 Pac. 583. 
 
 In England the courts will take ju- 
 dicial notice of the different counties 
 palatinate, and counties corporate in 
 that country. R. v. S. Maurice, 16 
 Q. B. 908, 20 L. J. M. C. 221 (1851) ; 
 Deybel's Case, 4 B. & A. 248 (1821) ; 
 2 Coke's Inst. 557. That a particular 
 colony or place in it, is not in Eng- 
 land need not be proved to an English 
 court. Cooke v. Wilson, 1 C. B. 
 (N. 8.) 153, 26 L. J. C. P. 15 (1856). 
 
 2. U. S. v. Johnson, 26 Fed. Cas. 
 No. 15,488, 2 Sawy. 432 (1873). 
 
 3. Eastern Judicial Dist. Bd. v. 
 Winnipeg, 3 Manitoba 537 (1886) ; 
 U. S. v. Jackson, 104 U. S. 41, 26 
 L. ed. 651 (1881). 
 
 4. U. S. t-. Jackson, 104 TJ. S. 41, 
 26 L. ed. 651 (1881). 
 
 5. Yale v. Ward, 30 Tex. 17 (1867). 
 Though the political division of other 
 states into counties and the like is 
 not part of the judicial knowledge of 
 the court, properly so called, the po- 
 litical divisions of a former sov- 
 ereignty may be noticed. Hudson v. 
 Webber, 104 Me. 429, 72 Atl. 184 
 (1908). It has even been held that 
 a court will take judicial notice of 
 what municipality is the county seat 
 of a given county in another state. 
 Phillips v. Lindley, 188 N. Y. 606, 
 81 N. E. 1173 (1907). It would 
 
§ 738 
 
 Knowledge; Common. 
 
 920 
 
 of the boundaries of these political divisions, so far as established 
 by public statutes. 6 But the relation of these public boundaries to 
 the line of individual ownership must be proved. 7 
 
 § 738. (B. What Facts are Covered by the Rule; [3] 
 Facts of Geography; State); Commercial Centers. — The courts 
 of a state know prominent commercial centers, their location, 1 
 especially as related to the natural features of the state, 2 and 
 prominent facts concerning them 3 as their manufacturing* or 
 other business enterprises. 
 
 seem, however, that in strictness, the 
 fact could only he one of notoriety. 
 )'. e., of common, rather than of judi- 
 cial knowledge. 
 
 6. Alabama. — Ward r. Janney, 104 
 Ala. 122, 16 So. 73 (1893). 
 
 Arkansas. — Bittle r. Stuart, 34 Ark 
 224 (1879). 
 
 California. — De Baker v. Southern 
 California R. Co., 106 Cal. 257, 39 
 Pac. 630, 46 Am. St. Rep. 237 (1895). 
 
 Indiana. — Louisville, etc., R. Co. V. 
 Hixon, 101 Ind. 337 (1884). 
 
 Kansas. — Kansas City, etc., R. Co. 
 c. Burge, 40 Kan. 736, 21 Pac. 589 
 (1889). 
 
 Maine. — Ham v. Ham, 39 Me. 263 
 (1855). 
 
 Massachusetts. — Com. v. Spring- 
 field, 7 Mass. 9 (1810). 
 
 Missouri. — State v. Pennington, 124 
 Mo. 388, 27 S. W. 1106 (1894). 
 
 New York. — Bang r. McAvoy, 52 
 N. Y. App. Div. 501, 65 N. Y. Suppl. 
 467 (1900). 
 
 Oklahoma. — Harvey v. Terr., 11 
 Okl. 156, 65 Pac. 837 (1901). 
 
 Texas. — Wright v. Hawkins, 28 Tex. 
 452 (1866). 
 
 Wisconsin. — Houlton v. Chicago, 
 etc., R. Co., 86 Wis. 59, 56 N. W. 
 336 (1893). 
 
 United States. — Toppan v. Cleve- 
 land, etc., R. Co., 24 Fed. Cas. No. 
 14,099, 1 Flipp. 74 (1862); King 
 v. American Transp. Co., 14 Fed. Cas. 
 No. 7,787, 1 Flipp. S (1859). In 
 
 Boston v. State, 5 Tex. Ct. App. 383, 
 it was held that the court would have 
 judicial knowledge of the territorial 
 extent of the sovereignty and juris- 
 diction exercised by their own govern- 
 ment. 
 
 7. Goodwin r. Scheerer, 106 Cal. 
 690, 40 Pac. 18 (1895); Russell v. 
 Hoyt, 4 Mont. 412, 2 Pac. 25 (1882) ; 
 People r. Kelly, 20 Hun (N. Y.) 549 
 (1880); Edwards v. Davis, 3 Tex. 
 321 (1818). "Courts take notice of 
 the local divisions of the state, as into 
 counties, cities, towns, etc., and of the 
 relative position thereof, but not of 
 the precise boundaries and distances. 
 And they are not bound to take ju- 
 dicial notice of the local situation 
 and distances of the different places 
 in counties from each other.'' Good- 
 win v. Appleton, 22 Me. 453 (1843). 
 
 1. Harmon r. Chicago, 110 111. 400, 
 51 Am. Rep. 69S (18S4) (Chicago 
 situated near bituminous coal fields). 
 
 2. Harmon i\ Chicago, 110 111. 400, 
 51 Am. Rep. 698 (1«84) (Chicago 
 river) ; State r. Wabash Paper Co., 
 81 Ind. App. 167, 48 N. E. 653, 51 
 N. E. 949 (1898) (Wabash and 
 Miami rivers). See also State v. 
 Jones, 11 Ohio Cir. Dec. 496 (1900). 
 
 3. Ex parte Davidson, 57 Fed. 883, 
 887 (1893) (laying out as the site of 
 a city). 
 
 4. Harmon r. Chicago, 110 111. 400, 
 51 Am. Rep. 698 (1884) (use of 
 bituminous coal in Chicago). 
 
921 
 
 Navigability of Gbeat Rivers. §§ 739, 740 
 
 § 739. (B. What Facts are Covered by the Rule; [3] 
 Facts of Geography; State) ; Natural Features — The promi- 
 nent natural features of the state, its great lakes, 1 mountains, 2 
 lakes, rivers, waterfalls 3 and the like are known to the courts of 
 the forum. 
 
 § 740. (B. What Facts are Covered by the Rule; [3] 
 
 Facts of Geography; State); Rivers. — Prominent among the 
 great geographical features of a state are its rivers. They are, 
 therefore, known in location and nature, to the courts. 1 The 
 navigability of great rivers 2 and other notorious facts 3 concerning 
 
 1. State 13. Thomson, 85 Me. 189 
 (1892) ; People v. Brooks, 101 Mich. 
 98, 59 N. W. 444 (Lake St. Clair) 
 (1894); Winnipiseogee Lake Co. v. 
 Young, 40 N. H. 420 (Winnipiseogee) 
 (1860); Harrison v. Fite, 148 Fed. 
 781, 78 C. C. A. 447 (1906) (naviga- 
 bility known ) . Weeks-Thorn Paper 
 Co. v. Glenside Woolen Mills, 118 
 N. Y. Suppl. 1027, 64 Misc. Rep. 205 
 (1909) (area of lake) . " We recollect 
 no decision that the courts are ex 
 officio to notice the great lakes, rivers 
 and mountains of the state as parts of 
 it, and lying within its limits, but it 
 can hardly be doubted that the courts 
 would notice, of course, the great 
 geographical features of the state." 
 Winnipiseogee Lake Co. v. Young, 40 
 N. H. 420 (1860). The contention 
 that a Michigan court should not ju- 
 dicially notice " Lake St. Clair " in 
 that state " is not worthy serious con- 
 sideration." People v. Brooks, 101 
 Mich. 98 (1894). See also DeBaker v. 
 Southern California R. Co., 106 Cal. 
 257, 39 Pac. 610, 46 Am. St. Rep. 237 
 (1895). 
 
 2. Winnipiseogee Lake Co. v. Young, 
 40 N. H. 420 (1860). 
 
 3. Sufferle v. McFar-land, 28 App. 
 Cas. (D. C.) 94 (1906) (falls of the 
 Potomac ) . 
 
 1. Walker v. Allen, 72 Ala. 456 
 
 (1882) (all rivers in a particular 
 
 county are of fresh water ) . Supperle 
 
 v. McFarland, 28 App. Cas. (D C.) 
 
 94 (1906) (Potomac) ; State v. South- 
 
 ern Ry. Co., (N. C. 1906) 54 S. E. 
 294. No part of the Tallapoosa river 
 is in the city of Montgomery. City 
 Council of Montgomery v. Montgom- 
 ery, etc., Plankroad, 31 Ala. 76 
 (1857). See also Thosvold v. Byg- 
 land, (Neb. 1908) 116 N. W. 971. 
 It is commonly known that the 
 Arkansas and Poteau rivers bound 
 Ft. Smith on the west. MoKenzie 
 v. Newlon, 89 Ark. 564, 117 S. W. 
 553 (1909). The court knows that 
 the Snohomish River flows into Puget 
 Sound. Vail v. McGuire, (Wash. 
 1908) 96 Pac. 1042. 
 
 2. Indiana. — Neaderhouser v. State, 
 28 Ind. 257 (1867) (Ohio river). 
 
 Kansas. — Wood v. Fowler, 26 Kan. 
 682, 40 Am. Rep. 330 (1882) (Mis- 
 sissippi). "The courts take judicial 
 notice of such streams, as they form 
 part of the geography of the country 
 and their navigability is known as 
 forming a part of the common public 
 history." Neaderhouser v. State, 28 
 Ind. 257 (1867). "We think that 
 the superior court might take judicial 
 notice that the Connecticut River, 
 above the dam at Holyoke, does not, 
 either by itself or by uniting with 
 other waters, constitute a public high- 
 way over which commerce may be car- 
 ried on with other states or with 
 foreign countries." Com. v. King, 150 
 Mass. 221 (1889). Where a demurrer 
 concedes that a stream is navigable, 
 the court cannot it is said, use its 
 common knowledge to the effect that 
 
§ 740 
 
 Knowledge; Common. 
 
 922 
 
 these highways of commerce need not be proved. In like manner 
 judges judicially know streams of lesser commercial importance, 
 in their state, 4 their nonnavigability if notorious, 5 and other salient 
 facts as to their nature and position. 
 
 it is not. State !'. Norcross, (Wis. 
 1907) 112 N. W. 40. Courts in Wis- 
 consin may take " notice of the fact 
 that the capacity of many small navi- 
 gable streams in this state to float 
 logs and lumber into the larger 
 streams below and to market has been 
 greatly increased by the erection of 
 dams across them." Tewksbury v. 
 Schulenberg, 41 Wis. 5S4 (1877). 
 
 Kentucky. — Terrell v. Paducah, 28 
 Ky. L. Rep. 1237, 93 S. W. 310 (1906) 
 (Tennessee river) ; Bennett v. Bryan, 
 1 Ky. L. Bep. 274 (1880). 
 
 Missouri. — Heiberger i: Missouri 
 & Kansas Telephone Co., 133 Mo. App. 
 452, 113 S.W. 730 (1908) (Missouri). 
 
 New Hampshire. — Com. v. King, 150 
 Mass. 221, 224, 22 N. E. 905 (1889) 
 (Connecticut river not navigable at a 
 certain point). 
 
 United States. — Harrison v. Fite, 
 148 Fed. 781, 78 C. C. A. 447 (1906). 
 The action of the current in eroding 
 the banks of certain streams, altering 
 channels, or the contour of islands, 
 may be judicially known. Radford 
 f. Wood, 83 Neb. 773, 120 N. W. 45S 
 (1909). 
 
 That the Rio Grande at a given 
 point ceases to be navigable has been 
 refused the status of a fact of com- 
 mon knowledge. TJ. S. v. Rio Grande, 
 etc., Co., 174 U. S. 690, 19 S. Ct. 770 
 (1898). 
 
 Where navigability is doubtful, the 
 court will require that the fact be 
 proved by the party to whose conten- 
 tion it belongs. McKinney v. North- 
 cutt, 114 Mo. App. 146, 89 S. W. 351 
 (1905); Harrison v. Fite, 148 Fed. 
 781. 78 C. C. A. 447 (1906). Notice 
 will not necessarily be taken as to 
 the navigability of any stream. People 
 v. Board of Sup'rs of Whiteside 
 County, 122 111. App. 40 (1905). 
 
 3. Cash v. Clark County, 7 Ind. 
 227 (1855) (falls of Ohio river are 
 in Indiana) ; Thurman V. Morrison, 
 14 B. Monr. (Ky.) 367 (rise and 
 fall in stream) ; (1853) ; Whitney v. 
 Gauche, 11 La. Ann. 433 (1856) (the 
 Mersey is a tidal river) ; Talbot v. 
 Hudson, 16 Gray (Mass.) 417 (1860) 
 (course of Sudbury and Concord 
 rivers) ; Kerns v. Perry, (Tenn Ch. 
 App. 1898) 48 S. W. 729 (rise and 
 fall). 
 
 4. People v. Truckee Lumber Co., 
 116 Cal. 397, 48 Pac. 374, 58 Am. 
 St. Rep. 183, 39 L. R. A. 581 (1897) 
 (river partly in Nevada) ; Wood v. 
 Fowler, 26 Kan. 682, 687, 40 Am. 
 Rep. 330 (1882) ; Browne v. Scofield, 
 8 Barb. (N. Y.) 239 (1850); Lock- 
 wood v. Charleston Bridge Co., 60 S. 
 C. 492, 38 S. E. 112, 629 (1900). 
 But whether the court will judicially 
 know that the Chicago river at a 
 particular street is within the munici- 
 pal domain of the city of Chicago 
 may be questioned. City of Chicago 
 r. Kubler, 133 111. App. 520 (1907). 
 
 5. Ross V. Faust, 54 Ind. 471, S3 
 Am. Rep. 655 (1876) ; Com. v. King, 
 150 Mass. 221, 22 N. E. 905, 5 L. 
 R. A. 536 (1889) ; Clark v. Cam- 
 bridge, etc., Irr., etc., Co., 45 Neb. 
 798, 64 N. W. 239 (1895). In case 
 of streams of no general importance 
 tho matter of navigability as of other 
 facts, must be settled by evidence. 
 Sanders V. Brooks, 6 Ky. L. Rep. 671 
 (1885); De Camp v. Thomson, 44 
 N. Y. Suppl. 1014, 16 App. Div. 528 
 (1897). See also People v. Faust, 
 113 Cal. 172, 45 Pac. 261 (1896); 
 Louisville, etc., R. Co. v. McAfee, 15 
 Ind. App. 442, 43 N. E. 36 (1896). 
 
92i3 Facts of Railroad Location Commonly Known. § 741 
 
 § 741. (B. What Facts are Covered by the Rule; [3] 
 
 Facts of Geography; State) ; Railroads Judges are aware, with 
 
 the rest of the community, of the existence of the principal lines 
 of railroad which are wholly 1 or in part 2 within the state; and 
 will know, if the public does, to what more general railroad 
 " system," if any, the road belongs. 3 The common knowledge in- 
 cludes locality, course and direction of such a railroad. 4 " Once 
 established, they have remained as fixed and permanent in their 
 course as the rivers themselves." 5 Unless definitely established 
 by the terms of a public statute, the court will not know the loca- 
 tion of a projected railroad. 6 What places are on the line of a 
 railroad, 7 have stations on it, 8 or constitute its termini, 9 or rail- 
 road centers ; 10 through what other localities it must pass in order 
 to connect two given places, 11 what is the distance between two 
 points on a railroad, 12 within what county these points are, 13 their 
 
 1. Galveston, etc., R Co. v. John- 
 son, (Tex. Civ. App. 1895) 29 S. W. 
 428. 
 
 2. Hobbs v. Memphis, etc., R. Co., 
 9 Heisk. (Tenn.) 873 ,1872); Texas 
 & N. 0. Ry. Co. v. Walker, (Tex. Civ. 
 App. 1906) 95 S. W. 743; Miller v. 
 Texas, etc., R. Co., 83 Tex. 518, 18 
 S. W. 954 (1892). See also Patter- 
 son v. Missouri Pac. Ry. Co., (Kan. 
 1908) 94 Pac. 138. That the Mis-' 
 souri Pacific is a railroad corporation 
 engaged in interstate commerce max- 
 well be a fact of judicial knowledge. 
 State v. Missouri Pac. Ry. Co., 212 
 Mo. 658, 111 S. W. 500 (1908). 
 
 3. Missouri Pac. R. Co. v. Graves, 
 2 Tex. App. Civ. Cas. § 676 (1885). 
 
 4. Indianapolis, etc., R. Co. v. 
 Case, 15 Ind. 42 (1860) ; Worden v. 
 Cole, (Kan. 1906) 86 Pac. 464; 
 Bishop P. Covenant Mut. L. Ins. Co., 
 85 Mo. App. 302 (1900) ; Texas Cent. 
 R. Co. v. Marrs, (Tex. Civ. App. 1907) 
 101 S. W. 1177; Miller v. Texas, etc., 
 R. Co., 83 Tex. 518, 520, 18 S. W. 954 
 (1892). 
 
 Judicial knowledge may reinforce 
 common. Thus, a court will judicially 
 know, in a general way, what lands 
 were conferred upon a railroad by 
 act of Congress as part of its perman- 
 ent location. Worden v. Cole, (Kan. 
 1906) 86 Pae. 464. 
 
 5. Gulf, etc., R. Co. v. State, 72 
 Tex. 404, 10 S. W. 81, 1 L. R. A. 849, 
 13 Am. St. Rep. 815 (1888). 
 
 6. McKeoin v. Northern Pac. R. Co., 
 45 Fed. 464 (1891). 
 
 7. Robert M. Green & Sons v. Line- 
 ville Drug Co., (Ala. 1907) 43 So. 
 216. 
 
 8. St. Louis, etc., R. Co. v. Mag- 
 ness, 68 Ark. 289, 57 S. W. 933 
 (1900) ; Indianapolis, etc., R. Co. v. 
 Stephens, 28 Ind. 429 (1867); Mc- 
 Grew i>. Missouri Pac. Ry. Co., 177 
 Mo. 533, 76 S. W. 995 (1903) ; Harper 
 Furniture Co. v. Southern Express 
 Co., 144 N. C. 639, 57 S. E. 758 
 (1907). 
 
 9. Smitha v. Flournoy, 47 Ala. 345 
 (1872); Galveston, etc., R. Co. r. 
 Johnson, (Tex. Civ. App. 1895) 29 
 S. W. 428. 
 
 10. Texas, etc., R. Co. v. Black, 87 
 Tex. 160, 27 S. W. 118 (1894) (Tex- 
 arkana). 
 
 11. Phelps -v. Lewiston, 19 Fed. Cas. 
 No. 11,076, 15 Blackf. 131 (1878). 
 
 12. Wainwright V. Lake Shore, etc., 
 R. Co., 11 Ohio Cir. Dec. 530 (1901) ; 
 Johnson v. Atlantic Coast Line R. Co., 
 140 N. C. 574, 581, 53 S. E. 362 
 (1906). 
 
 13. Indianapolis, etc., R. Co. v. Case, 
 15 Ind. 42 (1860). 
 
§§ 742, 743 
 
 Knowledge; Common. 
 
 924 
 
 general geographical position, 14 these and similar 15 facts pertain- 
 ing to the topography of local railroads the court will judicially 
 know. But details, if claimed, must be proved. 16 
 
 § 742. (B. What Facts are Covered by the Rule; [3] 
 Facts of Geography; State); Distances and Eelative Positions. — 
 
 The distance between places in the jurisdiction will be regarded 
 as common knowledge, 1 a fortiori, where the distances are estab- 
 lished by statute. 2 
 
 The relative position of two places in the state — as that a given 
 town is between two others, 3 frequently requires no proof. 
 
 Minor geographical details, or those where the fact is uncertain, 
 as whether a particular section of a state is " arid " within the 
 meaning of an irrigation statute, 4 are not judicially known. 
 
 § 743. (B. What Facts are Covered by the Rule; [3] 
 Facts of Geography); Counties. — The courts of England, 1 and K 
 those of the states of the American Union, judicially know the 
 
 14. McGrew v. Missouri Pac. R. Co., 
 177 Mo. 533, 76 S. W. 995 (1903). 
 
 15. Gulf, etc., R. Co. v. State, 72 
 Tex. 404, 10 S. W. 81, 13 Am. St. 
 Rep. 815, 1 L. R. A. 849 (1888) 
 (that certain railroads are parallel 
 and competing). 
 
 16. Geoigia, etc., R. Co. v. Gaines, 
 88 Ala. 377, 7 So. 382 (1889) (that 
 certain roads would form a continu- 
 ous line) ; Miller v. Texas, etc., R. 
 Co., 83 Tex. 518., 18 S. W. 954 (1892) 
 (contract between railroads) ; Texas 
 Cent. R. Co. v. Childress, 64 Tex. 346 
 (1885) (fenced at a particular point). 
 The location of the tracks of a par- 
 ticular railroad company at a junc- 
 tion where several railroad locations 
 come together is not a matter of com- 
 mon knowledge. Pierce v. Galveston, 
 H. & S. A. Ry. Co., (Tex. Civ. App. 
 1908) 108 S. W. 979. 
 
 1. Illinois. — Bruson V. Clark, 151 
 111. 495, 38 N. E. 252 (1894). 
 
 New York. — Williams v. Brown, 65 
 N. Y. Suppl. 1049, 53 App. Div. 486 
 (1900). 
 
 North Carolina. — Harper Furniture 
 Co. v. Southern Express Co., 144 N. 
 C. 639, 57 S. E. 758 (1907). 
 
 Pennsylvania. — Pearce v. Langfit, 
 101 Pa. St. 507, 47 Am. Rep. 737 
 (1882). 
 
 Tennessee. — Coover v. Davenport, 1 
 Heisk. 368, 2 Am. Rep. 706 (1870). 
 
 Washington. — Blumenthal v. Pacific 
 Meat Co., 12 Wash. 331, 41 Pac. 47 
 (1895). 
 
 Wisconsin. — Siegbert v. Stiles, 39 
 Wis. 533 (1876) (that Prairie du 
 Chien and McGregor are separated 
 only by the Mississippi river). 
 
 2. Hegard v. California Ins. Co., 
 (Cal. 1886) 11 Pac. 594. 
 
 3. Lowville & B. R. R. Co. v. El- 
 liott, 101 N. Y. Suppl. 328, 115 App. 
 Div. 884 (1906). 
 
 4. MoGhee, etc., Co. v. Hudson, 85 
 Tex. 587 (1893). 
 
 1. Reg. v. St. Maurice, 16 Q. B. 
 908, 15 Jur. 559, 20 L. J. M. C. 221, 
 71 E. C. L. 908 (1851) ("the general 
 division of the kingdom into coun- 
 ties"); Deybel's Case, 4 B. & Aid. 
 243, 6 E. C. L. 468 (1821). 
 
 That a city is also a county will 
 be noticed. Reg. V. St. Maurice, 16 
 Q. B. 908, 15 Jur. 559, 20 L. J. M. 
 C. 221, 71 E. C. L. 90S (1851). 
 
925 
 
 Divisions of Counties Require no Proof. § 743 
 
 existence, 2 date of organization, 3 area,* location, 5 name 6 and popu- 
 lation as given in the census 7 of the counties of the state or 
 country. They know, in the same way, the boundaries of the 
 counties 8 and of its minor divisions into precincts and the like; 
 
 2. Alabama. — Scheuer v. Kelly, 121 
 Ala. 323, 26 So. 4 (1898). 
 
 Arkansas. — Bittle v. Stuart, 34 
 Ark. 224 (1879). 
 
 Connecticut. — State v. Powers, 25 
 Conn. 48 (1856). 
 
 Illinois. — Gooding v. Morgan, 70 
 111. 275 (1873). 
 
 Indiana. — Dawson f. James, 64 Ind. 
 162 (1878). 
 
 Iowa. — Baily v. Birkliofer, 123 Iowa 
 59, 98 N. W. 594 (1904). 
 
 Maine. — State v. Simpson, 91 Me. 
 83, 39 Atl. 287 (1897); 
 
 Massachusetts. — Com. v. Desmond, 
 103 Mass. 445 (1869) (Suffolk 
 county ) . 
 
 Missouri. — Parker v. Burton, 172 
 Mo. 85, 72 S. W. 663 (1903) ; State 
 V. Fraker, 148 Mo. 143, 49 S. W. 1017 
 (1899). 
 
 New Hampshire. — Winnipiseogee 
 Lake Co. v. Young, 40 N. H. 420 
 (1860). 
 
 Pennsylvania. — Com. v. MeMichael, 
 8 Pa. Dist. 157, 22 Pa. Co. Ct. 182 
 (1899). 
 
 Tennessee. — Coover i:. Davenport, 1 
 Heisk. 368, 2 Am. Rep. 706 (1870). 
 
 Texas. — Boston v. State, 5 Tex. 
 App. 383, 32 Am. Rep. 575 (1879). 
 
 Utah— McMaster v. Morse, 18 
 Utah 21, 55 Pac. 70 (1898). 
 
 West Virginia. — Beasley v. Beck- 
 ley, 28 W. Va. 81 (1886). 
 
 Wisconsin. — Woodward v. Chicago, 
 etc., R. Co., 21 Wis. 309 (1867). 
 
 United States. — Gager v. Henry, 9 
 Fed. Cas. No. 5,172, 5 Sawy. 237 
 (1878) ; Lyell v. Lapeer County, 15 
 Fed. Cas. No. 8,618, G McLean 446 
 (1855). 
 
 3. People v. Wallace, 101 Cal. 281, 
 35 Pac. 862 (1894); Moseley V. 
 Stueken, 26 Tex. Civ. App. 290, 62 
 S. W. 1103 (1901). 
 
 4. Jackson County v. State, 147 
 Ind. 476, 46 N. E. 908 (1896) ; State 
 V. Glasgow, Conf. R. (N. C.) 38, 2 
 Am. Dec. 629 (1800); Wright v. 
 Hawkins, 28 Tex. 452 (1866). 
 
 5. Iowa. — Baily v. Birkhofer, 123 
 Iowa 59, 98 N. W. 594 (1904). 
 
 Missouri. — Parker v. Burton, 172 
 Mo. 85, 72 S. W. 663 (1903) ; State 
 v. Pennington, 124 Mo. 388, 27 S. W. 
 1106 (1894). 
 
 Oklahoma. — Filson v. Terr., 11 Okl. 
 351, 67 Pac. 473 (1901). 
 
 Tennessee. — Bond v. Perkins, 4 
 Heisk. 364 (1871). 
 
 Texas. — Hall v. Rushing, 21 Tex. 
 Civ. App. 631, 54 S. W. 30 (1899). 
 
 G. Alabama. — Overton v. State, 60 
 Ala. 73 (1877). 
 
 Illinois. — Doyle v. Bradford, 90 111. 
 416 (1878). 
 
 Iowa. — Baily v. Birkhofer, 123 Iowa 
 59, 98 N. W. 594 (1904). 
 
 Kentucky. — Holley v. Holley, Litt. 
 Sel. Cas. 505, 12 Am. Dec. 342 (1821). 
 
 Massachusetts. — Com. v. Desmond, 
 103 Mass. 445 (1869). 
 
 North Carolina. — State v. Snow, 
 117 N. C. 774, 23 S. E. 322 (1895). 
 
 Tennessee. — Brown t'. Elms, 10 
 Humph. 135 (1849). 
 
 7. Illinois. — Worcester Nat. Bank 
 V. Cheney, 94 111. 430 (1880). 
 
 Indiana. — Whitley County v. Garty, 
 161 Ind. 464, 68 N. E. 1012 (1903). 
 
 Iowa. — State v. Braskamp, 87 Iowa 
 588, 54 N. W. 532 (1893). 
 
 Missouri. — Crow v. Evans, 166 Mo. 
 347, 66 S. W. 355 (1902). 
 
 New York. — Farley v. McConnell, 
 7 Lans. 428 (1872). 
 
 United States. — Brown v. Piper, 91 
 U. S. 37, 23 L. ed. 200 (1875). 
 
 8. Alabama. — Smitha v. Flournoy, 
 47 Ala. 345 (1872). 
 
 Arkansas. — Lyman v. State, 119 
 
743 
 
 Knowledge; Common. 
 
 926 
 
 but where the boundaries are subject to change at frequent inter- 
 vals, 9 evidence may be required as to how these lines are related 
 to those established by a public survey, 1 
 
 or the great natural 
 
 S. W. 1116 (1909) (boundaries); 
 Crow v. Koane, 86 Ark. 172, 110 
 S. W. 801 ( 1908 ) . 
 
 California. — Merritt v. Trinity 
 County, (Cal. App. 1906) 84 Pac. 
 675. 
 
 Illinois. — Gooding r. Morgan, 70 
 111. 275 (1873). 
 
 Indiana. — Jackson County v. State, 
 147 Ind. 476, 46 N. E. 908 (1896). 
 
 Maine. — Ham e. Hani, 39 Me. 263 
 (1855). 
 
 Missouri. — Parker v. Burton, 172 
 Mo. 85, 72 S. W. 663 (1903). 
 
 North Carolina. — State v. Southern 
 Ry. Co., (N. C. 1906) 54 S. E. 294. 
 
 Oklahoma. — Fuller v. Territory, 
 (Cr. App. 1909) 99 Pae. 1098; Reed 
 r. Territory, (Cr. App. 1908) 98 Pac. 
 583. 
 
 Texas. — Wright v. Hawkins, 28 Tex. 
 452 (1866). See also Hughes r. 
 Adams, (Tex. Civ. App. 1909) 119 S. 
 W. 134; Gaddy r. Smith, (Tex. Civ. 
 App. 1908) 116 S. W. 164. 
 
 United States. — Ross v. Ft. Wayne, 
 63 Fed. 466, 11 C. C. A. 288 (1894) ; 
 Bluefield Waterworks, etc., Co. v. 
 Sanders, 63 Fed. 333, 11 C. C. A. 233 
 (1894). 
 
 A county court will know that 
 certain townships are all the town- 
 ships of its own county. Chicago, 
 R. I. & P. Ry. Co. p. Perry County, 
 (Ark. 1908) 112 S. W. 977. A judge 
 may properly dispense with proof 
 that two towns are adjoining towns 
 in the same county. People v. Loris, 
 115 N". Y. Suppl. 236, 131 App. Div. 
 127 (1909). 
 
 The precise boundaries of a county 
 are not cognized in England. Brune 
 v. Thompson, 2 Q. B. 789, 42 E. C. 
 L. 913, C. & M. 34, 41 E. C. L. 34, 
 2 G. & D. 110 (1842). So far as the 
 limits of county jurisdiction depend 
 upon the construction of records, " it 
 
 is purely a question of law for the 
 court." State r. Wagner, 61 Me. 178 
 (1873). 
 
 No right exists to offer evidence 
 as to whether a certain place has been 
 recognized by the legislature as within 
 the boundaries of a particular county. 
 "A criminal might as well call for the 
 opinion of the jury upon the regular- 
 ity of the judge's commission or the 
 validity of the election of the gover- 
 nor by whom he was appointed. State 
 v. Wagner, 61 Me. 178 (1873). 
 
 Where the boundary is established 
 by law the knowledge is also judicial. 
 Carter County r. Brooks, 25 Ky. L. 
 Rep. 2284, 80 S. W. 443 (1904). 
 
 Venue. — Where a crime is alleged 
 to have been committed within a mile 
 and a half of » given town in the 
 county the court will take judicial 
 notice of the location of the town 
 within the county, so as to know that 
 the locus of the crime is alleged to 
 have been within the county. State 
 v. Mitchell, (Iowa 1908), 116 N. W. 
 808. 
 
 9. State v. Carmody, (Or. 1907) 91 
 Pac. 4 41 (two years). 
 
 10. Alabama. — Webb v. Mullins, 78 
 Ala. Ill (1884). 
 
 California. — Rogers v. Cady, 104 
 Cal. 288, 38 Pac. 81, 43 Am. St. Rep. 
 100 (1894). 
 
 Illinois. — Dickerson V. Hendryx, 88 
 111. 66 (1878). 
 
 Indiana. — Richardson r. Hedges, 
 150 Ind. 53, 49 N. E. 822 (1897). 
 
 Iowa. — Wright v. Phillips, 2 Greene 
 191 (1849). 
 
 Missouri. — Parker r. Burton, 172 
 Mo. 85, 72 S. W. 663 (1903); Moon 
 r. Missouri Pac. R. Co., 83 Mo. App. 
 45a (1900). 
 
 Terns.— Wright v. Hawkins, 28 Tex. 
 452 (1866). 
 
927 
 
 Minute Facts of County Geography. 
 
 § 743 
 
 features of the state, its waterways, 11 or the judicial districts of 
 the state. 12 
 
 Other facts of public interest in county geography, as what 
 towns are county seats, 13 where they 'are located, that they are not 
 always at the centers of population, 14 are judicially known. The 
 result of an election to determine a question of such public in- 
 terest need not be proved. 15 Minute facts, such as the peculiari- 
 ties of climate, amount of rainfall or topography, 16 as whether a 
 particular piece of land n or a given road 18 falls within the 
 
 The true nature of judicial no- 
 tice is illustrated by the fact that 
 the court will not take judicial 
 notice that a particular place is 
 within a given county unless it has 
 been established by law as its county 
 seat. Dallas Brewery v. Holmes 
 Bros., (Tex. Civ. App. 1908) 112 
 S. W. 122. 
 
 Courts of record in a, county know 
 the county seat of a county. Even 
 where the public business was con- 
 ducted at a county seat de facto, the 
 propriety of action there taken can- 
 not be collaterally attacked. Board 
 of Com'rs of Day County v. State of 
 Kansas, (Okl. 1907) 91 Pac. 699. 
 
 14. Maricopa County v. Burnett, 
 (Ariz. 1903) 71 Pac. 908. 
 
 15. Andrews v. Knox County, 70 
 111. 65 (1873) ; Mode v. Beasley, 143 
 Ind. 306, 42 N. E. 727 (1895). 
 
 16. Santa Cruz v. Enright, 95 Cal. 
 105, 30 Pac. 197 (1892); McCorkle 
 v. Driskell, (Tenn. Ch. App. 1900) 
 60 S. W. 172; McGhee Irr. Ditch Co. 
 v. Hudson, 85 Tex. 587, 22 S. W. 398 
 (1893). 
 
 17. St. Louis, etc., Rj. Co. v. Cady, 
 67 Ark. 512, 55 S. W. 927 (1900); 
 Kretzschmar v. Meehan, 74 Minn. 211, 
 77 N. W. 41 (1898) ("at least when 
 not described according to the govern- 
 ment survey " ) . 
 
 18. Waters v. State, 117 Ala. 189, 
 23 So. 28 (1897). 
 
 That a road between two places 
 will be within the county will be re- 
 garded as known. Steinmetz v. Ver- 
 sailles, etc., Co., 57 Ind. 457 (1877). 
 
 11. Bowling t\ Mobile, etc., R. Co., 
 128 Ala. 550, 29 So. 584 (1900); 
 Walker v. Allen, 72 Ala. 456 ( 1882 ) . 
 
 12. People v. Robinson, 17 Cal. 363 
 (1861) ; Chicago, etc., R. Co. v. Hyatt, 
 48 Neb. 161, 67 N. W. 8 (1896); 
 State v. Ray, 97 N. C. 510, 1 S. E. 
 876 (1887); Barnwell r. Marion, 58 
 S. C. 459, 36 S. E. 818 (1900). 
 
 13. Arizona. — Maricopa County v. 
 Burnett, 71 Pac. 908 (1903). 
 
 Arkansas. — St. Louis, etc., R. Co. 
 V. State, 68 Ark. 561. 60 S. W. 654 
 (1901). 
 
 California. — People i>, Faust, 113 
 Cal. 172, 45 Pac. 261 (1896) ; People 
 v. Etting, 99 Cal. 577, 34 Pac. 237 
 (1893). 
 
 Illinois. — Andrews v. Knox County, 
 
 70 111. 65 (1873). 
 Indiana. — Mode i\ Beasley, 143 Ind. 
 
 306, 42 N. E. 727 (1895). 
 
 Iowa.— Adair o. Egland, 58 Iowa 
 314, 12 N. W. 277 (1882). 
 
 Mississippi. — Ladd v. Craig, 47 
 So. 777 (1908) (what is the county 
 seat) . 
 
 Missouri. — State v. Pennington, 124 
 Mo. 388, 27 S. W. HOG (1894). 
 
 Nevada. — State v. Buralli, (1903) 
 
 71 Pac. 532. 
 Texas. — Flynt v. Eagle Pass Coal 
 
 & Coke Co., (Tex. Civ. App. 1903) 
 77 S. W. 831; Whitener v. Belknap, 
 89 Tex. 273, 34 S. W. 594 (1896). 
 See also Missouri, K. & T. Ry. Co. 
 v. Lightfoot, (Tex. Civ. App. 1907) 
 106 S. W. 395. 
 
 United States. — Gager v. Henry, 9 
 Fed. Cas. No. 5,173, 5 Sawy. 231 
 (1878). 
 
§ 74+ 
 
 Knowledge ; Commoh. 
 
 928 
 
 boundaries of a county, cannot be judicially known. On the 
 other hand, under the practice above referred to 19 where there is 
 or is not 20 a railroad in a given county will often be treated as 
 a fact of notoriety, i. e., of common knowledge. 21 
 
 § 744. (B. What Facts are Covered by the Rule; [3] 
 Facts of Geography) ; Cities — Courts of a state know its cities 1 
 and the geographical l6cation, 2 even though the city owes its in- 
 corporation to a former government of the territory, 3 and the par- 
 ticular class to which each city belongs.* It will not be necessary 
 to prove the census population of the cities of a state. 5 The 
 cognizance of the court will, however, receive a reasonable con- 
 struction. A judge, for example, may well be expected to know 
 that there is a certain city within or without his jurisdiction 
 but he cannot well be called upon to know that there is not 
 elsewhere another city of the same name. Thus a court cannot 
 
 19. Supra, § 741. 
 
 20. The court knows that the Sea- 
 board Air Line Railway Co. does not 
 pass through the county of Craven. 
 McCullen v. Seaboard Air line Ey. 
 Co., (N. C. 1908) 60 S. E. 506. 
 
 21. Missouri, K. & T. By. Co. i: 
 Lightfoot, (Tex. Civ. App. 1907) 106 
 S. W. 395. 
 
 1. Alabama. — Montgomery v. Wright, 
 72 Ala. 411, 47 Am. Rep. 422 (1882). 
 See also Guarreno t. State, (Ala. 
 1908) 48 So. 65. 
 
 Arkansas. — Heno v. City of Fay- 
 etteville, 119 S. W. 287 (1909) 
 (Fayetteville). 
 
 Iowa. — Baily v. Eirkhofer, 123 
 Iowa 59, 98 N. W. 594 (1904). 
 
 Maine. — Goodwin v. Appleton, 22 
 Me. 453 (1843). 
 
 Missouri. — State v. Nolle, 96 Mo. 
 App. 524, 70 S. W. 504 (1902). 
 
 Nebraska. — Agnew v. Pawnee City, 
 113 N. W. 236 (1907). 
 
 Pennsylvania. — Com. v. McMichael, 
 8 Pa. Dist. 157, 22 Pa. Co. Ct. 182 
 (1899). 
 
 Vermont. — ■ French v. Barre, 58 Vt. 
 567, 5 Atl. 568 (1886). 
 
 Wisconsin. — Woodward v. Chicago, 
 etc., R. Co., 21 Wis. 309 (1867). 
 " The public acts apprise us that 
 
 Mobile is a municipal corporation of 
 Alabama and where it is situated." 
 Alabama, etc., Ins. Co. v. Cobb, 57 
 Ala. 547 (1877). 
 
 2. Baily v. Birkhofer, (Iowa 1904) 
 98 N. W. 594; State v. Southern Ey. 
 Co., (N. C. 1906) 54 S. E. 294. 
 
 3. Payne r. Treadwell, 16 Cal. 221 
 (1860). 
 
 4. Ft. Scott v. Elliot, (Kan. Sup. 
 1903) 74 Pac. 609. 
 
 5. California. — ■ Peopk v. Wong 
 Wang, 92 Cal. 277, 28 Pac. 270 
 (1891). 
 
 Colorado. — In re Senate Bill No. 
 293, 21 Colo. 38, 39 Pac. 522 (1895). 
 
 Indiana. — Huntington r. Cast, (Ind. 
 1898), 48 N. E. 1025. 
 
 Iowa. — Bennett v. Marion, 106 Iowa 
 628, 76 N. W. 844 (1898). 
 
 Nebraska. — Union Pac. E. Co. v. 
 Montgomery, 49 Neb. 429, 68 N. W. 
 619 (1896). 
 
 New York. — Denair i: Brooklyn, 5 
 N. Y. Suppl. 835 (1889). 
 
 Oregon. — Stratton v. Oregon City, 
 35 Or. 409, 60 Pac. 905 (1900). 
 
 The actual population and the rate 
 of its increase may be facts judicially 
 known. Times Printing 'Oo. v. Star 
 Pub. Co., 51 Wash. 667, 99 Pac. 1040 
 (1909). 
 
929 
 
 City and State Bounuakiks. 
 
 745 
 
 judicially know that a bill alleged to have been drawn in Dublin 
 was drawn in Dublin, Ireland. A judge will probably experi- 
 ence no difficulty in knowing that there is a Dublin in Ireland; 
 but, as Abbott, C. J., says, "it is not possible for the Court 
 to take judicial notice that there is only one Dublin in the 
 world." 6 Certain minor facts regarding the position and location 
 of cities within its jurisdiction, for instance, that a borough 
 and a city are contiguous and within the same county may be 
 taken as true by a judge as part of his judicial cognizance. 7 In 
 much the same way courts may notice judicially that certain 
 cities are located in an arid region where the obtaining of water 
 is a valuable right, 8 
 
 § 745. (B. What Facts are Covered by the Rule; [3] 
 Facts of Geography; Cities); Boundaries. — Such courts know 
 also the general boundaries of these municipalities 1 and how these 
 monuments are related to the great geographical features of the 
 state 2 or the districts established for the administration of justice. 3 
 The relation which the boundaries of a city (or town) have to 
 those of the state* or county 5 will be judicially known f provided 
 
 6. Kearney v. King, 2 B. & A. 301, 
 303 (1831). 
 
 7. In re Sheraden Borough, 34 Pa. 
 Super. Ct. 639 (1907). 
 
 8. City of South Pasadena v. Pasa- 
 dena Land & Water Co., (Cal. 1908) 
 93 Pae. 490. 
 
 1. De Baker v. Southern Cal. E. 
 Co., 106 Cal. 257, 39 Pae. 610, 46 
 Am. St. Rep. 237 (1895) (river often 
 mentioned in statutes) ; In re In- 
 dependence Ave. Boulevard, 128 Mo. 
 272, 30 S. W. 773 (1895); Aehison, 
 T. & S. F, R. Co. v. Paxton, 75 Kan. 
 197, 88 Pae. 1082 (1907); Houlton 
 v. Chicago, etc., R. Co., 86 Wis. 59, 
 56 N. W. 336 (1893). 
 
 Precise boundaries cannot be judi- 
 cially known unless established by 
 statute. Boston v. State, 5 Tex. App. 
 383, 32 Am. Rep. 575 (1879) ; Brune 
 v. Thompson, 2 Q. B. 789 (1842) 
 (tower of London not known to be 
 within a certain city line in London). 
 
 2. Montgomery v. Montgomery, etc., 
 Plank-Road Co., 31 Ala. 76 (1857). 
 
 3. Alabama Gold L. Ins. Co. v. Cobb 
 57 Ala. 547 (1877). 
 
 4. TJ. S. v. Beebe, 2 Dak. 392, 11 
 N. W. 505 (1880); Baumann v. 
 Granite Sav. Bank, etc., Co., 66 Minn. 
 227, 68 N. W. 1074 (1896). 
 
 5. Anniston Electric & Gas Co. v. 
 Elwell, 144 Ala. 317, 42 So. 45 
 (1905) ; Smitha v. Flournoy, 47 Ala. 
 345 (1872) (Eufaula is a city in Bar- 
 bour county). 
 
 Arkansas. — St. Louis, etc., R. Co. 
 v. Magness, 68 Ark. 289, 57 S. W. 
 933 (1900). 
 
 California. — People f. Etting, 99 
 Cal. 577, 34 Pae. 237 (1893). 
 
 Connecticut. — State v. Powers, 25 
 Conn. 48 (1856). 
 
 Delaware. — State v. Tootle, 2 Harr. 
 541 (1837). 
 
 Georgia. — Central R. Co. v. De 
 Bray, 71 Ga. 406 (1883). 
 
 Illinois. — Gilbert v. National Cash 
 Register Co., 176 111. 288, 52 N. E. 
 22 ( 1898 ) ; Huston r. People, 53 111. 
 App. 501 (1893). 
 
 Von. I. 
 
 59 
 
§ 746 
 
 Knowledge ; Common. 
 
 930 
 
 the fact is not a jurisdictional one and is not part of the res gestce. 7 
 In other words, courts know whether a given city (or town) is 
 within the boundaries of a particular county. Recognition by 
 state legislation may be reinforced by that made under federal 
 authority in the establishment of a post-office in a given city or 
 town. The effect is to enable a court more readily to know the 
 location of the municipality in question. s 
 
 § 746. (B. What Facts are Covered by the Rule; [3] 
 Facts of Geography; Cities) ; Streets, Blocks, etc. — Much diver- 
 sity of opinion exists as to judicial knowledge of streets, blocks 
 and other local territorial divisions of cities, towns and other 
 municipalities. As a primary result of public statutes, streets, 
 
 Indiana. — Steinmetz r. Versailles, 
 etc., Turnpike Co., 57 Ind. 457 (1877). 
 
 lotca. — Baily r. Birkhofer, 123 
 Iowa 53, 98 N. \Y. 594 (1904). 
 
 Kansas. — Kansas City, etc., R. Co. 
 r. Burge, 40 Kan. 736, SI Pac. 588 
 (1889). 
 
 Maine. — State r. Simpson, 91 Me. 
 83, 39 Atl. 287 (1897). But see 
 Goodwin v. Appleton, 22 Me. 453 
 (1843). 
 
 Massachusetts. — Com. v. Spring- 
 field, 7 Mass. 9 (1810). Compare, 
 however, Com. r. Wheeler, 162 Mass. 
 429, 38 N. E. 1115 (1894). 
 
 Michigan. — People v. Curley, 99 
 Mich. 238, 58 N. W. 68 (1894). 
 
 Minnesota. — Kretzschmar v. Mee- 
 han, 74 Minn. 211, 77 N. W. 41 
 ( 1898 ) ; Baumann r. Trust Co., 66 
 Minn. 227, 68 N. W. 1074 (1896). 
 
 Missouri.— State r. Pennington, 124 
 Mo. 388, 27 S. \Y. 1106 (1894). 
 
 Xeoraska. — Green r. Paul, 60 
 Neb. 7, 82 N. W. 98 (1900). 
 
 New Tori-. — People r. Wood, 131 
 N. Y. 617, 30 N. E. 243 (1892). 
 
 Oregon.— Marx r. Croisan, 17 Or. 
 393, 21 Pac. 310 (1889). 
 
 Pennsylvania. — Com. r. Kaiser, 184 
 Pa. St. 493, 39 Atl. 299 (1898). 
 
 Texas. — Traylor c. Blum, (Sup. 
 1888) 7 S. W. 829; Solyer r. Roma- 
 net, 52 Tex. 562, 568 (1880) (Gal- 
 veston is in Galveston county). 
 
 Utah. — McMaster r. Morse, 18 
 Utah 21, 55 Pac. 70 (1898). 
 
 Vermont. — Bellows v. Elliot, 12 
 Vt. 569 (1840). 
 
 Washington. — ■ Schilling r. Wash- 
 ington Territory, 2 Wash. Ter. 283, 
 5 Pac. 926 (1884). 
 
 West Virginia. — Beasley v. Beck- 
 ley, 28 W. Va. 81 (1886). 
 
 Wisconsin. — Huey f. Van Wie, 23 
 Wis. 613 (1869). 
 
 The English parish or township, 
 not being recognized or established 
 in its boundaries by statutory law, 
 stands in a somewhat different posi- 
 tion. Com. i. Springfield, 7 Mass. 9 
 (1810) ; Rex r. Burridge, 3 P. Wms. 
 439 (1735). 
 
 Even the venue of a criminal act 
 may be determined in this way. Com- 
 monwealth r. Salawich, 28 Pa. Super. 
 Ct. 330 (1905). 
 
 6. A city recognized by a public 
 statute as being within a given 
 county will be so treated by the 
 courts of Texas. Solyer r. Romanet, 
 52 Tex. 562 (1880) ; Lewis r. State, 
 (Tex. Cr. App. 1894) 24 S. W. 903. 
 
 7. Mayes r. St. Louis, etc., R. Co., 
 71 Mo. App. 140 (1897); Porter r. 
 St. Louis, etc., R. Co., 66 Mo. App. 
 623 (1896). 
 
 8. Smitha r. Flournoy, 47 Ala. 345 
 (1872) ; Central R., etc., Co. r. Gam- 
 ble, 77 Ga. 584, 3 S. E. 287 (1886). 
 
931 Relation Between City Blocks, Lots, Etc. 
 
 746 
 
 roads, etc., of any municipality are public highways. 1 But, 
 as a general rule, a state court cannot judicially know the exist- 
 ence or location of particular city or town ways 2 or the name, 3 
 or as to particular facts regarding them 4 unless these highways are 
 established by virtue of a public statute or recognized in one. It 
 has been held that a court may judicially know the location of 
 city 5 or town lots; but not whether they have been built upon, 6 
 | and of city (or town) Mocks as related thereto, 7 but not of the 
 
 1. Montgomery v. Santa Anna, etc., 
 R. Co., 104 Cal. 186, 37 Pac. 786 
 (1894); City of Frankfort v. Cole- 
 man, 19 Ind. App. 368, 49 N. E. 474 
 (1897) ; City of Indianapolis •». Hig- 
 gins, 141 Ind. 1, 6, 40 N. E. 671 
 (1894) ; Porter v. Waring, 69 N. Y. 
 250 (1877) ; Taylor v. Town of Phil- 
 lipi, 35 W. Va. 554, 14 S. E. 130 
 (1891). 
 
 2. California. — Diggins v. Harts- 
 horne, 108 Cal. 154, 41 Pac. 283 
 (1895). 
 
 Neither » trial court nor the 
 court on appeal judicially knows the 
 streets in a given municipality. 
 Vonkey v. City of St. Louis, 219 Mo. 
 37, 117 S. W. 733 (1909). Courts 
 cannot know, without proof, the local 
 situation of a town or a street in a 
 county. Humphreys v. Budd, 9 Dowl. 
 1000 (1841); Deybel's Case, 4 B. & 
 A. 243 (18.21). 
 
 Alleys. — Courts do not take judi- 
 cial notice that alleys are not pro- 
 vided with sidewalks or that any 
 particular alley has no sidewalk. 
 J. Burton Co. v. City of Chicago, 236 
 III. 383, 86 N. E. 93 ( 1908 ) [reversed, 
 decree, City of Chicago v. J. Burton 
 Co., 140 111. App. 344 (1908)]. In 
 other words, this is not » notorious 
 fact. It is a fact of notoriety that 
 many streets contain in their side- 
 walks, cross-walks, curbs or pave- 
 ments numerous slight irregularities. 
 Gastel v. City of New York, 194 
 N. Y. 15, 86 N. E. 833 (1909) [order 
 reversed (Sup. 1908), 110 N. Y. 
 Suppl. 1129]. 
 
 Illinois.— North Chicago St. R. Co. 
 v. Cheetham, 58 111. App. 318 (1895) ; 
 
 City of Topeka v. Cook, 72 Kan. 595, 
 84 Pac. 376 (1906) (alley between 
 streets in Topeka). 
 
 Michigan. — Cicotte V. Anciaux, 53 
 Mich. 227, 18 N. W. 793 (1884). 
 
 Missouri. — Breckenridge v. Ameri- 
 can, etc., Ins. Co., 87 Mo. 62 (1885). 
 
 England. — Humphreys v. Budd, 9 
 Dowl. 1000, 5 Jur. 630 (1841). 
 While a court may notice the exist- 
 ence, direction and certain interrela- 
 tions of the streets of a city, it can- 
 not know that a particular street is 
 within a given distance of the city 
 limits. Stealey v. Kansas City, 179 
 Mo. 400, 78 S. W. 599 (1904) (five 
 miles). The street line and the 
 horse line on a specified street in a 
 given city must be proved. City of 
 New York v. Childs, 84 N. Y. Suppl. 
 164 (1903). 
 
 3. Baily v. Birkhofer, (Iowa 1904) 
 98 N. W. 594. 
 
 4. Cleveland v. Newsom, 45 Mich. 
 62, 7 N. W. 222 (1880) (extent of 
 use ) ; Allen v. Scharringhausen, 8 
 Mo. App. 229 (1880) (numbering); 
 Porter ». Waring, 69 N. Y. 250 
 (1877) (width) ; People v. Callahan, 
 60 How. Pr. (N. Y.) 372 (1881) (lo- 
 cation and numbering). 
 
 5. Gardner r. Eberhart, 82 111. 316 
 (1876); Brown v. Ogg, 85 Ind. 234 
 ( 1882 ) ; Houlton v. Chicago, etc., R. 
 Co., 86 Wis. 59, 56 N. W. 336 (1893). 
 See also People v. Kelly, 20 Hun 
 (N. Y.) 549 (1880). 
 
 6. State c Rogers, (Mont. 1904) 
 77 Pac. 293. 
 
 7. Sever e. Lyon, 170 111. 395, 48 
 N. E. 926 (1897). 
 
747 
 
 Knowledge; Common. 
 
 932 
 
 position of such lots as related to city or town boundary lines. 8 
 With regard to judicial knowledge of city or town streets, town 
 ways, etc., so great diversity of decision exists as to render it 
 impossible to deduce from the cases a definite rule. 
 
 § 747. (B. What Facts are Covered by the Rule; [3] 
 Facts of Geography; Cities; Streets, Blocks, etc.); Factors in 
 Determining Whether Notice is Taken. — Certain considerations 
 are apt to affect the judge's action in any particular instance. 
 (1) Where a plan has been recognized by statute the faots set 
 forth in it will be more readily known 1 than when established by 
 dedication or a municipal by-law. 2 (2) Where judicial knowl- 
 edge is taken of streets, etc., it is rather of their general direction, 3 
 the existence of the arrangement itself, 4 and the interrelations in 
 position of the streets, etc., to each other, 5 than an attempt actually 
 to know of the true position of these ways on the surface of the 
 ground 6 or of their definite relations to established monuments, 7 
 or even the actual distances between the streets themselves. 8 (3) 
 Facts relating to streets widely known, because (a) in a great 
 commercial metropolis, 9 (b) long established, 10 (c) located in the 
 
 8. Gunning v. People, 189 III. 165, 
 59 N. E. 494 [reversing 86 111. App. 
 676] (1901). 
 
 1. Whiting v. Quackenbush, 54 Cal. 
 306 (1880); Sever t, Lyons, 170 111. 
 395, 48 N. E. 926 (1897) ; Armstrong 
 v. Cummings, 20 Hun (N. Y.) 313 
 (1880). 
 
 Width of street (Coe College v. 
 Cedar Rapids, 120 Iowa 541, 95 N. W. 
 267 [1903] [charter]) prescribed by 
 special statute, will be judicially 
 known. 
 
 2. Diggins i". Hartshorne, 108 Cal. 
 154, 41 Pac. 283 (1895). 
 
 3. Brady v. Page, 59 Cal. 52 (1881); 
 Canavan v. Stuyvesant, 7 Misc. 
 (N. Y.) 113, 27 N. Y. Suppl. 413 
 (1894) ; Skelly r. New York El. R. 
 Co., 7 Misc. 88, 27 N. Y. c uppl. 304 
 (1894). 
 
 4. McMaster v. Morse, 18 Utah 21, 
 55 Pac. 70 (1898). 
 
 5. Diggins v. Hartshorne, 108 Cal. 
 154, 41 Pac. 283 (1895); Brady r. 
 Page, 59 Cal. 52 (1881) ; Gardner v. 
 Eberhart, 82 111. 316 (1876). 
 
 6. Kggins t;. Hartshorne, 108 Cal. 
 154, 41 Pac. 283 (1895); Shepard v. 
 Shepard, 36 Mich. 173 (1877). 
 
 7. Pennsylvania Co. v. Frana, 13 
 111. App. 91 (1883) (intersection of a 
 street with a railroad location, not 
 noticed ) . 
 
 8. West Chicago St. R. Co. v, Van- 
 dehouten, 58 111. App. 318 (1895) 
 (Chicago). 
 
 9. Poland v. Dreyfous, 48 La. Ann. 
 83, 18 So. 906 (1896) (New Orleans); 
 In re City of New York, 96 N. Y. 
 Suppl. 554, 48 Misc. 602 (1905) 
 (New York) ; Gruber c. New York 
 City R. Co., 53 Misc. (N. Y.) 322, 
 103 N. Y. Suppl. 216 (1907) (New 
 York city) ; Canavan v. Stuyvesant, 7 
 Misc. 113, 27 N. Y. Suppl. 413 (1894) 
 (New York city). 
 
 The judicial district in which prem- 
 ises located on a given street are 
 situated has been judicially known. 
 People t\ Kelly, 20 Hun 549 (1880). 
 But cognizance of the numbering of 
 the streets, their termini, etc.. as re- 
 lated to the boundaries of the district, 
 
933 
 
 Celebrated Places, Noted Buildings, Etc. § 748 
 
 place where the court is actually sitting, 11 will be known by the 
 court as notorious. 12 
 
 A Contrary View. — Several jurisdictions have peremptorily 
 declined judicially to know these ways, 13 and, a fortiori, the 
 house numbering on them. 14 
 
 § 748. (B. What Facts are Covered by the Rule; [3] 
 Facts of Geography; Cities); Wards, Noted Places, etc. — The 
 
 position of wards of a city will not be known. 1 A more liberal 
 rule has extended judicial knowledge so as to cover facts of city 
 geography, of a general nature, well known in the local com- 
 munity, as the location of celebrated places, 2 or even of noted 
 buildings. 3 
 
 has been declined. People v. Calla- 
 han, 23 Hun 581, 60 How. Pr. 373 
 (]881). 
 
 10. State v. Ruth, 14 Mo. App. 226 
 (1883) ; Breckinridge v. American 
 Cent. Ins. Co., 87 Mo. 62 (1885) (less 
 well-known streets, or their direction, 
 not noticed ) . See, however, Allen v. 
 Scharringhausen, 8 Mo. App. 229 
 (1880) (where cognizance was taken 
 of a street number ) . 
 
 11. State v. Ruth, 14 Mo. App. 226 
 (1883). 
 
 There is a natural tendency for a 
 judge to assume that to be notorious 
 which he happens to know. He not 
 unjustifiably feels inclined to take 
 judicial notice of such a fact, satis- 
 fied that such an act, if not well 
 grounded in law, is, at least, in the 
 line of substantial justice and of ex- 
 pediting business. Supra, § 544. 
 
 12. It is obvious also that many 
 facts regarding streets, blocks, lots, 
 and the like, may be matters of com- 
 mon knowledge to those living in a 
 particular locality. 
 
 13. California. — Brumagim v. Brad- 
 shaw, 39 Cal. 24 (1870). 
 
 Illinois. — Sever v. Lyons, 170 111. 
 395, 48 N. E. 826 (1897). 
 
 Iowa. — Baily v. Birkhofer, 123 
 Iowa 59, 98 N. W. 594 (1904). 
 
 Michigan. — Shepard v. Shepard, 36 
 Mich. 173 (1877). 
 
 Utah. — McMaster v. Morse, 18 
 Utah 21, 55 Pac. 70 (1898). 
 
 Wisconsin. — Ritchie v. Catlin, 86 
 Wis. 109, 56 N. W. 473 (1893). 
 
 Wyoming. — Ingersoll v. Davis, 
 (Wyo. 1905) 82 Pac. 867. 
 
 England. — Humphreys v. Budd, 9 
 Dowl. P. C. 1000, 5 Jur. 630 (1841) 
 (street not in a given county, not 
 noticed ) . See also Reg. v. Holborn 
 Union, 6 E. & B. 715, 2 Jur. (N. S.) 
 571, 25 L. J. M. C. 110, 4 Wkly. Rep. 
 606, 88 E. C. L. 715 (1856). 
 
 14. Ritchie v. Catlin, 86 Wis. 109, 
 56 N. W. 473 (1893). 
 
 1. Moberry v. Jeffersonville, 38 Ind. 
 198 (1871); Armstrong v. Cum- 
 mings, 20 Hun (N. Y.) 313 (1880). 
 A Missouri court may take judicial 
 notice that » part of Kansas City 
 was platted as West Kansas. Bar- 
 ber Asphalt Paving Co. v. Missouri 
 Pac. Ry. Co., 136 Mo. App. 642, 119 
 S. W. 27 (1909). 
 
 2. McCoy v. World's Columbian Ex- 
 position, 186 111. 356, 57 N. E. 1043 
 (1900) (World's Fair grounds). It 
 cannot be noticed that part of the 
 tower of London is within the county 
 of Middlesex. Brune v. Thompson, 
 2 Q. B. 789 (1842). 
 
 3. Gunning v. People, 189 111. 165, 
 59 N. E. 494 (1901) (Reliance build- 
 ing is in South Chicago). 
 
§§ 749, 750 Knowledge ; Common. 934 
 
 § 749. (B. What Facts are Covered by the Rule; [3] 
 Facts of Geography; Cities); Foreign Cities.— While a state 
 court does not know the location and other facts concerning cities 
 outside the state not of commercial or other general importance, a 
 national court treats such cities more nearly as it does those within 
 its immediate district. 1 Courts have, however, regarded the loca- 
 tion of a city outside the state as matter of common knowledge, 
 and have even treated, in the same way, minor facts regarding it, 
 e. g., that it is the county seat of a particular county in another 
 state. 2 
 
 § 750. (B. What Facts are Covered by the Rule; [3] 
 Facts of Geography) ; Towns. — The court judicially knows the 
 existence and geographical location of its towns, established or 
 recognized by law j 1 — mere popular designations, 2 or even, it has 
 been held, an unincorporated town, 3 not being so recognized. The 
 boundaries of towns, where these are established by law, 4 will be 
 known in a general way ; but whether they are correctly run on 
 the surface of the ground at a given point must be proved by evi- 
 dence. 5 The court knows also the relation of these town 
 boundaries to the judicial districts of the state, 6 their geographical 
 
 1. Maese v. Hermann, 17 App. Cas. Wisconsin. — Woodward r. Chicago, 
 (D. C.) 52 [affirmed in 183 U. S. etc., R. Co., 21 Wis. 309 (1867). 
 572, 22 S. Ct. 91, 46 L. ed. 335] (1900) 2. Huston v. People, 53 111. App. 
 (Las Vegas in New Mexico). 501 (1893). See also St. Louis, etc., 
 
 2. Phillips v. Lindley, 98 N. Y. R. Co. v. Cady, 67 Ark. 512, 55 S. W. 
 Suppl. 423, 112 App. Div. 283 (1906). 929 (1900). 
 
 1. Connecticut. — State v. Powers, 3. Anderson v. Com., 100 Va. 860, 
 
 25 Conn. 48 (1856). 42 S. E. 865 (1902). 
 
 Maine. — .State v. Simpson, 91 Me. 4. Re Independence Boulevard, 
 
 83, 39 Atl. 287 (1897). (Ark. 1895) 30 S. W. 773; Atchison, 
 
 Missouri.— Parker r. Burton, 172 T. & St. F. R. Co. t\ Paxton, 75 Kan. 
 
 Mo. 85, 72 S. W. 663 (1903). 197, 88 Pac. 1082 (1907); Hite v. 
 
 New Hampshire. — Winnipiseogee State, 9 Yerg. (Tenn.) 357 (1836) ; 
 
 Lake Co. v. Young, 40 N. H. 420, 429 Boston v. State, 5 Tex. App. 383, 22 
 
 (1860). Am. Rep. 575 (1879). But see 
 
 North Carolina. — State v. Southern Blackenstoe r. Wabash, etc., R. Co., 
 
 Ry. Co., (N. C. 1906) 54 S. B. 294; 86 Mo. 492 (1885); Mayes v. St. 
 
 State v. Glasgow, Conf. R. 38, 2 Am. Louis, etc., R. Co., 71 Mo. App. 140 
 
 Dec. 629 (1800). (1897). 
 
 Texas. — Boston r. State, 5 Tex. 5. Diggins r. Hartshorne, 108 Cal. 
 
 App. 383, 32 Am. Rep. 575 (1879). 154, 41 Pac. 286 (1895). 
 
 Vermont. — French r. Barre, 58 Vt. 6. St. Louis, etc., R. Co. r. State, 
 
 567, 5 Atl. 568 (1886). 68 Ark. 561, 60 S. W. 654 (1901). 
 
935 Positions of Towns Witiiix Counties, Etc. § 750 
 
 position, 7 as being within the state 8 or within a given county; 9 — 
 although certain courts decline judicially to know in any but civil 
 causes, 10 unless the position of the town within the county has 
 
 7. Connecticut. — Keyser v. Coe, 37 
 Conn. 597 (1871). 
 
 Illinois. — Reading v. Wedder, 66 
 III. 80 (1872). 
 
 Iowa. — 'State v. Reader, 60 Iowa 
 527, 15 N. W. 423 (1883). 
 
 Maine. — State v. Wagner, 61 Me. 
 178 (1873). 
 
 Missouri.— - McGrew v. Missouri 
 Pac. R. Co., 177 Mo. 533, 76 S. W. 
 995 (1903) ; City Nat. Bank v. Good- 
 loe-McClelland Commission Co., 93 
 Mo. App. 123 (1902). 
 
 'Nevada. — State v. Buralli, 81 Pac. 
 532 (1903). 
 
 United States. — Toppan v. Cleve- 
 land, etc., R. Co., 24 Fed. Cas. No. 
 14,099, 1 Flipp. 74 (1862); King v. 
 American Transp. Co., 14 Fed. Cas. 
 No. 7,787, 1 Flipp. 1 (1859). 
 
 8. King v. Kent, 29 Ala. 542 
 (1857). 
 
 9. See Cities. Supra, § 744. 
 Alabama. — ■ Smitha v. Flournoy's 
 
 Adm., 47 Ala. 345 (1872). 
 
 Arkansas. — St. Louis, etc., R. Co. 
 v. Magness, 68 Ark. 289, 57 S. W. 
 933 (1900). 
 
 California. — People v. Etting, 99 
 Cal. 577, 34 Pac. 237 (1893). 
 
 Connecticut. — State v. Powers, 25 
 Conn. 48 (1856). 
 
 Delaware. — State v. Tootle, 2 Harr. 
 541 (1837). 
 
 Georgia. — Perry v. State, 113 Ga. 
 936, 39 S. E. 315 (1901) (it being 
 shown that the town is within the 
 state); Central R., etc., Co. v. Gam- 
 ble, 77 Ga. 584, 3 S. E. 287 (1886). 
 
 Illinois. — Gilbert v. National Cash 
 Register Co., 176 111. 288, 52 N. E. 
 22 (1898). 
 
 Indiana. — Cleveland, C, C. & St. 
 L. R. Co. v. Miller, (Ind. App. 1907) 
 81 N. E. 517; Turbeville r. State, 42 
 Ind. 490 (1873). 
 
 Iowa. — State «. Reader, 60 Iowa 
 527, 15 N. W. 423 (1883). 
 
 Kansas. — Atchison, T. & St. F. R. 
 
 Co. v. Paxton, 75 Kan. 197, 88 Pac. 
 1082 (1907). 
 
 Maine. — State v. Simpson, 91 Me. 
 83, 39 Atl. 287 (1897) (Waterville 
 in Kennebec county) ; Ham v. Ham, 
 39 Me. 263 (1855). 
 
 Michigan. — People V. Curley, 99 
 Mich. 238, 58 N. W. 68 (1894). 
 
 Missouri. — Parker v. Burton, 172 
 Mo. 85, 72 S. W. 663 (1903). 
 
 New Hampshire. — Winnipiseogee 
 Lake Co. v. Young, 40 N. H. 420 
 (1860). 
 
 New York. — Vanderwerker v. Peo- 
 ple, 5 Wend. 530 (1830). 
 
 Oklahoma. — Reed v. Territory, (Cr. 
 App. 1908) 98 Pac. 583. 
 
 Oregon. — Marx v. Croisan, 17 Or. 
 393, 21 Pac. 310 (1889). 
 
 Texas. — Lewis v. State, (Tex. 
 
 1894) 24 S. W. 903. 
 
 Vermont. — State v. Soragan, 40 Vt. 
 450 ( 1868 ) . " The court can take ju- 
 dicial notice of the lines of counties 
 and the towns embraced in them." 
 Steinmetz v. Versailles Turnpike Co., 
 57 Ind. 457 (1877). 
 
 The relation of law to common 
 knowledge is indicated by the fact 
 that while the court takes judicial 
 notice of the boundaries of a county 
 in the state, it does not take 3uch 
 notice of the county in which an un- 
 incorporated town is situated. State 
 v. Bush, 136 Mo. App. 608, 118 S. W. 
 670 (1909). 
 
 To the " contrary, see Com. v. 
 Wheeler, 162 Mass. 429, 38 N. E. 
 1115 (1894). 
 
 10. State v. Burgess, 75 Mo. 541 
 (1882); State v. Clark First Nat. 
 Bank, 3 S. D. 52, 51 N. W. 780 
 (1892) ; Boston v. State, 5 Tex. App. 
 383, 32 Am. Rep. 575 (1879). See 
 also Hutto v. State, (Tex. Cr. App. 
 
 1895) 33 S. W. 223; Cain r. State, 
 (Tex. Cr. App. 1894) 25 S. W. 
 1119; Fields v. State, (Tex. Cr. App. 
 1893) 24 S. W. 407. 
 
751 
 
 KNOWLEDGE : COMIIOX. 
 
 936 
 
 been recognized in a public statute. 11 The courts of England de- 
 cline to take such judicial knowledge of these facts of location 
 under .any circumstances, 12 though they judicially know the 
 names and location of parishes. 13 Courts will know the town's 
 distance from given geographical monuments, such as the county 
 line, 14 the meridian at Greenwich, 15 or other fixed points of 
 notoriety, 16 but not, it would seem, the distance between places in 
 the county. 17 The names of towns and whether or not there is 
 more than one of that name in the state, 18 their numbering, 19 their 
 respective populations as given in the official census tabulations, 20 
 are facts that require no proof. 21 
 
 § 751. (B. What Facts are Covered by the Rule; [3] 
 Facts of Geography) ; Townships. — Townships stand, in this 
 connection, in the same position as towns. Their existence, loca- 
 tion, relative positions, both to each other, 1 and to lines estab- 
 lished by the public survey 2 will be known judicially. The exact 
 position of boundary line 3 and facts dependent on that position — 
 
 11. Lewis v. State, (Tex. Cr. App. 
 1894) 24 S. W. 903 (made capital of 
 the state) ; Latham r. State, 19 Tex. 
 App. 305 (1885); Fields v. State, 
 (Tex. Cr. App. 1893) 24 S. W. 407. 
 
 12. Brune v. Thompson, 2 Q. B. 
 789, 42 E. C. L. 913, C. & M. 34, 41 
 E. C. L. 34, 2 G. & D. 110 (1842). 
 
 13. Reg. v. Sharpe, 8 C. & P. 436, 
 34 E. C. L. 823 (1838). 
 
 14. Terre Haute, etc., R. Co. v. 
 Pierce, 95 Ind. 496 (1884); Kansas 
 City, etc., R. Co. v. Burge, 40 Kan. 
 736, 21 Pac. 589 (1889) ; Harvey v. 
 Terr., 11 Okl. 156, 65 Pac. 837 (1901). 
 
 In case of an unincorporated vil- 
 lage the rule has heen held to be 
 otherwise. Anderson »". Com., 100 
 Va. 860, 42 S. E. 865 (1902). 
 
 15. Curtis r. March, 3 H. & N. 866, 
 4 Jur. N. S. 1112, 28 L. J. TCxch. 36 
 (1858). 
 
 16. Bruson e. Clark, 151 111. 495 
 (1894) (two miles from court house). 
 
 17. Goodwin r. Appleton, 22 Me. 
 453 (1843). See also Wainright V. 
 Lake Shore, etc., R. Co., 11 Ohio Cir. 
 
 Dec. 530 ( 1901 ) ; Anderson v. Com., 
 100 Va. 860, 42 S. E. 865 (1902). 
 
 18. Smitha v. Flournoy, 47 Ala. 345 
 (1872). 
 
 19. Kile r. Yellowhead, 80 111. 208 
 (1875). 
 
 20. Hawkins v. Thomas, 3 Ind. App. 
 399, 29 X. E. 157 (1891). 
 
 21. De Baker r. R. Co., 106 Cal. 
 257, 39 Pac. 610 (1895) (river often 
 mentioned in statutes ) . 
 
 1. Kile v. Yellowhead, 80 111. 208 
 (1875); O'Brien v. Krockinski, 50 
 111. App. 456 (1893). 
 
 2. Kile v. Yellowhead, 80 111. 208 
 (1875) (coincide with sectional 
 lines) ; Wright r. Phillips, 2 Greene 
 (Iowa) 191 (1849); Dexter r. Cran- 
 ston, 41 Mich. 448, 2 N. W. 674 
 (1879). 
 
 3. Backenstoe c. Wabash, etc., R. 
 Co., 86 Mo. 492 (1885); Mayes r. 
 St. Louis, etc., R. Co., 71 Mo. App. 
 140 ( 1897 ) . But see City Nat. Bank 
 r. Goodloe-McClelland Commission 
 Co., 93 Mo. App. 123 (1902). 
 
937 Facts of Human Experience. §§ 752, 753 
 
 whether, for example, the particular township is 4 or is not 5 within 
 a given county — must be proved. 
 
 § 752. (B. What Facts are Covered by the Rule; [3] 
 Facts of Geography); Villages, Boroughs, etc. — So far as the 
 
 territorial limits of a village are established by a statute which 
 the court judicially knows, the judge will not require that they 
 be proved to him by evidence. 1 The rule is otherwise where the 
 village is not incorporated. 2 That a village is within the bounds 
 of a given county will be judicially known. 3 Even where a 
 statute requires that judicial notice be taken of villages, it does 
 not necessarily follow that the area of the village will be noticed 
 in the same way. 4 The same rule applies to still smaller sub- 
 divisions, such as boroughs, 5 created for governmental purposes. 
 But subdivisions of municipalities whose existence is due to the 
 doing of acts in pais of which no evidence is furnished, will not 
 be judicially known. 6 
 
 § 753. (B. What Facts are Covered by the Rule); (4) Pacts 
 of Human Experience. — The broad inductions of experience are 
 " assumed as truths in any process of reasoning by the mass of sane 
 minds." 1 A tribunal legally required to render judgments accord- 
 ing to reason, must know 2 such propositions; and counsel may 
 properly use them as a basis of their argument to the jury. 3 It 
 has even been said that the knowledge is not optional f — the use 
 of sound reason is mandatory at all times upon the tribunal. 
 
 4. Cornshock v. People, 56 111. App. (1885); Moon r. Missouri Pac. R. 
 467 (1894); Parker v. Burton, 172 Co., 83 Mo. App. 458 (1899). 
 
 Mo. 85, 73 S. W. 663 ( 1903 ) ; State 4. People v. Pederson, 220 111. 554, 
 
 f. Buralli, (Nev. 1903) 71 Pac. 532; 77 N. E. 251 (1906). 
 
 Com. v. Kaiser, 184 Pa. St. 493, 39 5. Stroudsburg v. Brown, 11 Pa. 
 
 Atl. 299 (1898). Co. Ct. 272 (1889). 
 
 5. City Nat. Bank v. Goodloe-Mc- G. Moberry v. Jeffersonville, 38 
 Clelland Commission Co., 93 Mo. App. Ind. 198 ( 1871 ) ; Ritchie V. Catlin, 
 123 (1902). 86 Wis. 109, 56 N. W. 473 (1893). 
 
 1. U. S. v. Beebe, 2 Dak. 292, 11 1. Lake Shore, etc., R. Co. v. Mil- 
 N. W. 505 (1880); Chamberlain v. ler, 25 Mich. 274, 292 (1872). 
 Litchfield, 56 111. App. 652 (1894); 2. Lake Shore, etc., R. Co. v. Mil- 
 Shaw v. New York, etc., R. Co., 85 ler, 25 Mich. 274, 292 (1872). 
 
 N. Y. Suppl. 91, 85 App. Div. 137 3. Philadelphia R. Co. v. Lehman, 
 
 (1903) ; French v. Barre, 58 Vt 567, 56 Md. 209 (1881) ; State v. Lingle, 
 
 5 Atl. 568 (1886). 128 Mo. 528, 31 S. W. 20 (1895). 
 
 2. Anderson v. Com., 100 Va. 860, 4. Whatever is matter of common 
 42 S. E. 865 (1902). knowledge and experience, courts are 
 
 3. Louisville, etc., R. Co. r. Hixon, bound to recognize. Griffith v. Den- 
 101 Ind. 337 (1884); People r. Tel- ver Consol. Tramway Co., 14 Colo, 
 ford, 56 Mich. 541, 23 N. W. 313 App. 504, 61 Pac. 46, 48 (1900). 
 
§§ 754-756 Knowledge; Common. 938 
 
 § 754. (B. What Facts are Covered by the Rule; [4] 
 Facts of Human Experience); Standards of Reasonable Conduct. 
 
 — The standards of conduct which experience has established in 
 the community are known to its courts. 1 An act which this stand- 
 ard of experience unhesitatingly stamps as unreasonable will be 
 known to the court to be so, 2 while conduct which the com- 
 munity's standard of prudence deems permissible will be so re- 
 garded by the court. 3 This knowledge is essential that legal rea- 
 soning, whether by court or jury, 4 should start from a correct 
 major premise. 
 
 § 755. (B. What Facts are Covered by the Rule); (5) Facts 
 of Social life. — ISTo proof need be offered of facts which are well 
 known incidents of the social life of the community. " Quicquid 
 agant homines," said Lord Mansfield, 1 "is the business of courts, 
 and as the usages of society alter, the law must adapt itself to the 
 various situations of mankind." " It is the duty of courts judi- 
 cially to know what is the general course of the transactions of 
 human life." 2 
 
 § 756. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Life); Customs. — Courts know the customary methods 
 of doing business, prevalent in the community. These will be re- 
 
 1. Postal Tel. Cable Co. v. Jones, (1893) (delay of twenty-nine years 
 133 Ala. 217, 32 So. 500 (1901); In starting to build a church) ; Texas, 
 Lake Shore, etc., R. Co. v. Miller, 25 etc., R. Co. v. Cox, 145 TJ. S. 593, 
 Mich. 274, 292 (1872); Davey v. 12 S. Ct. 905, 36 L. ed. 829 (1892). 
 London, etc., R. Co., 12 L. R. Q. B. That electricity is a dangerous and 
 D. 70, 48 J. P. 279, 53 L. J. Q. B. treacherous agent, similar to gun- 
 58, 49 L. T. Bep. (N. S.) 739 [af- powder or dynamite and is not to be 
 firming 11 Q. B. D. 213] (1883). handled with a low degree of caution, 
 See also White r. Phoenix Ins. Co., is a, fact of common knowledge. De 
 83 Me. 279, 22 Atl. 167 ( 1891 ) ; Bet- Kallands r. Washtenaw Home Tele- 
 cher v. Capital F. Ins. Co., 78 Minn. phone Co., 153 Mich. 25, 116 N. W. 
 240, 80 N. W. 971 (1899). 564, 15 Detroit Leg. N. 337 (1908). 
 
 2. Griffith v. Denver Consol. Tram- 3. Gilbert v. Flint, etc., R. Co., 51 
 way Co., 14 Colo. App. 504, 61 Pac. Mich. 488, 16 N. W. 868, 47 Am. 
 46, 48 (1900); Jones r. Flint, etc., Bep. 592 (1883) (leaving a box 
 (1901); Lillibridge r. McCann, 117 freight car at a highway crossing). 
 R. Co., 127 Mich. 198, 86 N. W. 838 4. Infra, § 1733. 
 
 Mich. 84, 75 N. W. 288, 72 Am. St. 1. Barwell v. Brooks, 3 Dougl. 371, 
 
 Rep. 553, 41 L. R. A. 381 (1898) 373, 26 E. C. L. 245 (1784). 
 
 (sleeping on straw with a lighted 2. Duncan r. Littell, 2 Bibb. (Ky.) 
 
 pipe) ; Upington v. Corrigan, 69 Hun 424, 426 (1811). 
 (N. Y.) 320, 23 N. Y. Suppl. 451 
 
939 
 
 Judge's Knowledge of Social Customs. 
 
 § 756 
 
 garded as notorious. 1 That prudent business men insure manu- 
 facturing establishments in amounts approximating full value, 2 
 that they are in the habit of consulting commercial agencies and 
 being governed, in giving credit, by their reports ; 3 that merchants 
 usually charge interest after a certain date,* these, and similar 
 customs, are generally known. Even where the court knows as 
 a matter of common knowledge the existence of a custom, it will 
 not, for that reason, know necessarily the exact limitations of its 
 scope or the conditions imposed on its exercise. 5 Actual knowledge 
 
 1. Arkansas. — City Electric St. R. 
 Co. v. First Nat. Exch. Bank, 62 Ark. 
 33, 34 S. W. 89, 54 Am. St. Rep. 
 282, 31 L. R. A. 535 (1896). 
 
 Illinois. — Munn v. Burch, 25 111. 
 35 (1860). 
 
 Maryland. — Saascer v. Farmers' 
 Bank, 4 Md. 409 (1853). 
 
 Massachusetts. — Murphy v. Calley, 
 1 Allen 107 (1861). 
 
 Michigan. — Samberg v. American 
 Exp. Co., (Mich. 1904) 11 Detroit 
 Leg. N. 154, 99 N. W. 879 (cancel 
 signature by drawing line through 
 it); Pfeiffer v. Detroit Bd. of Edu- 
 cation, 118 Mich. 560, 77 N. W. 250, 
 42 L. R. A. 536 (1898). 
 
 New York. — Rowland v. Miln, 2 
 Hilt. 150 (1858). 
 
 Pennsylvania. — Watt v. Hoch, 25 
 Pa. St. 411 (1855). 
 
 South Carolina. — Union Bank v. 
 Union Ins. Co., Dudley 171 (1838). 
 
 Texas. — Chadoin v. Magee, 20 Tex. 
 476 (1857). 
 
 Vermont. — Wood v. Smith, 23 Vt. 
 706 (1851). 
 
 Washington. — Cady v. Case, 11 
 Wash. 124, 39 Pac. 375 ( 1895 ) ; Bow- 
 man v. Spokane First Nat. Bank, 9 
 Wash. 614, 38 Pac. 211, 43 Am. St. 
 Rep. 870 (1894). 
 
 Wisconsin. — John O'Brien Lumber 
 Co. v. Wilkinson, (Wis. 1904) 101 
 N. W. 1050. 
 
 United States. — U. S. r. Arredondo, 
 6 Pet. 691, 8 L. ed. 547 (1832). 
 
 England. — Bruin r. Knott, 9 Jur. 
 979, 12 Sim. 453 (1845); Piper V. 
 Chappell, 9 Jur. 601, 14 M. & W. 
 
 624 (1845); Jones V. Peppercorne, 
 
 5 Jur. (N. S.) 140, Johns. 430, 28 
 L. J. Ch. 158, 7 Wkly. Rep. 103 
 (1858). "We must take judicial 
 
 notice of a custom which is familiar 
 everywhere." Cameron v. Blackman, 
 39 Mich. 108 (1878). 
 
 Effect will not be given to unrea- 
 sonable customs or usages. Cady v. 
 Case, 11 Wash. 124. 39 Pac. 375 
 (1895) (payment of wages by goods 
 from a particular store). 
 
 A fortiori the same rule applies 
 to a custom directly contrary to law. 
 Columbia Bank t. Fitzhugh, 1 Harr. 
 
 6 G. (Md.) 239 (1827); Murphy v. 
 Calley, 1 Allen (Mass.) 107 (1861); 
 Rowland r. Miln, 2 Hilt. (N. Y.) 
 150 (1858). 
 
 The knowledge may equally well be 
 negative; — i. e., that no such custom 
 as is claimed exists. 
 
 2. Hill v. American Surety Co., 107 
 Wis. 19, 81 N. W. 1024, 82 N. W. 
 691 (1900). 
 
 3. Furry v. O'Connor, 1 Ind. App. 
 573, 579, 28 N. E. 103 ( 1891 ) ; Gene- 
 see, etc., Bank v. Michigan Barge Co., 
 52 Mich. 164, 17 N. W. 790 (1883) ; 
 Eaton, etc., Co. v. Avery, 83 N. Y. 31 
 (1880) ; Wilmot V. Lyon, 7 Ohio Civ. 
 Dec. 394 (1897). But see Holmes i\ 
 Harrington, 20 Mo. App. 661 (1886). 
 
 4. Watt v. Hoch, 25 Pa. St. 411 
 (1855). 
 
 5. McKibbin v. Great Northern R. 
 Co., 78 Minn. 232, 80 N. W. 1052 
 (1899) (carrying "drummers' sam- 
 ples" as baggage). 
 
§§ 757, 758 Knowledge; Common. 940 
 
 on the part of the judge is inevitably a factor in determining the 
 action of the court as to whether a custom shall be treated as 
 commonly known. It is usual, therefore, for the judge to assume 
 as notorious a usage or custom once judicially established. 6 
 
 § 757. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Life; Customs); Financial — Certain customs of a 
 financial nature, i. e., with relation to money dealings, as that 
 taxes are often paid by cheque, 1 that banks remit collections made 
 on behalf of their customers by draft, or certificate of deposit, 2 
 that bills for goods are frequently collected by having payment 
 made to an agent of the vendor who will deliver the bill of sale to 
 the vendee, 3 will be taken as established by common knowledge, 
 i. e., regarded as " judicially " known. But local customs, as the 
 allowance of a commission on bills of exchange received in pay- 
 ment of a judgment, 4 stand in a different position. Customs of 
 courtesy in trade, as where business houses allow each other's em- 
 ployees or customers to buy goods on their credit, 8 require no 
 proof. 
 
 § 758. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Life; Customs); Local — A custom observed among a 
 few persons, confined to a particular locality or not generally estab- 
 lished and known, 1 must be proved. A custom, though in a sense 
 local, will be noticed if it affects the public at large and is gen- 
 erally known and observed throughout a particular locality, such 
 as certain colonies, 2 a given port, 3 city 4 or the like; but it is 
 otherwise with customs where both observance and operation are 
 confined to a limited locality. 5 Therefore, municipal customs as 
 
 6. Consequa v. Willings, 6 Fed. Schultz v. Ford Bros., (Iowa 1906) 
 
 Cas. No. 3,128, Pet. C. C. 225 (1816). 109 N. W. 614. 
 
 1. Indiana Bond Co. r. Bruce, 13 2. Chandoin t\ Magee, 20 Tex. 476 
 Ind. App. 550, 41 N. E. 958 (1895). (1857) (selection of lands already 
 
 2. Bowman t. Spokane First Nat. surveyed). 
 
 Bank, 9 Wash. 614, 38 Pac. 211, 43 3. Union Bank r. Union Ins. Co.. 
 
 Am. St. Rep. 870 (1894). Dudley (S. C.) 171 (1837) (demur- 
 
 3. Gibson v. Stevens, 8 How. (U. rage charges). 
 
 S.) 384, 12 L. ed. 1123 (1850). 4. Koons v. Miller, 3 Watts & S. 
 
 4. Ward v. Everett, 1 Dana (Ky.) (Pa.) 271 (1842) (Philadelphia); 
 429 (1833). Watt v. Hoch, 25 Pa. St. 411 (1855) 
 
 5. Cameron v. Blackman, 39 Mich. (Pittsburgh). 
 
 108 (1878). 5. California.— Dutch Flat Water 
 
 1. Sanders r. Brown, (Ala. 1905) Co. r. Mooney, 12 Cal. 534 (1859). 
 
 39 So. 732 (on sale of business to Indiana. — Rapp v. Grayson, 2 
 
 secure covenant not to compete); Blackf. 230 (1828). 
 
941 Community's Knowledge of Facts of Gaming. §'§ 759, 760 
 
 to the improvement of streets, 6 the use of their premises by indi- 
 vidual owners 7 or the tribal laws 8 or customs 9 of the Indians will 
 not be commonly, i. e., " judicially " known. 
 
 § 759. (B. What Facts are Covered by the Rule; [5] Facta 
 of Social Lite); Fine Arts As part of the life of the com- 
 munity, courts know, in a general way, that which is customarily 
 known by people of average education as to the existence and scope 
 of the fine arts. 1 
 
 Drama. — It will be commonly recognized that a dramatic artist 
 is not a laborer or servant. 2 
 
 Engraving. — That lithographing 3 or preparing maps for a 
 geological survey* requires a high degree of skill and is therefore 
 expensive 5 need not be proved. 
 
 § 760. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Lite) ; Gaming. — Facts of such common knowledge as 
 the general methods in which gaming is conducted as by a 
 faro bank, 1 lottery, 2 or gift enterprise, 3 have been held by 
 some courts to be within their judicial knowledge, while other 
 
 Kentucky. — Longes v. Kennedy, 2 
 Bibb 607 (1812). 
 
 Maryland.— Columbia Bank v. Fitz- 
 hugh, 1 Harr. & G. 239 (1827). 
 
 Mississippi. — Turner v. Fish, 28 
 Miss. 306 (1854). 
 
 New York. — In re Walter, 75 N. 
 Y. 354 (1878). 
 
 Oregon. — Lewis v. McClure, 8 Or. 
 273 (1880). 
 
 Tennessee. — McCorkle v. Driskell, 
 (Ch. App. 1900) 60 S. W. 172. 
 
 Vermont. — Wood v. Smith, 23 Vt. 
 706 (1851). 
 
 6. In re Walter, 75 N. Y. 354 
 (1878). 
 
 7. McCorkle v. Driskell, (Tenn. Ch. 
 App. 1900) 60 S. W. 172 (construc- 
 tion or elimination of fences in 
 Chattanooga). 
 
 8. Sass v. Thomas, (Indian Terr. 
 1902) 69 S. W. 893; Kelly v. 
 Churchill, (Indian Terr. 1902) 69 
 S. W. 817; Livingston r. Spero, 18 
 Misc. (N. Y.) 243, 41 N. Y. St. 
 606 (1896) ; Hockett r. Alston, 110 
 Fed. 910, 49 C. C. A. 180 (1901); 
 
 Wilson r. Owens, 86 Fed. 571, 30 
 C. C. A. 257 (1898). 
 
 9. Turner r. Fish, 28 Miss. 306, 
 311 (1854) (headship of Choctaw 
 family). 
 
 1. For judicial knowledge as to 
 literature, see infra, § 764. 
 
 2. Lumley v. Gye, 2 E. & B. 216, 
 267, 17 Jur. 827, 22 L. J. Q. B. 463, 
 1 Wkly. Bep. 432, 75 E. C. L. 216 
 (1853). 
 
 8. Beck, etc., Lithographing Co. v. 
 Evansville Brewing Co., 25 Ind. App. 
 662, 58 N. E. 859 (1900). 
 
 4. Adams Express Co. v. Hoeing, 9 
 Ky. L. Rep. 814 (1888). 
 
 5. Adams Express Co. v. Hoeing, 9 
 Ky. L. Rep. 814 (1888) ($120 per 
 month held fair ) . 
 
 1. State v. Burton, 25 Tex. 420 
 (1860). 
 
 2. Salomon v. State, 28 Ala. 83 
 (1856); Boullemet v. State, 28 Ala. 
 83 (1856). 
 
 3. Lohman v. State, 81 Ind. 15 
 (1881). 
 
§ 761 
 
 Knowledge; Common. 
 
 942 
 
 judges have required proof of similar facts. 4 Everyone knows, 
 and so a court, that " craps " is played with dice, 5 or that draw- 
 poker 6 is a gambling game played with caxds. 
 
 § 761. (B. What Facts are Covered by the Rule; [5] Facts 
 ol Social Life); language; Abbreviations. — Abbreviations and 
 symbols of ideas which have been adopted by the community gen- 
 erally and so have become part of the language will be known to 
 the court. 1 These abbreviations may be those used in legal pro- 
 ceedings 2 in general mercantile business, 3 or in specific lines of 
 business activity, such as printing, 4 surveying, 5 transportation, 6 or 
 the like; or used in everyday social life to mark the divisions of 
 
 4. State c. Bruner, 17 Mo. App. 
 874 (1885). 
 
 5. Sims v. State, 1 Ga. App. 776, 
 57 S. E. 1029 (1907). 
 
 6. City of Shreveport a. Bowen, 116 
 La. 522, 40 So. 859 (1906). 
 
 1. Power v. Bowdle, 3 N. D. 107, 
 54 N. W. 404, 44 Am. St. Rep. 511, 
 21 L. R. A. 328 (1893). 
 
 2. Moseley v. Mastin, 37 Ala. 216 
 (1861) ("admr.") ; Bowley a. Ber- 
 rian, 12 111. 198 (1850) ("N. P." and 
 "J. P."). See also City of Topeka 
 ■c. Stevenson, (Kan. 1909) 99 Pac. 
 589. (In internal revenue matters, 
 " R. M. L. D." for " retail malt liquor 
 dealer.") A court "must judicially 
 take notice of such abbreviations as 
 ' Adm'r.' or acknowledge itself in- 
 competent to understand the com- 
 monest writings." Moseley's Adm'r v. 
 Mastin, 37 Ala. 216 (1861). " N. P." 
 is known to be the official abbrevia- 
 tion of the title of a notary public. 
 Fowler v. Carithers, 4 Ga. App. 517, 
 61 S. E. 1132 (1908). 
 
 3. Sheffield Furnace Co. v. Hull 
 Coal, etc., Co., 101 Ala. 446, 14 So. 
 672 (1892) ("F. O. B.") ; Heaton r. 
 Ainley, 108 Iowa 112, 78 N. W. 798 
 (1899) ("acct."); South Missouri 
 Land Co. v. Jeffries, 40 Mo. App. 360 
 (1890) ("Supt"). That "5x16," 
 in speaking of shingles, means "5 
 inches wide and 16 inches long, is a 
 matter of common knowledge. Bir- 
 
 mingham & A. B. Co. v. Maddox & 
 Adams, (Ala. 1908) 46 So'. 780. 
 " O. N." signifies " order notify." 
 Ala. Gt. So. R. Co. a. Organ Power 
 Co., (Miss. 1908) 46 So. 254 (ab- 
 breviations). 
 
 4. Johnson v. Robertson, 31 Md. 
 476 (1869). 
 
 5. McChesney v. Chicago, 173 111. 
 75, 50 N. E. 191 (1898) ("Sec. 23, 
 38, 14") ; Paris v. Lewis, 85 111. 597 
 (1877) ("W %"; "NW %"; " T. 
 37 N"); Kile a. Yellowhead, 80 111. 
 208 (1875) (courts will not pretend 
 " to be more ignorant than the rest 
 of mankind " ) ; Power v. Bowdle, 3 
 N. D. 107 (1893). See also Hull r. 
 Croft, 132 111. App. 509 (1907). 
 
 A purely local usage in the use of 
 abbreviations by surveyors will not 
 be known. Keith v. Hayden, 26 
 Minn. 212, 2 N. W. 495 (1879). 
 
 6. TJ. S. Express Co. a. Keefer, 59 
 Ind. 263 (1877) ("C. O. D.") ; 
 Accola v. Chicago, etc., R. Co., 70 
 Iowa 185, 30 N. W. 503 (1886) ("C. 
 B. & Q. R. R. Co.") ; State v. Intoxi- 
 cating Liquors, 73 Me. 278 (1882) 
 ("C. O. D."); Vogt v. Shienebeck, 
 (Wis. 1904) 67 L. R. A. 756, 100 
 
 N. W. 820 (f. o. b.). 
 
 C. 0. D. is not judicially known to 
 the courts of Missouri; its meaning 
 should be left to the jury. McNichol 
 a. Pacific Express Co., 12 Mo. App. 
 401 (1882). 
 
943 
 
 Abbreviations of Proper Names Known. 
 
 761 
 
 time, 7 to indicate the names of states, 8 or places in them, and in- 
 numerable other connections. The usual abbreviations of proper 
 names will be noticed. 9 The judge may properly decline to hear 
 
 7. Hedderich v. State, 101 Ind. 564, 
 1 N. E. 47, 51 Am. Rep. 768 (1884) 
 ("A. M."; "P. M."). February may 
 properly be abbreviated into " Feb'y." 
 Cutting v. Conklin, 28 111. 506 (1862). 
 
 8. Burroughs v. Wilson, 59 Ind. 
 536 (1877) (Ind.). 
 
 A set of rulings in the State of 
 Texas is to the effect that the court 
 does not know that " La." is an ab- 
 breviation for " Louisiana." Russell 
 v. Martin, 15 Tex. 238 (1855). Or 
 that " Mo." is an abbreviation for 
 "Missouri." Ellis v. Park, 8 Tex. 
 205 (1852). The basis is a misap- 
 prehension of the ruling of an earlier 
 case in the same state, correctly de- 
 cided on its own facts. Andrews v. 
 Hoxie, 5 Tex. 171 (1849). 
 
 9. Alexander. — The community is 
 generally aware that Alexander is 
 shortened to "Alex." Kemp v. Mc- 
 Cormick, 1 Mont. 420 (1872). 
 
 Barnabas. — Common knowledge cov- 
 ers the fact that " Barney " is a con- 
 traction for Barnabas. McGregor v. 
 Balch, 17 Vt. 562 (1845). 
 
 Bartholomew. — It is a matter of 
 common knowledge that Bartholomew 
 may with propriety be abbreviated to 
 "Bart." Curtiss v. Marrs, 29 111. 
 508 (1863). 
 
 Christopher. — Common abbrevia- 
 tions of Christopher are " Christ," or 
 " Christy." Weaver v. McElhenon, 
 13 Mo. 89 (1850). 
 
 Daniel. — Conspicuous among the 
 syncopated forms of " Daniel " is that 
 of "Dan." Sparks v. Sparks, 51 
 Kan. 195, 32 Pac. 892 (1893). 
 
 Eleanor may be shortened to 
 " Ellen." Exendine v. Morris, 8 Mo. 
 App. 383 (1880). 
 
 Elizabeth. — " Eliza " is known to 
 be an abbreviation of " Elizabeth." 
 Goodell v. Hall, 112 Ga. 435, 37 S. E. 
 725 (1900). 
 
 George. — It is a matter of common 
 
 knowledge that " Geo." represents 
 " George." People v. Ferguson, 8 
 Cow. (N. Y.) 102 (1827). 
 
 Henry. — No proof need be furnished 
 a court that " Hen." as a proper 
 name, stands for Henry. People v. 
 Ferguson, 8 Cow. (N. Y.) 102 (1827). 
 
 James. — " Jas." is a recognized ab- 
 breviation for James. Stephen v. 
 State, 11 Ga. 225 (1852). 
 
 John. — Among familiar conven- 
 tional arrangement of letters to in- 
 dicate the Christian name of John 
 are " Jno." McDonald v. State, 
 Fla. (1908) 46 So. 176; Kemp v. 
 McCormick, 1 Mont. 420 (1872). 
 
 Joseph. — " Jo." is a well known 
 contraction for Joseph. Com. v. 
 O'Baldwin, 103 Mass. 210 (1869). 
 
 Mordecai. — It is well known that 
 " Mord." is a recognized contraction 
 for Mordecai. Thursby r. Myers, 57 
 Ga. 155 (1876). 
 
 Richard. — It cannot be questioned 
 that " Rich." is a common abbrevia- 
 tion for Richard. State v. Dodson, 
 16 S. C. 453 (1881). 
 
 Robert is known to be abbreviated 
 by "Bob." Alsup v. iState, 36 Tex. 
 Cr. App. 535 (1896). 
 
 Susanna. — "'Susan" is a commonly 
 recognized shortening of Susanna. 
 Trimble v. State, 4 Blackf. 435 
 (1837). 
 
 Thomas. — Prominent among the 
 abbreviations of " Thomas " is " Thos." 
 Studstill v. State, 7 Ga. 2 (1849). 
 
 William. — No evidence need be fur- 
 nished that " Wm." is an abbrevia- 
 tion of William. Linn v. Bucking- 
 ham, 2 111. 451 (1838). 
 
 Initial letters of names. — Single 
 letters, as is said, suggest the name, 
 or one among a series of names 
 rather than indicate it. Thus, it is 
 commonly known that " H." for 
 "Henry," People v. Ferguson, 8 Cow. 
 (N. Y.) 102 (1827), "J." for "John," 
 
762 
 
 Knowledge ; Common. 
 
 944 
 
 evidence tending to show the meaning of an abhreviation to be 
 contrary to common knowledge. 10 
 
 § 762. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Life; Language); Words. — A very important and 
 widely extending part of the court's common knowledge is as to 
 the meaning of language. The court knows the vernacular j 1 — its 
 
 Claflin t: Chicago, 178 111. 549, 53 
 N. E. 339 (1899), and the like, Lee 
 p. Mendel, 40 111. 359 (1866) ; State r. 
 Senn, 32 S. C. 392, 11 S. E. 292, 
 296 (1889) ("M." for "Melissa"), 
 are customary abbreviations although 
 these letters may equally well stand 
 for other names. The court may, 
 however, properly feel justified in re- 
 jecting so slight an evidentiary 
 connection. 
 
 Contra. — Andrews v. Wynn, 4 S. D. 
 40, 54 N. W. 1047 (1893) (" E." for 
 "Edward"). 
 
 Initials not those of notorious 
 phrases must be proved. For ex- 
 ample, the court cannot know, in the 
 absence of evidence that certain 
 initials represent the name of a local 
 association. Van Heusen c. Doe, 194 
 N. Y. 309, 87 N. E. 437 (1909) 
 ("N. E. K. C") [order reversed, 
 Van Heusen v. Argenteau, 109 N. Y. 
 Suppl. 238, 124 App. Div. 776 
 (1908)]. The res gestw quality of 
 certain facts may remove them from 
 the scope of common knowledge. 
 Supra, § 710. The court cannot take 
 judicial notice that " Edward H." and 
 " E. H." are one and the same per- 
 son or that " E. H." is not the full 
 Christian name of a person. Andrews 
 v. Wynn, 4 S. D. 40, 54 N. W. 1047 
 (1893). 
 
 Administrative assumptions. — As 
 a mark of identity, it seems fairly 
 well settled that it will not be as- 
 sumed (Infra, § 1187) that where an 
 individual has both a given name and 
 a Christian name, an abbreviation of 
 the middle name indicates the same 
 person. Thus the abbreviation " Nat." 
 is known to indicate Nathaniel. 
 
 " Nat. Locke," however, does not in 
 the absence of evidence, indicate, 
 stand for or identify " James N. 
 Locke." People v. Ferguson, 8 Cow. 
 (N. Y.) 102 (1827). See also Peo- 
 ple ('. Hamilton County, 75 N. Y. 
 App. Div. 110, 77 N. Y. Suppl. 620 
 ( 1902 ) . The converse is equally well 
 established; that the designation of 
 a person by Christian and family 
 name with middle initial will not be 
 assumed to represent the same person 
 as the same family name with an 
 abbreviation of the name for which 
 the middle initial might properly 
 stand. Thus " James N. Locke " is 
 not necessarily or by assumption the 
 same person as " Nat." Locke. Peo- 
 ple v. Ferguson, 8 Cow. (N. Y.) 102 
 ( 1827 ) . " Mc " and " Mac " are, 
 however, commonly known to be vari- 
 ants of the same word. State v. 
 Kean, 10 N. H. 347, 34 Am. Dec. 162 
 (1839). 
 
 10. Greenfield First Nat. Bank v. 
 Coffin, 162 Mass. 180, 38 N. E. 444 
 (1894) ; Power v. Bowdle, 3 N. D. 
 107, 54 N. W. 404, 44 Am. St. Rep. 
 511, 21 L. R. A. 328 (1893). 
 
 1. Adler v. State, 55 Ala. 16 
 (1876) ("malt liquor"). 
 
 Arkansas.— Reed v. State, 16 Ark. 
 499 (1855) ("Wyandotte Indian"; 
 — a man, not a river) 
 
 California. — Sinnott r. Colombet, 
 107 Cal. 187, 40 Pao. 329, 28 L. R, A. 
 594 (1895). 
 
 Illinois.— Hill v. Bacon, 43 111. 477 
 (1867). 
 
 Kansas. — Sun Ins. Office v. West- 
 tern Woolen Mill Co., (Kan. 1905) 
 82 Pac. 513. 
 
 Kentucky. — Locke r. Com., 74 S. W. 
 
945 Jury's Use of Dictionaries. §. 762 
 
 wards, phrases, abbreviations. The meaning of common English 
 words at any time will be known to the judge, 2 when used in the 
 ordinary way, and any changes in meaning will be cognized by 
 him. 3 The meaning or pronunciation* of foreign names and other 
 words, and the meaning of common English words used in an 
 unusual sense, or technical, trade, or otherwise unusual words 
 must be proved ; and, probably, if the fact be one of the res gestce 6 
 parties have a right to be heard on the subject, if more than one 
 meaning is reasonably possible. In any case, the judge may re- 
 quire the assistance of the parties; and may receive evidence on 
 the subject. 6 As to common English words, not reasonably to be 
 considered ambiguous, he is under no obligation to hear evidence. 7 
 He may consult the dictionary but not as evidence. He merely 
 does as any other intelligent person would do in his own affairs; 
 he ascertains for himself what he ought, theoretically, to have 
 known without this aid. 8 On the other hand, no error is com- 
 mitted by allowing counsel to read a standard dictionary to the 
 jury as to the meaning of a word. 9 Properly speaking, whatever 
 name may be given to the transaction, the dictionary is not intro- 
 duced into the evidence., As the jury cannot conveniently seek 
 the information of the book in order to form or refresh their own 
 knowledge, it is brought to them. 
 
 654, 85 Ky. L. Rep. 76 (1903) ; Jones "We take judicial notice of the 
 
 v. Overstreet, 4 T. B. Mon. (Ky.) true significance of all English words 
 
 547 (1827) ("money"). and phrases." Grennan v. McGregor, 
 
 Massachusetts. — Com. v. Pear, 183 78 Cal. 258 (1889). 
 
 Mass. 242, 66 N. E. 719 (1903) 2. Vanada v. Hopkins, 1 J. J. 
 
 ("vaccination"); Com. v. Kneeland, Marsh. (Ky.) 285, 19 Am. Dec. 92 
 
 20 Pick. 206 (1838). (1829). 
 
 -Rodgers v. Kline, 56 3. Lampton v. Haggard, 3 T. B. 
 
 Miss. 808, 31 Am. Eep. 389 (1879); Mon. (Ky.) 149 (1826). 
 
 Atty.-Gen. v. Dublin, 38 N. H. 459 4. State v. Johnson, 26 Minn. 316, 
 
 (1859) ("Congregational"). 3 N. W. 982 (1879); Galveston, etc., 
 
 New York. — Simpson v. Press Pub. R. Co. v. Sanchez, (Tex. Civ. App. 
 
 Co., 33 Misc. 228, 67 N. Y. Suppl. 1901) 65 S. W. 893 (Polish). 
 
 401 (1900). 5. Supra, § 47. 
 
 Oregon. — Martin v. Eagle Develop- 6. Atty.-Gen. v. Dublin, 38 N. H. 
 
 ment Co., 41 Or. 448, 69 Pac. 216 459 (1859). 
 
 (1902). 7. Com. v. Marzynski, 149 Mass. 
 
 United States. — Eureka Vinegar 68, 21 N. E. 228 (1889). 
 
 Co. v. Gazette Printing Co., 35 Fed. 8. Nix r. Hedden, 149 U. S. 304, 13 
 
 570 (1888). S. Ct. 881, 37 L. ed. 745 (1892). 
 
 England. — Clementi v. Golding, 2 9. Adler *:. State, 55 Ala. 16 (1876) 
 
 Campb. 25 (1809). (Webster's Unabridged Dictionary). 
 
 Vol. I. 60 
 
§ 76i3 Knowledge; Common. 946 
 
 § 763. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Life; Language); Phrases. — The court knows estab- 
 lished or even slang phrases which are familiar to the general 
 community. The expressions relate to any subject-matter; e. g., 
 the terms customarily used by the community in speaking of 
 money. 1 The phrase may be of literary origin as " frozen snake." 2 
 It may refer to interesting events of comparatively recent history, 
 as " squatter riot." 3 It may be used in connection with politics, 
 as " sack " (in the sense of a corruption fund), 4 " deal " 5 or the 
 phrase may be merely descriptive of articles in common use, e. g., 
 "fence pole," 6 or with which the community is acquainted. 7 The 
 court, for example, will understand that to say of a clergyman 
 " that Iowa Beecher business of his lost him a situation," is an 
 imputation of adultery, " inasmuch as courts have no right to be 
 ignorant of the meaning of current phrases which everybody else 
 understands." 8 As in case of words, 9 the judge may decline to 
 admit evidence on the subject 10 where but one meaning can with 
 reason, be attached to the phrase. Legal phrases in common use 
 will, a fortiori, be known by the court, 11 but phrases, the meaning 
 of which is not established 12 or the existence of which is dis- 
 puted, 13 cannot be taken as commonly known. 
 
 1. Lampton v. Haggard, 3 T. B. 11. Alabama. — Ward v. State, 22 
 Mon. (Ky.) 149 (1826). Ala. 16 (1853). 
 
 2. Hoare v. Silverlock, 12 Q. B. Massachusetts. — Com. v. Kneeland, 
 624, 12 Jur. 695, 17 L. J. Q. B. 306, 20 Pick. 206 (1838). 
 
 64 E. C. L. 624 (1848). Missouri. — South Missouri Land 
 
 3. Clarke v. Fitch, 41 Cal. 472 Co. v. Jeffries, 40 Mo. App. 360 
 U871). (1890). 
 
 4. Edwards v. San Jose Printing, Xcw York. — Lenahan v. People, 5 
 etc., Soc, 99 Cal. 431, 34 Pac. 128, Thomps. & C. 265 (1875). 
 
 37 Am. St. Rep. 70 (1893). United States. — Eureka Vinegar 
 
 5. Greenfield First Nat. Bank v. Co. v. Gazette Printing Co., 35 Fed. 
 Coffin, 162 Mass. 180, 38 N. E. 444 570 (1888). 
 
 (1894). 12. Grennan v. McGregor, 78 Cal. 
 
 6. Baker v. Hope, 49 Cal. 59S 258, 20 Pac. 559 (1889) ("branch 
 (1875). railroad"); Baltimore r. State, 15 
 
 7. Lohman v. State, 81 Ind. 15 Md. 376, 74 Am. Dec. 572 (1859) 
 (1881) ("gift enterprise"). ("Black Republican"; "Supporters 
 
 8. Bailey t\ Kalamazoo Pub. Co., of the Helper Book"). 
 
 40 Mich. 251 (1879). 13. The Mary, 123 Fed. 609 (1903) 
 
 9. Supra, § 762. ("sack raft"). 
 
 10. Greenfield First National Bank 
 r. Coffin, 162 Mass. 180, 38 N. E. 
 444 (1894) ("deal"). 
 
947 Famiuak Mechanical Devices Known. §§ 764, 765 
 
 § 764. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Life); Literature. — Facts within the knowledge of the 
 average well-informed person, from the reading of books com- 
 monly used, are known to the court. Courts will recognize and the 
 community knows what is meant by allusions to commonly known 
 literary works; — as Kobinson Crusoe and his man Friday, 1 the 
 fable of the " frozen snake," 2 and the like. It will be known, in 
 construing a copyright law, that the term " book " covers a single 
 sheet. 3 
 
 § 765. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Life) ; Mechanic Arts. — In connection with the mechanic 
 arts, the state of the art in any special calling, 1 e. g., the general 
 use of soft coal in factories 2 — the average price of labor in par- 
 ticular trades or mechanical occupations, 3 these and similar facts, 
 so far as popularly known, will be known by the court upon ordi- 
 nary principles. 
 
 In patent causes, where the expert knowledge of the judge 
 familiar with these subjects is involved, a somewhat wider cog- 
 nizance is customarily taken ; — both for the reasons which apply 
 to most facts of scientific research 4 and because the " community " 
 among which the relevant facts are known is a limited one, which 
 includes the judge. A fact notorious among experts on the sub- 
 ject-matter of a patent, will be known to the court, though the 
 community, as a whole, knows nothing about it. In like manner, 
 courts will recognize the familiar mechanical devices in common 
 use, 5 the bicycle, 6 telephone, 7 and the general uniformity of their 
 
 1. Forbes v. King, 1 Dowl. P. C. 2. Harmon v. Chicago, 110 111. 400, 
 672 (1833). The courts will take 51 Am. St. Rep. 698 (1884) (Chi- 
 tlie same knowledge as the com- cago). 
 
 munity at large of matters of litera- 3. Bell v. Barnet, 2 J. J. Marsh. 
 
 ture. St. Hubert Guild v. Quinn, 118 (Ky.) 516 (1829). 
 
 N. Y. Suppl. 582, 64 Misc. Rep. 336 4. Supra, § 698. 
 
 (1909). 5. Wolfe v. Missouri Pac. R. Co., 
 
 2. Hoare v. Silverlock, 12 Q. B. 97 Mo. 473, 11 S. W. 49, 10 Am. St. 
 624, 12 Jur. 695, 17 L. J. Q. B. 306, Rep. 331, 3 L. R. A. 539 (1888) ; 
 64 E. C. L. 624 (1848). King v. Gallun, 109 U. S. 99, 101, 3 
 
 3. Clementi v. Golding, 2 Campb. S. Ct. 85, 27 L. ed. 870 (1883). See 
 25 (1809). also Black Diamond Coal-Min. Co. r. 
 
 1. Phillips v. Detroit, 111 U. S. Excelsior Coal Co., 156 U. S. 611, 15 
 
 604, 4 S. Ct. 580, 28 L. ed. 532i S. Ct. 482, 39 L. ed. 553 (1895); 
 
 ( 1883 ) ; Parsons v. Seelye, 100 Fed. Terhune V. Phillips, 99 U. S. 592, 25 
 
 452, 40 C. C. A. 434 (1900) ; Heaton- L. ed. 293 (1878) ; Brown v. Piper, 
 
 Peninsular Button-Fastener Co. v. 91 U. S. 37, 23 L. ed. 200 ( 1875 ) ; 
 
 Schlochtmeyer, 69 Fed. 592 (1895) ; Farmers' Mfg. Co. r. Spruks Mfg. 
 
 Infra, §§ 820, 902, 1988, 2404. Co., 119 Fed. 594 (1902); Lamson 
 
§§ 766, 767 
 
 Knowledge ; Common. 
 
 948 
 
 action. 8 Facts regarding the more usual products of mechanical 
 skill, as that mineral wool is made of slag, 9 are in the same 
 category. 10 
 
 § 766. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Life) ; Medicine — The usual remedies or preventa- 
 tives for disease 1 will be assumed to be commonly known. 
 
 Dose. — The ordinary dose of certain common drugs may be 
 notorious in a community. Thus, in case of morphine, it will be 
 known that one-fourth of a grain, taken every four hours, is not 
 a poisonous dose. 2 
 
 § 767. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Life) ; Phenomena of Life ; Animal. — What the com- 
 munity as a whole knows regarding animals, the court knows. 1 
 
 Nature, Disposition, etc. — It will know the ordinary domestic 
 
 Consol. Service Co. v. Seigel j Cooper 
 Co., 106 Fed. 734 (1901). It is 
 known that the ordinary shot gun is 
 a dangerous weapon when fired at a 
 distance of 57 steps. State r. Sut- 
 terfield, (S. D. 1909) 119 N. W. 548. 
 The fact that cog wheels are cus- 
 tomary methods of transmitting 
 power is » fact of common knowledge. 
 Brownwood Oil Mill v. Stubblefield, 
 (Tex. Civ. App. 1909) 115 S. W. 626. 
 Regarding evidence by phonograph, 
 see 8 L. R. A. (N. S.) 306; Boyne 
 City, G. & A. R. Co. v. Anderson, 
 (Mich. 1906-) 109 N. W. 429^ 
 
 6. Rochester, etc., Turnpike Road 
 Co. v. Joel, 41 N. Y. App. Div. 43, 58 
 N. Y. Suppl. 346 (1899) (extensively 
 used as a means of locomotion ) . 
 
 7. Wolfe v. Missouri Pac, etc., R. 
 Co., 97 Mo. 473, 481, 11 S. W. 49, 10 
 Am. St. Rep. 331, 3 L. R. A. 539 
 (1888). See also Globe Printing Co. 
 V. Stahl, 23 Mo. App. 451 (1886). 
 
 8. Luke v. Calhoun County, 52 
 Ala. 115 (1875); Globe Printing Co. 
 r. Stahl, 23 Mo. App. 451 (1886); 
 Cozzens f. Higgins, 1 Abb. Dec. (N. Y.) 
 451, 3 Keyes (N. Y.) 206 (1866); 
 Uddcrzook r. Com., 76 Pa. St. 340 
 (1874). 
 
 9. Western Mineral Wool, etc., Co. 
 r. Globe, etc., Co., 75 Fed. 400 (1896). 
 
 10. See also Betcher v. Capital Fire 
 Ins. Co., 78 Minn. 240, 80 N. W. 971 
 (1899). 
 
 1. Com. v. Pear, 183 Mass. 242, 66 
 N. E. 719 (1903) (vaccination) ; /«- 
 fra, §§ 825, 911, 1991, 2413. 
 
 2. Laturen r. Bolton Drug Co., 93 
 N. Y. Suppl. 1035 (1905). 
 
 1. Illinois. — St. Louis, etc., R. Co. 
 V. Hurst, 25 111. App. 181 (1886). 
 
 Ioioa. — Fisk v. Chicago, etc., R. Co., 
 74 Iowa 424, 38 N. W. 132 (1888). 
 
 Michigan. — Gilbert v. Flint, etc., R. 
 Co., 51 Mich. 488, 16 N. W. 868, 47 
 Am. Rep. 592 (1883). 
 
 New Jersey. — Meyer r. Krauter, 56 
 N. J. L. 696, 29 Atl. 426, 24 L. R. A. 
 575 (1894). 
 
 Tennessee. — Citizens', etc., Co. t. 
 Dew, 100 Tenn. 317, 45 S. W. 790, 40 
 L. R. A. 518 (1898). 
 
 Texas. — Damron v. State, (Tex.) 
 27 S. W. 7 (1894). 
 
 West Virginia. — State r. Gould, 26 
 W. Va. 258 (1885). 
 
 United States. — Lyon r. Marine, 55 
 Fed. 964 (1893) ; Northern P. R. Co. 
 v. Sullivan, 53 Fed. 219 (1892). But 
 compare Chicago City R. Co. v. Smith, 
 54 111. App. 415 (1894); Enders f. 
 McDonald, 5 Ind. App. 297, 31 N. E. 
 1056 (1892). See infra, § 814. 
 
949 
 
 Common Knowledge of Animal Diseases. § 76.7 
 
 animals, 2 their nature and disposition, 3 what will, 4 and what will 
 not 5 frighten them ; 6 and their habits of conduct under given cir- 
 cumstances. 7 In like manner, the physical endurance 8 and other 
 prominent characteristics of domestic animals are not proper sub- 
 jects of special knowledge. 9 
 
 Bodily Conditions. — The general facts of natural history, as 
 that wool in the fleeces of unimproved species of sheep is impaired 
 in value by the admixture of hair, 10 common diseases of animal 
 life, as "Texas fever," 11 may well be regarded as known; but 
 minor details, 12 especially when uncertain, scientifically consid- 
 ered, 13 cannot be taken as settled. For the court will not treat 
 as commonly known facts- regarding a disease as to which compe- 
 tent authorities differ, in opinion. 14 The judge will know, with- 
 
 2. State i!. Gould, 26 W. Va. 258 
 (1885) (mule). 
 
 3. Borden v. Falk Co., 97 Mo. App. 
 566, 71 S. W. 478 (1903) (mule is 
 vicious) . The proneness of a mule 
 to kick is common knowledge. Tolin 
 v. Terrell, (Ky. 1909) 117 S. W. 290. 
 
 4. Barber v. Manchester, 72 Conn. 
 675, 45 Atl. 1014 (1900) ; Baltimore, 
 etc., Turnpike Road v. State, 71 Md. 
 573, 18 Atl 884 (1889); Meyer V. 
 Krauter, 56 N. J. L. 696, 29 Atl. 426, 
 
 24 L. R. A. 575 (1894) (trolley car) ; 
 Ouverson c. Grafton, 5 N. D. 281, 65 
 N. W. 676 (1895). 
 
 5. Kauffman v. Maier, 94 Cal. 269, 
 29 Pac. 481, 18 L. R. A. 124 (1892) ; 
 Connelly v. Hamilton Woolen Co., 163 
 Mass. 156, 39 N. E. 787 (1895) ; Gil- 
 bert v. Flint, etc., R. Co., 51 Mich. 
 488, 16 N. W. 868, 47 Am. Rep. 593 
 (1883) (box car at crossing). 
 
 6. That an empty box car in the 
 limits of the highway will not 
 frighten ordinary horses is among 
 the "things which do not require to 
 be pleaded or to be made the subject 
 of specific proof," and that it is error 
 to leave the question to the jury. 
 Gilbert v. Flint, etc., R. R., 51 Mich. 
 488 (1883). 
 
 7. St. Louis, etc., R. Co. v. Hurst, 
 
 25 111. App. 181, 182 (1886)' (cattle 
 crossing a railroad in front of an 
 approaching train). 
 
 8. Brewster v. Weir, 93 111. App. 
 588 (1900) (death from overdriving). 
 
 9. Infra, §§ 870 et seq. 
 
 10. Lyon v. Marine, 55 Fed. 964, 5 
 C. C. A. 359 (1893). 
 
 11. Grimes v. Eddy, 126 Mo. 168, 
 28 S. W. 756, 47 Am. St. Rep. 653, 26 
 L. R. A. 638 (1894); Kimmish V. 
 Ball, 129 U. S. 217, 9 S. Ct. 277, 32 
 L. ed. 695 (1889). Courts know that 
 wood and water, though each harm- 
 less, in itself, could not, in combina- 
 tion, produce death if introduced 
 into the stomach of an animal. 
 Sprankle v. Bart, 25 Ind. App. 681, 
 58 N. E. 862 (1900). 
 
 That Texas fever is a contagious 
 and infectious- disease is a matter of 
 common knowledge. Dorr Cattle Co. 
 v. Chicago G. W. Ry. Co., (Iowa 
 1905) 103 N. W. 1003. 
 
 12. Grimes v. Eddy, 126 Mo. 168, 
 
 28 S. W. 756, 47 Am. St. Rep. 653, 26 
 L. R. A. 638 (1894). 
 
 13. State v. Fox, 79 Md. 514, 528, 
 
 29 Atl. 601 (1894) (that glanders are 
 contagious to a human being ) . 
 
 14. Bradford v. Floyd, 80 Mo. 207 
 ( 1883 ) ; Bradford v. Floyd, 80 Mo. 
 207 ( 1883 ) ; Minnesota v. Barber, 136 
 U. S. 313, 10 S. Ct. 862, 34 L. ed. 
 455 [affirming 39 Fed. 64] (1890) 
 (that inspection shortly before slaugh- 
 tering is necessary to detect disease) . 
 
§§ 768, 769 Knowledge; Common. 950 
 
 out proof, whether certain animals are found within the 
 state. 15 
 
 § 768. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Lite; Phenomena of Life); Human; (a) Moral Nature. 
 — Courts " must take judicial notice of human nature." * The 
 administrative functions of the court, dealing with natural and 
 normal phenomena recognize, without proof, the ordinary consti- 
 tution of man into moral, mental and physical and, therefore, re- 
 quire no proof of salient facts concerning (a) his moral nature, 
 (b) mind or (c) body. The usual manifestations of moral sensi- 
 bilities are notorious. The prevalence of the vice of mendacity, 
 as related to certain classes of the community,, may be taken as 
 a reasonable illustration of this fact. Thus, while it cannot be 
 known as matter of law that negroes do not tell the truth, 2 the 
 common unreliability of Chinese witnesses has been deemed a fair 
 subject of common knowledge. 3 The effect of certain indulgences, 
 as habitual drunkenness, 4 upon the moral nature, is known to the 
 courts as to the rest of the. community. The judgment of a skilled 
 witness will not aid the jury as to what are the ordinary stand- 
 ards of conduct established in the community ; — as to whether 
 certain acts are safe or dangerous, 5 cruel 6 or merciful. 
 
 § 769. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Life; Phenomena of Life; Human); (b) Mind. — 
 
 The laws regulating the action of the human mind, in its more 
 obvious manifestations, are known to the court. 1 That certain 
 races, for example, the negro race immediately after the American 
 Civil War, 2 are inferior to other races in intelligence, will be 
 taken as true without proof. 
 
 15. State r. Gould; 26 W. Va. 258 6. Hall r. Goodson, 32 Ala. 277 
 
 (1885) (wild mules). (1858) (whipping). 
 
 1. Eicks v. Broyles, 78 Ga. 610, 3 1. Lake Shore, etc., K. Co. f. Mil- 
 S. E. 772. 6 Am. St. 282 (1887). ler, 25 Mich. 274, 292 (1872). 
 
 2. Fonville r. State, 91 Ala. 39, 8 2. Hunt c. Wing, 10 Heisk. (Tenn.) 
 So. 688 (1890). 139 (1872). The courts can take 
 
 3. People r. Lou Yeck, 123 Cal. 246, judicial notice of social status and 
 55 Pac. 984 (1899). of the superiority and inferiority of 
 
 4. Gurley r. Butler, 83 Ind. 501 races without affecting the civil rights 
 (unfits administrator for his trust) of citizens. Wolfe v. Georgia Ry. & 
 (1882). Electric Co., 2 Ga. App. 499, 58 S. E. 
 
 5. Edwards r. Worcester, 172 Mass. 899 (1907), 
 104. 51 N. E. 447 (1898) ; Locke e. 
 International, etc.. E. Co.. 25 Tex. 
 
 Civ. App. 145, 60 S. \Y. 314 (1901). 
 
951 No Proof as to Ordinary Motives. § 769 
 
 Phenomena of Life; Mental. — The common operations of the 
 mind in men or animals axe as fully within the knowledge of the 
 jury as that of a skilled witness. The orderly processes of rea- 
 soning are matters both of judicial and common knowledge; and 
 included within this general field are the common range of mental 
 operations in the average man and the retentiveness of his 
 memory. In like manner no proof need be offered as to the effect 
 on human memory of certain attendant circumstances, e. g., the 
 fixity of attention, the interest of the person in the subject- 
 matter, the intrinsic or subjective importance of the object of per- 
 ception 3 and the like. That a given individual understands a 
 language 4 calls merely for common observation. 
 
 Emotions. — The court will notice the usual feelings which 
 actuate the mass of the community. That children are fond of 
 playing around an irregularly piled mass of lumber, 5 or that there 
 is a repugnance to death and that, therefore, the business of an 
 undertaker is a distasteful one, 6 need not be proved. 
 
 Motive. — Prominent among facts relating to the human mind 
 are the ordinary motives that actuate mankind. 7 What motives 
 influence the mind of the average person are taken as known 8 — 
 the instinct for self-preservation, 9 and the consequent impulse to 
 
 3. Whether an important omission L. R. 7 H. L. 213 (1873). No proof 
 could have been accidental presents need be offered that the instinct of 
 a question with which the jury is self preservation is among the most 
 competent to deal. Stone v. Denny, 4 powerful motives which influence con- 
 Mete. (Mass.) 151 (1842). duct. 
 
 4. Koccis v. State, 56 N. J. L. 44, Iowa. — Hopkinson v. Knapp, etc., 
 27 Atl. 800 (1893) (English). Co., 92 Iowa 328, 60 N. W. 653 
 
 5. Spengler q. Williams, 67 (Miss.) (1894). 
 
 1, 6 So. 613 (1889). Maine.— Chase v. Maine Cent. R. 
 
 6. Rowland v. Miller, 139 N. Y. 93, Co., 77 Me. 62, 52 Am. Rep. 744 
 34 N. E. 765, 22 L. R. A. 182 (1893). (1885). 
 
 7. Chase v. Maine Central R. Co., Massachusetts. — Lamoureux v. New 
 77 Me. 62 (1885). York, etc., R. Co., 169 Mass. 338, 47 
 
 8. Jenney Electric Co. v. Branham, N. E. 1009 (1897). 
 
 145 Ind. 314, 41 N. E. 448, 33 L. R. A. New Hampshire. — Huntress v. Bos- 
 
 395 (1896) ; Reg. v. Aspinall, 2 L. R. ton, etc., R. Co., 66 N. H. 185, 34 Atl. 
 
 Q. B. D. 48, 46 L. J. M. C. 145, 36 154, 49 Am. St. Rep. 600 (1890). 
 
 L. T. Rep. N. S. 297, 25 Wkly. Rep. New York.— Reynolds v. New York 
 
 283 (1876). Cent, etc., R. Co., 58 N. Y. 248 
 
 9. Chicago & E. I. R. Co. v. Beaver, (1874). 
 
 199 III. 34, 65 N. E. 144 (1902); Wisconsin.— Strong v. Stevens 
 
 Huntress e. R. Co., 66 N. H. 185, 34 Point, 62 Wis. 255, 22 N. W. 425 
 Atl. 154 (1890); Bridges v. R. Co., (1885). 
 
§ 770 Knowledge j Common. 952 
 
 avoid danger, 10, or to gain something when a risk is to be run. 11 
 Motives of self interest bulk large in a judge's experience and 
 the common knowledge of the community. It is known that per- 
 sons do not borrow 12 property of no value. It will be known that 
 the desire for gain is so general that men do not gamble except in 
 the hope of gaining property of some value, 13 and do not hunt 
 for an object which is worthless. 14 
 
 Curiosity. — The curiosity of children and their disposition to 
 play around and about objects of unusual appearance, 15 i3 
 notorious. 
 
 Reasoning. — The phase of mental action which is of supreme 
 importance in trials at law is necessarily that of reasoning. The 
 rules of correct thinking are judicially as well as commonly 
 known. Indeed, as the law requires the exercise of sound reason 
 at every stage of a trial, 16 and as it is the right of the party to 
 demand the proper exercise of the reasoning faculty, 17 the cogniz- 
 ance of the general propositions of human experience 18 on which 
 the reasoning, in most instances, is based as a major premise, 19 
 and the correct reasoning therefrom is no more optional than 
 cognizance of any rule of law would be. 20 The court in enforcing 
 the rules of reason is discharging a legal duty. 
 
 § 770. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Life; Phenomena of Life; Human); (c) Body. — 
 
 Notorious facts concerning the frame of the human body, the 
 usual limits of time within which its gestation normally takes 
 place, 1 the average length of human life at the present time, 2 the 
 
 10. Hopkinson v. Knapp Co., 92 18. Supra, § 694. 
 Iowa 328, 60 N. W. 653 (1894). But 19. Infra, § 1728/ 
 
 see Ellia v. Leonard, 107 Iowa 487, 20. Lake Shore, etc., R. Co. v. Mil- 
 
 78 N. W. 246 (1899). ler, 25 Mich. 274, 292 (1872). Supra, 
 
 11. Stevens v. State, 3 Ark. 66 § 571. 
 
 (1840) (bone counters used in gam- 1. Eddj !>. Gray, 4 Allen (Mass.) 
 
 Wing represent value). 435 (1862); Erickson v. Schmill, 63 
 
 12. Houston f. State, 13 Ark. 66 Neb. 368, 8Y N. W. 166 (1901) ; 
 (1852) (horse). Rex v. Luffe, 8 East 193, 9 Rev. Rep. 
 
 13. Stevens v. State, 3 Ark. 66 406 (1807). See also People r. 
 (1839). Earina, 118 N. Y. Suppl. 817, 134 
 
 14. Houston v. State, 13 Ark. 66 App. Div. 110 (1909). 
 
 (1852). The range of extraordinary gesta- 
 
 15. Spengler r. Williams, 67 Miss. tion must be proved. Erickson r. 
 1, 4, 6 So. 613 (1889). Schmill, 62 Neb. 368, 87 N. W. 166 
 
 16. Supra, § 394. (1901) (in excess of 280 days). 
 
 17. Supra, §§ 385 et seq. 2. Floyd v. Johnson, 2 Litt. (Ky.) 
 
953 
 
 Human Diseases and Bodily Ikjukies. 
 
 771 
 
 normal size of the average man at different periods of growth, 
 and, by consequence, the height of a human being in different 
 positions, 3 need not be proved. The courts know human ability 
 to perform certain physical acts at a stated age 4 and other normal 
 human bodily attributes will be recognized and their existence 
 assumed in any given case. 
 
 In like manner the ordinary capacity of human beings for 
 making effort, 5 the effect of alcohol 6 and other drugs or offensive 
 odors 7 on the human system, the nature and functions of different 
 parts of the body, 3 are matters of common knowledge. 9 
 
 § 771. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Life; Phenomena of Life; Human; [c] Body); Dis- 
 ease, Injuries, etc. — The well-known diseases of the human body, 1 
 
 109, 13 Am. Dec. 255 (1822) ; Schef- 
 fler v. Minneapolis, etc., R. Co., 32 
 Minn. 518, 21 N. W. 711 (1884); 
 Hawley v. Jahnel, (Neb. 1906) 106 
 N. W. 459; Johnson v. Hudson River 
 R. Co., 6 Duer (N. Y.) 633 (1857) ; 
 Allen v. Lyons, 1 Fed. Cas. No. 227, 
 2 Wash. 475 (1811). 
 
 3. Hunter v. New York, etc., R. 
 Co., 116 N. Y. 615, 23 N. E. 9, 6 
 L. R. A. 246 ( 1889 ) . "We know 
 that the average height of man is less 
 than six feet. That the average 
 length of the body from the lower end 
 of the spine to the top of the head is 
 less than thirty-six inches. That the 
 measurement varies but little in 
 adults, and that the chief difference 
 in the height of men is in the length 
 of their lower limbs." Hunter i'. N. 
 Y., etc., R. R., 116 N. Y. 615, 622 
 (1889). 
 
 4. Southern R. Co. v. Covenia, 100 
 Ga. 46, 29 S. E. 219, 62 Am. St. Rep. 
 312, 40 L. R. A. 253 (1896) (child 
 under two cannot do valuable work ) . 
 Johns v. Northwestern, etc., Assn., 90 
 Wis. 332, 63 N. W. 276, 41 L. R. A. 
 587 (1895) (that an average man 
 cannot go through a hole 15 x 20 
 inches except by going head first, and 
 that to do so by accident would be 
 almost impossible). 
 
 5. Clay County V. Redifer, 32 Ind. 
 
 App. 93, 69 N. E. 305 (1903) (visit- 
 ing for purposes of assessment) ; New 
 Jersey Traction Co. v. Brabban, 57 
 N. J. L. 691, 32 Atl. 217 (1895) 
 (stand on wooden leg). 
 
 6. Johnson v. Louisville, etc., R. 
 Co., 104 Ala. 241, 16 So. 75, 53 Am. 
 St. Rep. 39 (1893) ; Golding v. Gold- 
 ing. 6 Mo. App. 602 (1879); Rawls 
 v. American Mut. L. Ins. Co., 27 N. Y. 
 282, 84 Am. Dec. 280 (1863). 
 
 7. Metropolitan Sav. Bank V. Man- 
 ion, 87 Md. 68, 39 Atl. 90 (1898) 
 (stable). 
 
 8. Lidwinofsky's Petition, 7 Pa. 
 Dist. 188. 
 
 9. Presumptions of regularity, so 
 called, (infra, § 1049) of which the 
 " presumption of sanity " is, in 
 reality, an instance, are, often merely 
 the establishment of prima facie cases 
 in accordance with what the judge 
 knows to be the normal state of af- 
 fairs. The presumption of sanity is 
 a mere connotation of the term 
 " man." 
 
 1. Kiernan v. Metropolitan L. Ins. 
 Co., 13 Misc. (N. Y.) 39, 34 N. Y. 
 Suppl. 95 (1895) (pneumonia). 
 See also Lidwinofsky's Petition, 7 
 Pa. Dist. 188 (1898). See also State 
 V. Fox, 79 Md. 514, 29 Atl. 601, 47 
 Am. St. 424 (1894). Nervous con- 
 ditions are not known to be an ac- 
 
§ T71 
 
 Knowledge; Common. 
 
 954 
 
 common injuries to it, 2 the causes to which they are commonly- 
 ascribed, 3 the effects which they produce, 4 and the remedies 
 usually applied in such cases, 5 as, for example, that medical 
 authorities recommend vaccination as a preventative of small- 
 pox," and is generally so regarded by the community at large, 7 
 are legitimate subjects of common knowledge. The court knows, 
 as everyone does, that prolonged occupation in certain pursuits, 
 e. g., mills for reducing ore, 8 is prejudicial to health. 
 
 companiment of syphilis. St. Louis 
 & S. F. R. Co. v. Savage, ( Ala. 1909 ) 
 50 So. 113. Where the effect on the 
 body of mental suffering is one as to 
 which there can be no dispute, the 
 judge may dispense with proof. 
 Otherwise, where a difference of 
 opinion may rationally exist, the fact 
 cannot be taken as true without evi- 
 dence. Mathewson v. Mathewson, 81 
 Vt. 173, 69 Atl. 646 (1908). 
 
 2. McDaniel v. State, 76 Ala. 1 
 (1884) (fracture of skull); Spring- 
 field, etc., Ry. Co. v. Hoeffner, 175 
 111. 634, 51 N. E. 884 (1898); Lid- 
 winofsky's Petition, 7 Pa. Disk 188 
 (1898) (varicose veins). Technical 
 incidents of bodily injury are not 
 matters of common knowledge. Gordon 
 r. Northern Pac. Ry. Co., 39 Mont. 
 571, 104 Pac. 679 (1909) (injury to 
 one eye impairing the other ) . That 
 one whose hand and two fingers have 
 been crushed in a machine suffered 
 pain is a matter requiring no proof. 
 Bolton v. Ovitt, 80 Vt. 363, 67 Atl. 
 881 (1907). Effects of bodily injuries 
 which are well known need not be 
 proved. Rood r. Seattle Electric Co., 
 (Wash. 1909) 104 Pac. 249 (sensative- 
 ness of amputated fingers to cold). 
 
 3. Alabama. — Birmingham South- 
 ern R. Co. V. Cufeart, 133 Ala. 263, 
 
 31 So. 979 (1901) (low, swampy 
 ground). 
 
 California. — Sloane v. Southern 
 Cal. R. Co., Ill Cal. 668, 44 Pac. 320, 
 
 32 L. R. A. 193 (1896) (fright and 
 exposure). 
 
 Maryland. — State r. Hyman, (Md. 
 
 1904) 57 Atl. 6 (labor in unsanitary 
 surroundings). 
 
 Minnesota. — State v. Zeno, 79 Minn. 
 80, 81 N. W. 748, 48 L. R. A. 88, 90 
 (1900) (skin disease from barber 
 shop) ; Rosted v. R. Co., 76 Minn. 
 123, 78 N. W. 971 (1899) (inflam- 
 matory rheumatism due to exposure 
 to cold). 
 
 Missouri.^- Applegate v. Franklin, 
 109 Mo. App. 293, 84 S. W. 347 
 (1904) (surplus water). 
 
 North Carolina. — Rosenbaum v. 
 Newbern, 118 N. C. 83, 24 S. E. 1 
 32 L. R. A. 123 (second hand cloth- 
 ing) (1896). 
 
 United States. — Leovy v. V. 8., 177 
 U. S. 621, 20 S. Ct. 797, 44 L. ed. 
 914 [reversing 92 Fed. 344, 34 C. C. 
 A. 392] (1900). 
 
 4. McDaniel v. State, 76 Ala. 1 
 (1884) (a fracture of the skull is 
 usually but not invariably fatal) ; 
 Chicago, etc., R. Co. v. Warner, 108 
 111. 538 (1884) (loss of arm will di- 
 minish earning capacity). 
 
 5. Hypnotism is not such a reme- 
 dial agency. People v. Ebanks, 117 
 Cal. 652, 49 Pac. 1049, 40 L. R. A. 
 269 (1897). 
 
 6. Auten v. Board of Directors of 
 Special School Dist. of Little Rock, 
 (Ark. 1907) 104 S. W. 130; Com. v. 
 Pear, 66 N. E. 183 Mass. 242, 719 
 (1903) ; Jacobson v. Com., 25 S. Ct. 
 358, 197 U. S. 11, 49 L. ed. 643 
 (1905). 
 
 7. Viemeister v. White, 179 N. Y. 
 235, 72 N. E. 97 (1904). 
 
 8. Ex parte Kair, (Nev. 1905) 80 
 Pac. 463. 
 
955 Vegetable Diseases Kequire no Proof. § 772 
 
 Disputed Points not Cognized. — The truth of disputed or 
 minor propositions regarding human maladies, as that a certain 
 disease is hereditary, 9 are proper subjects for evidence. 
 
 Sense-Perception. — In a general way, the extent to which the 
 loss or impairment of one sense, such as sight, hearing or the like, 
 increases the efficiency of such others as are relied on to supply 
 its place, 10 the customary improvement in the power of a given 
 sense by exercise, 11 need not be proved. 
 
 § 772. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Lite; Phenomena of Lite); Vegetable. — Commonly 
 accepted facts with regard to vegetable life are known by the 
 court. Species of vegetation known to the community are noticed 
 by its tribunals. 1 It is, therefore, no more necessary to prove 
 to the court that potatoes, sugar beets, turnips, etc., will not grow 
 without cultivation, 2 than it would be to prove it to any other 
 intelligent person. Facts of common local knowledge relating 
 more specifically to particular crops as, that rice requires water 
 in order to reach maturity, 3 that cotton is not planted until after 
 January, 4 will, as a rule, be taken as commonly known in juris- 
 dictions where the crop is a staple. Notorious diseases which 
 affect vegetation, as peach " yellows," B require no proof. Minor 
 
 9. Leovy v. U. S., 177 U. S. 621 of dead limbs. Miller v. City of De- 
 (1900). ' troit, 156 Mich. 630, 121 N. W. 490, 
 
 10. Matter of Cross, 85 Hun (N.Y.) 16 Detroit Leg. N. 235 (1909). 
 343, 356 (1895) (persons in business Drawing turpentine is not known to 
 not able to read or write have a injure the trees in a serious way. 
 highly developed memory). Jefferson Davis County v. Long, 
 
 11. Matter of Cross, 85 Hun (N. (Miss. 1909) 49 So. 613. Courts 
 Y.) 343, 32 N. Y. Suppl. 933 (1895) will take judicial notice of the fact 
 (power of memory in persons doing that trees and other forms of plant 
 
 business without written memoranda). life are subject to destructive com- 
 
 1. Eex V. Woodward, 1 Moody C. C. municable diseases. Ex parte Hawley, 
 
 323 (1831) (beans are a specie of (S. D. 1908) 115 N. W. 93. 
 
 pulse). "This court will take ju- 2. Meyers v. Menter, 63 Neb. 427, 
 
 dicial notice of the flora and climatic 88 N. W. 662 (1902). 
 
 conditions of the country. It may 3. Barr v. Cardiff, (Tex. Civ. App. 
 
 from these and the character of the 1903) 75 S. W. 341. 
 
 trees in question determine whether 4. Wetzler v. Kelly, 83 Ala. 440, 
 
 they are natural timber growing upon 442, 3 So. 747 (1888); Person v. 
 
 the land, or trees of an ornamental Wright, 35 Ark. 169 (1879); Garth 
 
 nature, planted for a special pur- v. Caldwell, 72 Mo. 622 (1880). 
 
 pose." Scarborough v. Woodill, (Cal. 5. State v. Main, 69 Conn. 123, 37 
 
 App. 1907) 93 Pac. 383. Many trees Atl. 80, 61 Am. St. Rep. 30, 36 
 
 are noticed to shed a large number L. E. A. 623 (1897). 
 
*§ 773, 774 
 
 Knowledge; Common. 
 
 956 
 
 facts of vegetable life, as that the age of a tree can be ascertained 
 by counting the number of concentric circles shown by a trans- 
 verse section, 6 must, on the contrary, be established by evidence. 
 
 § 773. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Life); Politics. — The well recognized features of po- 
 litical life are known to judges. Thus, the power of national 
 political conventions to bind the party as its highest authority 1 
 need not be proved. 
 
 § 774. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Life) ; Religion. — As a matter of wide notoriety and 
 general importance the court knows the existence, 1 history, gen- 
 eral character and distinctive features, in a broad and general 
 way, 2 of religious denominations. 3 The knowledge, however, is 
 as to the external features ; — those which everyone may see. 4 
 Internal elements of a religious polity, such as the power of 
 officers, as denned by the law or custom of a particular body, and 
 matters of administrative detail, must be established in the ordi- 
 nary way. The court, for example, does not know the jurisdic- 
 
 6. Patterson v. McCausland, 3 
 Bland (Md.) 69 (1829). 
 
 1. State v. Lindahl, 11 N. D. 320, 
 91 N. W. 950 (1902). 
 
 1. Christian Science is said not to 
 be known. Evans v. State, 9 Ohio S. 
 & C. PI. Dec. 222, 6 Ohio N. P. 129 
 (1889). 
 
 2. Smith v. Pedigo, 145 Ind. 361, 
 33 N. B. 777, 32 L. R. A. 838 (1896) ; 
 State v. So. Kingstown, 18 R. I. 258, 
 273, 27 Atl. 599, 22 L. R. A. 65 
 (1893) ("Seventh-day baptists" do 
 not work on Saturday) ; State v. Dis- 
 trict Board, 76 Wis. 177, 44 N. W. 
 967, 7 L. R. A. 330 (1890). 
 
 The Mormon Church doctrines of 
 celestial marriages, and the general 
 creeds and religious beliefs are known 
 to the courts of Utah; — partly, at 
 least, as a matter of history. Hilton 
 r. Roylance, 25 Utah 129, 69 Pac. 660, 
 95 Am. St. Rep. 821, 58 L. R. A. 723 
 (1902). 
 
 3. Delaware. — State i\ Chandler, 2 
 Harr. 553 (1837). 
 
 New York. — People v. Ruggles, 8 
 Johns. 290, 5 Am. Dee. 335 (1811). 
 
 Pennsylania. — Updegraph V. Com., 
 11 Serg. & R. 394 (1824). 
 
 Wisconsin. — State v. Edgerton 
 School Dist. No. 8, 76 Wis. 177, 44 
 N. W. 967, 20 Am. St. Rep. 41, 7 
 L. R. A. 330 (1890). 
 
 United States. — Vidal v. Girard, 2 
 How. 127, 11 L. ed. 205 (1844). 
 
 Canada. — Pringle v. Napanee, 14 
 Can. L. J. 219 (1878). 
 
 4. Alden v. St. Peter's Parish, 158 
 111. 631, 42 N. E. 392, 30 L. R. A. 232 
 (1895) (many church societies are 
 unincorporated) ; McAlister v. Bur- 
 gess, 161 Mass. 269, 37 N. E. 173, 24 
 L. R. A. 158 (1895) (persons go to 
 church who are not church members) ; 
 People v. Powers, 147 N. Y. 104, 41 
 N. E. 432, 35 L. R. A. 502 (1895) 
 (that both organized and unorganized 
 charities may be found in large 
 cities). 
 
957 Length of Football Season Commonly Known. § 775 
 
 tion and powers of the Eoman Catholic church 5 — the laws and 
 regulations of that organization, 6 as to the tenure in office of a 
 minister 7 or as to the rights and duties of vestrymen 8 of the 
 Protestant Episcopal church. In like manner the general organi- 
 zation of the Methodist Episcopal church 9 must be established by 
 proof. The court knows what is commonly known as to the 
 Bible, its general use, or its employment in particular connections 
 of social importance, as in public schools. 10 A judge knows the 
 general nature of blasphemy. 11 The common methods of con- 
 ducting ecclesiastical affairs, as the practice of keeping a record 
 of official acts 12 will be taken as commonly known. 
 
 Important historical facts in the religious life of the commu- 
 nity, as the geographical division, in 1844, of the Methodist Epis- 
 copal church by a common line, 13 require no proof. 
 
 § 775. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Life) ; Things of Common Life ; Amusements. — Courts 
 have the common knowledge of the community as to what are the 
 ordinary general amusements of the people. For example, no- 
 torious and unquestioned meaning of the word " pool-room " to 
 the court 1 is known. Judges have the general cognizance of other 
 people as to the terms relating to the use of automobiles. 2 The 
 court knows that ping pong balls are not toys, for children, be- 
 cause the game is played at a table too high for children to use 
 and requires a degree of skill which they do not ordinarily 
 possess. 3 The court will take judicial notice that- the football 
 season proper, in American institutions of learning, begins in 
 the fall and ends Thanksgiving day.* 
 
 5. Baxter v. McDonnell, 155 N. Y. 11. Com. v. Kneeland, 20 Pick. 
 83, 49 N. E. 667, 40 L. E. A. 670 (Mass.) 206, 239 (1838). 
 [reversing 18 N. Y. App. Div. 235, 12. Sawyer v. Baldwin, 11 Pick. 
 45 N. Y. Suppl. 765] (1898). (Mass.) 492 (1831). 
 
 6. Katzer v. Milwaukee (Misc. 13. Humphrey »>. Burnaide, 4 Bush 
 1899) 79 N. W. 745. (Ky.) 215 (1868). 
 
 7. Youngs v. Ransom, 31 Barb. i. state v. Maloney, 115 La. 498, 
 (N. Y.) 49 (1859). 39 So . 539 (1905) , 
 
 8. Hill Estate Co. v. Whittlesey, 21 2 . Ex parte BerTy> 147 Cal 523) 82 
 Wash. 142, 57 Pac. 345 (1899). See p ac . 44 (1905). 
 
 also Beckwith v. McBride, 70 Ga. 642 3. tj. S. v. Strauss, Bros. & Co., 69 
 
 (1883). C. C. A. 201, 136 Fed. 185 (1905). 
 
 9. Sarahass v. Armstrong, 16 Kan. 4. sieberts v. iSpangler, (Iowa 
 192 (1876). 1908) U3 Ni w> 392i 
 
 10. Pfeiffer v. Board of Education, 
 118 Mich. 560, 77 N. W. 250, 42 L. R. 
 A. 536 (1898). 
 
§§ 776-779 Knowledge; Common. 958 
 
 § 776. (B. What Facts are Covered by the Rale; [5] Facts 
 of Social Life; Things of Common Life); Clothing. — The habits 
 of men to wear vests and watches in them, during business hours, 1 
 need not be proved. 
 
 § 777. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Life; Things of Common Life); Food. — The court 
 knows articles of food, but it does not know the natural color 
 either of oleomargarine 1 or of butter. 2 It knows the appliances 
 by which articles of food are prepared for use. 3 Ordinary in- 
 juries to food need not be proved. Thus it is common knowledge 
 that meat in storage may become damaged through inherent 
 defects or the operation of natural causes. 4 In much the same 
 way, the well known processes in the preparation of food products 
 may be treated by the judge as matters of notoriety. For ex- 
 ample, screening or sifting is known to be one of the processes 
 in the making of catsup. 6 
 
 § 778. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Life; Things of Common Life); Household Conven- 
 iences. — The court knows, without evidence, the form and con- 
 ventional use of an ordinary bushel basket. 1 That kerosene is a 
 product of crude petroleum is a fact of common knowledge re- 
 quiring no proof. 2 A fortiori, the court cannot take judicial 
 notice that carpets, napkins, curtains, beds, pins, and other similar 
 merchandise may not be useful in the customary furnishing and 
 ornamenting of a hotel. 3 
 
 § 779. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Lite; Things of Common Life); Taxes. — Certain 
 
 1. Wamser v. Browning, King & Cases of Tomato Catsup, 166 Fed. 
 
 Co., 95 N. Y. Suppl. 1051, 109 App. 773 (1909). 
 
 Div. 53 (1905). 1. Roberts v. Bennett, 69 C. C. A. 
 
 1. People v. Meyer, 44 N. Y. App. 533, 136 Fed. 193 (1905). 
 
 Div. 1, 60 N. Y. Suppl. 415 (1899). 2. Moeckel r. C. A. Cross & Co., 
 
 2. People V. Hillman, 58 N. Y. App. 190 Mass. 280, 76 N. E. 447 (1906). 
 Div. 571, 69 N. Y. Suppl. 66, 15 N. Y. The practice of lighting fires with 
 Cr. 394 ( 1901 ) . coal oil is commonly known. Waters- 
 
 3. Brown v. Piper, 91 U. S. 37 Pierce Oil Co. f. Deselms, 212 U. S. 
 (1875) (ice cream freezer). 159, 29 S. Ct. 270 (1909). 
 
 4. Patterson v. Wenatchee Canning 8. P. Hoffmaster Sons Co. v. 
 Co., 53 Wash. 155, 101 Pac. 721 Hodges, 154 Mich. 641, 118 N. W. 484, 
 ,(1909). 15 Detroit Leg. N. 926 (1908). 
 
 5. U. S. v. Six Hundred and Fifty 
 
959 Forms of Wealth Kequike no Evidence. §§ 780-78:3 
 
 facts with regard to taxes are notorious ; — e. g., that many of 
 them are not paid until after they have been assessed. 1 
 
 § 780. (B. What Facts are Covered by the Rale; [5] Facts 
 of Social Life; Things of Common Life); Tobacco. — Courts 
 know, as matters of common knowledge, as to tobacco; — its vari- 
 ous forms and the uses to which they are respectively put. 1 Thus, 
 for example, they know the constituents and general form of 
 cigarettes 2 or cigars. a 
 
 § 781. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Life; Things of Common Life); Value of Property. — 
 
 Among facts commonly known is the general value of real 1 or 
 personal 2 property, the general diminution of value caused to 
 real estate by certain injurious acts. 3 But such a loss in value 
 which does not plainly and uncontrovertibly follow from the 
 operation of definite causes will not be regarded as a matter of 
 common knowledge. 4 
 
 § 782. (B. What Facts are Covered by the Rule; [5] Facts 
 of Social Life); Wealth. — Courts know, as a matter of common 
 
 1. State v. Mutty, 39 Wash. 624, 83 
 Pac. 118 (1905). 
 
 1. Austin v. State, 101 Teim. 563, 
 48 S. W. 305, 70 Am. St. Rep. 703, 50 
 L. R. A. 478 [affirmed in 179 U. S. 
 343, 81 S. Ct. 133, 45 h. ed. 334] 
 !(1898). 
 
 2. Kappes v. City of Chicago, 119 
 III. App. 436 (1905). 
 
 3. "Cigars are manufactured arti- 
 cles familiar to everybody.'' Com. v. 
 Marzynski, 149 Mass. 68. 
 
 1. Rock Island & E. I. R. Co. v. 
 Gordon, 184 111. 456, 56 N. E. 810 
 (1900) ; Green v. Chicago, 97 111. 370, 
 373 (1881) ; Chicago K. & W. R. Co. 
 v. Parsons, 51 Kan. 408, 33 Pac. 1083 
 (1893) (personal knowledge excluded) ; 
 Bradford v. Cunard Co., 147 Mass. 55, 
 16 N. E. 719 (1888) ; Parks v. Bos- 
 ton, 15 Pick. (Mass.) 1P8, 209 (1834); 
 Head V. Hargrave, 105 U. S. 45, 49 
 (1881) (expert evidence as to land 
 values). Courts will recognize that 
 a grossly inadequate price is merely 
 nominal. York v. Leverett, (Ala. 
 1909) 48 So. 684. 
 
 2. Murdock v. Sumner, 33 Pick. 
 (Mass.) 156 (1839); Cummings V. 
 Com., 2 Va. Cas. 128 (1818) (bank 
 note; passing shows value). 
 
 3. WaBhburn v. R. Co., 59 Wis. 364, 
 371, 18 N. W. 328 (1884). Ill es- 
 tablished and disputatious facts (De 
 Gray v. N. Y. & N. J. Telephone Co., 
 68 N. J. L. 454, 53 Atl 200 [1902] 
 [impaired value of property due to 
 telephone structures)], cannot be as- 
 sumed in this way 
 
 4. Davies v. Hotchkiss, 113 N. Y. 
 Suppl. 233 (1908) (failure to repair 
 and furnish). This common knowl- 
 edge of value is general and approx- 
 imate rather than specific. A court 
 cannot know the value of the legal 
 services rendered in a given case, 
 without proof. Glynn v. Glynn, 139 
 111. App. 185 (1908). That wheat, 
 corn and tobacco are fluctuating in 
 value need not be shown by evidence. 
 Lindsay v. Hewitt, (Ind. App. 1908) 
 86 N. E. 446. 
 
§ 783 Knowledge; Common. 960 
 
 knowledge, that the wealth of a community is partly in lands and 
 partly consists of personalty, in various forms. 1 But what may 
 be the proportion between the two forms of property must be 
 proved. 2 Courts cannot know, as a matter of common knowledge, 
 that there are persons in the jurisdiction owning property of a 
 particular kind. Nor will the fact be judicially known from the 
 circumstance that two designated persons have been pursued at 
 law by the tax authorities to collect taxes for it. 3 The deposit 
 and working of valuable minerals, or other substances, 4 within a 
 state is a matter of common knowledge to its judges, equally with 
 other citizens. Notorious facts regarding the earning or spending 
 capacity of various classes of persons need not be proved. Such 
 knowledge is of facts in their large and general aspect. Those 
 minute or specific are most frequently the subject of evidence. 5 
 
 § 783. (B. What Facts are Covered by the Rule); (6) Facts 
 of History. — Facts of history stand in much the same position, in 
 regard to practical possibilities of proof, as that of facts of 
 science. 1 Certain matters of recent occurrence of a local nature 
 may at times be established by witnesses possessing first-hand 
 knowledge. Other facts may be regularly proven by persons of 
 exceptional skill and training from the use of original documents 
 or other historical data. In exercising his right to make proof 
 of his case according to the practical possibilities of procuring 
 evidence which it presents, 2 a party, to substantiate an historical 
 fact, must, in the average case, rely directly or indirectly, upon 
 hearsay ; — either as presented by a, witness who has examined 
 treatises *on the subject or by production of the treatise itself. 
 The natural, and at times, the necessary resort of one who would 
 seek knowledge on the subject, is to printed works on history. 
 These being excluded as evidence of the truth of the statements 
 
 1. Central of Georgia R. Co. v. 5. That $24.50 is not excessive for 
 
 Wright, 125 Ga. 589, 54 S. E. 64 the necessaries of an abandoned wife 
 
 Co. 
 
 v. 
 
 E. 
 
 64 
 
 Co. 
 
 V. 
 
 E. 
 
 64 
 
 (1906). is a matter requiring no proof. Irwin 
 
 2. Central of Georgia Ry. Co. v. v. Irwin, (Tex. Civ. App. 1908) 110 
 Wright, 125 Ga. 589, 54 S. E. 64 S. W. 1011. Courts know that a sea- 
 (1906). man's accrued wages seldom equal 
 
 3. Central of Georgia Ry. Co. v. $100. Detroit Lumber Co. v. The 
 Wright, (Ga. 1906) 54 S. E. 64. Petrel, 153 Mich. 528, 117 N. W. 80, 
 
 4. State v. Jacksonville & S. W. R. 15 Detroit Leg. N. 506 (1908). 
 Co., (Fla. 1904) 37 So. 652 (phoB- 1. Supra, § 698. 
 
 phate). 2. Supra, § 334. 
 
961 History in Statutory Construction. § 783 
 
 contained in them by the rule against hearsay, 3 the administrative 
 expedient is adopted of treating the matter as one of common 
 knowledge and allowing the use of the book to refresh the memory 
 of the court on a point, in many cases, of which it has never heard. 
 The community in general has gained knowledge of certain pro- 
 truding historical facts in much the same way, to wit, from stand- 
 ard treatises. The court, in like manner, in the absence of evi- 
 dence to the contrary, will assume the knowledge so gained as 
 correct and proceed to act judicially in accordance with it. More 
 recondite facts, the court, ex necessitate rei, will investigate for 
 itself, by action of the judge, with or without the assistance of 
 the parties. The operation of this administrative expedient, sup- 
 plementing the common knowledge of judge and jury, may cover 
 the entire range of history, sacred or profane ; — whether of the 
 world, the nation, state, county or of smaller municipal divisions, 
 cities, towns, parishes, etc. 
 
 Common Knowledge. — The range of facts covered by the first 
 process, assumption of the correctness of notorious facts without 
 investigation — will be found, in an indeterminate manner, but 
 to a very considerable extent, to be commensurate with and in 
 proportion to the jurisdiction of the court itself. To make the 
 assumption involved in a ruling that a historical fact is a matter 
 of common knowledge the judge may justifiably insist on being 
 shown that a fact said to be notorious, should, with a fair degree 
 of reason, be supposed to be known throughout the community for 
 which the court is sitting. Facts of local history will, as a 
 rule, be regarded as common knowledge only in local courts. 
 Facts of more general historical importance will be taken as 
 known to all courts alike. 4 Judges constantly make use of this 
 common knowledge of state history ; — to determine, for ex- 
 ample, in construing a statute, what was the mischief which the 
 
 8. Supra, § 2700. United States. — Underhill v. Her- 
 
 4. California. — Payne v. Tread- nandez, 168 U. S. 250, 18 S. Ct. 83, 
 
 well, 16 Cal. 221 (1860). 42 L. ed. 456 (1897); Sears v. The 
 
 Indiana. — Williams r. State, 64 Scotia, 14 Wall. 170, 20 L. ed. 822 
 
 Ind. 553, 31 Am. Rep. 135 (1878). (1871) ; U. S. v. One Thousand Five 
 
 Kentucky. — Bell v. Barnet, 2 J. J. Hundred Bales of Cotton, 27 Fed. 
 
 Marsh. 516 (1829). Cas. No. 15,958 (1872). But see, 
 
 Maine. — Prince v. Skillin, 71 Me. contra, Woods v. Banks, 14 N. H. 
 
 361, 36 Am. Rep. 325 (1880). 101 (1843); McKinnon v. Bliss, 21 
 
 Texas. — Magee v. Chadoin, 30 Tex. N. Y. 206 (1860) ; Gregory v. Baugh, 
 
 644 (1868). 4 Rand. (Va.) 611 (1827). 
 
 Vol. I. 61 
 
§ 784 Knowledge; Common. 962 
 
 legislature was seeking to prevent; 5 in construing a contract, to 
 judge as to the probable intention of the parties in using certain 
 language. 6 The same common knowledge will be used in judging 
 of the propriety of certain conduct ; — delay on the part of a 
 guardian in investing funds of a ward during times of general 
 insolvency, 7 caution in conducting the affairs of a trust estate in 
 a community affected by a civil war, 8 and similar occurrences. 
 Upon the principle, that, caeteris paribus, common knowledge of 
 historical facts varies directly with the distance, the courts of a 
 state regard as matters of common knowledge domestic historical 
 events of a minute character of which they would require proof 
 had they occurred in another jurisdiction. 
 
 Minor facts of limited historical interest will not be cognized 
 though such facts be connected with others of which cognizance 
 is taken. 9 
 
 § 784. (B. What Facts are Covered by the Rule; [6] Facts 
 of History); World. — Notorious facts of foreign history will be 
 noticed, whether ancient or contemporaneous. 1 The existence of 
 war in a foreign country, 2 at a given time, will be regarded as a 
 fact of common knowledge. Where such a state of affairs is recog- 
 nized by the executive department of the national government, 
 the element of common knowledge is reinforced by that of judicial 
 cognizance. 
 
 Prominent facts of commerce, as the general adoption of the 
 rules of navigation prescribed by the Orders in Council of tbe 
 British Government, on January 9, 1863, 3 are of this class, i. e., 
 
 5. Smith V. Speed, 50 Ala. 276 202 (1871); Simmons v. Trunibo, 9 
 (1874); Tompkins County r. Taylor, W. Va. 353 (1876) (political views 
 21 N. Y. 173 (1860). Current history as affecting personal safety) ; Cross 
 will he noticed. Reineman v. Larkin, V. Sahin, 13 Fed. 308 (1882). 
 
 222 Mo. 156, 121 S. W. 307 (1909). i. Banco de Sonora v. Bankers' 
 
 6. Buford v. Tucker, 44 Ala. 89 Mut. Casualty Co., (Iowa 1903) 95 
 (1870) (contracts prior to Janu- jj. W. 832 (basis of foreign law). 
 
 ary, 1865, were made in confederate g, Dowie i\ Sutton, 227 111. 183, 
 
 money). 81 N. E. 395 (1907) (Boer war) ; 
 
 7. Ashley v. Martin, 50 Ala. 537 Underbill v. Hernandez, 168 U. S. 
 (1874). See also Foseuc r. Lyon, 18 S. Ct. 83, 42 L. ed. 456 (1897) 
 55 Ala. 440 (1876). (Venezuela). 
 
 8. (Lyon u. Foscue, 60 Ala. 468) 3. Sears v. The Scotia, 14 Wall. 
 (1877).' (U. S.) 170, 20 L. ed. 822 (1871). 
 
 9. Kelley v. Story, 6 Heisk. (Tenn.) 
 
963 Courts Notice Demise of the Ckown. §§ 785, 786 
 
 matters of common notoriety in world history which are also, in 
 a sense, matters of judicial knowledge. 
 
 § 785. (B. What Facts are Covered by the Rule; [6] Facts 
 of History; World); Minor Facts. — Special historical facts of 
 comparatively slight general importance connected with foreign 
 countries, as the financial solvency of a particular state and the 
 consequent legal value of its obligations 1 cannot be regarded as 
 commonly known. Distance in time and space as well as intrinsic 
 importance will be considered in determining what facts of 
 foreign history are minor. In the same way, knowledge of the 
 distinctive products of the foreign countries cannot be taken as 
 a matter of world history. Thus the chemical and mechanical 
 composition of asphalt is not a matter of common knowledge. 2 
 
 § 786. (B. What Facts are Covered by the Rule; [6] Facts 
 of History) ; Nation. — Any court of a nation will know as mat- 
 ters of common knowledge, notorious facts in the nation's history. 
 Where these are a direct result of legal action, the knowledge of 
 the court may also be judicial; — as in the case of important 
 acts of foreign governments directly affecting the nation will 
 be judicially known to its courts. Of this nature, in the 
 United States, would be acts of the French and Spanish gov- 
 ernments carrying into effect treaties of cession. 1 Where the 
 act is one entirely in pais, not a direct result of law — the judge 
 shares the common historical knowledge of the community or 
 acquires it for himself — rendering his potential 2 knowledge 
 actual. In such a class would be important events in the settle- 
 ment of the country, e. g, in the United States, Col. J. C. Fre- 
 mont's career in California in 1846 and 1847. 3 Important na- 
 tional expositions, as the World's Fair, so-called, 4 will be regarded 
 as being commonly known. English courts will notice the date 
 
 1. Hebblethwaite v. Flint, 115 N. Y. and of the official relations of the 
 App. Div. 597, 101 N. Y. Suppl. 43 principal actors therein to the gov- 
 (1906). eminent; and, in elucidation thereof, 
 
 2. City of Chicago v. Gage, 237 111. also of less important transactions of 
 328, 86 N. E. 633 (1908). general and public interest immedi- 
 
 1. U. S. v- Reynes, 9 How. (U. S.) ate ty connected therewith, when they 
 127, 147, 13 L. ed. 74 (1850). have passed into commonly received 
 
 2. Supra, § 698 authentic history." De Celis v. U. S., 
 
 3. "The court will take judicial 13 Ct. of Claims, 117 (1877). 
 notice of the leading and controlling 4. Daggett v. Colgan, 92 Cal. 53, 
 events in the history of the country 28 Pac. 51, 14 L. R. A. 474 (1891); 
 
§ 787 
 
 KNOWLEDGE J COMMOX. 
 
 964 
 
 of the sovereign's death. 5 Here the knowledge is not only com- 
 mon but judicial also. 
 
 Great religious movements constitute an important part of the 
 nation's history. Of this nature is the separation and division 
 of property and jurisdiction in the Methodist denomination. 6 
 Other salient features of national history, such as the growth in 
 wealth and population 7 or the founding and development of lead- 
 ing institutions of learning 8 will be known to the courts of a 
 nation as matters of notoriety. In a similar way, these tribunals 
 will recognize, without proof, the principal historical events in 
 or relating to the colonial possessions of the country. 9 
 
 § 787. (B. What Facts are Covered by the Rule; [6] Facts 
 of History; Nation); Commerce. — The history of the invention 
 of the steamboat and the development of its usefulness in carry- 
 ing merchandise 1 are matters of notorious national history. The 
 history, at any particular time, of the circulating medium of the 
 country, 2 its constituent elements at a given period, 3 the value of 
 
 McCoy v. World's Columbia Exposi- 
 tion, 186 111. 356, 57 N. E. 543, 78 
 Am. St. Eep. 288 (1900). 
 
 5. Henry v. Cole, 2 Ld. Raym. 811, 
 7 Mod. 103 (1702). 
 
 6. Malone p. La Croix, 144 Ala. 
 648, 143 Ala. 657, 41 So. 724 (1906). 
 
 7. Daly v. Old, (Utah 1909) 99 
 Pac. 460 (population, condition of 
 people in Utah and Washington). 
 
 8. Courts will take judicial notice 
 of the existence and general history 
 of the two great English universities, 
 Oxford and Cambridge, and recognize 
 that the object of their establishment 
 was the advancement of religion and 
 learning. Re Oxford Rate, 8 E. & B. 
 184 (1857). 
 
 9. The federal supreme court must 
 recognize the history of Porto Rico 
 and of its legal and political institu 
 tions up to the time of its annexa 
 tion to the United States. Municipal 
 ity of Ponce r. Roman Cath. A 
 Church, etc., (Porto Rico 1908) 28 S 
 Ct. 737, 210 U. S. 296, 52 L. Ed. 1068 
 
 1. Gibbons r. Ogden, 9 Wheat. 
 (U. S.) 1, 6 L. ed. 23 (1824). 
 
 2. Alabama. — Gady r. State, 83 
 Ala. 51, 3 So. 429 (1887). 
 
 Arkansas. — Dillard v. Evans, 4 
 Ark. 175 (1841). 
 
 Indiana. — Hart v. State, 55 Ind. 
 599 (1877). 
 
 Kentucky. — Lampton v. Haggard, 
 3 T. B. Mon. 149 (1826). 
 
 Maryland. — Chesapeake Bank r. 
 Swain, 29 Md. 483, 502 (1868). 
 
 Missouri. — State t. Moseley, 38 Mo. 
 380 (1866). 
 
 North Carolina. — Grant r. Reese, 
 94 N. C. 720 (1886). 
 
 Tennessee. — Wood r. Cooper, 2 
 Heisk. 441 (1871). Compare, how- 
 ever, Laird v. Folwell, 10 Heisk. 92 
 (1872). 
 
 Texas. — Lumpkin v. Murrell, 46 
 Tex. 51 (1876). 
 
 West Virginia. — Hix r. Hix, 25 
 W. Va. 481 (1885). 
 
 United States. — U. S. v. American 
 Gold Coin, 24 Fed. Cas. No. 14,439, 1 
 Woolw. 217 (1868). 
 
 3. Hart r. State, 55 Ind. 599 
 (1877) ; Lumpkin r, Murrell, 46 Tex. 
 51 (1876). 
 
965 Fobeign Invasion Mattee of History. § 788 
 
 gold coin in different epochs of national history, 4 the change in 
 the United States from a depreciated paper currency to a gold 
 basis and the consequent effect on prices, 5 'will be known to the 
 court as matters of national history. The existence of times of 
 marked financial depression in the commercial history of the 
 country need not be proved. 8 Thus, the court of appeals of the 
 commonwealth of Kentucky, speaking of the alleged abandon- 
 ment of rights under a mining lease, say: "When in 1898, the 
 defendants left the premises and left Ashland and ceased to pay 
 rent, they were bound to understand that the company when it 
 took possession of the property had taken possession of it upon 
 the idea that they had abandoned it. They allowed the company 
 to hold possession of it in this way for something over 4 years 
 before this suit was brought. In the meantime as is a matter 
 of common knowledge, values had changed. In 1898 the country 
 had not recovered from the panic of 1893. All values were low 
 and there was little market for real estate. In 1902 the country 
 was rapidly recovering from the panic, and prices everywhere 
 had risen. These are matters of current history which the court 
 may take judicial notice of." 7 
 
 § 788. (B. What Facts are Covered by the Rule; [6] Facta 
 of History; Nation) ; Foreign Affairs — The action of the nation 
 in important foreign transactions 1 as the invasion of another 
 country, 2 will be known by its courts. 
 
 4. Bryant v. Foot, L. R. 3 Q. B. 6. The financial depression of 1907 
 497, 9 B. & S. 444 (1868) (compari- is a matter of common knowledge, 
 son of value of money in time of Germania Life Ins. Co. v. Potter, 109 
 Richard I). N. Y. Suppl. 435, 124 App. Div. 814 
 
 5. Alabama. — Morris v. Morris, 58 (1908) [reversing 107 N. Y. Suppl. 
 Ala. 443 (1877). 912 (1907)]. 
 
 Arkansas. — Dillard v. Evans, 4 Ark. 7. Kentucky Iron, Coal & Mfg. Co. 
 
 175 (1841). V. Adams, 32 Ky. L. Rep. 823, 106 
 
 Missouri.— Farwell v. Kennett, 7 S. W. 1198 (1908). 
 Mo. 595 (1842). 1. Neely v _ Henkel, 180 U. S. 109, 
 
 North Carolina.— Grant v. Reese, 21 S. Ct. 302, 45 L. ed. 448 [affirming 
 
 94 N. C. 720 (1886). 108 Fed. 631] (1901); U. S. v. Reynes, 
 
 Tennessee.— Henly v. Franklin, 3 9 How. (U. S.) 127, 13 L. ed. 74 
 
 Coldw. 472, 91 Am. Dec. 296 (1866). (1850). 
 
 West Virginia.— Uix v. Hix, 25 2 . Neely v. Henkel, 180 U. S. 109, 
 
 W. Va. 481 (1885). 2 1 S. Ct. 302, 45 L. ed. 448 [affirm. 
 
 United States.— U. S. v. American ing 103 Ped _ 631] (1901) (Cuba)i 
 Gold Coin, 24 Fed. Cas. No. 14,439, 
 1 Woolw. 217 (1868). 
 
§§ 789,790 Knowledge; Co.mmox. 966 
 
 § 789. (B. What Facts are Covered by the Rule; [6] Facts 
 of History; Nation; Foreign Affairs); Wars, Insurrections, etc. 
 
 — The existence of a state of war between a nation and some 
 foreign power will be known to the courts of each forum; 1 — 
 partly because notorious 2 and, in part, because the result of execu- 
 tive action. 3 The insurrections in the Phillipine islands against 
 the authority of the United States* are known to its courts. 
 
 § 790. (B. What Facts are Covered by the Rule; [6] Facts 
 of History; Nation); Habits and Customs. — Established habits 
 well known in the community, as habitual drunkenness, 1 reading 
 other persons' postal cards or telegrams, 2 asking more for property 
 than it is worth, 3 fishing in private ponds until forbidden by the 
 owner, 4 need not be proved. Widespread and general recognized 
 social customs, as resorting to saloons to procure liquor as a bever- 
 age, 5 the custom on occasions where champagne is served of cool- 
 ing the bottle under circumstances which usually result in the 
 loss of the label before the guest has seen it, 6 are matters of com- 
 mon knowledge. In like manner, it is commonly known that the 
 yachting season in northern waters closes on the arrival of cold 
 weather. 7 
 
 Customs little known because foreign, 8 provincial, local, or for 
 other reasons, 9 must be proved. 
 
 1. Maelane's Trial, 26 How. St. Tr. 878 (1874) ; Robinson r. Jones, L. R. 
 797 (1797). 4 Ir. 391 (1879). 
 
 2. R. De Berenger, 3 M. & S. 67, 3. State v. Chingren, 105 Iowa 169, 
 69 (1814) ("so many statutes that 74 N. W. 946 (1898). 
 
 speak of a war with France"). 4. Marsh v. Colby, 39 Mich. 626, 
 
 3. Supra, §§ G45 et seq. 33 Am. Rep. 439 (1878). 
 
 Both reasons may fail to apply to 5. Zapf r. State, 11 Ind. App. 360, 
 
 a war entirely between outside na- 39 N. E. 171 (1894). 
 
 tions. Dolder r. Lord Huntingfield, 6. Von Mumm v. Wittemann, 85 
 
 11 Ves. Jr. 283, 292 (1805) (France Fed. 966, 967 (1898). 
 
 at war with Austria). 7. The Conqueror, 166 U. S. 110, 
 
 4. La Rue *. Kansas ilut. L. Ins. 17 s. ct. 510, 14 L. ed. 937 (1896) 
 Co., (Kan. Sup. 1904) 75 Pac. 494 (before November 1st). 
 
 (1904)- 8. De Tolna v. De Tolna, 135 Cal. 
 
 1. Youngs v. Youngs, 130 111. 230, 575, 67 Pac. 1045 (1902) (Austrian 
 22 N. E. 806, 17 Am. St. Rep. 313, 6 use of titles of nobility). 
 
 L. R. A. 548 (1889); Com. v. Whit- 9. State r. Travelers' Ins. Co., 70 
 
 ney, 11 Cush. (Mass.) 477 (1853). Conn. 590, 40 Atl. 465, 66 Am. St. 
 
 2. Williamson r. Freer, L. R. 9 Rep. 138 (1898) (irrelevant use of 
 C. P. 393, 43 L. J. C. P. 161, 30 the custom of giving English names 
 L. T. Rep. N. S. 332. 22 Wkly. Rep. to persons). 
 
967 
 
 Principal Facts of Civil Wae. 
 
 § 791 
 
 § 791. (B. What Facts are Covered by the Rule; [6] Facts 
 of History; Nation); War of the Rebellion. — Facts contributory to 
 the Civil War between the states of the American Union, 1 as the 
 existence of slavery in certain sections of the United States, 2 execu- 
 tive proclamations preceding it, 3 its duration and termination, 4 
 will be known without proof. Essential facts concerning the 
 struggle, 5 as the elimination of the precious metals from the cur- 
 rency of the Confederacy, entailing depreciation of the paper re- 
 maining in circulation," prominent military, 7 or naval 8 events, 
 
 1. Cuyler v. Ferrill, 6 Fed. Cas. No. 
 3,523, 1 Abb. 169 (1867). 
 
 2.. Jack v. Martin, 12 Wend. (N. Y.) 
 311, 328 (1834) ; Miller v. McQuerry, 
 17 Fed. Cas. No. 9,583, 5 McLean 
 469 (1853). 
 
 3. Woods f. Wilder, 43 N. Y. 164, 
 3 Am. Rep. 684 (1870). 
 
 4. Turner r. Patton, 49 Ala. 406 
 (1873). 
 
 The exact legal date of the war's 
 termination is, however, to be decided 
 by the executive branch of the gov- 
 ernment, of which the court has judi- 
 cial knowledge as of a fact established 
 by operation of law. U. S. t. Fifteen 
 Hundred Bales of Cotton, 27 Fed. 
 Cas. No. 15,958 [reversing 27 Fed. 
 Cas. No. 15,957] (1872). 
 
 5. Alabama. — Lyon r. Foscue, 60 
 Ala. 469 (1877); Turner f. Patton, 
 49 Ala. 406 (1873) (restoration of 
 mail service) ; Donegan t*. Wood, 49 
 Ala. 242, 20 Am. Rep. 275 (1873) 
 (suspension of mail service). 
 
 Arkansas. — Williams r. State, 37 
 Ark. 463 (1881); Rice r. Shook, 27 
 Ark. 137, 11 Am. Rep. 783 (1871) 
 (certain localities in a confederate 
 state in possession of the Union 
 forces ) . 
 
 Indiana. — Brooke r. Filer, 35 Ind. 
 402 (1871). 
 
 Mississippi. — Day r. Smith, (Miss. 
 1905) 39 So. 526. 
 
 Missouri. — Douthitt r. Stinson, 63 
 Mo. 268 (1876) (position of the sev- 
 eral states). 
 
 New York. — Woods v. Wilder, 43 
 N. Y. 164, 3 Am. Rep. 684 (1870). 
 
 Tennessee. — Smart v. Mason, 2 
 Heisk. 223 ( 1870 ) ; Wood v. Cooper, 
 8 Heisk. (Tenn.) 441 (1871) (that 
 Missouri was represented in the con- 
 federate congress ) . 
 
 United States. — Cuyler v. Ferrill, 
 6 Fed. Cas. No. 3,523, 1 Abb. 169 
 (1867). 
 
 6. Alabama. — Modawell «. Holmes, 
 40 Ala. 391, 405 (1867); Morris ,. 
 Morris, 58 Ala. 443 (1877). 
 
 North Carolina. — Grant v. Reese, 
 94 N. C. 720 (1886). 
 
 Tennessee. — Wood v. Cooper, 2 
 Heisk. 441 (1871). 
 
 Texas. — Lumpkin v. Murrell, 46 
 Tex. 51 (1876). 
 
 West Virginia. — Hix v. Hix, 25 
 W. Va. 481 (1885); Simmons r. 
 Trumbo, 9 W. Va. 358, 364 (1876). 
 
 Notice will not be taken of the 
 precise degree of this depreciation. 
 Modawell v. Holmes, 40 Ala. 391 
 (1867). 
 
 7. Williams v. State, 67 Ga. 260 
 (1881) (Sherman's march to the 
 sea). See also Ham v. State, (Ala. 
 1908) 47 So. 126 (date of battle of 
 Atlanta). 
 
 8. The Mersey, 17 Fed. Cas. No. 
 
 9.489, Blatchf. Pr. Cas. 187 [reversed 
 on other grounds in 17 Fed. Cas. No. 
 
 9.490, Blatchf. Pr. Cas. 658] (1862) 
 (blockade). 
 
 The effect of the blockade in caus- 
 ing a circuitous course of shipment 
 between the blockaded ports and cer- 
 tain neutral ports will be noticed. 
 The Mersey, 17 Fed. Cas. No. 9,489, 
 Blatchf. Pr. Cas. 187 [reversed on 
 
§ 792 
 
 Knowledge; Common. 
 
 968 
 
 are equally well known. In like manner the results of the war, — 
 as the abolition of slavery 9 and their effects ; 10 — are notorious 
 and, therefore, commonly known. 
 
 But minor facts connected with it, as the relative position in the 
 field of the contending armies at a particular time, 11 the circum- 
 stance that legal process could not be issued or served in a par- 
 ticular county, 12 or that its courts were closed, 13 or that it was 
 unsafe to announce certain political views in that region, 14 though 
 of quasi general interest, are not so notorious as to dispense with 
 proof. 
 
 § 792. (B. What Facts are Coveted by the Rule; [6] Facts 
 of History); State; Settlement — Courts of a general jurisdiction 
 throughout a state, whether conferred by national or state au- 
 thority, know the notorious facts of state history; 1 — most fre- 
 quently perhaps in connection with the construction of statutes. 2 
 
 other grounds in 17 Fed. Cas. No. 
 9,490, Blatchf. Pr. Cas. 658] (1862). 
 
 9. Morgan v. Nelson, 43 Ala. 586 
 (1869); Ferdinand v. State, 39 Ala. 
 706 (1866). 
 
 10. Hunt u. Wing, 10 Heisk. 
 (Tenn.) 139 (1872) (on the colored 
 race). 
 
 11. Kelly v. Story, 6 Heisk. (Tenn.) 
 202 (1871). 
 
 12. Smart v. Mason, 2 Heisk. 
 (Tenn.) 223 (1870). 
 
 13. Cross v. Sabin, 13 Fed. 308 
 ( 1882 ) . But see, contra, Killebrew 
 v. Murphy, 3 Heisk. (Tenn.) 546 
 (1871). 
 
 14. Simmons v. Trumbo, 9 W. Va. 
 358 (1876). 
 
 1. Alabama. — Bonner v. Philips, 77 
 Ala. 427 (1884). 
 
 Indiana. — Carr e. McCampbell, 61 
 Ind. 97 (1878). 
 
 Kentucky. — Wood r. Lee, 5 T. B. 
 Mon. 50 (1827). 
 
 Louisiana. — Lake v. Caddo Parish, 
 37 La. Ann. 788 (1885). 
 
 Missouri. — Douthitt r. Stinson, 63 
 Mo. 268 (1876). 
 
 Nebraska. — Porter v. Flick, 60 Neb. 
 773, 84 N. W. 262 (1900). 
 
 New York. — Howard v. Moot, 64 
 
 N. Y. 262 [affirming 2 Hun 475] 
 (1876). 
 
 Texas. — Kilpatrick v. Sisneros, 23 
 Tex. 113 (1859). 
 
 Vermont. — State v. Franklin County 
 Sav. Bank, etc., Co., 74 Vt. 246, 52 
 Atl. 1069 (1902). 
 
 Washington. — Yelm Jim v. Terri- 
 tory, 1 Wash. Terr. 63 (1859). 
 
 West Virginia. — Dryden v. Ste- 
 phens, 19 W. Va. 1 (1881). 
 
 United States. — Lamb t". Daven- 
 port, 14 Fed. Cas. No. 8,015, 1 Sawy. 
 609 (1871); Be Celis r. U. S., 13 
 Ct. CI. 117 (1877). 
 
 %. Indiana. — State v. Schoonover, 
 135 Ind. 526, 35 N. E. 119 (1893); 
 Board r. Ft. Wayne, etc., Co., 17 Ind. 
 App. 36, 46 N. E. 36 (1896). 
 
 Massachusetts. — 'Prince r. Crocker, 
 166 Mass. 347, 44 N. E. 446, 32 
 . L. R. A. 610 (1896). 
 
 Nebraska. — Redell r. Moores, 63 
 Neb. 219, 8S N. W. 243 (1901). 
 
 Wyoming. — Rasmussen v. Baker, 
 (Wyo.) 50 Pac. 819, 38 L. R. A. 
 773 (1897). 
 
 Vermont. — State i: Franklin, etc., 
 Co., 74 Vt. 246, 52 Atl. 1069 (1902). 
 " The history of a country, its topog- 
 raphy and condition, enter into the 
 
969 
 
 Histoey of Land Titles Commonly Known. 
 
 793 
 
 Colonial History. — In case of the older states of the American 
 Union, the common knowledge of state history includes that relat- 
 ing to the colonial stage of existence. Among such facts is the 
 relation of the territorial limits of the colony when compared to 
 those of the state. 3 
 
 The existence of documents of general importance affecting 
 the history of a state, even while under the sovereignty of a foreign 
 country,* will be judicially known. 
 
 § 793. (B. What Facts are Covered by the Rule; [6] Facts 
 of History; State); Land Titles The early history of the ac- 
 quisition of land titles, 1 whether by discovery, conquest, cession 
 by a foreign government, or grant from the national authorities, 2 
 
 construction of the laws which are 
 made to govern it, and we must no- 
 tice these facts judicially." 
 
 Indiana. — Williams v. State, 64 
 Ind. 553 (1878). 
 
 See also : 
 
 Alabama. — Smith i). Speed, 50 Ala, 
 276 (1873). 
 
 United States. — Ohio Life Ins. Co. 
 v. Debolt, 16 How. 416 (1853). 
 
 3. N. Frank & Sons v. Gump, (Va. 
 1905) 51 S. E. 358. 
 
 4. Smyth v. New Orleans C. & B. 
 Co., 35 C. C. A. 646, 93 Fed. 899 
 (1899) (ancient Spanish land regis- 
 ter). The court knows that, prior to 
 statehood, Oklahoma consisted of the 
 territory of Oklahoma and Indian 
 Territory, and that the territories 
 were governed in a large measure 
 by different laws emanating from dif- 
 ferent sources. Western Union Tel. 
 Co. v. Parsley, (Tex. Civ. App. 1909) 
 121 S. W. 226. 
 
 1. Alabama. — Bonner t'. Phillips, 77 
 Ala. 427 ( 1884 ) ; Lewis v. Harris, 31 
 Ala. 689 (1858) (government title). 
 
 Indiana. — Carr v. McCampbell, 61 
 Ind. 97 (1878). 
 
 New Jersey. — City of Paterson v. 
 East Jersey Water Co., (Ch. 1908) 
 70 Atl. 472. 
 
 New York. — Townsend v. Trustees 
 of Freeholders and Commonalty of 
 Town of Brookhaven, 89 N. Y. Suppl. 
 
 982, 97 App. Div. 316 (1904) ; How- 
 ard v. Moot, 64 N. Y. 262 [affirming 
 2 Hun 475] (1876) (extinguishment 
 of Indian title). 
 
 United States. — Bigelow v. Chat- 
 terton, 51 Fed. 614, 2 C. C. A. 403 
 ( 1892 ) ; Lamb v. Davenport, 14 Fed. 
 Cas. No. 8,015, 1 Sawy. 609 (1871). 
 The size of lots in a particular county 
 of the state as originally laid out 
 may be taken by a court as a matter 
 of common or judicial knowledge. 
 Williams v. State, 2 Ga. App. 629, 58 
 S. E. 1071 (1907) (Turner County; 
 490 acres). 
 
 2. Chicago, etc., R. Co. v. Keegan, 
 185 111. 70, 56 N. E. 1088 (1900); 
 Smith v. Stevens, 82 111. 554 (1876) 
 (cognizance taken of location of such 
 land) ; Dickenson v. Breeden, 30 111. 
 279 (1863) (notice taken of dedica- 
 tion as military bounties ) . The dona- 
 tion of lands to a state for school 
 purposes by act of Congress and the 
 legislation of the state in relation 
 thereto are proper subjects of both 
 judicial and common knowledge. 
 Greene v. Boaz, (Ala. 1908) 47 So. 
 255; Black v. Chicago, B. & Q. R. 
 Co., 237 111. 500, 86 N. E. 1065 (1909) 
 (national grants for school purposes). 
 
 The absence of affirmative action 
 by the United States government, in 
 not forfeiting a state land grant, will 
 
§ 793 
 
 Knowledge; Common. 
 
 970 
 
 need not be proved. The settlement of the various parts of the 
 state, 3 the primitive conditions existing during the settlement of 
 the original states, 4 the inaccuracy of older surveys, 5 the ancient 
 names of places within the jurisdiction, 6 the cessions of land 
 within its borders by the state to the national government, 7 the 
 acquirement by purchase of lands for national purposes, 8 the estab- 
 lishment of reservations for the benefit of the Indian tribes, 9 or 
 with regard to certain territory, as that particular lowlands are 
 overflowed by freshets, 50 may be taken as commonly known. 
 
 But the public ownership of individual tracts of land, 11 even 
 when under tide water, 12 is not within the rule. The law is 
 otherwise, where as a result of notoriety and public interest and 
 as a direct result of legal enactment the bed of a great river 13 
 
 be noticed. Mathis v. Tennessee, etc., 
 R. Co., 83 Ala. 411, 3 So. 793 (1887). 
 Whether a particular piece of land 
 has been granted by congress, or still 
 constitutes part of the public do- 
 main, cannot be judicially known. 
 Schwerdtle c. Placer County, 108 Cal. 
 589, 41 Pac. 448 (1895). 
 
 3. Holmes v. Mallett, Morr. (Iowa) 
 82 (1840); Kreuger v. Schultz, 6 
 N. D. 310, 70 N. W. 369 (1896) 
 (lands within Indian territory) ; Kil- 
 patrick V. Sisneros, 23 Tex. 113 
 (1859). 
 
 Courts of Texas have taken judicial 
 notice of the existence and conditions 
 of the several colonial land contracts 
 made with individuals. Ohadwin v. 
 Magee, 20 Tex. 476; Williamson v. 
 Simpson, 16 Tex. 433 ; Hatch v. Dune, 
 11 Tex. 708; Robertson v. Teal, 9 
 Tex. 344; Wheeler v. Moody, 9 Tex. 
 372. 
 
 4. Wells v. Jackson Iron Mfg. Co., 
 47 N. H. 235, 90 Am. Dec. 575 
 (1866). 
 
 5. Hellman v. Los Angeles, 125 Cal. 
 383, 58 Pac. 10 (1899). 
 
 6. Trenier v. Stewart, 55 Ala. 458 
 (1876) (Dauphin island formerly 
 called "Massacre island"). 
 
 7. People v. Snyder, 41 N. Y. 397 
 [affirming 51 Barb. 589] (1869); 
 Wills r. State, 3 Heisk. (Tenn.) 141 
 
 (1871) ; Lasher v. State, 30 Tex. App. 
 387, 17 S. W. 1064, 28 Am. St. Rep. 
 922 (1891). 
 
 8. Baker v. State, (Tex. Cr. App. 
 1904) 83 S. W. 1122 (military post). 
 The precise metes and bounds will 
 not be known. Baehler v. Consoli- 
 dated Ranch Co., 31 Kan. 502 (1884); 
 Baker v. State, (Tex. Cr. App. 1904) 
 83 S. W. 1122. 
 
 9. Peano v. Brennan, (S. D. 1906) 
 106 N. W. 409. Well-known facts 
 with regard to Indian reservations, as 
 that in certain of them no freemen 
 qualified to act as jurors can be 
 found, [Goodson v. U. S., 7 Okl. 117, 
 54 Pac. 423 ( 1898 ) ] are equally no- 
 torious as matters of history, and, 
 in many instances, a direct result of 
 legislation which the judge judicially 
 knows. National courts will take the 
 same judicial notice. Gardner v. 
 United States, (Ind. Terr. 1904) 82 
 S. W. 704 (Choctaw nation). 
 
 10. Kerns v. Perry, (Tenn. 1898) 
 48 S. W. 724. 
 
 11. Schwerdtle v. Placer County, 
 108 Cal. 589, 41 Pac. 448 (1895). 
 
 12. New York, etc., Bridge Co. v. 
 Skelly, 90 Hun (N. Y.) 312, 35N.Y. 
 Suppl. 920 (1895). 
 
 13. McCarter v. Hudson County 
 Water Co., (N. J. Ch. 1905) 61 A. 
 710 (Passaic). 
 
971 Telephones in Business and Social Life. § 794 
 
 within the ebb and flow of the tide, is judicially and commonly 
 known to be vested in the state. 
 
 § 794. (B. What Facts are Covered by the Rule; [6] Facts 
 of History; State); Industrial Development. — Important facts in 
 the industrial or business life of the state, such as changes in the 
 rate of interest, 1 establishment and general features of the state 
 banking system, the organization 2 and operation of corporations, 
 will be treated by the courts as matters of common knowledge, 
 but cognizance cannot be taken of details not clearly established 
 or generally known as the value of a bank's paper at a particular 
 .time. 3 The movements, more prominent speculative activity 
 in the business life of the state, as " that there was a great com- 
 plaint of tax collectors . . . speculating in warrants," at a 
 given time, 4 will be regarded by courts as notorious historical 
 facts. The growth of agriculture, commerce and manufacturing 
 will be noticed. The great inventions and the hopes, perplexities 
 and fears of inventors and early manufacturers 5 are part of the 
 public history of the state. 
 
 Modern developments. — Prominent incidents in modern indus- 
 trial development will be known by judges as part of the common 
 stock of the community's knowledge. 6 Thus, the existence of 
 labor troubles is matter of history. 7 In like manner, the evils of 
 consolidating domestic corporations will be known to the court. 8 
 
 Telephone communication. — Among the more salient features 
 of modern industrial development of which judges possess the 
 same knowledge as other intelligent members of the community 
 is the improved facility of communication due to the general in- 
 
 1. New Haven Trust Co. v. and retardations incident to the man- 
 Doherty, 74 Conn. 468, 51 Atl. 130 ufacture of any new article," need 
 (1902); Collins v. Wardell, 63 N. J. not be proved. Cocker r. Franklin 
 Eq. 371, 52 Atl. 708 (1902). Hemp, etc., Co., 3 Sumner, 530, per 
 
 2. That companies of a certain Story, J. 
 
 class are incorporated in a given 6. Funderburg v. Augusta & A. Ey. 
 
 way is " a matter of public history " Co., 81 S. C. 141, 61 S. E. 1075 
 
 which the court "cannot refuse to (1908). 
 
 notice." Ohio, etc., Co. v. Debolt, 16 7. New York Cent. & H. R. R. Co. 
 
 How. 435 (1853). V. Williams, 118 N. Y. Suppl. 785, 
 
 3. Feemster v. Ringo, 5 T. B. 64 Misc. 15 (1909). 
 
 Monr. (Ky.) 336 (1827). 8. Jackson Consol. Traction Co. v. 
 
 4. Smith r. Speed, 50 Ala. 276 Jackson Circuit Judge, 155 Mich. 522, 
 (1873). 119 N. W. 915, 15 Detroit Leg. N. 
 
 5. "The common disappointments 1081 (1909). 
 
794 
 
 Knowledge; Common. 
 
 972 
 
 troduction of the telephone into business and social life. " Courts 
 of justice do not ignore the great improvement in the means of 
 communication which the telephone has made. Its nature, opera- 
 tion, and ordinary uses are facts of general scientific knowledge 
 of which the courts will take judicial notice as part of public 
 contemporary history." 9 The judge knows, as a matter of com- 
 mon knowledge, notorious facts concerning the use of the tele- 
 phone as a means of communicating thought. 10 The convenience 
 of the telephone in use is obviously accompanied by certain in- 
 herent difficulties in satisfactorily proving the identity of the 
 speaker which call for the sound administrative action of the 
 presiding judge. Naturally, it is essential that the speaker should 
 be identified. 11 It is further required that the legally connecting 
 relation of the party against whom the evidence of statements 
 made at a telephone conversation is offered should be established 
 to the judge's satisfaction wherever so doing would ordinarily be 
 necessary. 12 ISTo special rules attach to the matter. Primarily, 
 
 9. Wolfe v. Missouri Pacific Rail- 
 way Co., 97 Mo. 473, 11 S. W. 49, 
 3 L. R. A. 539, 10 Am. St. Rep. 331 
 (1888), quoted in Western Union 
 Telegraph Co. v. Rowell, (Ala. 1907) 
 45 So. 73, 80. 
 
 10. Gait r. Woliver. 103 111. App. 
 71 (1903); Barrett v. Magner, (Minn. 
 1908) 117 N. W. 245. 
 
 Notice in writing. — It is scarcely 
 necessary to say that a notice " given 
 over the telephone " is verbal and not 
 " in writing." In re Shier's Estate, 
 35 S. C. 417, 14 S. E. 931 (1892). 
 
 11. Iowa. — Shawyer v. Chamber- 
 lain, 113 Iowa 742, 84 N. W. 661 
 (1900). 
 
 Kentucky. — Holzhauer v. Sheeny, 
 31 Ky. L. Rep. 1238, 104 S. W. 1034 
 (1907). 
 
 Missouri. — Guest v. Railroad Co., 
 77 Mo. App. 258 (1899). 
 
 Nebraska. — Oskamp v. Gadsden, 35 
 Neb. 7, 52 N. W. 718 and note to 
 same in 17 L. R. A. 440 (1892). 
 
 Pennsylvania. — Dunham v. Mc- 
 Michael, 214 Pa. 485, 63 Atl. 1007 
 (1906); Southwark Nat. Bank v. 
 Smith, 7 Pa. Dist. R. 182, 21 Pa. 
 Co. Ct. R. 1 (1898). Identity is a 
 
 question of fact for the jury in each 
 case. Rogers Grain Co. v. Tanton, 
 136 111. App. 533 (1907). In other 
 words, lack of positiveness in identifi- 
 cation goes merely to the question of 
 credibility or probative weight. Conk- 
 ling v. Standard Oil Co., (Iowa 1908) 
 116 N. W. 822. 
 
 12. Globe Prtg. Co. v. Stahl, 23 
 Mo. App. 451 (1886); Swing r. 
 Walker, 27 Pa. Super. Ct. 366 (1905). 
 Telephone communications stand upon 
 the same footing as conversations as 
 to admissibility in evidence. Star 
 Bottling Co. v. Cleveland Faucet Co., 
 128 Mo. App. 517, 109 S. W. 802 
 (1908). "No testimony is necessary 
 to show that a declaration or admis- 
 sion is not admissible unless the 
 party making it is identified as the 
 party sought to be charged. The in- 
 troduction of the telephone has not 
 changed the rule of evidence on that 
 subject. If the witness had been in 
 the presence of the person at the 
 other end of the line, the declaration 
 of that person would not have been 
 admissible without evidence that he 
 was one of the defendants." Swing 
 V. Walker, 27 Pa. Super. Ct. 366 
 
973 
 
 Identification of Speakek by Telephone. 
 
 794 
 
 the question of admissibility is one of administration. Should 
 the speaker be identified by the tones of his voice, 13 his later 
 
 (1904). "To hold parties responsible 
 for answers made by unidentified per- 
 sons in response to a call at the tele- 
 phone from their offices or place of 
 business concerning their affairs, 
 opens the door for fraud and im- 
 position, and establishes a dangerous 
 precedent, which is not sanctioned by 
 any rule of -law or principle of ethics 
 of which we are aware. A party re- 
 plying or acting upon a communica- 
 tion of that character takes the risk 
 of establishing the identity of the 
 person conversing with him at the 
 other end of the line." Young v. 
 Seattle Transfer Co., 33 Wash. 225, 
 74 Pac. 375, 99 Am. St. Rep. 942, 
 63 L. R. A. 988 (1903). 
 
 Course of business. — Where the re- 
 ply to a telephone conversation pur- 
 ports to come from a party's place of 
 business, a situation is presented an- 
 alogous to the case where a party 
 should go to the other's office and 
 hold a conversation with one in ap- 
 parent charge of the affairs there 
 being conducted. Less stringent proof 
 of connection with the proprietor will 
 under such circumstances properly be 
 required by the court. See Kimbark 
 r. Illinois Car, etc., Co., 103 111. App. 
 632 (1902). The rule is very fairly 
 stated in a leading case in Missouri. 
 " When a person places himself in 
 connection with a telephone system 
 through an instrument in his office, he 
 thereby invites communication, in re- 
 lation to his business, through that 
 channel. Conversations so held are 
 admissible in evidence, as personal 
 interviews by a customer with an un- 
 known clerk in charge of an ordinary 
 shop would be in relation to the busi- 
 ness there carried on. And the fact 
 that the person or voice of the per- 
 son at the telephone was not identi- 
 fied does not render the conversation 
 inadmissible. This ruling is intended 
 to determine merely the admissibility 
 
 of such conversations in such circum- 
 stances, but not the effect of such 
 evidence after its admission. That is 
 a jury question." Wolfe v. Missouri 
 Pacific Railway Co., 97 Mo. 473, 11 
 S. W. 49, 3 L. R. A. 539, 10 Am. St. 
 Rep. 331 (1888), quoted in Western 
 Union Telegraph Co. v. Rowell, (Ala. 
 1907) 45 So. 73, 80. 
 
 E converse, where this fact of con- 
 nection with a party's office is absent, 
 more conclusive proof of identification 
 and connection with the party to be 
 affected by a telephone conversation 
 may properly be demanded by a pre- 
 siding judge. Thus, a. telephone con- 
 versation is inadmissible to establish 
 admissions of one of the parties, 
 where it appears that the witness 
 was not acquainted with the party's 
 voice, and could not identify it. 
 Such a case would not be controlled 
 by the decisions which relate to com- 
 munications by telephone from an 
 office in response to communications 
 or inquiries, and to the presumption 
 which arises from the transaction of 
 business of the person in whose con- 
 trol the telephone is. Swing v. 
 Walker, 27 Pa. Super. Ct. 366 (1905). 
 
 13. Western Union Telegraph Co. v. 
 Rowell, (Ala. 1907) 45 So. 73; 
 Rogers Grain Co. v. Tanton, 136 111. 
 App. 533 (1907); Knickerbocker Ice 
 Co. of Baltimore City v. Gardiner 
 Dairy Co., (Md. 1908) 69 Atl. 405; 
 People v. Ward, 3 N. Y. Crim. 483 
 (1885). See also Southwark Nat. 
 Bank v. Smith, 21 Pa. Co. Ct. 1 
 (1899). 
 
 It is not essential that the one 
 testifying to the conversation should 
 have been able at the time to identify 
 the speaker by his voice. Miller r. 
 Leib, 109 Md. 414, 72 Atl. 466 
 (1909); Barrett v. Magner, (Minn. 
 1908) 117 N. W. 245; Young v. Se- 
 attle Transfer Co., 33 Wash. 225, 74 
 Pac. 375, 99 Am. St. Rep. 943, 63 
 
§ 794 
 
 Knowledge ; Common. 
 
 974 
 
 admissions, 14 or by other sufficient evidence/ 5 direct or circum- 
 stantial, 16 his verbal utterances made through the telephone will be 
 regarded as competent. Absolute identification is not required. 
 If the jury, having regard to all the circumstances of the case, 
 might reasonably find that a designated individual was the 
 speaker, what he says may be received upon ordinary principles 
 of evidence. 17 
 
 L. R. A. 988 ( 1903 ) . It is sufficient 
 if the witness subsequently identifies 
 the speaker over the telephone upon 
 hearing him speak on another oc- 
 casion. People v. Strollo, 191 N. Y. 
 42, 83 N. E. 573 (1908). That the 
 reporting witness does not know the 
 speaker affects merely the weight of 
 the evidence. ■ Wolfe v. Missouri Pac. 
 R. Co., 97 Mo. 473, 11 S. W. 49, 10 
 Am. St. Rep. 331, 3 L. R. A. 539 
 (1888); Missouri Pac. R. Co. v. 
 Heidenheimer, 82 Tex. 195, 17 S. W. 
 608, 27 Am. St. Rep. 861 (1897). 
 
 14. Nebraska Nat. Bank v. Burke, 
 44 Neb. 234, 62 N. W. 452 (1895). 
 
 15. Wilson v. Minneapolis & N. W. 
 R. Co., 31 Minn. 481, 18 N, W. 291 
 (1884). 
 
 16. Young v. Seattle Transfer Co., 
 33 Wash. 225, 74 Pac. 375, 99 Am. 
 St. Rep. 942, 63 L. R. A. 988 (1903) ; 
 Globe Prtg. Co. v. Stahl, 23 Mo. 
 App. 451 (1886) ; Shawyer r. Chamber- 
 lain, 113 Iowa 742, 84 N. W. 661, 
 86 Am. St. Rep. 411 (1900). 
 
 A bystander may testify to such 
 portion of a telephone conversation as 
 he may have heard. Miles v. Andrews, 
 153 111. 262, 38 N. E. 644 (1894); 
 Dannemiller v. Leonard, 15 Ohio C. C. 
 686, 8 Ohio C. D. 735 (1898). One 
 using a telephone in an office con- 
 nected with that employed in the con- 
 versation may give evidence as to 
 the statements heard by him. Rimes 
 v. Carpenter, 114 N. Y. Suppl. 96, 61 
 Misc. 614 (1909). 
 
 17. Shawyer v. Chamberlain, 113 
 Iowa 742, 84 N. W. 661, 86 Am. St. 
 Rep. 411 (1900) ; Globe Prtg. Co. v. 
 Stahl, 23 Mo. App. 451 (1886); 
 
 Young v. Seattle Transfer Co., 33 
 Wash. 225, 74 Pac. 375, 99 Am. St. 
 Rep. 942, 63 L. R. A. 988 (1903). 
 Where an operator intervenes, as 
 at a public telephone station, the 
 question as to the responsibility of a 
 party acting through such an assist- 
 ant, is a matter to be determined by 
 the law of agency. " As business ex- 
 pands by the aid of new inventions, 
 wider scope must be given to the 
 rules of evidence. There is no need, 
 however, of any departure or innova- 
 tion in this case, because it is a well 
 settled rule of evidence that the state- 
 ments of an agent, when acting within 
 the scope of his agency, are com- 
 petent against his principal. When 
 one is using the telephone if he 
 knows that he is talking to the oper- 
 ator, he also knows that he is mak- 
 ing him his agent to repeat what lie 
 is saying to another party ; and, in 
 such a case, certainly the statements 
 of the operator are competent, being 
 the declarations of the agent, made 
 during the progress of the transac- 
 tion. If he is ignorant whether he 
 is talking to the person with whom 
 he wishes to communicate or with the 
 operator, or even any third party, 
 yet he does it with the expectation 
 and intention on his part that in case 
 he is not talking with the one for 
 whom the information is intended, 
 that it will be communicated to that 
 person; and he thereby makes the 
 person receiving it his agent to com- 
 municate what he may have said. 
 This should certainly be the rule as 
 to an operator, because the person 
 using a telephone knows that there 
 
975 Later State History Generally Known. §§ 795-797 
 
 Oath by telephone. — For administration of oath by telephone, 
 see § 203. 
 
 § 795. (B. What Facts are Covered by the Rule; [6] Facts 
 of History; State; Industrial Development); Mining Thus 
 
 discovery of minerals, and the mining of these or other valuable 
 substances, 1 are historical facts which need not be proved. The 
 exhaustion, in certain sections of the country, of wells for obtain- 
 ing natural gas is a matter of common knowledge. 2 The mining 
 statistics of a particular state compiled and published under a 
 provision of law may be properly said to be judicially known to 
 its judges. 3 
 
 § 796. (B. What Facts are Covered by the Rule; [6] Facts 
 of History; State; Industrial Development); Railroads 
 
 The establishment of lines of railroad, in any state, 1 the date of 
 their opening, 2 the permanence of their location, 3 and the increase 
 of their traffic, 4 need not be proved. So courts commonly know, 
 as other persons do, the making or forfeiture of land grants to 
 railroad companies. 6 
 
 § 797. (B. What Facts are Covered by the Rule; [6] Facts 
 of History; State); Later History. — Prominent features of the 
 later history of the state, its Indian wars, 1 the salient features of 
 the Civil War as it affected the particular state, 2 as the elimina- 
 
 is one at each station whose business 1. Knowlton v. New York etc. R. 
 
 it is to so act ; and we think that the Co., 72 Conn. 188, 44 Atl. 8 ( 1899 ) ; 
 
 necessities of a growing business re- Hart v. Baltimore, etc., E. Co., 6 W. 
 
 quire this rule and that it is sane- Va. 336 (1873) ; infra, §§ 826, 919, 
 
 tioned by the known rules of evi- 2035, 2435. 
 
 dence." Sullivan v. Kuykendall, 82 2. Knowlton v. R. Co., 72 Conn. 
 
 Ky. 483 (1888). The rule is the 188, 44 Atl. 8 (1899). 
 
 same where, owing to the influence 3. Miller v. Texas, etc., E. Co., 83 
 
 of atmospheric conditions, or other Tex. 518, 18 S. W. 954 (1892). 
 
 cause, it seems advisable that a long 4. Chinn v. Chicago, etc., R. Co., 
 
 distance message should be repeated 100 Mo. App. 576, 75 S. W. 375 
 
 at an intermediate station by another (1903) (live stock traffic shows yearly 
 
 operator. Oskamp v. Gadsden, 35 increase). 
 
 Neb. 7, 52 N. W. 718, 37 Am. St. 5. Mathias v. Tennessee, etc., R. 
 
 Rep. 428, 17 L. R. A. 440 (1892). Co., 83 Ala. 411, 3 So. 793 (1887). 
 
 1. State v. Jacksonville (Fla. 1. Yelm Jim v. Territory, 1 Wash. 
 1904), 37 So. 652 (phosphate) ; infra, Terr. 63 (1859). "The history of 
 U 822, 908, 2032, 2430. the Six Nations of Indians is a part 
 
 2. State v. Indianapolis Gas Co. of the history of the state, of which 
 (Ind. 1904) 71 N. E. 139. the courts will take notice." Howard 
 
 8. State v. Barrett, (Ind. 1909) 87 v. Moot, 64 N. Y. 262 (1876). 
 N ' E - 7 - 2- Buford v. Tucker, 4 Ala. 89 
 
§ 798 
 
 Knowledge; Common. 
 
 976 
 
 tion of gold and United States notes from the circulating medium 
 of the Confederate states, 3 the position of the state on the issue 
 of secession, 4 the events which grew out of the struggle, 8 will be 
 noticed. So the life history of its famous men 6 is part of the 
 common history of a state. But the historical fact should not be 
 such as " concerns individuals or mere local communities." 7 The 
 general increase of land values 8 need not be proved. 
 
 But minor facts of limited general interest 9 cannot be treated 
 as commonly known. 
 
 § 798. (B. What Facts ate Covered by the Rule; [6] Facts 
 of History; State); Politics — The political history of the state, 
 what was the tenure of office of the successive chief magistrates 
 of the state, 1 the date 2 of a general, 3 national, 4 state 5 or congres- 
 
 (1870) (contracts made in Confed- 
 erate money) ; Douthitt v. Stinson, 
 63 Mo. 268 (1876) (State loyal to 
 the Union) ; Simmons v. Trumbo, 9 
 W. Va. 358, 364 (1876) (progressive 
 depreciation of Confederate currency; 
 that it never was made legal tender). 
 The action of one of the public offi- 
 cers in making military records of 
 the muster roll of the state's volun- 
 teer regiments will be noticed. " It 
 is part of the history of the state of 
 which we must take notice." Com- 
 missioners v. May, 67 Ind. 562 
 (1879). 
 
 3. Morris V. Morris, 58 Ala. 443 
 (1877). Riddle v. Hill, 51 Ala. 224 
 (1874) Grant r. Reese, 94 N. C. 
 720 (1886); Wood v. Cooper, 49 
 Tcnn. (2 Heisk.) 441 (1871). See 
 also Dillard v. Evans, 4 Ark. (4 
 Pike) 175 (1841); Farwell f. Ken- 
 nett, 7 Mo. 595 (1842). 
 
 In Tennessee it will not be noticed 
 that certain bank notes circulated as 
 money. Laird v. Folwell, 57 Tenn. 
 
 (10 Heisk.) 92 (1872); State V. 
 Shelton, 26 Tenn. (7 Humph.) 31 
 
 (1846). 
 
 4. Brooke V. Filer, 35 Ind. 402 
 
 (1871) ; Hill v. Baker, 32 Iowa 302, 7 
 Am. Rep. 193 ( 1S72 ) ; Douthitt v. 
 Stinson, 63 Mo. 268 (1876). 
 
 5. Board, etc. v. May, 67 Ind. 562 
 
 (1879) (preparation of muster rolls 
 by adjutant-general). 
 
 6. Walden v. Canfield, 2 Rob. (La.) 
 466 (1842) (Edward Livingstone) ; 
 Sargent V. Lawrence, 16 Tex. Civ. 
 App. 540, 40 S. W. 1075 (1897) 
 
 (Sam. Houston) ; De Celis v. TJ. S., 
 13 Ct. CI. 117 (1877) (John C. Fre- 
 mont's career in 1846). 
 
 7. McKinnon v. Bliss, 21 N. Y. 
 206 (1860). 
 
 8. Hawley v. Johnel, (Neb. 1906) 
 106 N. W. 459. 
 
 9. State em inf. Hadley v. Lelmar 
 Jockey Club, (Mo. 1905) 92 S. W. 
 185 (contribution by a racing asso- 
 ciation to agricultural exhibits at 
 state fairs). 
 
 1. State v. Boyd, 34 Neb. 435, 51 
 N. W. 964. As to the incumbency of 
 office see supra, § 639. 
 
 2. Mills v. Green, 159 U. S. 651, 
 16 S. Ct. 132, 40 L. ed. 293 (1895) ; 
 Jones v. U. S., 137 U. S. 202, 11 
 S. Ct. 80, 34 L. ed. 691 (1890) ; Hoyt 
 r. Russell, 117 U. S. 401, 6 S. Ct. 
 881, 29 L. ed. 914 (1885). 
 
 3. Special and local elections and 
 their results will not, in the absence 
 of some peculiar reason, be treated as 
 generally known. 
 
 Alabama. — Ex parte Reynolds, 87 
 Ala. 138, 6 So. 335 (1888) ; Grider v. 
 
977 
 
 Pbactice Conceening National Paeties. 
 
 § 799 
 
 sional 6 election ; or of a special election held under a general law, 7 
 and what national, 8 state, 9 county, 10 town, 11 or local officials are 
 to be elected, need not be established by evidence. 
 
 § 799. (B. What Facts are Covered by the Rule; [6] Facts 
 of History; State; Politics); Great National Parties. — The 
 
 general history of the great national parties is a fact of common 
 knowledge. In like manner, their common usages and customs 1 
 need not be proved by evidence. 
 
 Lally, 77 Ala. 422, 54 Am. Rep. 65 
 (1884). 
 
 Maryland. — Whitman v. State, 80 
 Md. 410, 31 Atl. 325 (1895). 
 
 Massachusetts. — Prince v . Crocker, 
 166 Mass. 347, 44 N. E. 446, 32 L. R. 
 A. 610 (1896). 
 
 Mississippi. — Puck«lt v. State, 71 
 Miss. 192, 14 So. 452 (1893). 
 
 Missouri/ — Rousey v. Wiood, 47< 
 Mo. App. 465 (1891); State v. 
 Mackin, 41 Mo. App. 99 (1890). 
 
 Virginia. — Thomas v. Com., 90 Va. 
 92, 17 S. E. 788 (1893). Where such 
 notice has been taken. 
 
 United States. — United States v. 
 Johnson, 2 Sawy. (U. S. C. C.) 482 
 (1873). The times legally appointed 
 for holding county and town elec- 
 tions are direct results of legislation 
 of which notice will be taken. 
 
 Indiana. — Urmston v. State, 73 
 Ind. 175 (1880). See also Rauch v. 
 Com., 78 Pa. St. 490 (1875). 
 
 4. Jackson Co. v. Arnold, 135 Mo. 
 207, 368 W. 662 (1896) (President 
 of the United States). 
 
 5. Alabama. — Lewis v. Rruton, 74 
 Ala. 317, 49 Am. Rep. 816 (1883). 
 
 Iowa. — State v. Minnick, 15 Iowa 
 123 (1863). 
 
 Kansas. — Ellis v. Reddin, 12 Kan. 
 306 (1873). 
 
 Missouri. — State v. Flynn, 119 Mo. 
 App. 712, 94 S. W. 543 (1906) 
 (Democrats cast over 10,000 votes) ; 
 Jackson County v. Arnold, 135 Mo. 
 207, 36 S. W. 662 (1896). 
 
 New York. — Taylor v. Rennie, 35 
 Barb. (N. Y.) 272 (1861). 
 
 United States. — U. S. v. Morrissey, 
 32 Fed. 147 (1887). The date of 
 elections in other states are not judi- 
 cially noticed. Taylor v. Rennie, 35 
 Barb. (N. Y.) 272 (1861). "The 
 August election is established by law, 
 and the time it is held should be 
 judicially taken notice of." Davis v. 
 Best, 2 Iowa 96 (1855). 
 
 6. Lewis v. Bruton, 74 Ala. 317, 
 49 Am. Rep. 816 (1883). 
 
 7. Wampler *. State, 148 Ind. 557, 
 47 N. E. 1068, 38 L. R. A. 829 
 (1897). 
 
 8. Jackson County v. Arnold, 135 
 Mo. 207, 36 S. W. 662 (1896) (Presi- 
 dent of the United States). 
 
 9. State v. Seibert, 130 Mo. 202, 
 32 S. W. 670 (1895) (prosecuting 
 attorney) ; Hizer v. State, 12 Ind. 
 330 (1859) (governor); State v. 
 Minnick, 15 Iowa 123 (1863) (secre- 
 tary of state) ; Ellis v. Reddin, 12 
 Kan. 306 (1873). 
 
 10. Wampler v. State, 148 Ind. 557, 
 47 N. E. 1068, 38 L. R. A. 829 
 (1897) (county superintendent) ; 
 Martin v. Aultman, 80 Wis. 150, 49 
 N. W. 749 (1891) (sheriff). See also 
 Urmston v. State, 73 Ind. 175 (1880). 
 
 11. State v. Minnick, 15 Iowa 123 
 (1863) (township trustee). 
 
 1. State v. Metcalf, (S. D. 1904) 
 67 L. R. A. 331, 100 N. W. 933. 
 
 Vol. I. 
 
 62 
 
§§ 800-802 Knowledge; Common. 978 
 
 § 800. (B. What Facts are Covered by the Rule; [6] Facts 
 of History; State; Politics); Results of Elections. — So any 
 
 legal contests as to such results, 1 or any other notorious facts con- 
 nected with a general election, such as the outcome of national, 
 state 2 or local 3 elections held within the state, will be noticed; — 
 especially as indicated by the official returns, 4 as that one of the 
 great national parties 5 submitted a ticket to the voters. In other 
 words, courts will take judicial notice of general state elections, 
 but not of special elections, unless their result is required by law 
 to be made a matter of record in a court originally having juris- 
 diction of a cause involving such election. 6 
 
 § 801. (B. What Facts are Covered by the Rule; [6] Facts 
 of History; State); Religion — Courts will know salient facts in 
 the religious history of the state, as the conflicting views of the 
 various Christian sects, 1 use of the Bible in the public schools, 2 
 the differences between the King James and Douay versions of 
 the Bible, 3 and the like. 
 
 § 802. (B. What Facts are Covered by the Rule; [6] Facts 
 of History); County. — N"otice will be taken of the more notori- 
 ous facts of county history ; — as the date of its organization, 1 its 
 
 1. Lewis v. Bruton, 74 Ala. 317, 5. State r. Downs, 148 Ind. 324, 
 49 Am.Rep. 816 (1883). 47 N. E. 670 (1897) (Republican). 
 
 2. State v. Swift, 69 Ind. 505 6. Gay v. City of Eugene, (Or. 
 (1880) (ratification of constitutional 1909) 100 Pac. 306. 
 
 amendment) ; Kokes v. State, 55 Neb. i. state v. District Board, 76 Wis. 
 
 691, 76 N. W. 467 (1898); State 177 (1890). 
 
 v. South Kingston, 18 R. I. 258, 2 . Pfeiffer v. Board of Education, 
 
 273, 27 Atl. 606 (1888) (that 118 Mich _ 560 , 77 N . W . 250, 48 
 
 many Seventh-day Baptists, living in l. r. a, 536 (1898). 
 
 a certain town, refused to vote at an 3, g ta te r. District Board, 76 Wis. 
 
 election held on Saturday); Thomas j 77 (1890). 
 
 v. Com., 90 Va. 92, 17 S. E. 788 1, Buckinghouse r. Gregg, 19 Ind. 
 
 (1893); Savage's Case, 84 Va. 582, 401 (1862); Ellsworth v. Nelson, 81 
 
 5 S. E. 563 (1888). i owa 57j 46 N . w. 740 (1890). See 
 
 3. Whitman r. State, SO Md. 410, a ] so Board of County Com'rs of 
 31 Atl. 325 (1894) (local option); Sheridan County r. Patrick, (Wyo. 
 Kokes v. State, 55 Neb. 691, 76 N. 1909) 104 Pac. 531; State r. Schnit- 
 W. 467 (1898) (county elections); ger) (W _ yix 1908) 95 Pac , 698 , But 
 Thomas v. Com., 90 Va. 92, 95, 17 see contra, Trimble r. Edwards, 84 
 S. E. 788 (1893). Tex. 497, 19 S. W. 773 (1892). 
 
 4. In re Denny, 156 Ind. 104, 59 Where incorporation is, as it were, 
 N. E. 359, 52 L. R. A. 722 (1901); by an act in pais, rather than by 
 State v. Stearns, 72 Minn. 200, 75 statute; for example, where, under a 
 N. W. 210 (1898). general law, county commissioners 
 
979 Population of County Need Not Be Proved. §§ 803, 804 
 
 political position during the Civil War, 2 whether at a particular 
 time in that epoch it was within the Union 3 or Confederate 4 lines, 
 or what has been the county seat at different times. 8 
 
 § 803. (B. What Facts are Covered by the Rule; [6] Facts 
 
 of History; County); Officials The incumbents of county offices 1 
 
 within the jurisdiction of the court, 2 their terms of office, 3 will 
 also be commonly known. 
 
 § 804. (B. What Facts are Covered by the Rule; [6] Facts 
 of History; County); Population, Public Buildings, etc. — The 
 
 official census population of the county 1 requires no proof. 2 
 Where, in the statutory classification of counties in .point of num- 
 
 establish a new county by dividing 
 an old one, the date of so doing must 
 be proved. Buckinghouse v. Gregg, 
 19 Ind. 401 (1862). 
 
 2. Kent v. Chapman, 18 W. Va. 
 485 (1881). That the courts of a 
 given county were open in 1861 and 
 1862 will be judicially known. Breck- 
 enridge Cannel Coal Co. v: Scott, 
 (Terni. 1908) 114 S. W. 930. 
 
 8. Dryden v. Stephens, 19 W. Va. 
 1 (1881). 
 
 4. Hix v. Hix, 25 W. Va. 481 
 (1885). 
 
 5. Ross v. Austill, 2 Cal. 183 
 (1852). 
 
 1. Kansas. — Ellis v. Reddin, 12 
 Kan. 306 (1873) (tax collector). 
 
 Louisiana. — Templeton v. Morgan, 
 16 La. Ann. 438 (1862) (tax col- 
 lector). 
 
 Minnesota. — State v. Gut, 13 Minn. 
 341 (1868) (auditor). 
 
 Missouri. — State v. Gates, 67 Mo. 
 139 (1877) (commissioner). 
 
 New Jersey. — Campbell v. Dewick, 
 20 N. J. Eq. 186 (1869) (constable 
 serving as tax collector). 
 
 New York. — New York v. Vander- 
 veer, 86 N. Y. Suppl. 659, 91 App. 
 Div. 303 (1904) (tax collector). 
 
 Pennsylvania. — Rauch v. Com., 78 
 Pa. St. 490 (1875) (treasurer). 
 
 Tennessee. — Fancher v. De Mon- 
 tegre, 1 Head (Tenn.) 40 (1858) 
 ( register ) . 
 
 Texas. — Burrow v. Brown, 59 Tex. 
 457 (1883) (sheriff). 
 
 West Virginia. — Greenbrier County 
 v. Livesay, 6 W. Va. 44 (1873) (su- 
 pervisor). 
 
 Wisconsin. — Martin v, Aultman, 
 
 80 Wis. 150, 49 N. W. 749 (1891) 
 (sheriff). 
 
 2. Arkansas. — Webb v. Kelsey, 66 
 Ark. 180, 49 S. W. 819 (1899). 
 
 California. — Wetherbee v. Dunn, 
 32 Cal. 106 (1867). 
 
 Illinois. — Thielmann v. Burg, 73 
 111. 293 (1874). 
 
 New York. — Farley v. McConnell, 
 7 Lans. 428 (1872). 
 
 South Carolina. — Whaler v. Law- 
 ton, 57 S. C. 256, 35 S. E. 558 
 (1899). 
 
 8. Ragland v. Wynn, 37 Ala. 32 
 (1860) (sheriff). 
 
 1. Thus, where it is claimed that 
 the population of a county is in 
 reality greater than as given by the 
 census, the fact must be proved. 
 Funderburg v. Augusta & A. Ry. Co., 
 
 81 S. C. 141, 61 S. E. 1075 (1908). 
 Actual population is not known to 
 
 the court, as matter either of com- 
 mon or judicial knowledge. Adams 
 v. Elwood, 176 N. Y. 106, 68 N. E. 
 126 (1903). 
 
 2. Supra, § 731. 
 
§§ 805,806 Knowledge; Common. 980 
 
 ber of inhabitants, a particular one may fall at any mentioned 
 date in its history, 3 and other facts relating to population,* is 
 probably a matter of judicial cognizance; certainly it is one of 
 common knowledge. The public institutions of a county, such as 
 a military reservation, 5 are matters of common, and, so far as 
 these are a direct result of public ]aws, also of judicial knowledge. 
 
 § 805. (B. What Facts are Covered by the Rule; [6] Facts 
 of History; County); Minor Details — . Minor details, of county 
 history, as whether there is a newspaper printed in it, 1 or ever 
 has been; whether more than one coroner has held office in it, 2 
 must be proved. 
 
 § 806. (B. What Facts are Covered by the Rule; [6] Facts 
 of History); Cities, Towns and Small Localities; Commercial 
 Growth — Notorious facts of city or town history are, as a rule, 
 inseparable from the more general history of the state or county. 
 Widely known facts in the commercial life of the large cities 
 within a given jurisdiction need not be proved to its courts. 
 Thus, the early difficulties in enlisting capital in the construction 
 of elevated railroads in ISTew York city 1 and the growth of traffic 
 due to their construction, 2 or a general fall in land values, 3 are 
 known to New York courts. In any state, the growth of business 
 in the great commercial centers, and the way in which it shows 
 itself in the character of the buildings constructed, 4 are facts to 
 which a court will not close its eyes. It is part of the common 
 knowledge of all men who in late years have observed the course 
 
 S. Alameda County t>. Dalton, (Cal. York, 40 N. Y. Suppl. 607, 8 App. 
 
 1905) 82 Pac. 1050. Where the jur- Div. 230 (1896). 
 
 isdiction of a court or magistrate is 2. Bookman v. New York El. R. 
 
 dependant upon the population of a Co., 137 N. Y. 302, 33 N. E. 333 
 
 county the court takes judicial knowl- [reversing 60 N. Y. Super. Ct. 493, 
 
 edge of the number of persons resid- 17 N. Y. Suppl. 951] (1893) ; 
 
 ing in it. Euckert t: Richter, 127 Streets r. New York El. R. Co., 79 
 
 Mo. App. 664, 106 S. W. 1081 (1908). Hun (N. Y.) 288, 29 N. Y. Suppl. 
 
 4. Whitly County v. Garry, 161 356 (1894). See also Sloane r. New 
 Ind. 464, 68 N. E. 1012. York El. R. Co., 137 N. Y. 595, 33 
 
 5. State V. Tully, (Mont. 1904) N. E. 335 [reversing 63 Hun 300, 17 
 78 Pac. 760. N. Y. Suppl. 769] (1893). 
 
 1. Atkeson v. Lay, 115 Mo. 538, 22 8. Walker v. Walker, 3 Abb. N. 
 S. W. 481 (1893) (that one ia pub- Cas - ( N - Y 12 (1887). 
 
 lished). 4 - Denegre v. Walker, 114 111. App. 
 
 2. Johnson v. Parke, 12 U. C. C. 234 (1904) [decree affirmed, 73 N. E. 
 P. 179 (1860). 409 (1905)] (Chicago). 
 
 1. Sun Printing, etc., Assoc, r. New 
 
981 City Officials and Their. Deputies. §§807,808 
 
 of events. The absolute and relative population of cities will be 
 known to the courts. 5 In general, any facts in the history of a city 
 which are either the direct result of law or commonly known in 
 the community need not be proved. 6 
 
 § 807. (B. What Facts are Covered by the Rule; [6] Facts 
 of History; Cities, Towns and Small Localities); Minor Pacts. 
 
 — But in all instances the fact should be of a public or general 
 nature, 1 and those of limited or merely local interest, such as the 
 private grants of land, even of considerable extent, 2 though, like 
 the quality of light furnished at a given time in a particular town 3 
 there may be an element of public interest, must, as a general 
 rule, be proved 4 in any but a local court. 5 
 
 The history of legislation regarding public municipalities will, 
 when relating to facts of notoriety, present the double claim to the 
 court's attention that they are facts both of judicial and of com- 
 mon knowledge. Thus, it will be known that the legislature has 
 favored and authorized certain encroachments on the public 
 streets of cities. 6 
 
 § 808. (B. What Facts are Covered by the Rule; [6] Facts 
 of History; Cities, Towns and Small Localities); Officials. — 
 
 In like manner, the court will know who are the principal officials 
 
 5. State ex rel. Crow v. Page, (Mo. 4. McKinnon v. Bliss, 21 N. Y. 
 App. 1904) 80 S. W. 912. That New 206 (1860) ; Morris v. Edwards, 1 
 York City is the only municipality in Ohio 189 (1822) ; Morris x>. Harmer, 
 the state whose population exceeds 7 Pet. (U. S.) 554, 8 L. ed. 781 
 that of a million persons need not be (1833) ; Stainer v. Droitwieh, 1 
 proved. In Board of Rapid Transit Salk. 281 (1695). A state court does 
 Com'rs, 112 N. Y. Suppl. 619, 128 not judicially know a particular 
 App. Div. 103 (1908). clearing house or the nature of the 
 
 Date of founding. — In this manner clearing house certificates issued by 
 
 no proof need be offered as to the it. Johnson v. State, (Ala. 1909) 
 
 age of a city. BaillieTe v. Atlantic 48 So. 792. 
 
 Shingle, etc., Co., 150 N. C. 627, 64 5. Guckenberger v. Dexter, 8 Ohio 
 
 S. E. 754 (1909) (Wilmington). S. & C. PI. Dec. 530, 5 Ohio N. P. 
 
 6. Agnew v. Pawnee City, (Neb. 520 (1898) (that bonds of a depart- 
 1907) 113 N. W. 236. ment of a city government have sold 
 
 1. Bogardus v. Trinity Church, 4 »' » premium). 
 
 Sandf. Ch. (N. Y.) 633, 724 (1847). 6 - Empire Realty Corp. v. Sayre, 
 
 2. McKinnon v. Bliss, 21 N. Y. 95 N - Y - Suppl. 371, 107 App. Div. 
 206 (1860). 415 (1905). 
 
 3. Chicago, I. & L. Ey. Co. v. Town 
 of Salem, (Ind. 1906) *76 N. E. 631, 
 634. 
 
809 
 
 KNOWLEDGE J CoilMOX. 
 
 982 
 
 of a city 1 in its executive 2 or legislative 3 departments; but the 
 knowledge does not cover the deputies appointed by these officials. 4 
 The same rule applies to town officers, so far as the facts are 
 notorious ; B but the reason of the rule excludes town constables. 
 
 § 809. (B. What Facts are Covered by the Rule); (7) Facts 
 
 of Business — Courts regard as commonly known the facts relat- 
 ing to business matters generally accepted as true in the com- 
 munity. " We cannot close our eyes," say the Supreme Court 
 of the United States, " to the well-known course of business in 
 the country.'" 1 This common course of business,* its instrumen- 
 talities, the distinctions between them usually made in various 
 branches, 3 and the changes which have taken place in it, 4 are 
 matters of such notoriety and generally recognized importance as 
 to warrant, and in a sense, require, that they be treated as mat- 
 ters of common knowledge. 5 That skill is needed for success in 
 professional 6 or business life ; that men engaged in commercial 
 
 1. The courts of Missouri decline 
 to take judicial notice of the officers 
 of a municipal corporation. State c. 
 Brown, 72 Mo. App. 651 656 (1897). 
 
 2. Himmelmann v. Hoadley, 44 
 Cal. 213 (1872) (superintendent of 
 streets) ; Fleugel e. Lards, 108 Mich. 
 682, 66 N. W. 585 (1896) (marshal) ; 
 St. Louis p. Greely, 14 Mo. App. 578 
 (1883) (street commissioner) ; Alford 
 V. State, 8 Tex. App. 545 (1880) 
 (marshal). 
 
 3. Fox v. Com., 81% Pa. St. 511 
 (1875) (aldermen). 
 
 4. Alford v. State, 8 Tex. App. 545 
 (1880) (deputy marshal). But see 
 Himmelmann v. Hoadley, 44 Cal. 213 
 (1872) (deputy superintendent of 
 streets ) . 
 
 5. Inglis v. State, 61 Ind. 212 
 (1878) (trustees). 
 
 6. Doe v. Blackman, 1 D. Chipm. 
 (Vt.) 109 (1797). 
 
 1. Bank of Kentucky v. Adams Ex- 
 press Co, 93 TJ. S. 185 (1876). 
 
 2. Illinois. — ■ Hart v. Washington 
 Park Club, 157 111. 9, 41 N. B. 620, 
 29 L. R. A. 492 (1895). 
 
 Indiana. — Howe v Provident Fund 
 Society, 7 Ind. App 586, 594, 34 N. E. 
 830 (1893) (that applications for in- 
 
 surance are usually made to agents 
 of the company ) . 
 
 Michigan. — City of Grand Rapids 
 v. Braudy, 105 Mich. 670, 64 N. W. 
 29, 32 L. R. A. 116 (1895) (thieves 
 dispose of stolen articles through 
 pawn brokers and junk dealers). 
 
 Minnesota. — Davis r. Kobe, 36 
 Minn. 214, 30 K W. 662, 1 Am. St. 
 663 (1886) (storing grain in ele- 
 vators). 
 
 United States. — Richards v. Michi- 
 gan, etc., R. Co., 40 Fed. 165 (1889). 
 
 3. City of Kansas City v. Butt, 88 
 Mo. App. 237 (1901) (between whole- 
 saler and manufacturer ) . 
 
 4. Gregory r. Wendell, 39 Mich. 
 337, 33 Am. Rep. 390 (1878) ; Wig- 
 gins Ferry Co. r. Chicago, etc., R. 
 Co., 5 Mo. App. 347 [reversed in 73 
 Mo. 389, 39 Am. Rep. 519] (1878); 
 Sacalaris r. Eureka, etc., R. Co., 18 
 Nev. 155, 51 Am. Rep. 737 (1883). 
 
 5. See Farmers', etc., Bank r. 
 Butchers', etc.. Bank, 28 N. Y. 431, 
 26 How. Pr. (N. Y.) (1863). 
 
 6. Wilkins r. State, 113 Ind. 514, 
 16 N. E. 192 (1887) (dentistry and 
 medicine). See also Pcnnock v. Ful- 
 ler, 41 Mich. 153, 32 Am. Rep. 148 
 (1879). 
 
983 Proof by Skilled Witnesses not Required. § 810 
 
 pursuits consult the recognized sources of business information 
 as, that in nautical affairs, they constantly refer to "American 
 Lloyds," " The Green Book," and the " Eecord Book," for the 
 standing of ships, 7 or, in giving credit, rely upon the reports of 
 commercial agencies, 8 are too notorious to require proof. The 
 commercial importance of cities, 9 the figures given by the census 
 as to the capital of the country and the form in which it is in- 
 vested, 10 require no proof. A court will regard as generally known 
 what business it is necessary should be carried on on Sunday. 11 
 
 Particular facts, in a limited art and covered by a specific 
 patent is a proper subject for evidence. 12 
 
 The extent and intimacy of commercial relations between two 
 ports may be so marked and extensive 13 as to be notorious. 
 
 § 810. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business); Evidence of Skilled Witness not Required The 
 
 jury need no expert assistance as to the methods of transacting 
 ordinary business which the average man does or may do, or has 
 occasion to observe understand ingly at frequent intervals. 1 For 
 example, general features of the business of selling lumber; 2 or 
 running wires, 2 are too well known to require professional aid, 
 though as to the more technical features of the business a dif- 
 ferent rule prevails. 4 In like manner, the distinctive duties of 
 bookkeepers, 5 entry clerks and the like, need not, in the average 
 case, be elucidated by skilled witnesses. Ability to conduct busi- 
 
 7. Slacovich r. Oriental Mut. Ins. Ga. App. 389, 58 S. E. 550 (1907) 
 Co., 108 N. Y. 5G (1888). (barber is not). 
 
 8. Furry v. O'Connor, 1 Ind. App. 12. Paraons v. Seelye, 100 Fed. 
 573, 579, 28 N. E. 103 (1891) ; Gene- 452, 40 C. C. A. 484 (1900). 
 
 see, etc., Bank r. Michigan Barge Co., 13. The Elihu Thompson, (Wash. 
 
 52 Mich. 164, 17 N. W. 790 (1883) ; 1905) 139 Fed. 89. 
 
 Eaton, etc., Co. r. Avery, 83 N. Y. 31 1. Georgia R., etc., Co. v. Hicks, 95 
 
 (1880) ; Wilmot v. Lyon, 7 Ohio Civ. Ga. 301, 22 S. E. 613 (1894). 
 
 Dec. 394 (1897). See also Holmes r. 2. Baldwin v. St. Louis, etc., R. Co., 
 
 Harrington, 20 Mo. App. 661 (1886). 68 Iowa 37, 25 N. W. 918 (1885)' 
 
 9. Wight V. Wolff, 112 Ga. 169, 37 (piling lumber) ; Brown v. Double- 
 S. E. 395 (1900) (Atlanta and day, 61 Vt. 523, 17 Atl. 135 (1889) 
 Savannah). (piling bark). 
 
 10. Wasson v. Indianapolis First 3. Flynn v. Boston Electric Light 
 Nat. Bank, 107 Ind. 206, 8 N. E. 97 Co., 171 Mass. 395, 50 N. E. 937 
 (1886) (national bank stock). (1898) ( among trees ) . 
 
 11. State v. Frederick, 45 Ark. 347, 4. Infra, § 820. 
 
 55 Am. Rep. 555 (1885) (barber's 5. McKay v. Overton, 65 Tex. 83 
 
 is not necessary) ; McCain v. State, 3 ■ (1885). 
 
811 
 
 Knowledge; Common. 
 
 98i 
 
 ness successfully, capacity to manage employees, 6 require uo 
 technically trained observer for their detection. 
 Certain of the more specific of these may be stated. 
 
 § 811. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business); Agriculture. — Notorious agricultural facts affect- 
 ing the nation at large, as, for example, the areas in which cer- 
 tain standard crops have been found to admit of successful 
 cultivation, e. g., that the great grain fields of America lie west 
 of the Hudson, 1 need" not be proved. In like manner, a court 
 will take judicial cognizance of the usual course of husbandry in 
 the jurisdiction for which it is sitting; 2 — and of ordinary soil 
 conditions within these limits. 3 The normal times of the year at 
 which the planting 4 and harvesting 5 of standard crops occur in 
 the government for which the court is sitting will be regarded 
 as matters of common knowledge. In a like way, the conditions 
 attending the growth of particular crops, as that rice cannot ma- 
 ture without the use of water, 6 that irrigation of arid lands is 
 necessary and, under certain conditions, feasible, 7 and the ability 
 
 6. Troy Fertilizer Co. v. Logan, 90 
 Ala. 325, 8 So. 46 (1890). 
 
 1. Soper v. Tyler, 77 Conn. 104, 
 58 Atl. 699 (1904) ; infra, §§ 887, 
 1971, 2387. 
 
 2. Alabama. — Wetzler r. Kelly & 
 Co., 83 Ala. 440, 3 So. 747 (1887). 
 
 Arkansas, — ■Person v. Wright, 35 
 Ark. 169 (1879). 
 
 California. — Malioney r. Aurreco- 
 chea, 51 Cal. 429 (1876). 
 
 Indiana. — Ress v. Boswell, 60 Ind. 
 235 (1877). 
 
 Iowa. — Raridan v. Central Iowa R. 
 Co., 69 Iowa 527, 530 (1886). 
 
 Minnesota. — Prudoehl v. Randall, 
 108 Minn. 185, 121 N. W. 913 (1909) 
 ( providing fuel ) . 
 
 Missouri. — Garth v. Caldwell, 72 
 Mo. 622 (1880). 
 
 Oklahoma. — Payne i\ McCormick, 
 etc., Co., 11 Okla. 313, 66 Pac. 287 
 (1901). 
 
 S. City of Chicago v. Duffy, 117 
 111. App. 261 (1904). 
 
 4. Wetzler r. Kelly, 83 Ala. 440, 3 
 So. 747 (1887) (cotton); Person V. 
 
 Wright, 35 Ark. 169 (1879) ; Abshire 
 V. Mather, 27 Ind. 381 (1866). 
 
 5. Floyd t\ Ricks, 14 Ark. 286, 58 
 Am. Dec. 374 (1853); Mahoney c. 
 Aurreeochea, 51 Cal. 429 (1876) ; 
 Garth v. Caldwell, 72 Mo. 622 (1880) ; 
 Piano Mfg. Co. v. Cunningham, 73 
 Mo. App. 376 (1897). 
 
 The general limits of the pasturage 
 season in a particular climate are 
 well known. Ross i". Boswell, 60 Ind. 
 235 (1877). 
 
 G. Ban- v. Cardiff, (Tex. Civ. App. 
 1903) 75 S. W. 341 (1903). 
 
 7. Crawford Co. v. Hathaway, 
 (Neb. 1903) 93 N. W. 781 [citing 
 Ramelli r. Irish, 96 Cal. 214, 31 Pac. 
 41 (1892); Judkins i\ Elliot. (Cal. 
 1886) 12 Pac. 116; Low v. Schaffer, 
 24 Or. 239, 33 Pac. 678 (1893); 
 Speake l\ Hamilton, 21 Or. 3, 26 Pac. 
 855 (1890) ; Kaler v Campbell, 13 
 Or. 596, 11 Pac. 301] (1886). 
 
 Local customs as to irrigation, 
 though sanctioned in mass by a fed- 
 eral statute (Lewis v. McClure, 8 Or. 
 273 [1880]) must be proved. 
 
985 Familiar Facts Concerning Crops. §§ 812,813 
 
 of certain sections of the country to grow crops, 8 need not be 
 proved. But the precise date of maturity of a crop, variable in 
 this particular, must be shown by evidence. 
 
 Ordinary farm practices, as using a scythe to cut weeds, 10 being 
 matters of notoriety about which reasonable men do not differ, 
 will be regarded as matters of common knowledge. 
 
 Minor customs, especially those of a doubtful nature, e. g. ; 
 leaving the hay-shoots in a barn open 11 must be established by the 
 party who relies upon them. 
 
 § 812. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business; Agriculture); Animals. — The names and char- 
 acteristic qualities and uses of ordinary farm animals, 1 or common 
 instruments of husbandry, 2 are known to the court, — probably as 
 part of its duty to know the meaning of ordinary English words. 3 
 A judge does not know the management of horses 4 — that a fence 
 which will restrain sheep will also restrain hogs, 5 or that inspec- 
 tion of fresh beef will not show whether it is diseased. 6 Such 
 facts must be proved. 
 
 § 813. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business; Agriculture); Crops. — The judge knows at least 
 the name and general character of ordinary farm products. It 
 need not, for example, be proved that fruit crops do not, in cer- 
 
 8. Gatling v. Newell, 9 Ind. 573, as a loaded pistol or an axe." Ham- 
 583 (1857) (that Ohio, Minnesota ilton v. People, 113 111. 34 (1885). 
 and Michigan are wheat growing 3. Supra, § 762. 
 
 states ) . 4. Chicago City R. Co. v. Smith, 54 
 
 9. Dixon v. Niccolls, 39 111. 372, 89 111. App. 415, 417 (1894) (the court 
 Am. Dec. 312 (1866) ; Culverhouse v. knows as little about managing 
 Worts, 32 Mo. App. 419 (1888). See horses, refractory or otherwise, as it 
 also Gove v. Downer, 59 Vt. 139, 7 knows about navigating a steamship 
 Atl. 463 (1886). in a storm across the Atlantic ocean) . 
 
 10. Post v. Chicago, B. & Q. Ry. 5. Enders v. McDonald, 5 Ind. App. 
 Co., 121 Mo. App. 562, 97 S. W. 333 297, 31 N. E. 1056 (1892). 
 
 (1906). 6. Minnesota v. Barber, 136 U. S. 
 
 11. Moellman v. Gieze-Henselmeir 313, 10 8. Ct. 862, 34 L. ed. 455 
 Lumber Co., (Mo. App. 1908) 114 (1890). 
 
 S. W. 1023. 1. Putnam v. St. Louis Southwest- 
 
 1. Shubrick v. State, 2 S. C. 21 em Ry. Co. of Texas, (Tex. Civ. App. 
 (1870) ("sow"); State v. Abbott, 1906) 94 S. W. 1103 (no pears or 
 20 Vt. 537 (1848) ("steer"). apples on trees in January). Courts 
 
 2. Hamilton v. People, 113 111. 34 know that it requires more than a 
 (1885) (hoe). "A hoe, both in pop- month to raise a crop of cotton, 
 ular and legal signification, is per se First Nat. Bank v. Rogers, (Okl. 
 a deadly weapon, — fully as much so 1909) 103 Pae. 582. The judge will 
 
§§ 814,815 
 
 Knowledge; Common. 
 
 986 
 
 tain states, grow in winter. 1 But such knowledge is, as a rule, 
 general and does not involve intimate and thorough acquaintance. 2 
 
 § 814. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business; Agriculture); Stock Eaising. — The court knows 
 the custom of cattle owners to depasture unsurveyed public land, 1 
 and that pasturing on such lands by anyone is slight evidence of 
 possession. 2 That in New Mexico and other parts of the western 
 portion of the American Union owners recognize their cattle, 
 grazing over large tracts of country, only by the marks branded 
 upon them, 3 is too well known to require proof. 
 
 § 815. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business); Banking — " The general course of business in a 
 community, including the universal practice of banks," is a matter 
 " of which courts may take judicial notice." * The existence of 
 banks in large centers of commercial life need not be proved. 2 In 
 like manner, the hours for banking 3 and general practice of the 
 banking business, so far as it affects or is, for other reasons, ob- 
 
 know, as other people do, that at a 
 certain time of the year particular 
 crops have matured. McCullough r. 
 Rucker, (Tex. Civ. App. 1908) 115 
 S. W. 323. 
 
 2. " We are not called upon or 
 qualified by any knowledge which we 
 possess to determine the merits or de- 
 fects of the -well-known substances 
 [butter and oleomargarine] which 
 this statute was intended to sup- 
 press." Northwestern Mfg. Co. v. 
 Chambers, 58 Mich 381 (1885). How 
 often Johnson grass goes to seed 
 each year is not a matter of common 
 knowledge. International & G. N. R. 
 Co. v. Voss, (Tex. Civ. App. 1908) 
 109 S. W. 984. 
 
 1. Mathews v. Great Northern R. 
 Co., 7 N. D. 81, 72 N. W. 1085 
 (1897) ; infra, §§ 888, 1975, 2446. 
 
 2. Whitney v. U. S., 167 U. S. 529, 
 17 S. Ct. 857, 42 L. ed. 263 (1897). 
 
 3. Terr. v. Denver & R. G. R. Co., 
 203 U. S. 38, 27 8. Ct. 1, 51 L. ed. 
 78 (1906) [affirming (N. M. 1904) 
 78 Pac. 74]. 
 
 1. Hunter v. N. Y., etc., R. R., 116 
 
 N. Y. 615 (1889); Merchants' Bank 
 v. Hall, 83 N. Y. 338 (1881) ; Yerkes 
 v. National Bank, 69 N. Y. 383 
 (1877) ; infra, § 834. 
 
 2. Lewis, Hubbard & Co. v. Mont- 
 gomery Supply Co., (W. Va. 1906) 
 52 S. E. 1017. 
 
 3. Salt Springs Nat. Bank v. Bur- 
 ton, 58 N. Y 430, 17 Am. Rep. 365 
 (1874); Lewis, Hubbard & Co. v. 
 Montgomery Supply Co., (W. Va. 
 1906) 52 S. E. 1017 (in cities and 
 large towns not earlier than 9 A. M.) ; 
 Calisher v. Forbes, L. R 7 Ch. 109, 
 41 L. J. Ch. 56, 25 L. T. Rep. N. S. 
 772, 20 Wkly. Rep. 160 (1871) ; Jam- 
 eson v. Swinton, 2 Campb. 373, 3 
 Taunt. 224 (1809); Hare v. Henty, 
 10 C. B. N. S. 65, 7 Jur. N. S. 523, 
 30 L. J. C. P 302, 4 L. T. Rep. N. S. 
 363, 9 Wkly. Rep. 738, 100 E. C. L. 
 65 (1861) ; Parker v. Gordon, 7 East 
 385, 6 Esp. 41, 3 Smith K. B. 358, 8 
 Rev. Rep. 646 (1806). In case of 
 presentment of a negotiable instru- 
 ment in a foreign jurisdiction, the 
 court cannot take judicial notice of 
 what constitutes reasonable hours of 
 
987 
 
 Banking Facts Affecting the Public. 
 
 § 815 
 
 vious to the general public, will be noticed. 4 Thus, as to the 
 internal affairs of the bank it is commonly known that employees 
 other than the cashier must have access to the money of the bank, 8 
 that it is customary for banks to renew or extend the obligations 
 of their customers on payment of new discount. 6 In the same 
 way, the general nature of the business done by banks, as collect- 
 ing mercantile obligations, with collaterals attached, 7 receiving 
 deposits, authenticating certificates of deposit or notes for circu- 
 lation, certifying cheques, 8 will be regarded as already known. 
 The rights and duties of depositors, as that the depositor is allowed 
 to cheque out his funds, 9 but is expected to know and conform to 
 the usages of the bank, 10 these and minor facts known to the mer- 
 cantile community 11 will be judicially, i. e., commonly known. 
 The general custom of bankers and others, in connection with the 
 protest of negotiable paper, of observing Sundays and great holi- 
 days like Christmas, 12 to present for payment on the day follow- 
 ing the third day of grace, 13 stand in the same position. But 
 banking customs distinctly local as allowing grace on instruments 
 not entitled to it by law, 14 or minor specific facts, as whether there 
 is a bank in a particular town, 15 cannot be so treated. A court 
 
 a, business day there but it is a mat- 
 ter of proof. Columbian Banking 
 Co. v. Bowen, (Wis. 1908) 114 N. W. 
 451. 
 
 4. Agawam Bank t'. Strever, 18 
 N. Y. 502 (1859). See also Selleck 
 V. Manhattan Fire Alarm Co., 117 N. 
 Y. Suppl. 964 (1909) (use of col- 
 lateral) ; Mason v. Nelson, 148 N. C. 
 
 492, 62 S. E. 625, 18 L. R. A. (N. 
 S.) 1221 (1908) (discounting bank 
 does not assume certain contracts). 
 Bearer bonds, foreign or English, are 
 known to be negotiable. Edelstein v. 
 Schuler, 71 L. J. K. B. 572, [1902] 
 2 K. B. 144, 87 L. T. 204, 50 W. R. 
 
 493, 7 Com. Cas. 172, per Bigham, J. 
 
 5. La Rose v. Logansport Nat. 
 Bank, 108 Ind. 332, 1 N. E. 805 
 (1885). 
 
 6. Merchants' Nat. Bank v. Hall, 
 83 N. Y. 338, 38 Am. Rep. 434 
 [affirming 18 Hun 176] (1881). 
 
 7. Birmingham First Nat Bank V. 
 Newport First Nat. Bank, 116 Ala. 
 530, 22 So. 976 (1897). 
 
 8. Farmers', etc., Bank v. Butchers', 
 etc., Bank, 28 N. Y. 425 (1863). The 
 habit of banks to " certify " cheques 
 is known to the courts. United 
 ■States v. Heinze, (N. Y. 1908), 161 
 Fed. 425. 
 
 9. Munn v. Burch, 25 111. 35 
 (1860). 
 
 10. American Nat. Bank v. Bushey, 
 45 Mich. 135, 7 N. W. 725 (1881). 
 
 11. Citizens' State Bank v. Cowles, 
 39 Mise. (N. Y.) 571, 80 N. Y. Suppl. 
 598 (1903) (New York city cheques 
 are in demand and command a, pre- 
 mium). 
 
 12. Sasscer v. Farmers' Bank, 4 Md. 
 409 (1853). 
 
 13. Columbia Bank v. Fitzhugh, 1 
 Harr. & G. (Md.) 239 (1827). 
 
 14. Tranter v. Hibbard, 108 Ky. 
 265, 56 6. W. 169, 21 Ky. L. Rep. 
 1710 (1900) (payable in another 
 state) ; Goddin v. Shipley, 7 B. Mon. 
 (Ky.) 575 (1847). 
 
 15. Bartholomew v. Bank, 18 Wash. 
 683, 62 Pac. 239 (1898). 
 
§§ 816,817 Knowledge; Common. 988 
 
 will not treat as common knowledge the fact that " bills " means 
 bank bills. 16 
 
 § 816. (B. What Facts are Covered by the Rule ; [7] Facts 
 
 of Business); Building Trades. — The nature, quality 1 and use of 
 common building materials, including those used in paving, 2 need 
 not be proved. That certain of these articles are not kept in 
 stock but must be specially prepared for use as needed, 3 has also 
 been treated as matter of common knowledge. 
 
 Facts of local interest or knowledge, as that " waterstone " 
 means the same as " cobblestone," 4 must be proved. 
 
 Sanitation. — A court will know, as a matter of common knowl- 
 edge, the purposes in connection with building construction of 
 doing certain acts such as underdraining cellars or subcellars with 
 tile, 5 designed for improving hygienic conditions. Courts, for ex- 
 ample, take judicial notice of the reason for placing perforated 
 pipes in cellars and subcellars and connecting them with valves 
 on the outside of the building. 6 
 
 § 817. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business); Education Notorious facts relating to the inter- 
 ests of education are commonly known to the courts. Thus, the 
 existence of the great national institutions of learning 1 or their 
 objects, need not be proved. The well-known history of educa- 
 tional work, as that methods of instruction change from time to 
 time 2 and the various branches, as the kindergarten, 3 through 
 
 16. Hart v. State, 55 Ind. 599, 601 6. Lantry v. Hoffman, 109 N. Y. 
 
 (1877). Suppl. 1135, 124 App. Div. 937 (1908) 
 
 1. Conde v. Schenectady, 29 N. Y. [affirmed, 105 N. Y. Suppl. 353, 55 
 App. Div. 604, 51 N. Y. Suppl. 854 Misc. 261 (1907)]. 
 
 (1898) (best quality of lake asphal- 1. In re Oxford Eate Poor-Eate, 
 
 turn " requires use of product of Lake 8 E. & B. 184, 92 E. C. L. 184 
 
 Asphaltum in island of Trinidad"); (1857) (University of Oxford). The 
 
 infra, §§ 883, 1958, 2382. State University will be known to 
 
 2. Duty v. Jackson, 69 Minn. 342, be at Eugene. Mayhew v. City of 
 72 N. W. 568 (1897) ; Doyle v. New Eugene, (Or. 1909) 104 Pac. 727. 
 York, 69 N. Y. Suppl. 120, 58 App. 2. People v. Maxwell, 84 N. Y. 
 Div. 588 (1901); Conde v. Schenec- Suppl. 947, 87 App. Div. 391 (1903) 
 tady, 51 N. Y. Suppl. 854, 29 App. (25 years). The court will know, 
 Div. 604 (1898). as a matter of common knowledge, 
 
 3. Duby v. Jackson, 69 Minn. 342, that by reason of these changes, one 
 72 N. W. 568 (1897) ("crushed competent to teach 20 years ago is 
 Btone " ) . not necessarily so at the present 
 
 4. Doyle v. New York, 69 N. Y. time. People v. Maxwell, 84 N. Y. 
 Suppl. 120, 58 App. Div. 588 (1901). Suppl. 947, 87 App. Div. 391 (1903). 
 
 5. Lantry v. Hoffman, 55 Misc. 8. Sinnott V. Colombet, 107 Colo. 
 (N. Y.) 261, 105 N. Y. Suppl. 353 187, 40 Pac. 329 (1895). 
 
 (1907). 
 
989 Common Mechanical Devices Known. §§ 818-820 ' 
 
 which educational work is customarily carried on, will be regarded 
 as well-established facts. 
 
 § 818. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business) ;' Insurance ; Fire. — Common methods of conducting 
 the business of fire insurance, 1 as that applicants, as a rule, resort 
 to the representatives of the insurance companies in order to place 
 their risks, 2 will he treated as commonly known. So of other 
 usual incidents of the business, as that the risk from fire is 
 greater in November than in June. 3 Proof will not be required 
 that certain acts which obviously increase the risk assumed by 
 insurance companies as the storage of explosives* or leaving build- 
 ings vacant, 6 have that effect. 
 
 § 819. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business; Insurance) ; life. — Notorious facts regarding the 
 business of life insurance, as that formal application accompanied 
 by a medical examination of the applicant is usually required, 1 is 
 part of the common knowledge of the community. In rendering 
 a particular life uninsurable, the effect of certain habits, such as 
 habitual drunkenness, 2 need not be proved, unless it be a con- 
 stituent fact. 
 
 § 820. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business); Mechanic Arts. — Long-established and familiar 
 methods of achieving mechanical results, are well known in the 
 community and need not, therefore, be proved by evidence. The 
 fact is of constant use in patent causes in respect to the " state of 
 the art " in any given connection. Thus, a court will know for 
 itself as to the ordinary operation of an ice cream freezer, 1 the 
 
 1. Williams v. Niagara F. Ins. Co., Customary methods of conducting 
 50 Iowa 561 (1879) (adjusting loss) ; the business of life insurance need 
 Perkins v. Augusta Ins. Co., 10 Gray not be proved. Thus, it is a. matter 
 (Mass.) 312, 77 Am. Dec. 654 (1858) ; of common knowledge that life insur- 
 infra, §§ 890, 1976, 3393. ance is solicited by agents. Modern 
 
 2. Howe i>. Provident Fund Society, Woodmen of America c. Lawson, ( Va. 
 7 Ind. App. 586, 594, 34 N. E. 830 1909) 65 S. E. 509 (use of agents) ; 
 (1893). infra, §§ 891, 1976, 2396. 
 
 3. Barry r. Boston, etc., Ins. Co., 2. Rawls v. American Mut. L. Ins. 
 62 Mich. 424, 29 N. W. 31 (1886). Co., 27 N. Y. 282, 84 Am. Dec. 280 
 
 4. Belcher V. Capital F. Ins. Co., (1863). 
 
 78 Minn. 240, 80 N. W. 971 (1899). 1. Brown v. Piper, 91 U. S. 37 
 
 5. White i'. Phoenix Ins. Co., 83 (1875); supra, § 765; infra, §§ 902, 
 Me. 279, 22 Atl. 167 (1891). 1988, 2404. 
 
 1. Taylor v. Grand Lodge A. O. 
 U. W., 101 Minn. 72, 111 N. W. 919 
 (1907). 
 
§§ 821, 822 Knowledge; Common. 990 
 
 effect of a winnowing machine in separating chaff and other light 
 substances of little or no value from grain and the like. 2 In gen- 
 eral, courts will, in patent and other appropriate cases, notice, as 
 facts of common knowledge devices in common use which may be 
 similar to or identical with in point of principle, those utilized 
 in a given device. 3 The general nature of the means employed 
 for extracting crude petroleum and natural gas from the soil, and 
 the necessity of boring in order to detect their presence in the 
 soil at a particular point, 4 are already known to the court. 
 
 Dangerous Devices. — Where a machine or mechanical appli- 
 ance is notoriously dangerous or harmless 5 the court will know it. 
 Where, however, an act is not obviously and palpably dangerous, 
 the fact of danger cannot be taken to be one of common knowledge. 6 
 
 § 821. (B. What Facts are Covered by the Rule; [7] Facts 
 
 of Business); Mercantile Agencies. — The customary method of 
 conducting the business of a mercantile agency 1 will be known to 
 the court. 
 
 § 822. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business); Mining. — The business of mining and the methods 
 and instrumentalities by which it is customarily conducted are 
 familiar to communities in which mining is a prominent feature 
 of industrial life. 1 The court, therefore, may dispense with proof 
 of them, or of the common use of hoppers, chutes 2 and other ap- 
 paratus or workings. 3 Usages common to all districts with re- 
 gard to the location of claims, as designating mines by a serial 
 
 2. Baker v. F. A. Duneombe Mfg. (Tenn. Ch. App. 1900) 62 S. W. 186. 
 Co., 146 Fed. 744, 77 C. C. A. 234 1. Fox r. Hale, etc , Silver Min. 
 (1906). Co., 108 Cal. 369, 41 Pac. 308 (1895) ; 
 
 3. Baker v. F. A. Buncombe Mfg. supra, § 795; infra, §§ 908, 203.:. 
 Co., 146 Fed. 744, 77 C. C. A. 234 2430. 
 
 (1906). 2. Black Diamond Ooal-Min. Co. 
 
 4. State v. Indianapolis Gas Co., r. Excelsior Coal Co., 156 U. S. 611, 
 (Ind. 1904) 71 N. E. 139. 15 S. Ct. 482, 39 L. ed. 553 (1895). 
 
 5. Dolan v. Callender, McAuslan & 3. " The true meaning of such ex- 
 Troup Co., 26 R. I. 198, 58 Atl. 655 pressions as shaft, tunnels, levels, 
 (1904) (double-swing doors). chutes, slopes, uprisings, crossings, 
 
 6. Herlihy i\ Little, 200 Mass. 284. inclines, etc., signifies instrumental- 
 86 N. E. 294 (1908) (full shipper ities whereby and through which such 
 of elevator ) . mines are opened, developed, pros- 
 
 1. Holmes v. Harrington, 20 Mo. pected, improved and worked," need 
 
 App. 661 (1886); Wilmot v. Lyon, not be proved. Hines r. Miller, 122 
 
 11 Ohio Cir. Ct. 238, 7 Ohio Cir. Cal. 517, 519, 55 Pac. 401 (1898). 
 Dec. 394 (1888); Ernst v. Cohn, 
 
991 Knowledge of Minor Facts of Business. § 823 
 
 number above or below a common base, known as " No. 1," 4 need 
 not be proved. The ordinary dangers of mining, as that coal 
 mines generate gas, 5 or that it is inherently dangerous to use 
 dynamite in tunnelling under a closely populated district, 6 will 
 be known to the court. So proof need be offered that mining for 
 certain minerals or other valuable products 7 is conducted in the 
 court's jurisdiction. 
 
 § 823. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business) ; Minor Business Facts. — But local usages, 1 as those 
 relating to the location of claims in a particular district, 2 even 
 when confirmed, in mass, by a public statute, 3 must be established 
 by evidence; as also the minutiae or technicalities of the business 
 which are matters distinctly and solely of trade skill. The court, 
 for example, does not know how a salt well should be bored. 4 In 
 Florida, where a leading industry is the production of rosin and 
 turpentine, otherwise known as " naval stores," courts " judici- 
 ally " know that these products are manufactured from gum ex- 
 tracted from pine trees; and that the crude gum is called " dip " 
 because dipped up from " boxes " cut into the growing pine trees 
 near the ground. 5 The minor business facts which a court will 
 regard as matters of common knowledge may well occupy a wide 
 range. Thus, in mercantile affairs, the regular course of business 
 is a matter of common knowledge. 6 In like manner facts com- 
 
 4. Butler v. Good Enough Min. Co., United States. — Meydenbauer v. 
 1 Alaska 246 ( 1901 ) . A method of Stevens, 78 Fed. 787 ( 1897 ) . 
 numbering mining claims common to 2. Poujade v. Ryan, 21 Xev. 449, 
 all the districts of a state may be 33 Pae. 659 (1893). 
 
 noticed as a matter of common knowl- 3. Sullivan v. Hense 2 Colo. 424, 
 
 edge. Butler v. Good Enough Min. 429 (1874). 
 
 Co., 1 Alaska 246 (1901). 4. Clark r. Babcock, 23 Mich. 164 
 
 5. Poor v. Watson, 92 Mo. App. 89 (1871). It cannot be known that the 
 (1902). cutting and boxing of pine trees for 
 
 6. City of Chicago v. Murdoch, 113 turpentine, destroys their value as 
 111 App. 656 (1904). timber, such not being a uniform re- 
 
 7. State v. Jacksonville, (Fla. 1904) suit of experience. Board of .Sup'rs of 
 37 So. 652 (phosphate). Hancock Co. r. Imperial Naval Stores 
 
 1. California. — Harvey v. Ryan, 42 Co., (Miss. 1908) 47 So. 177. 
 
 Cal. 626 (1872). 5. Knight n. Empire Land Co., (Fla. 
 
 Colorado. — Sullivan v. Hense, 2 1908) 45 So. 1025. 
 
 Colo. 424 (1874) 6. Grant v. Powers Dry Goods Co., 
 
 Montana.— King v. Edwards, 1 (S. D. 1909) 121 N. W. 95 (mortgag- 
 
 Mont. 235 (1870) ing entire stock ) . The general deteri- 
 
 Nevada. — Ponjade v. Ryan, 21 Nev. oration of stock will be noticed. 
 
 449, 33 Pac. 659 (1893). People v. State Board of Tax Com'rs, 
 
§ 824 
 
 Knowledge ; Common. 
 
 992 
 
 monly known in the paving trade, e. g., that certain pavements 
 are not laid during the winter months, 7 need not be established 
 by evidence. A court cannot take judicial knowledge of the dif- 
 ferent methods or systems of bookkeeping. 8 
 
 § 824. (B. What Facts are Covered by the Rule; [7] Facts 
 
 of Business) ; Professional Services ; Legal. — The court knows 
 without proof what occupations are properly classified as profes- 
 sions. 1 As members of the legal profession judges are familiar 
 with the usual methods of conducting legal business. It will not 
 be necessary, for example, to prove that in order to collect a note, 
 an attorney is obliged to render valuable services, 2 the general 
 range of compensation for professional services, 3 or as to what is 
 the usual course of conveyancing. 4 But unusual matters, as the 
 meaning of the phrase " cost book principle," when applied to 
 mining, 5 cannot be so treated. 
 
 196 N. Y. 39, 89 N. E. 581 (1909) 
 [order modified, 1 12 N. Y. Suppl. 392, 
 128 App. Div. 13 (1908)]; [reargu- 
 ment denied, 197 N. Y. 33, 90 N. E. 
 112]. The rate of interest necessary 
 to attract investors is known to the 
 courts. People v. State Board of 
 Tax Com'rs, 196 N. Y. 39, 89 N. E. 
 581 (1909) [order modified, 112 N. 
 Y. Suppl. 392, 128 App. Div. 13 
 (1908)]; [reargument denied, 197 N. 
 Y. 33, 90 N. E. 112]. 
 
 " Cost book principle." — The court 
 originally declined to take judicial 
 notice of the nature of an association 
 on the cost-book principle. In re 
 Bodmin United Mines, 23 Beav. 370, 
 26 L. J. Ch. 570 (1857), Romilly, 
 M. R. The constitution of these as- 
 sociations has, however, since been 
 recognized by the legislature in Stan- 
 naries Act, 1869, 32 & 33 V. c. 19. 
 
 In England " when a general usage 
 has been judicially ascertained and 
 established, it becomes part of tiie 
 law merchant which courts of justice 
 are bound to recognize." Brandao r. 
 Barnett, 3 C. B. 519, 530 (1857), 
 per Ld. Campbell, 0. See also Edel- 
 stein v. Schuler, S K. B. 144 (1902) 
 (bonds to bearer) ; Ex parte Reyn- 
 olds, 15 Q. B. D. 184, 185 (1885), 
 
 per Brett, M. R. ; Lethulier's Case, 
 2 Salk. 443 (1822). 
 
 7. Barber Asphalt Pav. Co. r. City 
 of Wabash, (Ind. App. 1909) 86 X. 
 E. 1034. 
 
 8. Walker Bros. r. Skliris, 34 Utah 
 353, 98 Pac. 114 (1908). 
 
 1. O'Reilly r. Erlanger, 95 N. Y. 
 Suppl. 760, 108 App. Div. 318 (1905) ; 
 infra, § 910. 
 
 2. Stephenson v. Allison, 123 Ala. 
 439, 26 So. 290 (1898). 
 
 3. Gates v. McClenahan, (Iowa 
 1905) 103 N. W. 969 No further 
 evidence than the record of the pro- 
 ceedings will be required. Pearce t\ 
 Albright, (N. Mex. 1904) 76 Pac. 286. 
 It will be noticed that a charge of 
 $50 for collecting $268.26 is a reason- 
 able attorney-fee. Warnock r. Ita- 
 wis, 38 Wash. 144, 80 Pac. 297 (1905). 
 
 4. Doe v, Hilder, 2 B. & Aid. 7S2, 
 21 Rev. Rep. 488 (1819); Rowe r. 
 Grenfel, R. & M. 396, 37 Rev. Rep. 
 761, 21 E. C. L. 778 (1824); Wil- 
 loughby r. Willoughby. 1 T. R. 763, 
 
 1 Rev. Rep. 397 (1787). 
 
 5. Matter of Pennant, etc., Consol. 
 Lead Min. Co., 4 De G. M. & G. 2S5, 
 
 2 Eq. Rep. 944, 22 L. J. Ch. 692, 2 
 Wkly. Rep. 282, 43 Eng. Reprint 517 
 (1854). 
 
993 Kaileoad Customs Need Xot Be Proved. §§ 825-828 
 
 § 825. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business; Professional Services); Medical. — A court will 
 treat medical terms, even of a technical class, requiring resort to 
 standard medical works necessary, 1 as matters of common knowl- 
 edge. 
 
 § 826. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business); Railroading. — In matter of fact, moreover, the 
 community is familiar with the certain general, obvious facts, con- 
 cerning the construction and operation of railroads ; — ■ and, as 
 part of the community, judges and juries take them for granted 
 as among the data of a judicial investigation. The general 
 features of the railroad-operating business 1 require no proof by 
 skilled witnesses. 
 
 § 827. (B. What Facts are Covered by the Rule; [7] Facts 
 
 of Business; Railroading); Construction Among these facts 
 
 are those usually attending the laying ■ out of such roads ; — as 
 that its lines are located and grades established by the company's 
 engineers. 1 
 
 But minor details of construction, as that a railroad is fenced 
 in as the roadbed is built 2 the court may reasonably require 
 should be proved. 
 
 § 828. (B. What Facts are Covered by the Rule); [7] Pacts 
 
 of Business; Railroading); Customs — Business customs estab- 
 lished in case of railroad transportation, as that of carrying com- 
 mercial samples as personal baggage, 1 may well be regarded as 
 matters of common knowledge. 
 
 1. State v. Wilhite, (Iowa 1907) tiles); supra, § 796; infra, §§ 919, 
 
 109 N. W. 730 ("pathological 2035, 2435. 
 
 neurology"); supra, § 766; infra, 1. Alabama, etc., R. Co. v. Coskry, 
 
 §§ 911, 1991, 2413. 92 Ala. 254, 9 So. 202 (1890). In 
 
 1. Illinois Cent. R. Co. v. People, like manner the art of measuring 
 
 143 111. 434, 33 N. E. 173, 19 L. R. railroad embankments, need not be 
 
 A. 119 (1892) (running passenger proved. Scanlan v. Ry. Co., (Cal. 
 
 trains) ; Moore v. Chicago, etc., Ry. 1898) 55 Pae. 694. 
 
 Co., 65 Iowa 505, 22 X. Y T . 650, 54 2. Chicago & M. Electric R. Co. v. 
 
 Am. Rep. 26 (1885) (qualification of Diver, 213 111. 26, 72 N. E. 758 
 
 baggage master); Stumore v. Shaw, (1904). 
 
 68 Md. 11, 11 Atl. 360, 6 Am. St. Rep. 1. Fleischman, Morris & Co. v. 
 
 412 (1887) (freighting); Nutt v. Southern Ry., 76 S. C. 237, 56 S. E. 
 
 Southern Pac. R. Co., 25 Or. 291, 974, 9 L. R. A. (N. S.) 519 (1907). 
 35 Pac. 653 (1894) (unloading drain 
 
 Vol. I. 63 
 
§§ 829, 830 Knowledge ; Common. 991 
 
 General facts in relation to railroad operation, as that a road 
 engaged in interstate commerce may operate certain trains en- 
 tirely within the state, 2 will be treated as notorious. The practice 
 of trainmen to call out the name of the station, and the effect of 
 such a notice in constituting an invitation to alight 3 are known to 
 the judge. 
 
 § 829. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business; Railroading); Equipment.— So facts relating to 
 general equipment, as, for example, the method of hanging lamps 
 on cars, 1 the position and object of the "cow-catcher," 2 or the 
 office and effect of lanterns on switches. 3 Facts notoriously demon- 
 strated by railroad experience, as that no device has yet been 
 invented which completely prevents the escape of sparks, 4 need not 
 be proved, while it is easily possible to construct one which will 
 prevent the escape of some sparks 6 may be taken for granted. 
 
 Maintenance. — Facts relating to the maintenance of the track 
 and roadbed ; — as that sectionmen burn brush growing along 
 the roadbed at certain seasons of the year, 6 need not be proved. 
 
 § 830. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business; Railroading); Operation. — Salient facts relating 
 to the operation of the road as a whole ; — as that the successful 
 management of a railroad requires the use of the telegraph, 1 that 
 trains are directed and controlled by the owners of the road, 2 that 
 it is usual to separate freight from passenger trains, 3 will be 
 
 2. U. S. V. Adair, 153 Fed. 737 R. R. Co., 85 N. Y. Suppl. 497, 90 
 (1907). App. Div. 356 (1904). 
 
 3. Bridges v. North London Ry. Co., 6. Baxter v. Great Northern R. Co., 
 L. R. 6 Q. B. 377, per Willis, J. 73 Minn. 189, 75 N W. 1114 (1898). 
 
 1. Lamson Consol. Service Co. v. 1. Youree v. Vicksburg, etc., R. Co., 
 Seigel-Cooper Co., 106 Fed. 734 110 La. 791, 34 So. 779 (1903); 
 (1901). State r. Indiana, etc., R. Co., 133 
 
 2. San Antonio & A. P. Ry. Co. v. Ind. 69, 32 N. E. 817, 18 L. R. A. 
 Mertink, (Tex. Civ. App. 1907) 102 502 (1892). 
 
 S. W. 153 [reversed in 105 S. W. 2. South, etc., R. Co. v. Pilgreen, 
 
 485]. 62 Ala. 305 (1878); Fvansville, etc., 
 
 3. Southern Ry. Co. r. Blanford's R. Co. r. Smith, 65 Ind. 92 (1878) ; 
 Adm'x, (Va. 1906) 54 S. E. 1. Slater i. Jewett, 85 N. Y. 61, 29 Am. 
 
 4. White v. New York Cent. & H. Rep. 627 (1881). See also Pittsburg, 
 R. R. Co., 181 N. Y. 577, 74 N. E. etc., R. Co. v. Callaghan, 50 111. App. 
 1126 (1905); Menominee River Sash, 076 (1893). 
 
 etc., Co. v. Milwaukee, etc., R. Co., 3. Atchison, etc., R. Co. v. Head- 
 
 91 Wis. 447, 65 N. W. 176 (1895). land, 18 Colo. 477, 33 Pac. 185, 20 
 
 5. White v. New York Cent. & H. L. R. A. 822 (1893). 
 
995 
 
 Mintjti^: of Railroad Regulation. 
 
 § 830 
 
 accepted as true without proof. In like manner, circumstances 
 widely known relating to the general nature of the relations be- 
 tween the company and its employees, for example, the effect of 
 a " clearance card " 4 and the general duties of these employees 
 to the company, 5 each other and the public, will be regarded as 
 notorious; — especially, perhaps, in case of such as conductors, 6 
 ticket or station 7 agents, whose duties bring them into immediate 
 relations to the public. 8 But the minutiae of railroad regulation, 
 such as the time of the arrival and departure of trains, 9 the run- 
 ning time between places on the schedule, 10 the powers and duties 
 
 4. McDonald v. Illinois Cent. R. 
 Co., 187 111. 529, 58 N. E. 463 (1900) ; 
 Cleveland, etc., R. Co. v. Jenkins, 174 
 111. 398, 51 N. B. 811, 66 Am. St. 
 Rep. 296, 62 L. R. A. 922 (1898) 
 (railroad custom). 
 
 5. Galveston, H. & H. R. Co. v. 
 Scott, (Tex. Civ. App. 1904) 79 S. 
 W. 642 (conductor to eject persons 
 not paying fare). 
 
 6. Chicago, M. & St. P. Ry. Co. v. 
 Anderson, (Minn. 1909) 168 Fed. 901, 
 94 C. C; A. 241 (conductors duties). 
 
 The habit of the conductors of 
 passenger trains to enter and leave 
 trains while in motion has been no- 
 ticed. Daily v. Preferred Masonic, 
 etc., Ass'n, 102 Mich. 289, 57 N. W. 
 184, 26 L. R. A. 171 (1894). 
 
 7. Brown v. Minneapolis, etc., R. 
 Co., 18 N. W. 834 (18S4). 
 
 8. District of Columbia. — 'Dye v. 
 Virginia Midland R. Co., 20 D. C. 63 
 (1891). 
 
 Michigan. — Dailey v. Preferred 
 Masonic, etc., Ass'n, 102 Mich. 289, 
 57 N. W. 184 (1894). 
 
 Mississippi. — Mobile, etc., R. Co. v. 
 Stinson, 74 Miss. 453, 21 So. 14, 522 
 (1896) (duty of section foreman to 
 keep right of way in suitable condi- 
 tion). 
 
 Missouri. — Travers v. Kansas Pac. 
 R. Co., 63 Mo. 421 (1876). 
 
 United States. — Condran v. Chicago, 
 etc., R. Co., 67 Fed. 522, 523 (1895). 
 
 The duties of a passenger brakeman 
 
 must, it is said, be proved. Cleve- 
 land, etc., R. Co. v. McLean, 1 Ohio 
 Cir. Ct. 112, 1 Ohio Cir. Dee. 67 
 (1885). This has been denied. Mat- 
 chett 17. R. Co., 132 Ind. 334, 31 N. 
 E. 792 (1892). The authority of a 
 brakeman to eject trespassers will 
 not be judicially noticed. 
 
 Illinois. — Illinois Cent. R. Co. v. 
 King, 179 111. 91, 53 N. E. 553, 553 
 (1899). 
 
 Indiana. — Lake Shore, etc., R. Co. 
 V. Peterson, 144 Ind. 214, 42 N. E. 
 480 (1895). 
 
 Iowa. — Marion v. Chicago, etc., R. 
 Co., 59 Iowa 428, 13 N. W. 415 
 (1882). 
 
 Missouri. — Farber v. Missouri Pac. 
 R. Co., 116 Mo. 81, 22 S. W. 631, 20 
 L. R. A. 350 (1893). 
 
 Pennsylvania. — Cauley v. Pittsburg, 
 etc., R. Co., 98 Pa. St. 498 (1881). 
 
 Texas. — International, etc., R. Co. 
 V. Anderson, 83 Tex. 516, 17 S. W. 
 1039 (1891). 
 
 West Virginia. — Bess v. Chesapeake, 
 etc., E. Co., 35 W. Va. 492, 14 S. E. 
 234 (1891). The customary duties 
 of Pullman car porters and brakemen 
 in assisting passengers to leave or 
 enter trains are matters of notoriety. 
 Gannon v. Chicago, R. I. & P. Ry. 
 Co., (Iowa 1908) 117 N. W. 966. 
 
 9. Bishop v. Covenant Mut. L. Ins. 
 Co., 85 Mo. App. 303 (1900). 
 
 10. Wiggins v. Burkham, 10 Wall. 
 (U. S.) 129, 19 L. ed. 884 (1869). 
 
831 
 
 Knowledge ; Cojijiox. 
 
 996 
 
 of officers, like the superintendent, 11 general manager, 12 road- 
 master 13 or yardmaster, 14 which rather concern the internal man- 
 agement of the company than directly affect the traveling public, 
 must be proved. The general time system adopted in the rail- 
 road of a jurisdiction, if long established, need not be proved. 15 
 
 § 831. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business; Railroading; Operation) ; Freight Transportation. — 
 
 In like manner usual incidents in the carrying of freight ; — as 
 that it is customary to haul the cars of other roads, 1 that in the 
 actual operation of freight trains, there is, of necessity, more or 
 less oscillation or jerking, 2 and that it is frequently necessary for 
 trainmen to walk ahead of trains while in motion to throw 
 switches or to couple or uncouple the cars while they are moving, 3 
 will be taken as commonlv known. 
 
 11. Southern R. Co. v. Hagan, 103 
 Ga. 564, 29 S. E. 760 (1897) (in a 
 particular town) ; Brown v. Missouri, 
 etc., R. Co., 67 Mo. 122 (1877). 
 
 12. For ordering medical aid to a 
 person injured by the operation of the 
 road the superintendent or general 
 manager will be known to be the 
 agent of the company. Louisville, 
 etc., R. Co. v. McVay, 98 Ind. 391, 49 
 Am. Rep. 770 (1884) ; Union Pac. R. 
 Co. i'. Winterbotham, 52 Kan. 433, 34 
 Pac. 1052 (1893); Pacific R. Co. V. 
 Thomas, 19 Kan. 256 (1877) ; Sax v. 
 Detroit, etc., R. Co., 125 Mich. 252, 
 84 N. W. 314 (1900); Sacalaris v. 
 Eureka, etc., R. Co., 18 Nev. 155, 1 
 Pac. 835 (1883). 
 
 13. Louisville, etc., R. Co. v. Mc- 
 Vay, 98 Ind. 391, 49 Am. Rep. 70 
 (1884) (as to authority, to contract 
 for medical attendance and nursing of 
 an injured person). 
 
 14. Highland Ave., etc., R. Co. v. 
 Walters, 91 Ala. 435, 8 So. 357 (1890) 
 (place of duty is on footboard in 
 front of switching engine). 
 
 15. Orvik v. Casselman, (N. D. 
 1905) 105 N. W. 1105. 
 
 1. Louisville, etc., R. Co. v. Boland, 
 96 Ala. 626, 11 So. 667, 18 L. R. A. 
 260 (1892) ; Hart v. Ogdensburg, etc., 
 
 R. Co., 67 Hun (N. Y.) 556, 52 N. Y. 
 St. Rep. 799 (1893). 
 
 2. Illinois Cent. R. Co. v. ■ Green, 
 81 111. 19 (1875) ; Chicago, etc., R. 
 Co. r. Hazzard, 26 111. 373 (1861); 
 President, etc. v. Cason, 72 Md. 377, 
 20 Atl. 113 (1890); Siner r. Great 
 Western R. Co., L. R. 4 Exch. 117 
 (1869). See also Moore r. Saginaw, 
 
 etc., R. Co., 115 Mich. 103, 72 N. W. 
 1112 (1897); Hite v. Metropolitan, 
 etc., R. Co., 130 Mo. 132, 31 S. W. 
 262 (1895). 
 
 3. Indianapolis, etc., R. Co. v. Clay, 
 4 Ind. App. 282, 28 N. E. 567 (1891). 
 See also New York Cent. & H. R. R. 
 Co. f. Williams, 118 N. Y. Suppl. 
 785, 64 Misc. 15 (1909) (collecting 
 freight money). A court may judi- 
 cially know the distance between two 
 important cities in the United States 
 and the approximate length of time 
 required for freight transportation 
 between them. Philadelphia, B. & 
 W. R. Co. v. Diffendid, 109 Md. 494, 
 72 Atl. 193 ( 1909 ) [rehearing denied, 
 109 Md. 494. 72 Atl. 458 (1909)]. 
 
 Grain transportation in Chicago. — 
 It is a matter of common knowledge 
 that grain transported to the city of 
 Chicago may be transferred by means 
 of the belt-roads to any warehouse in 
 
997 
 
 Dangee From Speed of Trains. 
 
 § 833 
 
 Details, of a minor or technical nature, as whether a freight 
 train, under given conditions, can 4 or cannot 5 be stopped without 
 a jerk, require proof. 
 
 § 832. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business; Railroading; Operation); Passenger Service. — 
 
 So the habits of the public in their use of railroad facilities, 1 the 
 dangers ordinarily attendant upon their operation 2 and how these 
 may be eliminated or diminished ; 3 need not be proved. Facts of 
 notoriety concerning the carrying of passengers, 4 that trains de- 
 signed for their conveyance move at a high rate of speed 5 and 
 that it is necessary that they should do so, 6 may be taken as com- 
 monly known. 
 
 Safety of Travel. — But a court has declined to know within 
 what distance a passenger train going at a certain rate of speed 
 can be stopped. 7 And courts have declined partly perhaps because 
 of the res gestae or constituent 8 nature of the fact to notice that 
 operating a train at a particular rate of speed is dangerous*; 9 or, 
 
 any part of the city. People v. 
 Illinois Cent. R. Co., 233 111. 378, 84 
 X. E. 368 (1908) ; People v. Chicago, 
 B. & Q. R. Co., 233 111. 378, 84 N. E. 
 368 (1908) ; People v. Chicago, R. I. 
 & P. Ry. Co., 233 111. 378, 84 N. E. 
 368 (1908). 
 
 4. Moore )-. Saginaw, etc., R. Co., 
 115 Mich. 103, 72 N. W. 1112 (1897). 
 
 5. Jonas r. Long Island R. Co., 21 
 Misc. (N. Y.) 306, 47 N. Y. Suppl. 
 149 (1897). 
 
 1. Leary v. Fitchburg Ry. Co., 173 
 Mass. 373, 53 N. E. 817 (1899) (cus- 
 tom in alighting from cars). It need 
 not be proved to a court that more 
 passengers and other persons frequent 
 a station in a large city than in a 
 small town. Cincinnati, N. O. & T. 
 P. Ry. Co. v. Harrod's Adm'r, (Ky. 
 1909) 115 S. W. 699. Courts know 
 that a passenger need not retire be- 
 yond the range of flying cinders to 
 escape them. He can effectually ac- 
 complish the same result simply by 
 shading his eyes. Houston & T. C 
 Ry. Co. v. Pollock, (Tex. Civ. App. 
 1909) 115 S. W. 843. 
 
 2. Louisville, etc., R. Co. v. Cos- 
 
 tello, 9 Ind. App. 462, 36 N. E. 299 
 (1893) ; Cincinnati, etc., R. Co. v. 
 Davis, 126 Ind. 99, 25 N. E. 878 
 ( 1890 ) ; Union Pac. R. Co. v. Winter- 
 botham, 52 Kan. 433, 34 Pac. 1052 
 (1893). 
 
 3. Richmond Union Pass. R. Co. v. 
 Richmond, etc., R. Co., 96 Va. 670, 
 32 S. E. 787 (1899) (establishing 
 gates and flagman at dangerous cross- 
 ing)- 
 
 4. Pittsburg, etc., R. Co. v. Cal- 
 laghan, 50 111. App. 676, 681 (1893). 
 Hoskins v. Northern Pac. Ry. Co., 39 
 Mont. 394, 102 Pac. 988 (1909) (late 
 trains do not follow time schedule). 
 
 5. Lake Shore, etc., R. Co. v. Mil- 
 ler, 25 Mich. 274 (1872) ; Wiggins v. 
 Burkham, 10 Wall. (U. S.) 129, 19 L. 
 ed. 884 (1869). 
 
 6. Lake Shore, etc., R. Co. v. Mil- 
 ler, 25 Mich. 274 (1872). 
 
 7. Southern Ry. Co. v. Gullatt, 
 (Ala. 1907) 43 So. 577. 
 
 8. Supra, § 47. 
 
 9. Texas & N. O. R. Co. r. Lang- 
 ham, (Tex. Civ. App. 1906) 95 S. 
 W. 686 (50-60 miles an hour). 
 
§ 833 Knowledge ; Common. 998 
 
 on the otter hand, is not hazardous. What are safe speed limits 
 for passenger trains run outside of a city, 10 or what is a suitable 
 length of stop at a small station, 11 have been treated as matters 
 of common knowledge. 
 
 The habits of the traveling public will, so far as notorious, be 
 known to the courts. It will not, for example, be necessary to 
 prove the frequency with which stop-over privileges, unlimited 
 transfers and the like, are usually claimed. 12 
 
 § 833. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business) ; Real Estate. — The fact is commonly known that 
 persons frequently buy real estate with the expectation of resell- 
 ing at an advance before they may be compelled to accept title. 1 
 While the general customs of doing business at the land office are 
 known," local usages regarding the location of land 3 must be 
 proved. The weight of authority seems in favor of the proposi- 
 tion that the customs of the country relating to the appropriation 
 of water rights for irrigation or other purposes, 4 is a matter of 
 common notoriety ; — though there is authority to the contrary. 5 
 The general price of land may be so well known as to dispense 
 with proof, 6 and it is said that an obvious increase 7 or decrease in 
 land values will be noticed in like manner. This, however, can 
 scarcely be said to be a uniform rule. 8 
 
 10. Benson v. Ry. Co., 98 Cal. 45, 2. Supra, § 652. The use of powers 
 48, 32 Pac. 809 (1893) (15 miles of attorney after location of certifi- 
 per hour). cate and before receiving a patent 
 
 11. Louisville, etc., Ry. Co. v. Cos- is » matter of common knowledge, 
 tello, 9 Ind. App. 462, 36 N. E. 299 Sims v. Sealy, (Tex. Civ. App. 1909) 
 (1893) (three minutes). 116 S. W. 630. 
 
 12. Edson v. Southern Pac. R. Co., 3. Longes e. Kennedy, 2 Bibb (Ky.) 
 144 Cal. 182, 77 Pac. 894 (1904). 607 (1812) (locator takes one-third 
 
 1. Anderson v. Blood, 86 Hun (N. of the land for his services). 
 
 Y.) 244, 33 N. Y. Supp!. 233 (1895). 4. "dough V. Wing, (Ariz. 1888) 17 
 
 Mortgagor's payment of charges of Pac. 453 ; Crawford Co. v. Hathaway, 
 
 negotiating mortgage. The custom of (Neb. 1903) 93 N. W. 781. 
 
 requiring one borrowing on mortgage 5. Lewis v. McClure, 8 Or. 273 
 
 to pay all incumbrances and expenses (1880). 
 
 of effecting the loan out of the 6. Green v. Chicago, 97 111. 370 
 
 amount of the loan is a proper sub- (1881) ; Parks »;. Boston, 15 Pick. 
 
 ject for judicial knowledge. Penn- (Mass.) 198 (1834). 
 
 sylvania Steel Co. v. Title Guarantee 7. Ludlow v. Brewster, 3 Ohio Cir. 
 
 & Trust Co., 193 N. Y. 37, 85 N. E. Ct. 82, 2 Ohio Cir. Dec. 47 (1888) 
 
 8120 (1908) [judgment re-versed, 105 (leases). 
 
 N. Y. Suppl. 1135, 120 App. Div. 879 8. Dayton v. Multnomah County, 
 
 (1907)] [which affirms 100 N. Y. 34 Or. 239, 55 Pac. S3 (1898). 
 Suppl. 299, 50 Misc. 51 (1906)]. 
 
999 Street Railway Matters Commonly Known. §§ S34, 835 
 
 § 834. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business; Stock Transactions. — The notorious facts of the 
 stock exchange and the habits of those who deal in negotiable 
 securities need not be proved. Such facts are known, e. g., that 
 shares of stock are a vendible commodity, 1 that failure to procure 
 their listing on the stock exchange tends to depreciate the price, 2 
 that municipal bonds usually command a premium, 3 that bearer 
 bonds are negotiable without endorsement.* Prominent features 
 in the brokerage business, 5 as the relations between a broker and 
 his customers, in a certain class of transactions as settled by re- 
 peated decisions, 8 may be regarded as established without proof. 
 But matters of local interest and slight importance, as the regula- 
 tion of a brokers' board, 7 must be proved. 
 
 § 835. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business); Street Railways. — • Facts of notoriety concerning 
 the history of street railway travel, as when electricity succeeded 
 animals as the motive power, 1 may well be treated as matters of 
 common knowledge. It will be known without proof that a street 
 railway has a greater value as a " going concern " than the aggre- 
 gate price for which its rolling stock, roadbed, etc., could be sold 
 were the road dismantled. 2 In like manner, the nature and opera- 
 tion of elevated railroads may be regarded by the court as a 
 matter of notoriety. 3 The court may dispense with proof as to 
 the existence of local prejudice against a street railway. 4 The 
 meaning of common terms used in connection with the business 
 of carrying on a street railway will, in general, require no proof. 5 
 
 1. Reg. v. Aspinwall, 2 Q. B. D. 48, 6. Fox v. Hale, etc., Silver Min. Co., 
 46 L. J. M. t. 145, 36 L. T. Rep. 108 Cal. 369, 41 Pae. 308 (1895). 
 (N. S.) 297, 25 Wkly. Rep. 283 7. Goldsmith v. Sawyer, 46 Cal. 209 
 (1876) ; infra, §§ 927, 2041, 2447. (1873) (San Francisco board). 
 
 2. Reg. v. Aspinwall, 2 Q. B. D. 48, 1. Meyer v. Krauter, 56 N. J. I.. 
 46 L. J. M. C. 145, 36 L. T. Rep. 696, 29 Atl. 426 (1894). 
 
 (N. S.) 297, 25 Wkly. Rep. 283 2. Cook v. Decker, 63 Mo. 328 
 
 (1876). (1876); Towne v. St. Anthony, etc., 
 
 3. Guckenberger v. Dexter, 8 Ohio Co., 8 N. Dak. 200, 77 N. W. 608 
 S. & C. PI. Dec. 530, 5 Ohio N. P. (1898). 
 
 429 (1898). 3. Bookman v. N. Y. Elevated R. R. 
 
 4. Edelstein v. Schuler, L. R. 2 K. Co., 137 N. Y. 302 ( 1893 ) . 
 
 B. 144, 71 L. J. K. B. 572, 87 L. T. 4. Geist v. Detroit City R. Co., 91 
 
 Rep. (N. S.) 204, 50 Wkly. Rep. 493 Mich. 446, 51 N. W. 1112 (1892). 
 
 (1902). 5. It is known that all the inter- 
 
 5. Jones v. Peppercorne, 5 Jur. (N. urban railways have a terminus in 
 S.) 140, 28 L. J. Ch. 158, 7 Wkly. a city. Halladay v. Detroit United 
 Rep. 103 (1858). Ry., 155 Mich. 436, 119 N. W. 445, 
 
§§ 836, 837 Knowledge; Cosmos. 1000 
 
 § 836. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business; Street Railways) ; Equipment. — A court will not 
 require that anyone should prove to it the general construction of 
 a street horse-car. 1 In like manner, it will not he demanded that 
 the purposes for which customary equipment is intended should 
 be proved. Thus, a court will take notice of the uses for which 
 an ordinary street car fender was designed. 2 In general, the 
 dereliction of street railway companies in failing to provide ade- 
 quate accommodations for their passengers is so generally known 
 that the courts will take notice of it. 3 
 
 § 837. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business; Street Railways); Operation. — Everyday facts 
 relating to the operation of street cars, as that persons ride on 
 the platforms, 1 that trolley cars stop on street corners to receive 
 passengers and to allow them to alight, 2 and that so doing consti- 
 tutes a general invitation to proposing passengers to enter the car 3 
 whether crowded or not, 4 or that a trolley stick is not submitted 
 to such a strain as to tear it from the hands of the conductor ex- 
 cept where there is carelessness, 5 require no proof. Usual in- 
 cidents in the operation of cable cars, as that jerks are inevitable 
 where the cable cannot be kept taut, 6 are within the range of 
 public knowledge. So of any other widely-known fact, as, for 
 example, that the company has changed the motive power used 
 for operating its cars. 7 Though the fact, under given conditions, 
 may be a res gestce one, the judge may know, as a matter of com- 
 mon knowledge, in a general way, within what distance an elec- 
 tric car can be stopped. 8 
 
 15 Detroit Leg. N. 1050 (1909); 3. Baskett r. Metropolitan St. By. 
 
 Watkins r. Detroit United Ry., 155 Co., 123 Mo. App. 725, 101 S. W. 138 
 
 Mich. 447 (1909). (1907). 
 
 1. Kleffmann v. Dry Dock, E. B. & 4. Baskett v. Metropolitan St. Ry. 
 B. R. Co., 93 N. Y. Suppl. 741, 104 Co., 123 Mo. App. 720, 101 S. \V. 
 App. Div. 416 (1905). 138 (1907). 
 
 2. Spiking r. Consol. Ry. & Power 5. Maiming r. Ry. Co., 166 Mass. 
 Co., (Utah 1908) 93 Pac. 838. 230, 44 N. E. 155 (1S96). 
 
 3. Capital Traction Co. v. Brown, 6. Pryor v. Metropolitan St. R. Co., 
 29 App. D. C. 473, 12 L. R. A. (N. 85 Mo. App. 367 (1900). 
 
 S.) 831. 7. Meyer v. Krauter, 56 N. J. L. 
 
 1. Metropolitan R. Co. v. Snashall, 696, 29 Atl. 426, 24 L. R. A. 575 
 3 App. Cas. (D. C.) 420, 433 (1894). (1894). 
 
 2. Baskett v. Metropolitan St. Ry. 8. Kotila i>. Houghton County St. 
 Co., 123 Mo. App. 720, 101 S. W. 138 R. Co., 96 N. W. 437 (1903). The 
 (1907). court cannot assume that it can be 
 
1001 Facts Relating to Telegraph Lines. §§ 838, 839 
 
 The comparative danger of certain acts in connection with the 
 operation of a street railway may be notorious. Thus, for 
 example, no evidence is needed to establish the fact that it is more 
 dangerous to ride on the running board of a street car than upon 
 either the seat of the car, or even on its platform. 9 
 
 § 838. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business); Surveying. — Notorious facts of science with re- 
 gard to a magnetic meridian 1 and also as to the variation of the 
 compass, 2 both in itself and as related to the meridian are known 
 to the courts. Facts in regard to surveying generally known, as 
 the inaccuracy of early surveys, even where, as in case of the wide 
 difference in three surveys of logs in the Penobscot river, 3 the 
 notoriety is purely local, need not be proved. The court cannot 
 know without proof the area of land embraced within certain 
 courses and distances, 4 or the capacity of a railroad freight car. 5 
 
 § 839. (B. What Facts are Covered by the Rule; [7] Facts 
 
 of Business); Telegraphing. — Certain facts with regard to lines 
 for telegraphic communication, as that the building of such a line 
 in a public improvement 1 and notorious facts regarding their 
 operation, as that telegraph messages are usually written 2 or that 
 the use of the telegraph is necessary to the successful operation 
 of a railroad, 3 but that care is required on the part of "a tele- 
 graph company that its wires may not obstruct a public highway, 4 
 will be known. But facts of a technical nature, as what space 
 along a railroad location is required for the repair of the wires, 5 
 must be proved. 
 
 done within a distance of 150 feet. Wood, 74 Ala. 449, 49 Am. Rep. 819 
 
 Kotila v. Houghton County St. Co., (1883). 
 
 96 N. W. 437, 10 Detroit Leg. N. 461 1. Mobile & 0. R. Co. v. Postal T. 
 
 (1903). C. Co., 120 Ala. 31, 24 So. 408 (1897). 
 
 9. Bridges v. Jackson Electric Ry., 2. People v. Western Union Tel. 
 
 Light & Power Co., (Miss. 1905) 38 Co., 166 111. 15, 46 N. E. 731 (1897). 
 
 So. 788. 3. State v. Indiana, etc., R. Co., 133 
 
 1. Wells v. Jackson Iron Mfg. Co., Ind. 69, 32 N. E. 817, 18 L. R. A. 
 47 N. H. 835, 90 Am. Dec. 575 502 (1892); Youree v. Vicksburg, 
 (1866) ; infra, §§ 886, 1970, 2384. etc., R. Co., 110 La. 791, 34 So. 779 
 
 2. Bryan v. Beckley, Litt. Sel. Cas. ( 1903 ) . 
 
 (Ky.) 91, 12 Am. Dec. 276 (1809). 4. Postal Telegraph Co. v. Jones, 
 
 3. Putnam v. White, 76 Me. 551 133 Ala. 217, 32 So. 500 (1901). 
 (1884). 5. Youree v. Vicksburg, etc., R. Co., 
 
 4. Tison v. Smith, 8 Tex. 147(1852). 110 La. 791, 34 So. 779 (1903). 
 
 5. South Alabama, etc., R. Co. v. 
 
§§ 840-843 Knowledge; Common. 10O3 
 
 § 840. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business); Trading. — The general nature of the distinction 
 between wholesale and retail trade, or between a wholesale trader 
 and a manufacturer, 1 that certain food products, as oleomargarine, 2 
 are articles of commerce, require no proof. Peculiarities in 
 handling certain commodities, as that " patent medicines " sell 
 not so much on their merits as on account of advertising expedi- 
 ents, 3 well known facts in wholesale trade, as packing goods in 
 layers under pressure, 4 facts well established in retail trading, as 
 the use of corner sockets for show cases, 5 will be treated as matters 
 of common knowledge. 
 
 § 841. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business); Transportation; Course of Mail. — No proof need 
 be offered of notorious facts regarding transportation of the 
 mails; — e. g., the length of time between two points. That an 
 affidavit can be carried in a few days from New Orleans to New 
 York, 1 is a matter of common knowledge. 
 
 § 842. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business; Transportation); Established Routes. — The long 
 established and generally known lines or routes for transportation 
 need not be proved. 1 
 
 § 843. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business; Transportation); Express Companies. — Courts 
 know, as other people do, that express companies are selected by 
 
 1. Kansas City v. Butt, 88 Mo. App. 1. Gibson v. Stevens, 8 How. 384, 
 237 (1901). 399 (1850). In speaking of the usual 
 
 2. Schollenberger v. Pennsylvania, course of the great inland commerce 
 171 U. S. 1, 18 S. Ct. 757, 43 L. ed. for agricultural produce between the 
 49 (1897). Mississippi Valley and markets, the 
 
 3. Fowle r. Park, 48 Fed. 789 United States Supreme Court says; — 
 (1892). "It has existed long enough to as- 
 
 4. King r. Galium, 109 U. S. 99, sume a regular form of dealing and 
 3 S. Ct. 85, 27 L. ed. 870 (1883) it embraces such a wide extent of 
 (plasterer's hair). territory and is of such general im- 
 
 5. Terhune v. Phillips, 99 U. S. 592, portance, that its ordinary course and 
 25 L. ed. 293 (1878). usages are now publicly recognized 
 
 1. Bouden v. Long Acre Square and understood; and it is the duty 
 
 Bldg. Co., 86 N. Y. Suppl. 1080, 92 of the court to recognize them, as it 
 
 App. Div. 325 (1904). iEtna In- judicially recognizes the general and 
 
 demnity Co. of Hartford, Conn. r. established usages of trade on the 
 
 George A. Fuller Co., Ill Md. 321, ocean." Gibson v. Stevens, 8 How. 
 
 73 Atl. 738 (1909) [reargument 384, 399 (1850). 
 denied, 74 Atl. 369]. 
 
1003 Common Methods of Transportation. §§ 844—847 
 
 shippers because of their greater rapidity when compared with 
 freight trains. 1 Within outside limits, a judge will know what 
 delay is unreasonable. 2 
 
 § 844. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business; Transportation); Knowledge Approximate Merely. 
 
 — But this knowledge is merely general and approximate. If 
 more exactness as to time is required, as how long it should take 
 an express company to carry a sum of money between given 
 places, 1 a resort to evidence is necessary. 
 
 § 845. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business; Transportation) ; Length of Transit. — The length of 
 time customarily consumed in traveling from place to place by 
 the usual routes and methods of conveyance is a fact of notoriety. 1 
 
 § 846. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business; Transportation) ; Meaning of Phrases. — Abbrevia- 
 tions used in the business of transportation, such as " f. o. b." for 
 " free on hoard," J are matters of common knowledge. 
 
 § 847. (B. What Facts are Covered by the Rule; [7] Facts 
 of Business; Transportation) ; Methods. — The methods in 
 which transportation of mails 1 or of persons and property 2 is con- 
 ducted are sufficiently notorious in the community to dispense 
 with proof. Combination of connecting lines to establish joint 
 through rates 3 and to issue through checks for baggage, 4 is well 
 
 1. Harper Furniture Co. v. South- N. Y. Suppl. 1049, 53 App. Div. 486 
 ern Express Co., 144 N. C. 639, 57 (1900) ; Oppenheim v. Leo Wolf, 3 
 S. E. 758 (1907). Sandf. Ch. (N. Y.) 571 (1846). 
 
 2. Harper Furniture Co. v. South- Pennsylvania. — Pearce v. Langfit, 
 ern Express Co., 144 N. C. 639, 57 101 Pa. St. 507, 47 Am. Rep. 737 
 S. E. 458 (1907). (1882). 
 
 1. Rice v. Montgomery, 20 Fed. 1. Kilmer v. Moneyweight Scale 
 
 Cas. No. 11,753, 4 Bias. 75 (1866). Co.,' (Ind. App. 1905) 76 N. E. 271; 
 
 The course of business relating to Vogt v. Shienebeck, (Wis. 1904) 67 
 
 the transportation of money is not, L. R. A. 756, 100 N. W. 820. 
 it is said, a fact to be judicially 1. Gamble v. Central R. Co., 80 
 
 noticed. Downs v. Pacific Express Ga. 595, 12 Am. St. 276, 7 S. E. 315 
 
 Co., 135 Mo. App. 330, 116 S. W. (1888). 
 9 (1909). 2. Michigan R. Co. v. McDonough, 
 
 1. Illinois.— National Masonic Ace. 21 Mich. 165, 194 (1870) (cattle). 
 Assoc, u. Seed, 95 111. App. 43 (1900). 3. Burlington, etc., R. Co. v. Dey, 
 
 Indiana. — Hipes v. Cochran, 13 Ind. 82 Iowa 312, 48 N. W. 98, 12 L. R. A. 
 
 175 (1859). 436, 31 Am. St. Rep. 477 (1891). 
 
 Iowa. — State v. Seery, 95 Iowa 652, 4. Isaacson r. New York Cent., etc., 
 
 64 N. W. 631 (1895). R. Co., 94 N. Y. 278, 46 Am. Rep. 143 
 
 New York. — Williams r. Brown, 65 (1884). 
 
§ 848 Knowledge; Common. 1004 
 
 known. In like manner, changes in method facilitating traffic, 
 the use of the car ferry in carrying freight ,across rivers without 
 breaking hulk, 5 the instrumentalities, omnibuses, 6 railroads, steam- 
 boat lines, trolley lines, express companies, bicycles, 7 and the like, 
 by which transportation is accomplished, will be regarded as mat- 
 ters of common knowledge. 
 
 Methods of loading particular articles of merchandise, for ex- 
 ample, railroad >ties, 8 may be judicially noticed. 
 
 Minor details, as the custom of railroads with regard to carry- 
 ing drummers' samples as baggage, 9 have also been regarded as 
 sufficiently notorious to be viewed as matters of common knowl- 
 edge. 
 
 § 848. C. How Actual Knowledge May be Acquired. — In matters 
 of fact, the actual knowledge of a particular judge may be either 
 greater or less than that of the general community. His knowl- 
 edge is greater when the attempt is made by him to dispense with 
 evidence of a fact because he chances to know one which is not 
 generally known or ascertainable by resort to a recognized source 
 of information. When it is said that a judge judicially knows 
 a fact, i. e., accepts it as one of common knowledge, it is by no 
 means implied that the judge actually knows it. All that is meant 
 is that he either knows the fact or as to how he may readily learn 
 the truth with regard to it. 1 Undoubtedly such facts, as a practi- 
 cal matter, 'are frequently not proved by the party who would 
 normally be proponent' because the offering of evidence to estab- 
 lish a mental state on the part of the judge which already exists 
 is clearly superfluous and passes sub silentio the party adversely 
 affected ,not objecting. This resits rather on the basis of waiver 2 
 than on that of common knowledge. If proof of such facts is in- 
 sisted upon, it should be presented. 
 
 Where the judge's actual knmvledge is less than that of the 
 average member of the community, or where, for any reason, he 
 
 5. Wiggins Ferry Co. v. Chicago, 8. Ayer & Lord Tie Co. V. Keown, 
 etc., R. Co., 5 Mo. App. 347, 375 29 Ky. L. Eep. 110, 400, 93 S. W. 58S 
 (1878). (1906) 
 
 6. Parmelee r. McNulty, 19 111. 556 9. McKibbin r. Great Northern R. 
 (1858) (common carrier of passen- Co., 78 Minn. 232, 80 N. W. 1052 
 gers). (1899). 
 
 7. Rochester, etc. Turnpike Rd. Co. 1. Ball r. Flora, 26 App. Cas. (D. 
 r. Joel, 58 N. Y. Suppl. 346, 41 App. C.) 394 (1905). 
 
 Div. 43 (1899). 2. Infra, § 869. 
 
1005 How F.vit Knowledge is Compulsory. § 849 
 
 declines to know a particular fact, he may do one of several 
 things: (1) He may absolutely decline to know the fact, (2) he 
 may invoke the assistance of the party who requests judicial cog- 
 nizance, (3) he may investigate the question for himself as a 
 matter of administration, with or without the aid of the parties, 
 i. e., he may gain such light as he can from them and seek fuller 
 mental certitude "by an examination conducted in his own way 
 and on his own initiative. 3 
 
 § 849. (C. How Actual Knowledge May be Acquired); 
 
 (1) Judge May Decline to Know Fact. — There is authority for 
 the proposition that it is the duty of the court to take cognizance 
 of facts of common knowledge, 1 if a party asks for it. 2 Thus, the 
 supreme court of Michigan say: 3 " There are a vast variety of 
 things which must be regarded as matters of common knowledge; 
 things which every adult person of ordinary experience or intelli- 
 gence must be presumed to know ; things which do not require to 
 be pleaded or to be made the subjects of specific proof ; and it is not 
 within the province of a court to leave it to a jury to find contrary 
 to this knowledge." The rules of right reasoning are, indeed, al- 
 ways to be enforced by the judge ;* and these may involve a question 
 of law, as applied to given facts, which the court is not permitted 
 to disregard. But in such cases the knowledge is judicial, i. e., as 
 to matter of law, and the cognizance is compulsory and not per- 
 missive. But, regarding matters of fact, the better rule is that 
 the court may decline to take any 'fact as being one of common 
 knowledge — even when it is only a probative one. — and may re- 
 quire proof of it. 5 A judge is not required to know a particular 
 
 3. Atty.-Gen. i\ Dublin, 38 N. H. investigate and refresh their recollec- 
 
 459 (1859) ; Atty.-Gen. v. Drummond, tion by resorting to any means which 
 
 1 C. & L. 210, 1 Dr. & Wal. 353 they may deem sufficient and proper. 
 
 (1842). Haaren v. Mould, (Iowa 1909) 122 
 
 1. State r. Magers, 35 Or. 520, 57 N. W. 921. 
 
 Pac. 197 (1899) (time of sunset); 4. Supra, §§ 385 et seq. 
 
 Gilbert v. Flint, etc., R. Co., 51 Mich. 5. People v. Mayes, 113 Cal. 618, 45 
 
 488, 16 N. W. 868, 47 Am. Rep. 592 Pac. 861 (1896); Littlehale v. Dix, 
 
 (1883). 11 Cush. (Mass.) 364 (1853) (dist- 
 
 2. Amundson v. Wilson, 11 N. D. ance between places). The superior 
 193, 91 N. W. 37 (1902). court may permit the judge of the dis- 
 
 3. Gilbert v. The Flint, etc., Ry. trict court to examine a complaint 
 Co., 51 Mich. 488 (1883). Judicial and warrant issued by him, and 
 notice does not depend on the actual allow him to testify that his signature 
 knowledge of the judges; they being appears on the warrant, as against 
 required, when the fact is alleged, to the objection that the superior court 
 
§§ 850, 851 Knowledge; Common. 1006 
 
 fact judicially. He may decline to take any cognizance what- 
 ever of an alleged fact of common knowledge. 7 
 
 § 850. (C. How Actual Knowledge May be Acquired); 
 
 (2) May Require Aid of Parties. — In such an event, the party 
 is put to his proof. 1 A judge may properly decline to take for 
 granted the existence of a fact claimed to he of common knowl- 
 edge. As is said hy the supreme judicial court of Massachusetts : 2 
 " If the court had entertained any doubt on the subject it might 
 have required evidence to be produced." 
 
 § 851. (C. How Actual Knowledge May be Acquired; 
 [2] May Require Aid of Parties); Matter of Law. — While 
 a judge may properly require that the parties aid him by evi- 
 dence in completing or refreshing his knowledge as to matters 
 of general notoriety, he cannot require evidence from the parties 
 as to matters which he is required judicially to know, e. -g., the 
 adoption of a constitution or of an amendment to it. 1 Naturally, 
 however, a judge is at liberty to use his common knowledge in 
 discharging his judicial function in announcing a rule of law. 
 In construing statutes the court is ruling on a matter of law. 2 
 The judge may, therefore, in preparing to do so, reject any evi- 
 dence offered by the party which is contrary to his judicial knowl- 
 edge 3 or may, in his discretion, request such evidence, or take 
 judicial cognizance of relevant facts. 4 But, in -such cases, the 
 knowledge is judicial, rather than common. 
 
 will take judicial notice of the fact. 1. People v. Mayes, 113 Cal. 618, 
 
 Williams v. Smith, 29 R. I. 562, 72 45 Pac. 861 (1896); Kaolatype En- 
 
 Atl. 1093 (1909). graving Co. v. Hoke, 30 Fed. 444 
 
 e. Hunter v. N. Y., O. & W. R. Co., (1887). 
 
 116 N. Y. 615, 621, 23 N. E. 9 2. Com. v. King, 150 Mass. 221 
 
 (1889); In re Osborne, 52 C. C. A. (1889). 
 
 595, 115 Fed. 1 (1902). On the con- 1. State v. Board of Com'rs of 
 
 trary, a judge cannot well regard a Silver Bow County, 34 Mont. 426, 87 
 
 fact as of common knowledge which Pac. 450 (1906). 
 
 is recognized as being otherwise by a 2. Supra, § 128. 
 
 statute. Timson v. Manufacturers' 3. Com. v. Marzynski, 149 Mass. 68, 
 
 Coal & Coke Co., 220 Mo. 580, 119 21 N. E. 228 (1889). 
 
 S. W. 565 (1909). 4. Redell v. Moores, 63 Neb. 219, 
 
 7. Cary v. State, 76 Ala. 78 (1884); 88 N. W. 243, 93 Am. St. Rep. 431 
 
 Gordon v. Tweedy, 74 Ala. 232, 49 (1901). 
 Am. Rep. 813 (1883) ; Kaolatype En- 
 graving Co. -v. Hoke, 30 Fed. 444 
 (1887). 
 
1007 
 
 Examination a Mattek of Discretion. 
 
 852 
 
 § 852. (C. How Actual Knowledge is Acquired); (3) Ex- 
 amination by Judge. — The course and range of any investigation 
 carried on by the judge, or under bis direction, is entirely within 
 bis administrative power; — i. e., as is commonly said, it is a 
 matter entirely within bis own discretion. As in cases involving 
 judicial knowledge of law, 1 the judge is preparing himself to dis- 
 charge a judicial function. The responsibility is entirely his and 
 the test from the sources from which information is to be sought is 
 absolutely subjective; — i. e., as to what is helpful to him, indi- 
 vidually. 2 He is controlled by no rules of evidence. Nor need 
 he be required to bear testimony on such a subject ; 3 " nor does 
 
 1. Supra, § 571. 
 
 2. California. — Rogers v. Cady, 104 
 Cal. 288, 38 Pac. 81, 43 Am. St. Rep. 
 100 (1894). 
 
 Illinois. — Jones v. Lake View, 151 
 111. 663, 38 N. E. 688 (1894). 
 
 Massachusetts. — Littlehale v. Vix, 
 11 Cush. 364 (1853). 
 
 New York. — Hunter v. New York, 
 etc., R. Co., 116 N. Y. 615, 23 N. E. 
 9, 6 L. R. A. 246 (1889). 
 
 Utah.— Hilton v. Raylance, 35 
 Utah 129, 69 Pac. 660 (1902) (mean- 
 ing of " sealing " from books on 
 Mormon religion). 
 
 United States. — Underhill v. Hern- 
 andez, 168 U. S. 250, 18 S. Ct. 83, 
 42 L. ed. 456 ( 1897 ) ; Gonzales v. 
 Ross, 120 U. S. 605 (1886). 
 
 England. — Answer of the Judges to 
 H. of L., 22 How. St. Tr. 302 (1789) 
 (lexicons, grammars, etc.) "This 
 cognizance may often extend far be- 
 yond the actual knowledge, or even 
 the memory of judges, who may there- 
 fore resort to such documents of 
 reference, or other authoritative 
 sources of information as may be at 
 hand, and may be deemed worthy 
 of confidence." Gordon v. Tweedy, 74 
 Ala. 237 (1883). The judge "is au- 
 thorized to avail himself of any 
 source of information which he may 
 deem authentic, either by inquiring 
 of others, or by the examination of 
 books, or by receiving the testimony 
 of witnesses." People v. Mayes, 113 
 Cal. 618, 45 Pac. 861 (1896). "On 
 
 demurrer, a judge may well inform 
 himself from dictionaries or books 
 on the particular subject eoncerning 
 the " meaning of any word. If he 
 does so at nisi prius, and shews them 
 to the jury, they are not to be con- 
 sidered as evidence, but only as the 
 grounds on which the judge has formed 
 his opinion." Attorney-General v. 
 Cast-plate Glass Co., 1 Anstr. 39, 44 
 (1792). 
 
 3. Alabama. — White V. Rankin, 90 
 Ala. 541, 8 So. 118 (1890). 
 
 California. — People 1". Mayes, 113 
 Cal. 618, 45 Pac. 860 (1896). 
 
 Connecticut. — ■ State v. Main, 69 
 Conn. 123, 37 Atl. 80. 61 Am. St. 
 Rep. 30, 36 L. R. A. 623 (1897) 
 (what "peach yellows" means). 
 
 Maine. — White v. Phoenix Ins. Co., 
 83 Me. 279, 22 Atl. 167 (1891). 
 
 Massachusetts. — Com. v. Marzyn- 
 ski, 149 Mass. 68, 21 N. E. 228 (1889) 
 (meaning of phrase " drugs and medi- 
 cines " ) . 
 
 Mississippi. — Rodgers v. Kline, 56 
 Miss. 808, 31 Am. Rep. 389 (1879). 
 England. — Page v. Faucet, Cro. 
 Eliz. 227 (1591). "Ordinarily 
 whether a substance or article comes 
 within a given description is a ques- 
 tion of fact, but some facts are so 
 obvious and familiar that the law 
 takes notice of them and receives 
 them into its own domain. . . . 
 Cigars are manufactured articles 
 familiar to everybody." Com. v. Mar- 
 zynski, 149 Mass. 68 (1889). 
 
853 
 
 Knowledge; Common'. 
 
 1008 
 
 the fact that the information thus sought by the judge has been 
 laid before him in the presence of the jury without any distinct 
 ruling that it was designed for the court alone, give a party the 
 right to insist tbat the jury shall pass upon it." * He may inquire 
 of others, in whom he has confidence. 5 It is open to him to adopt 
 or reject the suggestion of a party, 6 as he deems most in accord- 
 ance with his own needs. 
 
 § 853. (C. How Actual Knowledge is Acquired; [3] Ex- 
 amination by Judge) ; Official Records. — The judge may consult, 
 if so disposed, the records of the governmental departments of the 
 state 1 or nation ; — such as the navy 2 or state 3 departments or of 
 any bureau 4 organized in a department. In like manner, he may 
 examine any other public documents 5 which he deems to be suffi- 
 ciently authenticated. 6 For example, in construing a law, a court 
 may take judicial notice of the report of the commission from 
 which the act emanated. 7 
 
 4. State v. Wagner, 61 Me. 178 
 (1873); Mobile, etc., R R. V. Ladd, 
 92 Ala. 287 (1890). 
 
 5. People r. Maye3, 113 Cal. 618, 
 45 Pac. 860 (1896). "The rule has 
 been held in many instances to em- 
 brace information derived informally 
 by inquiry from experts.'' Gordon V. 
 Tweedy, 74 Ala. 232 (1883). 
 
 6. Rogers v. Cady, 104 Cal. 288, 38 
 Pac. 81, 43 Am. St. Rep. 100 (1894) ; 
 Atty.-Gen. V. Dublin, 38 N. H. 459 
 (1859). 
 
 1. Cary v. State, 76 Ala. 78 (1884) ; 
 Kirby v. Lewis, 39 Fed. 66 (1889). 
 
 2. The Paquete Habana, 175 U. S. 
 677, 20 S. Ct. 290, 44 L. ed. 320 
 (1899) (exemption of coast-fishing 
 boats from seizure). 
 
 3. Koehler V. Hill, 60 Iowa 543, 14 
 N. VV. 738, 15 N. W. 609 (1883); 
 Underbill v. Hernandez, 168 U. S. 
 250, 18 S. Ct. 83, 42 L. ed. 456 
 (1897) ; Jones r. U. S.. 137 U. S. 202, 
 11 S. Ct. 80, 34 L. ed. 691 (1890) 
 (jurisdiction over a Guano island) ; 
 Foster v. Globe Venture Syndicate, 1 
 Ch. 811, 69 L. J. Ch. 375, 82 L. T. 
 
 Rep. (N. S.) 253 (1900); Taylor v. 
 Barclay, 2 Sim. 213, 7 L. J. Ch. (O. 
 S.) 65, 29 Rev. Rep. 82, 2 Eng. Ch. 
 213 (1828). 
 
 4. People v. Williams, 64 Cal. 87, 
 27 Pac. 939 (1883) (census); State 
 V. Wagner, 61 Me. 178, 186 (1873) 
 (census) ; Whiton v. Albany City Ins. 
 Co., 109 Mass. 24 (1871) (census) ; 
 Kirby v. Lewis, 39 Fed. 66 (1889) 
 (land office). 
 
 5. Keyser v. Coe, 37 Conn. 597 
 (1871) ; McMillen v. Blattner, 67 
 Iowa 287, 25 N. W. 245 (1885) ; 
 Com. p. Alburger, 1 Whart. (Pa.) 
 469 (1836); U. S. V. One Thousand 
 Five Hundred Bales of Cotton, 27 
 Fed. Cas. No. 15,958 (1872). See 
 also In re Decatur St. in City of New 
 York, 117 N. Y. Suppl. 855, 133 App. 
 Div. 321 (1909) [order reversed, 
 Walker v. Schauf, 196 N. Y. 286, 89 
 N. E. 829]. 
 
 6. McMillen v. Blattner, 67 Iowa 
 287, 25 N. W. 245 (1885). 
 
 7. People v. Butler, 109 N. Y. 
 Suppl. 900, 125 App. Div. 384 (1908). 
 
1009 Function of Jury as to Common Knowledge. §§ 854-856 
 
 § 854. (C. How Actual Knowledge is Acquired; [3] Ex- 
 amination by Judge); Almanacs. — An almanac 1 or calendar 2 
 may be used to establish relevant facts of chronology. 
 
 § 855. (C. How Actual Knowledge is Acquired; [3] Ex- 
 
 ami nation by Judge); Historical "Works. — Naturally, the well- 
 recognized channels of information are customarily employed. 
 On a matter of history, a judge may consult not only the original 
 documents on file in public offices, 1 private records or journals; 2 
 he may also examine general 3 or local 4 histories, 5 encyclopaedias, 8 
 books, or even more fugitive publications, addresses 7 and the like. 
 
 § 856. (C. How Actual Knowledge is Acquired) ; Function of 
 
 the Jury. — In cases where the jury are to decide an issue of fact 
 on which they use matters as to which they may take judicial 
 
 v. 
 
 v. 
 
 Chee Kee, 
 Moiris, 47 
 Rosengren, 
 
 1. Alabama.— Louisville, etc., R. 
 Co. v. Brinkerhoff, 119 Ala. 606, 24 
 So. 892 (1898). 
 
 California. — People 
 61 Cal. 404 (1882). 
 
 Connecticut. — State 
 Conn. 179 (1879). 
 
 Nebraska. — Stewart v. 
 92 N. W. 586 (1902). 
 
 New York. — Montenes v. Metropol- 
 itan St. R. Co., 78 N. Y. Suppl. 1059, 
 77 App. Div. 493 (1902). 
 
 England. — Page v. Faucet, Cro. 
 Eliz. 227 (1591). "The fact (time 
 of sunrise) for the proof of which 
 the almanac was offered, was one of 
 those facts of which a court may take 
 judicial notice; formal proof of it 
 was therefore unnecessary. It would 
 have been sufficient to have called it 
 to the knowledge of the judge at the 
 trial ; and if his memory was at fault 
 or his information not sufficiently full 
 and precise to induce him to act upon 
 it, he had the right to resort to an 
 almanac, or any other book of ref- 
 erence, for the purpose of satisfying 
 himself about it; and such knowledge 
 ■would have been evidence." People V. 
 Chee Kee, 61 Cal. 404 (1882). 
 
 2. Cohn v. Kahn, 14 Misc. (N\ Y.) 
 255, 35 N. Y. Suppl. 829 (1895). 
 
 1. See also Neale v. Fry [cited in 
 
 Vol. I. 64 
 
 Stainer v. Droitwich, 1 Salk. 281] 
 (1695). 
 
 2. Hilton v. Roylance, 25 Utah 129, 
 69 Pac. 660 (1902) (Mormon church 
 receives; "sealing"). 
 
 3. Darby v. Ouseley, 1 H. & N. 1, 
 12 (1856) (Papal excommunication 
 of kings, etc.). 
 
 4. Charlotte v. Chouteau, 33 Mo. 
 194, 201 (1862) (Garner's History of 
 Canada). A histoi-y of the Southern 
 Confederacy, " The Lost Cause," may 
 be resorted to for dates and events. 
 Swinnerton v. Columbian Ins. Co., 37 
 N. Y. 174 (1867). 
 
 5. Keyser v. Coe, 37 Conn. 597 
 (1871) ; Com. v. Alburger, 1 Whart. 
 (Pa.) 469 (1836) ; U. S. v. One Thou- 
 sand Five Hundred Bales of Cotton, 
 27 Fed. Cas. No. 15,958 ( 1872 ) . " In- 
 formation to guide their judgment 
 may be obtained by resort to original 
 documents in the public archives or 
 to books of history or science or to 
 any other proper source." Hoyt v. 
 Russell, 117 U. S. 401 (1885). 
 
 6. Steinbrunner v. R. Co., 146 Pa. 
 504, 515, 23 Atl. 239 (1892) (Britan- 
 nica; preparation of life tables). 
 
 7. Burdine v. Alabama Grand 
 Lodge, 37 Ala. 478 (1861) ; People v. 
 Mayes, 113 Cal. 618, 45 Pac. 860 
 (1896). 
 
§§ 857, 858 Knowledge; Common. 1010 
 
 cognizance, the judge may properly permit them to examine pub- 
 lications such as histories, 1 encyclopaedias 2 and the like, which 
 he feels will aid them in reaching a correct conclusion as to the 
 fact to be judicially known. He will so exercise his administrative 
 power as to allow them to consider only such printed statements 
 as are relevant, because made by a person of adequate knowledge 
 and without motive to misrepresent. 8 
 
 § 857. (C. How Actual Knowledge is Acquired; Function 
 of the Jury) ; " Hearsay Rule " Inapplicable. — It has been sug- 
 gested that the declarant must be dead, 1 in order to excuse his 
 nonproduction. This is probably insisting upon the hearsay rule 
 to an undue extent in a proceeding in part designed to avoid its 
 operation. That the fact so to be established should be one of 
 public notoriety and public importance is well settled. 2 Upon 
 principle, however, no more simple or reasonable way could be 
 suggested for establishing the existence of historical facts of less 
 public notoriety than for the parties, under the direction of the 
 court, to call the attention of the jury to the written or printed 
 statements of competent persons, made without bias, as a means 
 of refreshing their judicial memories. The statements, indeed, 
 may well be said to prove the facts. This use of them is pre- 
 vented by the rule against hearsay. 3 The theory that the state- 
 ment refreshes a memory which never has existed, if satisfactory 
 in case of the judge should be equally available in that of the 
 
 § 858. (C. How Actual Knowledge is Acquired; Function 
 of the Jury); Books not Evidence. — While facts of which the 
 court takes cognizance may be established by resort to ency- 
 clopaedias the converse is not equally true. A fact is not neces- 
 sarily one within the scope of judicial knowledge merely because 
 
 1. McKinnon v. Bliss, 21 N. Y. 206 1. Morris v. Harmer, 7 Pet. (U.S.) 
 (1860) ; Gregory v. Baugh, 4 Rand. 554, 8 L. ed. 781 (1833). 
 
 (Va.) 611 (1827); Brounker v. 2. McKinnon r. Bliss, 21 N. Y. 206, 
 
 Atkyns, Skin. 14 (1681); In re St. 217 (1860); Bogardus v. Trinity 
 
 Catherine's Hospital, 1 Vent. 149 Church, 4 Sandf. Ch. (N. Y.) 633, 
 
 (1671). 724 (1847) ; Morris v. Harmer, 7 Pet. 
 
 2. Stainer v. Droitwich, 1 Salk. 281 (U. S.) 554, 8 L. ed. 781 (1833) ; 
 (1695) (Camden's Britannica). Stainer v. Droitwich, 1 Salk. 281 
 
 3. Evans v. Getting, 6 C. & P. 586, (1695) (custom of Droitwich). 
 25 E. C. L. 587 (1834). 3. Infra, § 2700. 
 
1011 Standard Treatises for Common Knowledge. § 859 
 
 it can be ascertained by examining such a treatise. 1 As the judge 
 is able to dispense with evidence entirely if be sees fit, it follows 
 that the introduction of improper evidence to prove the fact is 
 not error 2 although it may well be unnecessary. 3 The publica- 
 tions resorted to for the purpose of enabling the judge to ascertain 
 a fact of common knowledge are not, in reality, evidence at all. 4 
 They are used merely for the purpose of aiding the " memory and 
 understanding of the court." B While therefore the publications, 
 books and other documents may be rejected when offered as evi- 
 dence, 6 as it is deemed irregular to receive them, 7 the irregularity 
 of receiving them as evidence may take place and still no error be 
 committed. 8 The parties, in fact, have no rights in the matter 
 whatever. 
 
 § 859. (C. How Actual Knowledge is Acquired; Function 
 of the Jury); Standard Treatises. — On a matter pertaining to 
 geography resort may be had to maps, 1 geographies, 2 histories, 3 
 public documents 4 in general. The meaning of words as a rule 
 
 1. Kaolatype Engraving Co. V. 
 Hoke, 30 Fed. 444 (1887). 
 
 2. People v. Mayes, 113 Cal. 618, 45 
 Pae. 860 (1896); State r. Main, 68 
 Conn. 123, 37 Atl. 80, 61 Am. St. 
 Rep. 30, 36 L. R. A. 623 (1897) ; 
 Rowland v. Miller, 139 N. Y. 93, 34 
 N. E. 765, 22 L. R. A. 182 (1893). 
 
 3. Louisville, etc., R. Co. v. Brinker- 
 hoff, 119 Ala. 606, 24 So. 892 (1898) ; 
 Cook v. State, 110 Ala. 40, 47, 20 So. 
 360 (1895) ; Mobile, etc., R. Co. v. 
 Ladd, 92 Ala. 287, 9 So. 169 (1890). 
 
 4. Alabama. — Mobile, etc., R. Co. v. 
 Ladd, 92 Ala. 287, 9 So. 169 (1890) 
 ( almanac ) . 
 
 California. — People v. Chee Kee, 61 
 Cal. 404 (1882) (almanac). 
 
 Connecticut. — ■ State v. Morris, 47 
 Conn. 179 (1879) (almanac). 
 
 United States. — Brown v. Piper, 91 
 U. S. 37, 42, 23 L. ed. 200 (1875) 
 (dictionaries). 
 
 England. — ■ Shore v. Atty.-Gen., 9 
 CI. & F. 355, 8 Eng. Reprint 450 
 (1839) (dictionaries). 
 
 5. Nix v. Hedden, 149 U. S. 304, 13 
 S. Ct. 881, 37 L. ed. 745 (1892). 
 
 G. Louisville & N. R. Co. v. Brinek- 
 erhoff, 119 Ala. 606, 24 So. 893 
 (1898) (almanac to show sunset) ; 
 Com. v. Marzynski, 143 Mass. 68, 21 
 N. E. 228 (1889) ; Rodgers v. Kline, 
 56 Miss. 808, 31 Am. Rep. 389 
 (1879); Atty.-Gen. v. Dublin, 38 
 N. H. 459 (1859). 
 
 7. Rodger v. Kline, 56 Miss. 808, 31 
 Am. Rep. 389 (1879). 
 
 8. Cook v. State, 110 Ala. 40, 47, 
 20 So. 360 (1895) (Webster's Inter- 
 national Dictionary). But see Atty.- 
 Gen. v. Dublin, 38 M. H. 459, 516 
 (1859) ; Atty.-Gen. v. Drummond, 1 
 C. & L. 210, 1 Dr .& Wal. 353 (1842). 
 
 1. Wainright v. Lake iShore, etc., 
 R. Co., 11 Ohio Cir. Dec. 530 (1901). 
 
 2. U. S. v. The Montello, 11 Wall. 
 (U. S.) 411, 20 L. ed. 191 (1870). 
 
 3. Keyser v. Coe, 37 Conn. 597 
 (1871) ; State v. Wagner, 61 Me. 178 
 (1873) ; U. S. v. The Montello, 11 
 Wall. (U. S.) 411, 20 L. ed. 191 
 (1870). 
 
 4. Keyser v. Coe, 37 Conn. 597 
 (1871) ; State V. Wagner, 61 Me. 178, 
 190 (1873). 
 
§ 859 
 
 Knowledge; Common. 
 
 1012 
 
 may be ascertained by a resort to the dictionary, 5 glossaries, 6 
 grammars, 7 for scientific words to an appropriate treatise, 8 or, in 
 case of a word of archaic or other than current meaning, to works 
 of history, 9 or other publications. 10 
 
 Statutory Relief. — Relief from this situation, which prac- 
 tically forces the litigant into the expensive uncertainties and 
 unreliabilities of " expert " testimony 11 has, especially in the 
 western portions of the United States, 12 been afforded by statutes 
 making statements in standard treatises or history, science, art, 
 geography, etc., made by persons indifferent between the parties, 
 prima facie evidence of the facts stated. 
 
 5. Alabama. — . Cook v. State, 110 
 Ala. 40, 20 So. 360 (1895) (Webster's 
 International; Century) ; Dantzler v. 
 D. C. & I. Co., 101 Ala. 309, 314, 14 
 So. 10 (1893); Cook v. State, 110 
 Ala. 40, 20 So. 360 (1895). 
 
 Connecticut. — State v. Main, 69 
 Conn. 123, 37 Atl. 80, 61 Am. St. Rep. 
 30, 36 L. R. A. 623 (1897) (Century; 
 Webster's International). 
 
 Illinois. — Parker v. Orr, 158 111. 
 609, 41 N. E. 1003 (1895) (Webster). 
 
 Massachusetts. — Nelson t'. Cushing, 
 2 Cush. 519, 532 (1848). 
 
 Mississippi. — Eodgers v. Kline, 56 
 Miss. 808, 31 Am. Rep. 389 (1879). 
 
 Utah.— Hilton v. Raylance, 25 Utah 
 129, 69 Pac. 660 (1902) ("sealing"). 
 
 Virginia. — Kimball v. Carter, 95 
 Va. 77, 27 S. E. 823 (1897) (Web- 
 ster; Worcester). 
 
 United States. — Nix v. Hedden, 149 
 U. S. 304, 13 S. Ct. 881, 37 L. ed. 745 
 ( 1892 ) ( " fruit " and " vegetable " ) ; 
 Jones v. U. S., 137 U. S. 202, 11 S. Ct. 
 80, 34 L. ed. 691 (1890) ; Brown v. 
 Piper, 91 U. S. 37, 23 L. ed. 200 
 (1875); Mutual Ben. L. Ins. Co. v. 
 Robison, 19 U. S. App. 266, 272, 7 
 C. C. A. 444, 58 Fed. 723 (1893) 
 (Century; Quain's Dictionary of 
 Medicine; — "spitting of blood"); 
 Koechl v. U. S., 28 C. C. A. 458, 84 
 Fed. 448 (1898) ("vaccine"). 
 
 England. — Page's Case, 1 Leon. 243 
 (1587) ; Attorney-General r. Cast- 
 plate Gllass Co., 1 Anstr. 39, 44 
 
 (1792). "Judges can collect the in- 
 trinsic sense and meaning of a paper 
 in the same manner that other readers 
 do." Answer of the Judges to the 
 House of Lords, 23 How. St. Tr. 302 
 (1789). 
 
 6. Answer of Judges, 22 How. St. 
 Tr. 302 (1789). 
 
 7. Answer of the Judges to the 
 House of Lords, 23 How. St. Tr. 302 
 (1789). 
 
 8. State v. Wilhite, (Iowa 1907) 
 109 N. W. 730 (medical). 
 
 9. Atty.-Gen. «. Dublin, 38 N. H. 
 459, 516 (1859); Kniskern v. St. 
 John's, etc., Lutheran Churches, 1 
 Sandf. Ch. (N. Y.) 439 (1844) ; Atty.- 
 Gen. v. Drummond, 1 C. & L. 210, 1 
 Dr. & Wal. 353 (1842) ; Shore r. 
 Atty.-Gen., 9 CI. & F. 355, 8 Eng. Re- 
 print 450 (1839). 
 
 10. Com. v. Kneeland, 20 Pick. 
 (Mass.) 206 (1838); Atty.-Gen. v. 
 Dublin, 38 N. H. 459 (1859) ; Knis- 
 kern v. St. John's, etc., Lutheran 
 Churches, 1 Sandf. Ch. (N. Y.) 439 
 (1844) ; Atty.-Gen. v. Drummond, 1 
 C. & L. 210, 1 Dr. & Wal. 353 
 (1842); Shore r. Atty.-Gen., 9 CI. 
 & F. 355, 8 Eng. Reprint 450 (1839). 
 
 11. Infra, §§ 2371 ct scq. 
 
 12. Among states conferring a prima 
 facie quality on statements in stand- 
 ard treatises are California, Idaho, 
 Iowa, Nebraska, and Utah. 
 
 South Carolina provides a more 
 limited relief on special issues. 
 
1013 Standard Treatises on Inexact Sciences. § 859a 
 
 § 859a. (C. How Actual Knowledge is Acquired; Function 
 of the Jury; Standard Treatises); Probative Facts. — As has 
 
 been said the only administrative danger in the use of standard 
 treatises is that the jury may abuse the statements by taking 
 them as probative facts. It may be convenient to examine this 
 aspect of the question first. In so doing, a primary considera- 
 tion seems to consist in the circumstance that the administrative 
 danger against which the practice of excluding the statements of 
 scientific authorities from the jury was intended to provide, 
 varies greatly according to the extent to which the written declara- 
 tion is a necessary result of established or uncontroverted facts. 
 Where, for example, the induction which results in the authorita- 
 tive declaration of the writer is a complete one, 1 i. e., embraces 
 all instances which can arise, the personal equation of the writer 
 is practically eliminated, the opportunity for error greatly re- 
 duced and the administrative danger of admitting the statement 
 as proof of the facts asserted correspondingly minimized. On 
 the other hand, where the induction is incomplete? i. e., fails to 
 cover all instances in which the question may arise, a far greater 
 variety of opinion and opportunity for error is presented. Situa- 
 tions arise upon which opposing views may reasonably be held 
 and incessantly clash. Persons of equal training and intelligence 
 may not unnaturally " take sides " on such a question and parti- 
 sanship thus replace the disinterested search for truth. But it 
 is evident that these characteristic differences between a complete 
 and an incomplete induction in reality sketch the essential differ- 
 entiations between an exact and an inexact science. Where the 
 statement of a standard authority relates to some part of the sub- 
 ject-matter of an exact or mathematical science, i. e., where the 
 deduction follows from the relations between the parts of hypo- 
 thetical constructions involving no observation of fact but taking 
 cognizance only of the creations of the mind, 3 the danger of error 
 is reduced to a minimum. The result must, if correctly worked 
 out, correspond to the postulate ; — for the dealing is altogether 
 with arbitrary subjective conceptions rather than with the realities 
 of objective existence. 
 
 Where the science with regard to which the treatise speaks is 
 an inexact or moral one, an entirely different administrative 
 
 1. Infra, § 1731. 3. Cent. Diet, in verlo Science. 
 
 , 2. Infra, § 1731. 
 
§ 859b Knowledge; Common. 1011 
 
 situation is presented. The conclusions of the text writer now 
 rest not, as in case of the exact science, upon arbitrary assump- 
 tions or hypotheses, but upon the objective reality of nature; — 
 from the intricacy of whose manifestations various inferences may 
 properly be drawn. The administrative danger of permitting the 
 unsworn written statement of an author to act with an undis- 
 criminating tribunal as proof of the facts asserted in it remains 
 unabated. 
 
 § 859b. (C. How Actual Knowledge is Acquired; Function 
 of the Jury; Standard Treatises; Probative Facts); Inexact 
 
 Sciences. — It is stating the same truth in a slightly different form 
 to say that the administrative danger as to misuse by the jury of 
 the statements of a treatise is most keenly to be apprehended 
 when the text-book relates not so much to mathematical deduc- 
 tions from exact postulates by inflexible methods, but where the 
 results reached are those of inexact knowledge. The danger lurks 
 in this realm of theory, explanation and hypothesis, in the in- 
 ferences or conclusions from observed data. Judicial adminis- 
 tration views therefore with conspicuous apprehension and sus- 
 picion the use in dealing with the jury of works of science con- 
 taining a large proportion of statements resting upon incomplete 
 observation and moral evidence. Yet this is precisely the fog- 
 enshrouded mirage-haunted home of the expert. Here is the 
 battle-ground of theory ; — a region where inference takes the 
 place of fact and vigorous assertion of the merits of a controverted 
 hypothesis assumes the role of proof. In the present undeveloped 
 stage of the so-called inexact sciences many legal contests must be 
 fought out with these unsubstantial weapons ; — matters of mental 
 soundness, of the causes of injury, the probability of complete or 
 partial recovery and the like. To issues of this nature the pro- 
 bative facts testified to by the witness relate. The specialist 
 is then asked for his conclusion or judgment regarding them. 
 There is, therefore, appreciable administrative danger that should 
 the statements of the text-book bearing on the same questions be 
 admitted as deliberative facts that the jury will continue to treat 
 them as they have been treating similar statements, i. e., as pro- 
 bative. Such books of inexact science are therefore rejected. 1 
 
 1. Georgia.— Cook v, Coffey, 103 Mill Co. v. Monka, 107 111. 340 
 Ga. 6S4, 30 S. E. 27 (1898). (1883). 
 
 Illinois. — North Chicago Rolling Massachusetts. — Ashworth v. Kit- 
 
1015 
 
 Medical Treatises in Criminal Cases. 
 
 859b 
 
 Medical Matters. — As the supreme court of the state of New 
 York say; 2 — " The weight of authority on that subject is to the 
 effect that books of inductive science, within which are standard 
 medical works, are not admissible as affirmative evidence." 3 
 
 " Medicine is not considered as one of the exact sciences. It 
 is of that character of inductive sciences which are based on data 
 which each successive year may correct and expand, so that, what 
 is considered a sound induction last year may be considered an 
 unsound one this year, and the very book which evidences the 
 induction, if it does not become obsolete, may be altered in ma- 
 terial features from edition to edition, so that we cannot tell, in 
 citing from even a living author, whether what we read is not 
 something that this very author now rejects." 4 
 
 In criminal cases, the rule is enforced with even greater care 
 to avoid a confusion on the part of the jury which may prejudice 
 the accused. 5 
 
 tridge, 13 Cush. 193, 59 Am. Dec. 
 178 (1853). 
 
 Michigan. — Fox v. Peninsular White 
 Lead, etc., Works, 84 Mich. 676, 48 
 N. W. 203 (1891). 
 
 Mississippi. — Tucker v. Donald, 60 
 Miss. 460, 45 Am. Rep. 416 (1882). 
 
 New Jersey. — New Jersey Zinc, etc., 
 Co. v. Lehigh Zinc, etc., Co., 59 N\ J. 
 L. 189, 35 Atl. 915 (1896). 
 
 New York. — McEvoy v. Lommel, 80 
 N. Y. Suppl. 71, 78 App. Div. 324 
 (1903). See also Green v. Cornwell, 
 1 City Hall Rec. 11 (1816). 
 
 North Carolina. — Melvin v. Easley, 
 46 N. C. 386, 62 Am. Dec. 171 (1854); 
 Huffman v. Click, 77 N. C. 55 (1877). 
 South Dakota. — Brady v. Shirley, 
 14 S. D. 447, 85 N. W. 1002 (1901). 
 Texas. — Fowler v. Lewis, 25 - Tex. 
 Suppl. 380 (1860). 
 
 Wisconsin. — Boyle v. State, 57 Wis. 
 472, 15 N. W. 827, 46 Am. Rep 41 
 (1883). 
 
 United States. — Union Pac. R. Co, 
 v. Yates, 79 Fed. 584, 25 C. C. A. 103, 
 40 L. R. A. 553 ( 1897 ) . For a valu- 
 able article as to the use of scientific 
 books and treatises as evidence, see 
 40 L. R. A. 553. 
 
 2. Foggett v. Fischer, 48 N. Y. 
 Suppl. 741, 23 App. Div. 207, 209 
 (1897). 
 
 3. To the same effect, see Epps v. 
 State, 102 Ind. 539 (1885); Wash- 
 burn v. Cuddihy, 8 Gray (Mass) 430 
 (1857); People v. Millard, 53 Mich. 
 63 (1884) ; Matter of Mason, 60 Hun 
 46 (1891) ; Harris v. The Panama R. 
 R. Co., 3 Bosw. 7 (1858). 
 
 4. Gallagher v. Market St. R. Co., 
 67 Cal. 13, 16, 6 Pac. 869, 51 Am. 
 Rep. 680 (1885). 
 
 5. Delaware. — State v. West, 1 
 Houst. Cr. Cas. 371 (1880). 
 
 Indiana. — . Plakc v. State, 121 Ind. 
 433, 23 N. E. 273, 16 Am. St. Rep. 
 408 (1890). 
 
 Kansas. — State v. Baldwin, 36 Kan. 
 1, 12 Pac. 318 (1886). 
 
 Maryland. — Davis v. State, 38 Md. 
 15 (1873). 
 
 Michigan. — People v. Hall, 48 
 Mich. 482, 12 N. W. 665, 42 Am. Rep. 
 177 (1882). 
 
 Rhode Island. — State v. O'Brien, 7 
 R. I. 336 (1862). 
 
§ 859c Knowledge; Common. 1016 
 
 § 859c. (C, How Actual Knowledge is Acquired; Function 
 of the Jury; Standard Treatises; Probative Facts); Exact 
 Sciences. — Where the fact stated in a standard treatise which it is 
 sought to use in a probative capacity is a familiar one covered by 
 an exact science, it is frequently received, not by virtue of its 
 inherent probative effect, but as a matter of common knowledge. 1 
 These facts of exact science alone possess those attributes of cer- 
 tainty and invariability which warrant the tribunal in merely 
 looking to see what they are and accepting the results of such 
 examination as final. They possess certain characteristics which 
 are unmistakable. " What are facts of general notoriety and 
 interest ? " asks the supreme court of California. 2 " We think 
 the terms stand for facts of a public nature, either at home or 
 abroad, not existing in the memory of men, as contradistinguished 
 from facts of a private nature existing within the knowledge of 
 living men, and as to which they may be examined as witnesses. 
 It is of such public facts, including historical facts, facts of the 
 exact sciences, and of literature or art, when relevant to a cause 
 that, under the provisions of the Code, proof may be made by the 
 production of books of standard authority." 3 
 
 Mathematical Calculations. — Mathematical calculations, under 
 formulae well established in the so-called exact sciences, are of 
 great assistance as probative facts; — constituting part of the 
 fund of common knowledge, which, though not actually known to 
 the jury, is of recognized accessibility and not subject to substan- 
 tial variation. Such books are admissible. 4 Perhaps the most 
 
 1. Supra, §§ 691 et seq. tables, tables of weights, measures 
 
 2. Gallagher v. Market St. R. Co., and currency, annuity tables, interest 
 67 Cal. 13, 15, 6 Pac. 869, 51 Am. tables, and the like, are admissible to 
 Rep. 680 (1885). prove facts of general notoriety and 
 
 3. " Such facts include the mean- interest in connection with such sub- 
 ing of words and allusions, which may jects as may be involved in the trial 
 be proved by ordinary dictionaries of a cause." Gallagher v. Market St. 
 and authenticated books of general R. Co., 67 Cal. 13, 16, 6 Pac. 869, 
 literary history, and facts in the ex- 51 Am. Rep. 680 (1885). See also 
 act sciences founded upon conclusions Donaldson v. Missouri R. R. Co., 18 
 reached from certain and constant Iowa 280 (1865) ; Schell v. Plumb, 55 
 data by processes too intricate to be N. Y. 592 (1874) ; Wager v. Schuyler, 
 elucidated by witnesses when on ex- 1 Wend. 553 (1828) ; Mills v. Catlin, 
 amination (1 Whart. Ev., § 667). 22 Vt. 98 (1849). 
 
 Thus mortuary tables for estimating 4. Huffman r. Click, 77 N. C. 55 
 
 the probable duration of the life of (1877). 
 a party at a given age, chronological 
 
1017 
 
 Administbative Use of Mortality Tables. 
 
 859c 
 
 familiar example of this use of this class of book is when the 
 court or jury consult an almanac. 5 
 
 Mortality Tables. — Prominent among books of this class are 
 mortality tables of recognized standing, 6 the "American experi- 
 ence tables," 7 the " Carlisle tables," 8 the " Northampton tables," 9 
 
 5. Mobile, etc., E. Co. v. Ladd, 92 
 Ala. 287, 9 So. 169 (1891) ; State v. 
 Morris, 47 Conn. 179 (1879); Mun- 
 shower v. State, 55 Md. 11, 39 Am. 
 Eep. 414 (1880). 
 
 6. Supra, § 732. 
 
 Colorado. — Denver, etc., E. Co. v. 
 Woodward, 4 Colo. 1 (J 877). 
 
 Georgia. — Atlanta B., etc., Co. v. 
 Monk, 118 Ga. 449, 45 S. E. 494 
 (1903). 
 
 Illinois. — Henderson v. Harness, 
 184 111. 520, 56 N. E. 786 (1900). 
 
 Indiana. — Indianapolis v. Marold, 
 25 Ind. App. 428, 58 N. E. 512 
 (1900). 
 
 Iowa. — Keyes v. Cedar Falls, 107 
 Iowa 509, 78 N. W. 227 (1899); 
 Pearl v. Omaha, etc., E. Co., 115 
 Iowa 538, 88 N. W. 1078 (1902). 
 
 Kansas. — Atchison, etc., E. Co. v. 
 Eyan, 62 Kan. 682, 64 Pac. 603 
 (1901). 
 
 Kentucky. — Louisville, etc., E. Co. 
 V. Mahony, 7 Bush 235 (1870). 
 
 Michigan. — ■ Jones v. McMillan, 129 
 Mich. 86, 88 N. W. 206 (1901). 
 
 New York. — Sternfels v. Metropoli- 
 tan St E. Co., 174 N. Y. 512, 66 
 N. E. 1117 [affirming 77 N. Y. Suppl. 
 309, 73 App. Div. 494] (1903). 
 
 Texas.— Galveston, etc., E. Co. v. 
 Johnson, 24 Tex. Civ. App. 180, 58 
 S. W. 622 (1900). 
 
 Washington. — Suell v. Jones, 49 
 Wash. 582, 96 Pac. 4 (1908). 
 
 Wisconsin. — Grouse v. Chicago, etc., 
 R. Co., 102 Wis. 196, 78 N. W. 446, 
 778 (1899). 
 
 United States. — Whelan v. New 
 York, etc., E. Co., 38 Fed. 15 (1889). 
 The court takes judicial notice of 
 standard mortality tables, and, if it 
 is satisfied that one offered is of that 
 character, no further identification is 
 necessary, and it may be read by an 
 
 attorney not sworn as a witness. 
 Stephens v. Elliott, 36 Mont 92, 92 
 Pac. 45 (1907). 
 
 7. Alabama. — Louisville, etc., E. Co. 
 V. Hurt, 101 Ala. 34, 13 So. 130 
 (1893). 
 
 Iowa. — Pearl v. Omaha, etc., E. Co., 
 115 Iowa 535, 88 N. W. 1078 (1902). 
 
 Missouri. — Boettger v. Scherpe, 
 etc., Iron Co., 136 Mo. 531, 38 S. W. 
 298 (1896). 
 
 New York. — Atty.-Gen. v. North 
 America L. Ins. Co., 82 N. Y. 172 
 (1880) [distinguishing People v. Se- 
 curity L. Ins., etc., Co., 78 N. Y. 114, 
 34 Am. Eep. 522] (1879). 
 
 Texas. — San Antonio, etc., E. Co. 
 v. Engelhorn, 24 Tex. Civ. App. 324, 
 62 S. W. 561, 65 S. W. 68 (1900). 
 
 For examining the Northampton 
 and American life tables, resort may 
 be had to " Johnson's New Universal 
 Encyclopaedia." Scagel v. Chicago, 
 etc., E. Co., 83 Iowa 380, 48 N. W. 
 990 (1891). 
 
 8. Colorado. — Kansas Pac. E. Co. v. 
 Lundin, 3 Colo. 94 (1876). 
 
 Georgia. — Atlanta E., etc., Co. v. 
 Monk, 118 Ga. 449, 45 S. E. 494 
 (1903). 
 
 Indiana.— Louisville, etc., E. Co. v. 
 Miller, 141 Ind. 533, 37 N. E. 343 
 (1895). 
 
 Iowa. — Pearl v. Omaha, etc., E. Co., 
 115 Iowa 535, 88 N. W. 1078 (1902) ; 
 Allen v. Ames, etc., E. Co., 106 Iowa 
 602, 76 N. W. 848 (1898) ; Nelson v. 
 Chicago, etc., E. Co., 38 Iowa 564 
 (1874). 
 
 Minnesota. — Scheffler v. Minneap- 
 olis, etc., E. Co., 32 Minn. 518, 21 
 N. W. 711 (1884). 
 
 Nebraska. — Chicago, etc., E. Co. v. 
 Hambel, 89 N. W. 642 (1902) ; Friend 
 v. Burleigh, 53 Neb. 671, 74 N. W. 50 
 (1898); Sellars v. Foster, 27 Neb. 
 
§ 859c 
 
 Knowledge; Common. 
 
 1018 
 
 '' Wads-worth's life tables," 10 or any work of similar standing on 
 the subject. 11 Standard life tables, 12 or, indeed, any mortality or 
 annuity tables used by reputable insurance companies, 13 may be 
 employed in the same way. The tables, however, must show the 
 expectancy of life of a person of about the age of the one involved 
 in the issue in the case 14 and the person whose life is in question 
 must come within the class of those on the basis of which the com- 
 putations have been made. 15 For example, if the basis is that of 
 
 118, 43 N. W. 907 (1889); New 
 Jersey, Camden, etc., R. Co. v. Wil- 
 liams, 61 N. J. L. 64G, 40 Atl. 634 
 (1898). 
 
 Pennsylvania. — Kerrigan v. Penn- 
 sylvania R. Co., 194 Pa. St. 98, 44 
 Atl. 1069 (1899); Campbell v. York, 
 172 Pa. St. 205, 33 Atl 879 (1896). 
 
 Texas. — • San Antonio, etc., R. Co. 
 V. Engelhorn, 24 Tex. Civ. App. 324, 
 62 S. W. 561, 65 S. W. 68 (1900). 
 
 England. — Rowley v. London, etc., 
 R. Co., L. R. 8 Exch. 221, 42 L. J. 
 Exch. 153, 29 L. T. Rep. N. S. 180, 
 21 Wkly. Rep. 869 (1873). 
 
 The place where these tables are 
 found is unimportant, provided it be 
 accurate. Thus resort may be had to 
 the Encyclopaedia Britannica for their 
 examination. Pearl i\ Omaha, etc., 
 R. Co., 115 Iowa 539, 88 N. W. 1078 
 (1902); Atchison, etc., R. Co. v. 
 Ryan, 62 Kan. 682 (1901). Such 
 tables may be used as printed in a 
 standard law book. Sellars v. Foster, 
 27 Neb. 118, 42 N. W. 907 (1889). 
 This facility of resort to any avail- 
 able source of information is charac- 
 teristic of the administrative methods 
 employed by the court in dealing with 
 matters of common knowledge (supra, 
 § 698). An interesting instance of 
 the application of this rule is given 
 in Gorman v. Minneapolis, etc., R. Co., 
 78 Iowa 509, 43 N. W. 303 (1889). 
 
 9. Georgia R., etc., Co. t. Oaks, 52 
 Ga. 410 (1874) ; Schell v. Plumb, 55 
 N. Y. 592 (1874); Banta v. Banta, 
 82 N. Y. Suppl. 113, 84 App. Div. 138 
 (1903) ; Peterson v. Oleson, 47 Wia. 
 122, 2N. W. 94 (1879). 
 
 10. Louisville, etc., R. Co. v. Kelly, 
 100 Ky. 421, 38 S. W. 852, 40 S. W. 
 452, 19 Ky. L. Rep. 69 (1897). 
 
 11. Missouri, etc., R. Co. v. Hines, 
 18 Tex. Civ. App. 582 (1898) (life 
 tables) ; Crouse v. Chicago, etc., R. 
 Co., 102 Wis. 196, 78 N. W. 446, 778 
 (1899) (annuity tables). 
 
 12. Henderson v. Harness, 184 111. 
 520, 56 N. E. 786 (1900); Indian- 
 apolis v. Marold, 25 Ind. App. 428, 58 
 N. E. 512 (1900). 
 
 Flatchcraft's Insurance Manual. — 
 Missouri, etc., R. Co. v. Ransom, 15 
 Tex. Civ. App. 689, 41 S. W. 826 
 (1897). 
 
 Wigglesworth's life tables. — Louis- 
 ville, etc., R. Co. v. Kelly, 100 Ky. 
 421, 38 S. W. 852, 40 S. W. 452, 19 
 Ky. L. Rep. 69 (1897). 
 
 13. Alabama. — Mary Lee Coal, etc., 
 Co. 17. Chambliss, 97 Ala. 171, 11 So. 
 897 (1893). 
 
 Georgia. — Central R. Co. v. Rich- 
 ards, 62 Ga. 306- (1879). 
 
 Iowa. — Pearl v. Omaha, etc., Co., 
 115 Iowa 535, 88 N. W. 1078 (1902). 
 
 Tennessee. — Mississippi, etc., R. 
 Co. v. Ayres, 16 Lea 725 (1886). 
 
 Texas. — Gulf, etc., R. Co. r, Smith, 
 (Civ. App. 1894) 26 S. W. 644. 
 
 14. Pearl v. Omaha, etc., R. Co., 
 115 Iowa 535, 88 N. W. 1078 (1902) ; 
 Decker v. McSorley, 111 Wis. 91, 86 
 N. W. 554 (1901). 
 
 15. Vicksburg R., etc., Co. v. 
 White, 82 Miss. 468, 34 So. 331 
 (1903). 
 
1019 Standard Tkade Textbooks, Handbooks, Etc. § 859c 
 
 sound, healthy, temperate persons, the individual in question 
 must possess these bodily attributes. Minor discrepancies, as that 
 the tables are computed on the basis of health and the person 
 involved in the issue was of impaired bodily condition, 16 that the 
 tables do not cover the exact age involved in the inquiry; 17 or 
 that the employment of the person in the case was extra hazard- 
 ous, 18 will be deemed consistent with the use of the table. The 
 facts shown by the mortality tables are, as is pointed out else- 
 where, 19 merely deliberative ones — designed to be used by the 
 jury, together with all other facts in weighing the force of the 
 res gestce or constituent facts of the case, or in estimating dam- 
 ages. So regarded, the lack of entire adaptability of a deliber- 
 ative fact may be given proper allowance by the tribunal. 
 
 Proof of Accuracy. — jSTo further proof of authenticity or 
 accuracy is required, 20 where, as in case of the tables mentioned, 
 they are of standard authority. The authoritative character of 
 these tables is a fact of common 21 knowledge. 22 
 
 Standard Tables. — Much the same may be found to be true in 
 case of the mathematical tabulations of observed results, in which 
 questions of the inferences properly to be deduced from facts can 
 seldom arise. Of this nature are mortality tables, 23 millwrights' 
 lists 24 and the like. 
 
 Trade Manuals. — Among compendia of useful knowledge, 
 known to be accurate are certain trade text-books, hand-books or ' 
 manuals, containing, in a convenient form, the tabulated results 
 of experience, computations of weight, strain, dimensions and 
 the like. These are the usual reference books used by the 
 
 16. Smiser V. State, 17 Ind. App. 32 Minn. 518, 21 N. W. 711 (1884). 
 519, 47 N. E. 229 (1897). Where the standard nature of the 
 
 17. Missouri, etc., R. Co. v. Hines, tables is not a matter of common 
 (Tex. Civ. App. 1897) 40 S. W. 152. knowledge, it must be proved. Other- 
 
 18. Galveston, etc., R. Co. v. John- wise, the evidence will be rejected, 
 son, 24 Tex. Civ. App. 180, 58 S. W. Thus, the accuracy of a life table con- 
 622 (1900) (locomotive engineer). tained in a book entitled "A Million 
 
 19. Supra, § 52. Facts; Conkling^ Handy Manual of 
 
 20. Keast v. Santa Ysabel Gold Min. Useful Information " must be estab- 
 Co., 136 Cal. 256, 68 Pac. 771 (1902) ; lished by evidence. Galveston, etc., 
 Atlanta R., etc., Co. v. Monk, 118 R. Co. v. Arispe, 81 Tex. 517, 17 
 Ga. 449, 45 S. E. 494 (1903). S. W. 47 (1891). 
 
 21. Supra, § 732. 23. Supra, § 732. 
 
 22. Atchison, etc., R. Co. v. Ryan, 24. Garwood v. New York Cent., 
 62 Kan. 682, 64 Pac. 603 (1901); etc., R. Co., 45 Hun (N. Y.) 128 
 Schemer v. Minneapolis, etc.. R, Co., (1887). 
 
§ 859d Knowledge; Common. 1020 
 
 community as a whole, 25 and no good reason has been perceived, 
 in this connection, why the jury, in their search for truth, should 
 he deprived of that which other members of the community enjoy. 
 So, on a matter of insurance, the jury may have the use of 
 " Flatchcraft's Insurance Manual," 26 or some equivalent work. 
 Computations gf the rise and fall of the tides, etc., made by the 
 United States government for the guidance of navigation on the 
 waters of Puget sound, 27 have been held to be within the scope 
 of the same principle of administration. 
 
 The statements of such hand-boohs may well be read to the jury 
 by a skilled witness ; — although, if the jury could understand the 
 book without explanation, there is no administrative reason why 
 it could not simply be handed to them. Thus, on an action 
 growing out of the fall of a building, a civil engineer may read 
 to the jury from standard hand-books showing resisting strength 
 of the materials of which the building was composed. 28 The 
 " Catechism of a Locomotive " (Forney) may be used to show 
 facts demonstrated by experience regarding the locomotive en- 
 gine. 29 This is quite different from an attempt to prove a propo- 
 sition in mechanics, for example, to use Knight's Mechanical Dic- 
 tionary in support of a claim as to the action of " Sister hooks." 30 
 
 § 859d. (C. How Actual Knowledge is Acquired; Function 
 of the Jury; Standard Treatises; Probative Facts); Historical 
 
 Works. — Where the effort is to use t*he fact stated in a historical 
 treatise in a probative capacity, the established administrative 
 practice seems to be as follows. Should it happen that the fact 
 to be so made out is an ancient one, whatever may be its relation 
 to the proposition in issue, proof frequently can alone be made by 
 showing the existence of the statements of historians on the sub- 
 ject, reinforced by any inferences to be drawn from contempo- 
 raneous and subsequent acquiescence in the truth of the declara- 
 
 25. Western Assur. Co. r. J. H. 28. Western Assur. Co. v. J. H. 
 Mohhnan Co., 83 Fed. 811, 28 C. C. Mohlman Co., 83 Fed. 811, 28 C. C. A. 
 A. 157, 40 L. R. A. 561 (1897) 157, 40 L. R. A. 561 (1897). 
 (engineers tables on strength of ma- 29. Sioux City, etc., R. Co. v. Fin- 
 terials). layson, 16 Neb. 578, 20 N. W. 860, 
 
 26. Jones V. McMillan, 129 Mich. 49 Am. St. Rep. 724 (1884). 
 
 86, 88 N. W. 206 (1901) ; Galveston, 30. North Chicago Rolling Mill Co. 
 
 etc., R. Co. v. Johnson, 24 Tex. Civ. v. Monka, 107 111. 340 (1883). 
 App. 180, 58 S. W. 622 (1900). 
 
 27. Cherry Point Fish Co. r. Nel- 
 son, 25 Wash. 558, 66 Pac. 55 (1901). 
 
1021 Maeket Bepoets, Prices Cueeent, Etc. § 859e 
 
 tions thus .publicly made. 1 The existence of an historical fact 
 of recent happening, cannot, however, be used in a probative, i. e., 
 assertive capacity by the mere statements contained in the works 
 of a living author. 2 The rule is clearly stated by the supreme 
 court of the United States : 3 " Historical facts of general and 
 public notoriety may indeed be proved by reputation, and that 
 reputation may be established by historical works of known char- 
 acter and accuracy. But evidence of this sort is confined in a 
 great measure to ancient facts which do not presuppose better in 
 existence, and where from the nature of the transaction or the 
 remoteness of the period, or the public and general reception of 
 the facts, a just foundation is laid for general confidence. But 
 the work of a living author, who is within the reach of the process 
 of the court, can hardly be deemed of this nature." 4 
 
 § 859e. (C. How Actual Knowledge is Acquired; Function 
 of the Jury; Standard Treatises; Probative Facts); Market 
 Reports. — The use of stock market reports, prices current, com- 
 mercial reports and the like, for the purpose of determining mar- 
 ket value may best be regarded as an application of the rule under 
 consideration. They are admissible, 1 even though contained in 
 newspapers, or even more fugitive and ephemeral forms, as a 
 ready and recognized means of acquiring what is at least poten- 
 tially, common knowledge. Otherwise considered, their use, ex- 
 cept in connection with the evidence of a witness, is objectionable 
 as hearsay. In certain jurisdictions the further requirement has 
 been imposed by the court, that the reliability of the methods by 
 which these reports are made up or tabulated should first be 
 shown to the satisfaction of the court. 2 
 
 1. Morris v. Harmer, 7 Pet. (U. S.) 241 (1870); Cliquot V. V. S., 3 
 554, 8 L. ed. '781 (1833). Wall. (U. S.) 114, 18 L. ed. 116 
 
 2. Morris v. Harmer, 7 Pet. (U.S.) (1865). 
 
 554, 8 L. ed. 781 (1833). 2. California.— Vogt v. Cope, 66 
 
 3. Morris v. The Lessees of Harm- Cal. 31, 4 Pac. 915 (1884). 
 
 er's Heirs, 7 Pet. (U.S.) 558 (1833), Colorado.— Willard v. Mellor, 19 
 
 per Mr. Justice Story. Colo. 534, 36 Pac 148 (1894). 
 
 4. See also Bogardus v. Trinity Missouri. — Golson v. Ebert, 52 Mo. 
 Church, 4 Sandf. 633 (1847); Mis- 260 (1873). 
 
 souri v. Kentucky, 11 Wall. 395 New York. — Whelan v. Lynch, 60 
 
 (1870). N. Y. 469, 19 Am. Rep. 202 (1875). 
 
 1. Nash v. Classen, 163 111. 409, 45 North Carolina. — Fairley v. Smith, 
 
 N. E. 276 (1896) ; Aulls tf. Young, 98 87 N. C. 367, 43 Am. Pep. 522 
 
 Mich. 231, 57 N. W. 119 (1893); (1882). 
 Terry v. McNiel, 58 Barb. (N. Y.) 
 
§§ 859f, 859g Knowledge; Common. 1022 
 
 § 859f. (C. How Actual Knowledge is Acquired; Function 
 of the Jury; Standard Treatises; Probative Facts); Registers 
 of Pedigree, Record, etc. — Books recording the pedigree and maxi- 
 mum speed attained by animals on different occasions will be re- 
 ceived as matters of common knowledge, 1 when published by per- 
 sons or associations recognized by those conversant with such 
 matters as reliable and trustworthy authorities. A private book 
 of pedigree kept by a party to the action is not admissible for the 
 purpose. 2 So, by statute, a " herd book " acknowledged as authen- 
 tic by breeders .of cattle may be submitted to the court by a 
 printed copy to show matters of pedigree. 3 
 
 § 859g. (C. How Actual Knowledge is Acquired; Function 
 of the Jury; Standard Treatises); Deliberative Facts. — But it is 
 possible not only to use a standard treatise for the purpose of 
 establishing a probative fact but for that of showing the existence 
 of a deliberative one. The administrative considerations attach- 
 ing to the use of a standard treatise in proof of a deliberative fact 
 are so different from those which relate to the use of such a publi- 
 cation in establishing probative facts that a separate considera- 
 tion may with propriety be applied to the subject. These 
 deliberative facts of common or special knowledge which the 
 scientific treatise sets forth for the information of the jury — 
 for the refreshing of their minds, rather than proof of anything 
 > — stand in a certain definite relation to the issue. They are not 
 the litigated, disputed constituent or res gestce facts which de- 
 termine the truth of the propositions in issue. Xor are they of 
 the class of facts which tend to establish, circumstantially, 1 as is 
 said, the constituent 2 or res gestce facts. They are, on the con- 
 trary, the unlitigated, undisputed deliberative 3 facts by which 
 those more directly or strongly relevant to the issue are weighed 
 or tested — part of the mental scales established by the general 
 knowledge of the weigher. 
 
 Administrative Considerations. — To prove a constituent or res 
 gestce fact by the unsworn statements of a scientific treatise is a 
 
 1. Pittsburgh, etc., R. Co. v. Shep- 65 Iowa 528, 22 N. W. 661 (1885) ; 
 pard, 56 Ohio St. 68, 46 N. E. 61, Crawford v. Williams, 48 Iowa 247 
 60 Am. St. Rep. 732 (1897). (1878). 
 
 2. Louisville, etc., R. Co. r. Frazee, 1. Supra, § 15. 
 71 S. W. 437, 24 Ky. L. Rep. 1273 2. Supra, § 47. 
 (1903). 3. Supra, § 52. 
 
 3. Kuhns r. Chicago, etc., R. Co., 
 
1023 Deliberative Facts by Standard Treatises. § 85 9h 
 
 serious matter, calling for greatly increased administrative in- 
 ertia, when compared with the use of the same treatise for the 
 purpose of giving to the jury in a convenient form a fact of com- 
 mon knowledge. Such a fact is absolutely settled, one way or the 
 other. The truth about it may be ascertained by simply referring 
 to a recognized source of information, which every one knows 
 and no one disputes. There is, for example, a great administra- 
 tive or forensic difference between, on the one hand, attempting 
 to prove a constituent fact of a medical nature by reading state- 
 ments from a medical treatise; and, on the other, exhibiting to 
 the jury and leaving with them, in order that the matter may be 
 readily available, the tabulations, undisputed and undisputable, 
 of certain engineering results, reached by a mathematical or 
 algebraic process from certain fixed data by the use of well estab- 
 lished jormulm. In the latter case, the results are to be used by 
 the tribunal merely for the purpose of understanding and giving 
 just weight to the res gestce or probative facts. 4 In general, the 
 standard treatise may assist the jury in acquiring deliberative 
 facts in one of two ways; — (1) It may directly increase the jury's 
 stock of special knowledge; (2) It may accomplish the same re- 
 sult indirectly by making the potential knowledge of the jury 
 actual. 
 
 § 859h. (C. How Actual Knowledge is Acquired; Function 
 of the Jury; Standard Treatises; Deliberative Facts); (1) 
 
 Direct Increase of Special Knowledge. — Statements in technical 
 treatises introduced in evidence as deliberative facts may con- 
 stitute, as it were, a species of special knowledge 1 within the grasp 
 and comprehension of the jury; — who may, thereupon, use them, 
 like any other knowledge, as deliberative facts. For example, a 
 doctor as a witness, may read extracts from medical text-books 
 for the purpose of explaining to the jury the technical medical 
 terms connected with the case. 2 
 
 § 8591. (C. How Actual Knowledge is Acquired; Function 
 of the Jury; Standard Treatises; Deliberative Facts); (2) 
 
 Indirect Supplementation by Reducing Common Knowledge to 
 Possession. — A somewhat different use of the statements of stand- 
 
 4. Western Assur. Co. v. Mohlman 1. Infra, §§ 870 et seq. 
 
 Co., 83 Fed. 811, 28 C. C. A. 157, 2. Oakley v. State, 135 Ala. 29, 33 
 
 40 L, E. A. 561 (1897). So. 693 (1903). 
 
§ 859i Knowledge; Commok. 1024 
 
 ard treatises as deliberative facts may be made in connection with 
 the common knowledge of the jury. In many cases the technical 
 statement is submitted to the tribunal not for the sake of supple- 
 menting common knowledge by the addition of special, but for 
 the purpose of reducing to possession, as it were, in available 
 form, common knowledge which the jury already had in a con- 
 structive and inert condition. In other words, potential knowl- 
 edge is thus made actual. The jury know that the fact as to a 
 given matter has been settled. They know it is only necessary to 
 resort to a recognized source of information and ascertain how the 
 fact is. 1 But as to that particular fact, they have never made 
 the attempt to find out. This the counsel may do for them by 
 reading extracts from an appropriate authority. As a matter of 
 administration, the party who desires to have the benefit of the 
 fact may produce the encyclopaedia or equivalent work to the 
 jury, 2 call their attention to what he desires them to notice and, if it 
 seems wise, may leave the book with them. As is more fully stated 
 elsewhere, 3 facts of certain classes, although of a scientific nature 
 and usually set forth in technical treatises, are yet part of the 
 common knowledge of the community and, as being so, need not 
 be proved. The presiding judge could readily, being a unit and 
 the executive head of the mixed tribunal, look up the matter for 
 himself at any time and use the results or impart them to the 
 jury. The jury, being many and, for trial purposes less mobile 
 and under their own initiative than is the judge, present a prac- 
 tical administrative necessity that the scientific treatise, in the 
 points mentioned, should be read to them, and then, usually, left 
 in their hands for inspection or perusal. This is not placing the 
 book in evidence — in the strict sense of that expression. The 
 dictionary and the almanac, for example, are not evidence. They 
 contain memoranda, conveniently arranged, as to certain facts of 
 common knowledge as to which no evidence is needed, or, per- 
 haps, permitted. It is, in any event, necessary for the use of the 
 treatise in reducing to immediate possession the constructive or 
 potential knowledge of the jury in the common affairs of life that 
 
 1. That is known which may readily Atchison, etc., R. Co. v. Ryan, 62 
 become so. Kan. 682, 64 Pac. 603 (1901). 
 
 2. Pearl v. Omaha, etc., R. Co., 115 3. Supra, § 698. 
 Iowa 535, 88 N. W. 1078 (1902); 
 
1025 Rendebing Potential Knowledge Actual. §§ 859j, 859k 
 
 the fact sought 'to be shown in this way should have some bearing 
 on a proposition in issue in the case. 4 
 
 Evidence Limited to Facts of a Public Nature. — As a rule, 
 " such evidence is only admissible to prove facts of a general and 
 public nature, and not those which concern individuals or mere 
 local communities." 5 Where the facts are not among those of 
 common knowledge, the book is not admissible. Thus, for ex- 
 ample, a local history cannot be used as establishing purely local 
 happenings, especially where these are of recent date and admit 
 of proof in more satisfactory ways. 6 Some question may readily 
 arise as to what are in reality matters of public and general in- 
 terest and notoriety. Much will depend as to what a particular 
 community finds interesting and what is notorious throughout it. 
 Thus in Utah, the " sealing ordinance " of the Latter Day Saints 
 of the Mormon Church is so considered. 7 
 
 § 859j. (C. How Actual Knowledge Is Acquired; Function 
 of the Jury; Standard Treatises; Deliberative Facts; [2] 
 Indirect Supplementation by Reducing Common Knowledge 
 to Possession); Dictionaries — It is easy to recognize that in 
 dictionaries the court is using a mere instrument of common 
 knowledge, rather than dealing with evidence of any kind. Dic- 
 tionaries may be used by the court and jury for the purpose of 
 refreshing memory or acquiring the knowledge contained in 
 them. 1 
 
 § 859k. (C. How Actual Knowledge is Acquired; Function 
 of the Jury; Standard Treatises; Deliberative Facts; [2] /«= 
 direct Supplementation by Reducing Common Knowledge to 
 Possession) ; Encyclopaedias, etc — Common knowledge may con- 
 sist, in many particulars, in a cognizance as to where exact infor- 
 
 4. Decker v. McSorley, 111 Wis. 91, 428, 61 N. Y. Suppl. 1027 [affirmed 
 86 N. W. 554 (1900). in 65 N. Y. Suppl. 1014, 53 App. Div. 
 
 5. McKinnon v. Bliss, 21 N. Y. 206 561] (1899). 
 
 (I860). 7. Hilton v. Roylance, 25 Utah 129, 
 
 6. Roe v. Strong, 107 N. Y. 350, 69 Pae. 660, 95 Am. St. Rep. 821, 
 14 N. E. 294 (18S7) ; McKinnon v. 58 L. R. A. 723 (1902). 
 
 Bliss, 21 N. Y. 206 (1860); Evans 1. Nix v. Hedden, 149 U. S. 304, 
 
 v. Getting, 6 C. & P. 586, 25 E. C. L. 13 S. Ct. 881, 37 L. ed. 745 (1893) ; 
 
 587 (1834); Stainer v. Droitwich, 1 Zante Currants, 73 Fed. 183 (1896). 
 
 Salk. 281 (1695). See also Onondaga See also Cook v. State, 110 Ala. 40, 
 
 Nation v. Thacher, 29 Misc. (N. Y.) 20 So. 360 (1895). 
 
 Vol. I. 65 
 
§§ 8591, S59m Knowledge; Common. 1026 
 
 mation regarding certain facts may be obtained, rather than in 
 possession of knowledge itself upon these points. Should a ques- 
 tion arise regarding the existence of certain familiar subjects, the 
 average man would consult a reliable encyclopaedia. The jury 
 may do the same. 
 
 § 8591. (C. How Actual Knowledge is Acquired; Function 
 of the Jury; Standard Treatises; Deliberative Facts; [2] ln= 
 direct Supplementation by Reducing Common Knowledge to 
 Possession); Histories, etc. — Prominent among statements in 
 standard treatises which may be used for the purpose of supple- 
 menting the common knowledge 1 are the agreed facts of history. 
 These may be shown to the jury in the same way that any intelli- 
 gent member of the community would satisfy himself on the point. 
 Histories of recognized value, contained in encyclopaedias, inde- 
 pendent works, 2 original materials, 3 or even historical data 
 themselves, may be examined and submitted to the jury. 
 
 § 859m. (C. How Actual Knowledge is Acquired; Function 
 of the Jury; Standard Treatises; Deliberative Facts; [2] In= 
 direct Supplementation by Reducing Common Knowledge to 
 Possession); law Dictionaries — Practically the same relation 
 which dictionaries sustained to the community at large, law dic- 
 tionaries hold to the legal profession. These works when of 
 recognized authority are freely received not only upon questions 
 of definition but as to propositions of domestic, 1 foreign 2 or inter- 
 national 3 law. It is to be observed that, in addition to the ele- 
 ment of common knowledge, there is, in the use of law dictionaries 
 an application of the rules regulating j udicial knowledge — the 
 characteristic function of the court. 4 
 
 1. Supra, §§ 691 et seq. N. P. 38, 3 Stark. 178, 25 Rev. Rep. 
 
 2. Morris v. Harmer, 7 Pet. (U. S.) 779, 16 E. C. L. 425 (1822). 
 
 554, 8 L. ed. 781 (1833). 2. Banco de Sonora t>. Bankers' Mut. 
 
 3. Bow v. Allenstown, 34 N. H. Casualty Co., (Iowa 1903) 95 N. W. 
 351, 69 Am. Dec. 489 (1857) (report 232 (Bouvier's Dictionary as to law of 
 of secretary of state from a state Mexico). 
 
 historical collection); Com. v. Al- 3. Hilton r. Guyot, 159 U. S. 113, 
 
 burger, 1 Whart. (Pa.) 469 (1836). 16 S. Ct. 139, 40 L. ed. 95 (1895). 
 
 1. Charlotte v. Chouteau, 33 Mo. 4. See The Paquete Habana, 175 U. 
 
 194 (1862) ; The Pawashick, 19 Fed. S. 677, 20 S. Ct. 290, 44 L. ed. 320 
 
 Cas. No. 10,851, 2 Lowell 142 (1872). (1900). 
 See also Lacon v. Higgins, D. & R. 
 
1027 Statutory Use of Standard Treatises. §§ 859n, 859o 
 
 § 859n. (C. How Actual Knowledge is Acquired; Function 
 of the Jury; Standard Treatises; Deliberative Facts; [2] In= 
 direct Supplementation by Reducing Common Knowledge to 
 Possession) ; Law Keports. — The judge may consult domestic law 
 reports on the question of the domestic law. 1 It has, however, 
 been suggested that the printed volume is only secondary evidence 
 of the action of the court f — the original papers or a certified 
 copy of them being the highest evidence. 3 He may use foreign 
 or other reports, or the official reports of a sister state for a similar 
 purpose. In this connection, the tribunal freely resorts, wherever 
 the law of a foreign country,* sister state, 5 or colonial dependency 
 is involved, to the printed volumes reporting the action of their 
 courts. 6 It has, however, been required that the law of a sister 
 state 7 should be proved by the skilled witnesses who are acquainted 
 with it, as a matter of special knowledge. 8 Such a witness may 
 authenticate and identify, upon production, the regular reports 
 of the forum with which he is acquainted. 9 The same procedure 
 has been authorized or required by statutes passed in several 
 states. 10 
 
 § 859o. (C. How Actual Knowledge is Acquired; Function 
 of the Jury; Standard Treatises; Deliberative Facts); Statu- 
 tory Modifications. — Eesort to treatises for facts of common knowl- 
 
 1. Supra, § 635; Mackay v. Easton, But the first is a matter of law, the 
 19 Wall. (U. S.) 619, 22 L. ed. 211 second is a question of fact as to 
 (1873) [affirming 16 Fed. Cas. No. which the judge is bound to inform 
 8,843, 2 Dill. 41]. See also Stayner himself. It is difficult to perceive 
 v. Baker, 12 Mod. 86 (1796). precisely why a course helpful to ju- 
 
 2. Donellan v. Hardy, 57 Ind. 393 dicial administration when adopted by 
 (1877). the judge, is dangerous to the search 
 
 3. Freeman v. Bigham, 65 Ga. 580 for truth when applied to the jury. 
 (1880). 7. Gardner v. Lewis, 7 Gill (Md.) 
 
 4. Charlotte v. Chouteau, 33 Mo. 377 (1848). 
 
 194 ( 1862 ) ; Marguerite v. Chouteau, 8. Infra, §§ 870 et seq. 
 
 33 Mo. 540 (1862). 9. Congregational Unitarian Soc. v. 
 
 5. Inge v. Murphy, 10 Ala. 885 Hale, 51 N. Y. Suppl. 704, 29 App. 
 (1846); Billingsley v. Dean, 11 Ind. Div. 396 (1898) (Massachusetts re- 
 331 (1858); Musser v. Stauffer, 192 ports from a law library) . 
 
 Pa. St. 398, 43 Atl. 1018 (1899). 10. Chicago, etc., P. Co. v. Tuite, 
 
 6. This is precisely what counsel 44 111. App. 535 (1892); Ames v. 
 would do in arguing to the court a McCamber, 124 Mass. 85 (1878). See 
 question of domestic law as formulated also French v. Lowell, 18 Pick. (Mass.) 
 by a legal text writer of recognized 34 (1836). It has been provided that 
 authority It is practically what the dissenting opinions are not to be con- 
 judge would do if he were examining sidered in this connection. Chicago, 
 the statements of a foreign jurist re- etc., E. Co. c, Tuite, 44 111. App. 535 
 garding a question of foreign law. (1892). 
 
§ 860 Knowledge; Common. 1028 
 
 edge has frequently been authorized by statute. 1 These add, in 
 most cases, but little to the administrative practice of the courts. 
 They do not, for example, permit the use of medical text-books, 2 
 even when of standard authority. !Nor do they, as a rule, admit 
 other classes of text-books relating to the inexact sciences where 
 danger exists lest the jury may use the statements of the text 
 writer as probative facts. 3 
 
 § 860. (C. How Actual Knowledge is Acquired; Standard 
 Treatises); Administrative Advantages of Receiving Treatise 
 
 The advantages of receiving such statements in evidence, to be 
 accorded such weight as they are logically entitled to have, 1 are 
 uncontestable. The lion in the path is the rule against hearsay. 
 The entire reasoning on which the exclusion is based is pithily 
 summed up in a single sentence by Chief Justice Shaw, of Massa- 
 chusetts. 2 " The substantial objection is that they are statements 
 wanting the sanction of an oath, and the statement thus proposed 
 is made by one not present and not liable to cross-examination." 
 Such are the reasons universally given. 3 To criticize them, is 
 merely to criticize the rule itself. These reasons have not seemed 
 entirely satisfactory to the conscience of the courts.* As has been 
 said by an excellent authority on the law of evidence, 5 they " man- 
 
 1. Burg v. Chicago, etc., R. Co., 90 Michigan. — People r. Millard, 53 
 Iowa 106, 57 N. W. 680, 48 Am. St. Mich. 63, 76, 18 N. W 562 (1884). 
 Rep. 419 (1894). Minnesota. — Payson v. Everett, 12 
 
 2. Gallagher f. Market St. R. Co., Minn. 219 (1867). 
 
 67 Cal. 13, 6 Pac. 869, 51 Am. Rep. Mississippi. — Tucker 17. McDonald, 
 
 680 (1885); Stewart v. Equitable 60 Miss. 460 (1882). 
 
 Mut. L. Assoc, 110 Iowa 528, 81 North Carolina. — Melvin v. Easty, 
 
 N. W. 782 (1900); Van .Strike v. 1 Jones L. 388 (1854). 
 
 Potter, 53 Neb. 28, 73 N. W. 295 Rhode Island.— State v. O'Brien, 7 
 
 (1897) ; Union Pac. R Co. v. Yates, R. I. 336 (1862). 
 
 79 Fed. 584, 25 C. C. A. 103, 40 L. Texas.— Fowler v. Lewis, 25 Tex. 
 
 R. A. 553 (1897). (Suppl.) 381 (1860). 
 
 3. Supra, § 51. Wisconsin. — Soquet v. State, 72 
 
 1. Ripon V. Bittel, 30 Wis. 614, 619 Wis. 666, 40 N. W. 391 (1888). 
 (1872). England. — R. v. Talor, 13 Cox Cr. 
 
 2. Ashworth V. Kittredge, 12 Cush. 77 (1875). 
 
 194 (1853). Canada. — Brown v. Sheppard, 13 
 
 3. California.— Gallagher r. R. Co., U. C. Q. B. 179 (1856). 
 
 67 Cal. 13, 17, 6 Pac. 869 (1885). 4. Western Assur. Co. v. Mohlman 
 
 Kansas.— State v. Baldwin, 36 Kan. Co., 28 C. C. A. 157, 83 Fed. 811 
 
 17, 12 Pac. 318 (1886). (1897). 
 
 Maine. — Ware v. Ware, 8 Me. 56 5. Simon Greenleaf Croswell (1 
 
 (1831). Grlf. [15th ed.], § 497, n.). 
 
1029 Treatises in Examination of Expeet. § 861 
 
 if est a consciousness of the want of principle upon which the rul- 
 ing excluding such testimony rests." Some attempt has, therefore, 
 naturally been made by judges who felt the inadequacy of these 
 general considerations to suggest that the statements of learned 
 authors were unreliable, i. e., the existence of a given statement 
 was not sufficiently probative that the fact was as stated. 6 If this 
 were so, no special need exists for the hearsay or any other rule 
 of exclusion. The statements, if they are not relevant, are not 
 evidence and so not within the scope of any exclusionary rule. 
 Whatever is not relevant is not evidence. 7 The judge who is in 
 the constant habit of consulting the same class of treatises to aid 
 his judicial knowledge of law, 8 or to assist him to know matters 
 of common knowledge, 9 and citing the results of his investigations 
 in authoritative support of his findings and opinions, 10 is hardly 
 in a position consistently to say that the basis of his own action 
 has no logical value. 11 
 
 § 861. (C. How Actual Knowledge is Acquired; Standard 
 Treatises); Incidental Use — The inconsistency of the present 
 administrative course pursued by the courts becomes still more 
 striking when it is observed that the statements of the text writer, 
 supposed to be excluded, are in constant use, as a practical matter, 
 during the whole examination of the skilled witness, in amplify- 
 
 6. California. — Gallagher v. R. Co., Minnesota. — Steenerson v. R. Co., 
 67 Cal. 13, 16, 6 Pac. 869 (1885). 69 Minn. 353, 72 N. W. 713 (1897) 
 
 Maine. — Ware v. Ware, 8 Me. 57 ( financial publications, works on polit- 
 
 (1831). ical economy as to income from » 
 
 Massachusetts. — Ash worth e. Kitt- railroad investment), 
 
 redge, 12 Cush. 195 (1853). Neio York. — Devenbagh v. Deven- 
 
 Miahigan. — People v. Hall, 48 Mich. bagh, 5 Paige Ch. 554, 557 (1836) 
 
 490, 12 N. W. 665 (1882). (Beck's Medical Jurisprudence). 
 
 North Carolina.— Huffman v. Click, 11. This somewhat inconsistent 
 
 77 N. C. 57 (1877). course has occasionally been adopted 
 
 7. Supra, §§ 54 et seq. by the court. State v. Baldwin, 36 
 
 8. Supra, §§ 570 et seq. Kan. 17, 20, 12 Pac. 318 (1886) 
 
 9. Supra, §§ 691 et seq. ("cribbing") ; Washburn v. Cuddihy, 
 
 10. California.— Sinnott v. Colom- 8 Gray (Mass.) 431 (1857) (poisons), 
 bet, 107 Cal. 187, 40 Pac. 329 (1895) The course, however, was a wise one. 
 ("kindergarten"). So long as the rule against hearsay 
 
 Georgia.— Smith v. State, 23 Ga. excludes the statements themselves, 
 
 297, 306 (1857) (lectures on mid- the most available relief is through 
 
 wifery). the administrative power of the court 
 
 Michigan.— Garbutt v. People, 17 to acquire common knowledge 
 Mich. 9, 17 (1868) (insanity). 
 
861 
 
 Knowledge ; Common. 
 
 1030 
 
 ing, corroborating, 1 explaining, illustrating 2 his evidence on di- 
 rect, or testing it, on cross-examination. 3 This testing of the 
 skilled witness may take the form of showing contradiction of his 
 
 1. Indiana. — Carter v. State, 3 
 Ind. 619 (1851). 
 
 Kansas. — State v. Baldwin, 36 Kan. 
 17, 12 Pac. 318 (1886). 
 
 Michigan. — Pinney v. Cahill, 48 
 Mich. 586, 12 N. W. 863 (1882). 
 
 Oregon.— Scott v. R. Co., ( Or. 1903) 
 72 Pac. 594. 
 
 Pennsylvania. — Earls' Trial, Pa. 36 
 (1836). 
 
 Direct quotation by the expert 
 from standard authors has been held 
 incompetent. Fox o. Peninsular 
 Works, 84 Mich. 681, 48 N. W. 203 
 ( 1891 ) ; People V. Millard, 53 Mich. 
 76, 18 N. W. 562 (1884). 
 
 2. Illinois. — Yoe v. People, 49 111. 
 412 (1868) (theories). 
 
 Indiana. — Baldwin v. Bricker, 86 
 Ind. 333 (1883). 
 
 Kansas. — State v. O'Neil, 51 Kan. 
 651, 674, 33 Pac. 387 (1893). 
 
 New Hampshire. — Ordway v. 
 Haynes, 50 N. H. 164 (1870). 
 
 Ohio. — Legg v. Drake, 1 Ohio St. 
 888 (1853). 
 
 Texas. — Wade r. DeWitt, 30 Tex. 
 400 (1857). 
 
 Counsel may be permitted to read 
 extracts from standard treatises, in 
 the discretion of the court. State v. 
 Soper, 148 Mo. 317, 49 S. W. 1007 
 (1899). If the matter is one as to 
 which a jury may properly take ju- 
 dicial knowledge the practice is ap- 
 parently a convenient one. In Con- 
 necticut, this course is permitted by 
 local usage. State v. Hoyt, 46 Conn. 
 337 (1878). 
 
 The prevailing opinion is to the 
 effect that the difficulty likely to be 
 experienced by the jury in receiving 
 the statements of text-books merely 
 as illustrations and giving them no 
 weight as evidence of the facts as- 
 serted is too great to warrant the 
 court in receiving the quotations for 
 
 any purpose. They are accordingly, 
 as a rule, rejected. 
 
 California. — People v. Wheeler, 60 
 Cal. 581 (1883). 
 
 Massachusetts. — Washburn v. Cud- 
 dihy, 8 Gray 431 (1857). 
 
 Michigan. — People v Millard, 53 
 Mich. 77, 18 K. W. 563 (1884). 
 
 North Carolina. — St;ite r. Rogers, 
 113 N. C. 874, 877, 17 S. E. 397 
 (1S93). 
 
 Tennessee. — Byers r. R. Co., 94 
 Tenn. 350, 39 S. W. 129 (1894). 
 
 Wisconsin. — Boyle r. State, 57 Wis. 
 480, 15 ST. W. 827 (1883). 
 
 England. — R. v. Taylor, 13 Cox Cr. 
 77, 78 (1875); R. v. Crouch, 1 Cox 
 Cr. 94 (1844). 
 
 3. Indiana. — Louisville K. A. & C. 
 R. Co. v. Howell, 147 Ind. 266, 45 
 N. E. 584 (1896) ; Hess v. Lowery, 
 122 Ind. 233, 23 N. E. 156 (1889). 
 
 Kentucky. — Williams v. Nally, 
 (Ky. 1898) 46 S. W. 874. 
 
 New Hampshire. — State v. Wood, 
 53 N. H. 495 (1873). 
 
 Tennessee. — Sale v. Eichberg, (Tenn. 
 1900) 59 S. W. 1020 (experience of 
 the witness) ; Byers v. R. Co., 94 
 Tenn. 569, 29 S. W. 128 (1894). 
 
 Washington. — Clukey v. Electric 
 Co., 27 Wash. 70, 67 Pac. 379 (1901). 
 
 England. — ■ Gardner Peerage Case, 
 Le Marchant's Rep. 22 (1825). 
 
 Canada. — Brownell v. Black, 31 N. 
 Br.' 594 (1890). 
 
 Evasion of the hearsay rules by a 
 counsel who seeks to use extensive ex- 
 tracts from standard treatises in their 
 assertive capacity under guise of cross- 
 examination, will be prevented by the 
 court. Hall v. Murdock, 114 Mich. 
 233, 72 N. W. 150 (1897). 
 
 Production of the treatise itself is 
 usually required. Exceptional rulings 
 have been occasionally made. Brod- 
 head v. Wiltse, 35 Iowa 430 (1873). 
 
1031 No Exception foe Standard Treatises. §§ 862, 863 
 
 statements, 4 his mistaken reliance on authority which in fact does 
 not sustain the position of the witness, 5 and the like. 
 
 § 862. (C. How Actual Knowledge is Acquired; Standard 
 Treatises); More Valid Objections. — More valid objections to al- 
 lowing the use of standard text-books and other scientific treatises 
 as evidence of the facts asserted have been suggested; — (1) that 
 the jury may be confused or misled by technical writings when 
 placed before them without simplification or suitable comment; 1 
 or, (2) that extracts may be selected, by accident or design, which 
 when introduced in evidence, would fail to represent the real 
 opinion of the writer, who has modified, in essential particulars, 
 in other parts of his work, the effect of the passages quoted. 2 But 
 these criticisms apply, with almost equal force, to all evidence; 
 and it will rarely be found that either difficulty will prove for- 
 midable to a counsel who has made adequate preparation for the 
 trial of the cause. The eminent authority who has written the 
 treatise is, as a rule, more competent, 3 as well as more disin- 
 terested and loyal to truth for truth's sake, 4 than the average 
 " expert ", while a thoroughly competent man could be procured as 
 a witness only at an entirely disproportionate expense. 
 
 § 863. (C. How Actual Knowledge is Acquired; Function of 
 the Jury; Standard Treatises) ; No Exception to Hearsay Rule. 
 
 — However desirable it would be that the ride should be other- 
 wise, and however unscientific and practically harmful to the 
 interests of justice it may be that the rule should be as it is, it 
 
 No objection exists in point of prin- New Jersey. — New Jersey Zinc & I. 
 
 ciple, to asking a properly skilled wit- Co. v. L. Z. & I. Co., 59 N. J. L. 189, 
 
 ness as to what is the general profes- 35 Atl. 915 (1896). 
 
 sional opinion. The evidence has, North Carolina. — Butler V. R. Co., 
 
 however, been rejected. State v. Win- 130 N. C. 15, 40 S. E. 770 (1902). 
 
 ter, 72 Iowa 627, 632, 34 N. W. 475 Wisconsin.— Knoll v. State, 55 Wis. 
 
 '(1887) ; Davis v. U. S., 165 U. S. 373, 256, 12 N. W. 369 (1882). 
 
 17 Sup. 360 (1896) (at least in the Canada. — Brown v. Sheppard, 13 
 
 court's discretion). U. C. Q. B. 178 (1856). 
 
 4. Davis v. State, 38 Md. 36 (1873). 1. Ashworth v. Kittredge, 12 Cush. 
 
 5. Florida. — Eggart v. State, 40 (Mass.) 195 (1853). 
 
 Fla. 527, 25 So. 144 ( 1899 ) . 2. Gallagher v. K. Co., 67 Cal. 13, 
 
 Illinois.— Bloomington v. Schrock, 6 Pac. 869 (1885). 
 
 110 111. 222 (1884). 3. Dole v. Johnson, 50 N. H. 456 
 
 Kentucky.— Clark v. Com., Ill Ky. (1870). 
 
 443, 63 S. W. 740 (1901). 4. See 24 Alb. Law Journ. 368 
 
 Michigan. — People %. Vanderhoof, (1881). 
 
 71 Mich. 179, 39 N. W. 28 (1888). 
 
§ 864 
 
 Knowledge; Common. 
 
 1032 
 
 is settled, as stated elsewhere, 1 that there is no general exception 
 to the hearsay rule admitting the statements of writers of recog- 
 nized authority. 2 Indeed the drift of decision is increasingly 
 unfavorable to the creation of such an exception. Jurisdictions 
 which in their earlier decisions recognized that the necessity and 
 relevancy of these scientific statements entitled them to be re- 
 ceived in evidence, as, for example, Alabama, 3 Iowa, 4 Ne- 
 braska, 5 Wisconsin, 6 later reversed their rulings, admitting such 
 evidence. 7 
 
 § 864. (C. How Actual Knowledge is Acquired; Standard 
 Treatises) ; Belief Through Administration. — So far as statutory 
 relief is not offered, much assistance may be rendered the partiea 
 by a reasonable use of the administrative power of the court in 
 ascertaining facts of common knowledge, by personal resort to 
 standard treatises and other well-recognized sources of informa- 
 
 1. Supra, § 698. 
 
 2. Georgia. — Johnston v. R. Co., 95 
 Ga. 685, 687, 22 S. E. 694 (1895). 
 
 Illinois. — Bloomington v. Schrock, 
 110 111. 221 (1884). 
 
 Indiana. — Epps v. State, 102 Ind. 
 539, 550, 1 N. E. 491 (1885). 
 
 Massachusetts. — Com. v. Marzynski, 
 149 Mass. 72, 21 N. E. 228 (1889). 
 
 Michigan. — ■ People r. Vanderhoof, 
 71 Mich. 158, 179, 39 N. W. 28 
 (1888). 
 
 New Hampshire. — Dole v. Johnson, 
 50 N. H. 452, 456 (1870). 
 
 New Jersey. — New Jersey Z. & I. 
 Co. v. L. Z. & I. Co., 59 N. J. L. 189, 
 35 Atl. 915 (1896). 
 
 South Dakota. — Brady v. Shirley, 
 14 S. D. 447, 85 N. W. 1002 (1901) 
 ( veterinary surgery ) . 
 
 Wisconsin. — ■ Kreuziger V. R. Co., 73 
 Wis. 160, 40 N. W. 657 (1888). 
 
 United States. — Union P. R. Co. v. 
 Yates, 25 C. C. A. 103, 79 Fed. 584 
 (1897). 
 
 England. — R. r. Taylor, 13 Cox. Cr. 
 78 (1874) ; Darby V. Ouseley, 1 H. & 
 N. 8, 12 (1856) (history of papal ex- 
 communication of heretical sover- 
 eigns) ; R. v. Crouch, 1 Cox Cr. 94 
 (1844). 
 
 3. Bales v. State, 63 Ala. 30 (1879) ; 
 Merkle r. State, 37 Ala. 139 (1861). 
 
 4. Peck v. Huchinson, 88 Iowa 320, 
 325 (1893) (Wells Treatise on the 
 Eye, admitted) ; Bowman v. Woods, 1 
 G. Greene (Iowa) 445 (1848). 
 
 5. Sioux City & P. R. Co. v. Finlay- 
 son, 16 Neb. 578, 20 N. W. 860 
 (1884) " Catechism of a Locomotive." 
 
 6. Luning v. State, 1 Chand. 185 
 (1849). 
 
 7. Alabama. — Timothy v. State, 130 
 Ala. 68, 30 So. 339 (1900). 
 
 California. — Gallagher v. R. Co., 67 
 Cal. 13, 6 Pac. 869 (1885). 
 
 Iowa. — Stewart v. Equit. M. L. 
 Ass'n, 110 Iowa 528, 81 N. W. 782 
 (1900); Bixby r. Bridge Co., 105 
 Iowa 293, 75 N. W. 182 (1898) 
 (medical books rejected) ; Burg v. R. 
 Co., 90 Iowa 106, 114, 57 N. W. 680 
 (1894) (Railway Age; American Me- 
 chanical Dictionary, rejected) . 
 
 Nebraska. — Van Skike V. Potter, 53 
 Neb. 28, 73 N. W. 295 (1897) (books 
 on surgery, excluded). 
 
 United States. — Union P. R. Co. r. 
 Yates, 25 C. C. A. 103, 79 Fed. 584 
 (1897) (Treatise on Nervous Shock, 
 excluded). 
 
1033 How Far Knowledge is Binding. §§ 865, 866 
 
 tion, which would in the case of other members of the com- 
 munity assist in rendering actual their potential knowledge. 1 The 
 administrative value of the expedient is greatly diminished in use- 
 fulness by the necessary restriction of judicial cognizance to facts 
 which are neither res gestae or constituent ; 2 — except so far as 
 this matter is affected in any particular case, by the operation of 
 waiver. 6 
 
 § 865. (C. How Actual Knowledge Is Acquired); Testimony 
 of Skilled Witnesses. — Should the court decline to learn, in this 
 way, the existence of a fact of common knowledge, the only avail- 
 able method is to use the witness of special knowledge, the " ex- 
 pert," as he is called. 1 In the average instance such a witness 
 will be found to testify more or less immediately and exclusively 
 from his reading, i. e., from the statements of standard treatises. 2 
 The additional elements of proof which the experienced witness 
 would supply, in the average instance, are two. (1) Whether 
 the statements of the book accorded with the results of his per- 
 sonal experience, a fact usually of little value, even when 
 obtainable, notwithstanding the statement of Chief Justice 
 Tindal, 3 that " Physic depends more upon practice than law 
 does." 4 (2) As to the technical or professional standing of the 
 treatise itself, which is usually a fact of notoriety. The authori- 
 tative character of the treatise, and the qualification of the text- 
 writer, 5 must affirmatively appear in all cases. 6 
 
 § 866. D. How Far Knowledge is Binding. — The effect of the 
 court's taking judicial or common knowledge has been said, by 
 
 1. Supra, § 698. 5. Alabama. — Merkle v. State, 37 Ala. 
 
 2. Supra, § 700. 141 (1861); Stoudenmeier V. William- 
 
 3. Infra, § 869. son, 29 Ala. 558 (1857). 
 
 1. Infra, § 1949; Stoudenmeier v. Iowa. — Crawford v. Williams, 48 
 
 Williamson, 29 Ala. 558 (1857). Iowa 249 (1878) (herd book). 
 
 2. In medical jurisprudence, so called, Pennsylvania. — Spalding v. Hedges, 
 this is especially true. "Medical 2 Pa. St. 243 (1845) (gazetteer), 
 evidence altogether is little else than Tennessee. — 'Railroad Co. v. Ayres, 
 a reference to authority." 19 Edin- 84 Tenn. 729 (1886) (mortality 
 burgh Med. & Surg. Jour., 480. tables). 
 
 3. Collier v. Simpson, 5 C. & P. 73 England. — Rowley v. R. Co., L. R. 
 (1831). 8 Ex. 227 (1873). 
 
 4. Prior to this time rulings had 6. "If the witness says: 'I know 
 been in a very confused state. The the law and the book truly states the 
 evidence of statements of medical au- law,' then you have the authority of 
 thorities had been received. Spenser the witness and of the book." Sussex 
 Cowper's Trial, 13 How. St. Tr. 1163 Peerage Case, 11 C. & F. 113 (1844). 
 (1699). 
 
§ 867 Knowledge; Common. 1034 
 
 certain courts, to be final. The reasoning is that judicial knowl- 
 edge takes the place of proof — consequently, that it is proof 
 and equally conclusive. 1 A marked difference apparently exists, 
 however, in this connection, according as the knowledge of the 
 judge is judicial or common; — i. e., according as the court's 
 knowledge relates to matter of law, or to matter of fact. 
 
 § 867. (D. How Far Knowledge is Binding); Matter of Fact. 
 — The line of demarkation between law and fact is frequently, 
 however, hard to draw. This is not to be regarded as unexpected 
 in case of a differentiation which has no basis in the reality of 
 things. 1 Indeed, to refuse to hear evidence, whether this is done 
 by way of a so-called " conclusive presumption," 2 or of judicial 
 cognizance, is, in itself, to leave the field of fact and lay down a 
 rule of substantive law. But so far as the court's knowledge re- 
 tains the position of an assumption of the truth of a notorious 
 fact or of easily accessible statements, a party should be permitted 
 to contravene and, if possible, control, the judge's opinion. To 
 the extent that the court's knowledge of common facts is limited, 
 as it properly should be, 3 to probative facts, i. e., those not res 
 gestae or constituent of the right or liability asserted, which it 
 would be in the discretion of the judge to reject entirely, a party 
 is, as a rule, concluded by the judge's declining to know such facts. 
 In case of constituent facts or those in the res gestce* a party 
 
 1. Connecticut. — State v. Morris, 47 evidence is designed to fulfill, and 
 
 Conn. 179, 180 (1879). makes evidence unnecessary. The 
 
 Maryland. — Munshower v. State, 55 true conception of what is judicially 
 
 Md. 11, 39 Am. Rep. 414 (1880). known is that of something which is 
 
 Massachusetts. — Com. v. Marzynski, "not, or rather need not, unless the 
 
 149 Mass. 68 (1889). tribunal wishes it, be the subject of 
 
 Minnesota. — Thomson Houston, etc., either evidence or argument — some- 
 Co. v. Palmer, 52 Minn. 174, 177, 53 thing which is already in the court's 
 N. W. 1137 (1893). possession, or, at any rate, is so ac- 
 
 North Carolina. — Hooper v. Moore, cessible that there is no occasion to 
 
 5 Jones L. (N. C.) 130, 132 (1857). use any means to make the court 
 
 United States. — Brown v. Piper, 91 aware of it." State v. Main, 69 Conn. 
 
 U. S. 37, 43 (1S75). "Judicial no- 123, 61 Am. St. 30, 39 (1897). See 
 
 tice, takes the place of proof, and is also State v. Wagner, 61 Me. 178 
 
 of equal force. As a means of estab- (1873). 
 
 lishing facts, it is therefore superior 1. Supra, § 41. 
 
 to evidence. In its appropriate field, 2. Infra, §§ 1160 et seq. 
 
 it displaces evidence, sinee, as it stands 3. Supra, § 51. 
 
 for proof, it fulfills the object which 4. Supra, § 47. 
 
1035 Construction May Dispense With Proof. § 868 
 
 may insist upon introducing evidence 5 — under his substantive 
 right to prove his contention. A litigant in whose favor a fact is 
 noticed may well be denied the right to introduce evidence to the 
 same effect. 6 The language of an interesting Massachusetts case 7 
 is sufficiently sweeping to sustain the contrary contention. The 
 case may, however, be distinguished ; in that the ruling itself was 
 merely as to the right of the court to reject evidence to aid it in 
 construing the unambiguous language of a statute. The court's 
 assumed knowledge may be regarded, under these circumstances, 
 as judicial, rather than common ; 8 and it seems undoubted that a 
 court may reasonably decline to receive evidence to control its 
 judicial knowledge, or that on which it sees fit to act in discharg- 
 ing an administrative function. 
 
 § 868. (D. How Far Knowledge is Binding); Matter of Law. 
 — As a matter of course the action of the parties cannot conclude 
 the judicial knowledge of the court with regard to matters of law. 
 For example, the recognition of a foreign government by the exec- 
 utive department of the forum cannot be concluded contrary to the 
 fact, by a- stated agreement of the parties. Thus, where a bill in 
 equity alleged that a certain government had been recognized 
 by the British executive, and the fact was otherwise, the 
 court refused to give effect, in this particular, to the admission of 
 a demurrer to the bill. " I am bound to take the fact as it really 
 exists," said the court, " and not as it is averred to be." * The 
 doctrine regarding the finality of the court's action in taking 
 judicial knowledge, properly so-called, i. e., when he announces 
 that he knows, as judge, a rule of law or one of its primary effects, 
 is the same as it is with regard to other rulings on matter of law. 
 In this class would therefore fall the construction of a document, 
 the effect of a public statute and so on. 2 The court may properly 
 
 5. People v. Mayes, 113 Cal. 618, within the meaning of an exception 
 45 Pac. 860 (1896). to the operation of a statute). 
 
 6. State v. Chingren, 105 Iowa 169, 8. This construction of statutes is 
 74 N. W. 946 (1898). a well settled function of the court. 
 
 7. Com. v. Marzynski, 149 Mass. 68 Com. v. Crowley, 145 Mass. 340 
 (where it was held that the court ("baker"). Supra, § 128. 
 
 was justified in rejecting evidence 1. Taylor v. Barclay, 3 Sim. 213 
 
 that a sale of cigars by a tobacconist (1828). 
 
 in his shop in the usual way and for 2. People v. Oakland Water-Front 
 
 ordinary use on the Lord's Day was Co., 118 Cal. 234, 50 Pac. 305 (1897) 
 
 a sale of "drugs and medicines" (incorporation of a city). 
 
§ 868 Knowxedge ; Common. 1036 
 
 decline to hear evidence to aid it in construing a statute, 3 or other 
 document. It is eminently proper to hold, in such cases, that 
 where a judge reaches a wrong conclusion in knowing judicially 
 such a fact the act is as much error as if he had mistaken a rule 
 of law. 4 
 
 A Dual Function. — The question as to how far the knowledge 
 of the court as to matters of notoriety may be regarded as binding 
 upon the parties brings in sharp contrast the dual function of 
 a presiding judge. He is, in the first place, appointed for the 
 ascertainment of truth and the furtherance of justice; in the 
 second place to administer the rules of law upon such facts as the 
 parties may see fit to offer and such contentions as they may deem 
 it advisable to make. A very considerable strain is placed upon 
 a judge who is called upon to permit a fact to be proved to an 
 effect contrary to what he actually knows to be the truth. It is 
 a burden which the American system of jurisprudence apparently 
 places upon its judges and of which it allows them to relieve them- 
 selves only by the entirely disproportionate expedient of ordering 
 that the ease be tried again. As has been said 5 the parties are at 
 liberty to attempt to prove, if they can, a res gestae or constituent 
 fact even contrary to the common knowledge of the court and 
 jury. Whether the parties are at liberty to stipulate or agree to 
 the existence of a fact which the court knows to be untrue is a 
 matter of some doubt. Agreements contrary to judicial knowl- 
 edge have been sustained. 8 The same rule has been applied to 
 the court's judicial knowledge of the direct results of law, e. g., 
 the official reports of a railroad to the authorities of the state, as 
 required by law. 7 Where a demurrer concedes the navigability 
 of a stream it ha3 been held that the court's common knowledge 
 could not be utilized to the contrary effect. 8 On the other hand, 
 it has been intimated that the court will not act upon such an ar- 
 rangement. 9 Unless rigidly limited, the latter doctrine is a dan- 
 
 3. Com. v. Marzynski, 149 Mass. (1900). See also Walton r. Stafford, 
 68, 72, 31 N. E. 228 (1889). Supra, 43 N. Y. Suppl. 1049, 14 App. Div. 
 § 128. 310 (1897). 
 
 4. Gilbert v. Flint, etc., R. Co., 51 7. People v. Michigan Cent. R. Co., 
 Mich. 488, 16 N. W. 868, 47 Am. (Mich. 1906) 13 Detroit Leg. N. 552, 
 Rep. 592 (1883) ; TJ. S. l\ One Thou- 108 N. W. 772. 
 
 sand Five Hundred Bales of Cotton, 8. State v. Norcross, (Wis. 1907) 
 
 27 Fed. Cas. No. 15,958 (1872). 112 N. W. 40. 
 
 5. Supra, § 700. 9. Russ v. Boston, 157 Mass. 60, 31 
 
 6. North Hempstead r. Gregory, 65 N. E. 708 (1892). 
 N. Y. Suppl. 867, 53 App. Div. 350 
 
1037 Waivee an Administrative Advantage. § 869 
 
 gerous one. The tribunal is not, however, required to act upon 
 uncontroverted evidence, tending to establish a fact contrary to 
 its own judicial knowledge. 10 
 
 Where the knowledge is judicial, i. e., relates to matter of law, 
 the action of the judge is final, for the purposes of the case; — 
 even in connection with the direct results of law, or with respect 
 to the construction of a statute, where the matter is for the judge, 
 though properly one of fact. 11 Thus, a judge in construing a 
 statute is not required to hear evidence to an effect which he 
 feels is contrary to common knowledge. 12 In other words, the 
 situation is administrative where the knowledge of the trial judge 
 is judicial. The parties have no more right to control by their 
 agreements the action of the court than they would have to. de- 
 termine, in the same way, what should be the rule of law appli- 
 cable to the case. The judge is preparing to discharge an admin- 
 istrative function and he is entirely unfettered, except by the 
 rules of reason, as to what effect he may give the information, 
 arguments or agreements of the parties. 
 
 § 869. E. Cognizance as Affected by Action of the Parties; 
 Waiver — To the number of facts not requiring proof because 
 judicially noticed as commonly known may properly be added 
 facts of little or no notoriety which are assumed as true during 
 the course of the trial because asserted on the one side and not 
 denied on the other. No rule of law demands that a party should 
 insist upon proof of such facts. Few administrative expedients 
 for expediting trials 1 are more effective in the hands of a compe- 
 tent judge than this recognition that not all facts are controverted 
 between the parties with equal vehemence. While not intruding 
 into the actual management of the case so far as to remove the 
 function of initiative from the parties where it properly belongs, 
 wise judicial administration may well employ a considerable por- 
 tion of its energy in increasing, in any given case, the number of 
 uncontroverted facts. It not infrequently happens that this is, 
 intentionally or unintentionally, accomplished by the presiding 
 justice through the formula of announcing that he judicially 
 
 10. Lidwinof sky's Petition, 7 Pa. 12. Mai parte Kair, (Nev. 1905) 80 
 Dist. 188 (1898). See also Com. v. Pac. 463 (that prolonged labor in a 
 Marzynski, 149 Mass. 68, 21 N. E. 228 mill for reducing ores is not preju- 
 (1889). dicial to health). 
 
 11. Supra, § 128. 1. Supra, §§ 544 et seq. 
 
§ 869 Knowledge; Common. 1038 
 
 knows a certain fact, or that it is commonly known. No small 
 portion of the advantage in practical administration, which at- 
 tended the use of a common law system of pleading consists in 
 the aid which it furnishes to this salutary principle of adminis- 
 tration. On the contrary, no objection to the use of a diffuse 
 system of code pleadings, — which instead of stating propositions 
 on one side or the other puts forth a situation in the complaint 
 to be answered by another situation set up in the answer, — is, in 
 reality, more weighty than that it undermines clear thinking by 
 placing the important and the unimportant on the same logical 
 level and confuses the jury by a large number of disputes which, 
 at best, merely protract the trial, but, usually, assist in creating 
 a necessity for a new trial or reversal. In other words, a presid- 
 ing judge may well be alert in noticing any waiver, by either 
 party, upon strictness of proof, in any given connection. No 
 public policy, except, occasionally, in criminal cases, is opposed to 
 such a course on the part of the judge. "As the rules of evidence " 
 said Chief Justice Shaw 2 " are made for the security and benefit 
 of the parties, all exceptions may be waived by mutual consent." 
 Sound administration requires that a distinction be observed as 
 to what matters of proof or other procedural requirement a liti- 
 gant may properly waive as distinguished from those which he 
 may not. That upon which a party is, as of right, entitled to 
 insist, he may also waive. Applying this test to the facts covered 
 by common knowledge, it would seem that the party was entitled 
 to demand or waive the advantage of such rules of procedure, 
 practice or administration as were primarily designed to assist 
 the litigants, foster the litigious elements in litigation; but that 
 he was not concerned with provisions directly designed for the 
 furtherance of the social objects which the proceedings seek to 
 reach. 3 In other words, so far as administration or positive law 
 establishes rules for the protection of substantive rights,* they 
 may be waived by the party. Where the object of the rule is to 
 further justice, 5 expedite causes, 6 or give certainty to substantive 
 law, 7 the litigant has no right to insist; and, consequently, has 
 nothing to waive. For example, either party is entitled to insist 
 
 2. Shaw v. Stone, 1 Cust. (Mass.) 5. Supra-, §§ 463 et seq. 
 828, 243 (1848). 6. Supra, §§ 544 et seq. 
 
 3. Supra, § 303. 7. Supra, §§ 556 et seq. 
 
 4. Supra, §§ 332 et seq. 
 
1039 No Waivee of the Public Inteeest. § 869 
 
 upon proving a res gestce or constituent fact material to his case. 8 
 He may therefore waive the benefit of such proof. "Where, how- 
 ever, the question is as to the right of a presiding judge to do 
 justice or expedite a trial by investigating into the existence of a 
 notorious historical fact, a litigant has no rights, nothing to 
 waive, and is not even entitled to be heard. 
 
 8. Supra, §§ 358, 700. 
 
Knowledge; Special. 1040 
 
 CHAPTER X. 
 
 KNOWLEDGE; SPECIAL. 
 
 Special knowledge, 870. 
 
 reason for excluding knowledge in general, 871. 
 administrative action of judge, 872. 
 
 necessity and relevancy, 873. 
 
 adequate knowledge, 874. 
 Technical or scientific facts, 875. 
 
 administrative considerations, 876. 
 scope, 877. 
 
 properties of matter, S78. 
 illustrative instances, 879. 
 business affairs, 880. 
 
 customs, 881. 
 
 technical terms, 882. 
 carpentering and other building, 883. 
 chemistry, 884. 
 ecclesiastical matters, 885. 
 engineering questions, 886. 
 farming and stock-raising; farming, 887. 
 
 stock-raising, 888. 
 insurance matters, 889. 
 
 /w, 890. 
 
 Zt/e, 891. 
 
 mortality tables, 892. 
 
 marine, 893. 
 interstate or foreign law, 894. 
 
 oraZ testimony as to written law, 895. 
 
 interpretation, 896. 
 
 skilled witness; English rule, 897. 
 qualifications, 898. 
 English rule, 898. 
 American r«?e, 899. 
 
 function of the judge, 900. 
 maritime affairs, 901. 
 
1041 Keason foe Using Special Knowledge. § 870 
 
 Technical or scientific facts, 
 mechanic arts, 902. 
 dangers, 903. 
 
 proper management of business, 904. 
 strength of mechanical appliances, 905. 
 use of firearms, 906. 
 value of materials, 907. 
 mining, 908. 
 natural history, 909. 
 professional facts, 910. 
 law, 910. 
 medicine, 911. 
 
 effect of drugs, poisons, etc., 912. 
 
 qualifications of witnesses, 913. 
 
 state of medical Tcnowledge, 914. 
 
 symptoms of bodily or mental disease; injuries, 
 
 etc., 915. 
 treatment; possibilities and probabilities, 916. 
 surgery, 917. 
 veterinary surgery, 918. 
 railroad facts, 919. 
 
 duties of officers or employees, 920. 
 operation, 921. 
 
 freight transportation, 922. 
 minor facts, 923. 
 passenger transportation, 924. 
 possibilities and probabilities, 925. 
 roadbed and equipment, 926. 
 s<ree£ railway matters, 927. 
 
 duties of officers or employees, 928. 
 operation; possibilities, 929. 
 
 § 870. Special Knowledge. — Secondary in importance only to 
 the judicial or law knowledge of the judge 1 and the common 
 knowledge of both judge and jury as to facts of notoriety 2 is the 
 special knowledge of skilled or experienced witnesses ; — the con- 
 sideration of which will occupy the present chapter. The judicial 
 office of special knowledge is to supply the inadequacies of the 
 common knowledge of the jury. The underlying necessity for 
 
 1. Supra, § 571. 2. Supra, § 699. 
 
 Vol. I. 66 
 
§ 871 Knowledge; Special. 1042 
 
 using it is the limited experience of the average member of the 
 community. As is elsewhere observed, and as, indeed, is obvious, 
 the inferences which both court and jury are constantly drawing 
 as a very large part of the required exercise of reason in connec- 
 tion with their judicial acts, rest ultimately upon some general 
 proposition of experience which is part of common knowledge. 3 
 From this as a major premise, and some fact in evidence as a 
 minor, a conclusion is reached. This, in its turn, alone or in 
 connection with other facts, becomes the major premise of a sec- 
 ond and usually more comprehensive syllogism, and so on, until 
 the supposed res gestae are established. At this point legal reason- 
 ing,* operating by employment of the constituent relevancy 5 ex- 
 isting between the res gestae or constituent facts and some proposi- 
 tion in issue but presenting a general similarity to this logical 
 process, but also revealing certain essential differences, is used to 
 arrive at the judicial decision which the proceedings seek to reach. 
 Cases, however, may arise where this element of general experi- 
 ence founding the major premise is necessarily absent from the 
 jury. To coordinate technical experience with a rational conclu- 
 sion may require specially trained faculties, which the jury may 
 not possess and cannot readily acquire. In the first case, the 
 special knowledge of the skilled technical witness will be placed 
 by the proponent at the service of the jury, leaving them to draw 
 the inferences from it. In the second, the skilled witness, fre- 
 quently testifying as an " expert " i. e., upon hypothetical ques- 
 tions 6 , will be permitted not only to state the special knowledge on 
 which he bases his conclusion or judgment but also these mental 
 results themselves and the processes of inference by which he 
 reaches them. 
 
 § 871. (Special Knowledge) ; Reason for Excluding Knowledge 
 
 in General. — In testifying to special knowledge, rather than par- 
 ticular knowledge a witness is exercising a function usually de- 
 nied to those who testify. Witnesses are not to reason. 1 The 
 precise basis for this rule is that it is not, in general, within the 
 province of a witness to state hnoivledge. In view of the fact, just 
 mentioned, that the major premise of reasoning is some proposi- 
 tion derived ultimately from experience in the community which, 
 as affected by reflection and the experience of others constitutes 
 
 3. Supra, § 694. 6. Infra, §§ 2451 et seq. 
 
 4. Supra, § 63. 1. Infra, §§ 1791 et seq. 
 
 5. Infra, § 1710. 
 
1043 Administrative Use oe Special Knowledge. § 872 
 
 common knowledge, the use of reason on the part of a witness 
 implies and requires the transfer into the case of the general or 
 special knowledge of the witness, in the form of his inference, 
 conclusion or judgment. 2 Common knowledge it is the function 
 of the counsel, judge and jury to utilize in course of the reasoning 
 process. The witness, so far as reasonably feasible, must be con- 
 tent to furnish eyes and ears for the tribunal, to place a judge 
 and jury, to the extent of his ability, in the position of original 
 observers of the scene reproduced in the evidence. This is his 
 ancient oath and at all times his characteristic duty. 3 His office 
 is as it were to supply the " raw materials " for judgment, the 
 minor premises of logical syllogisms of which knowledge or, more 
 direct experience, supplies to each a major premise. 
 
 § 872. (Special Knowledge) ; Administrative Action of Judge. 
 
 — As an administrative matter, the right of a party to prove his 
 case by. the best evidence in his power is paramount. 1 Unquestion- 
 ably it is the general procedural rule, dating from very early 
 times in English law, 2 that jurors should reason and witnesses 
 should not. To harmonize these two administrative or procedural 
 principles, the court is, in effect compelled to say, that so far 
 as the common knowledge of the jury enables them rationally to 
 deal with a particular set of facts, they must be permitted to do 
 so; and that where they are not, the proponent may supplement 
 this general knowledge by special knowledge or even by inferences 
 from such special knowledge. In other words, as to matters of 
 common knowledge, a jury can, generally speaking, gain nothing 
 of essential value from the judgment of witnesses, however ex- 
 perienced or skillful. 3 To form the major premise of the syllo- 
 gism which gives relevancy to any minor premise supplied by a 
 fact in evidence knowledge is needed. So far as possible, this 
 knowledge should be that of the average juror i. e., common knowl- 
 edge. Whenever a judge finds, as a matter of administration, that 
 
 2. His conclusion is a function of 1. Supra, § 334. 
 two variables ; — ( 1 ) the knowledge of 2. Supra, § 270i. 
 
 the witness and (2) the existence of 3. Compton t\ Bates, 10 111. App. 
 
 oertain facts as proved by the evi- 78 (1881); Knoll v. State, 55 Wis. 
 
 dence. To receive his conclusion im- 249, 12 N. W. 369, 42 Am. Rep. 704 
 
 ports his general knowledge and ac- (1882) ; Wright v. Com., 72 S. W. 
 
 cepts his finding as to the effect of 340, 24 Ky. L. Rep. 1838 (1903) ; 
 
 the evidence or phenomena observed Hovey v. Sawyer, 5 Allen 554 (1863); 
 
 by him. McCall v. Moschcowitz, 10 N. Y. Civ. 
 
 3. Infra, § 1800. Proc. 107 (1886). 
 
§§ 873, 874 Knowledge; Special. 1044 
 
 in his opinion, the common knowledge of the jury may reasonably 
 be assumed to be insufficient, he may properly allow it to be supple- 
 mented by that possessed by persons of special experience. With 
 regularity and little consideration, the judge will permit relevant 
 facts of special knowledge and experience to be placed before the 
 jury. With greater hesitancy and the establishment of stronger 
 administrative reasons, he will allow the skilled witness, as an 
 expert, to use his own mental faculties upon the basis of this 
 special knowledge in the formation of judgments, in which tbe 
 facts in evidence, or certain of them, constitute the minor prem- 
 ise, being submitted to the witness by means of hypothetical 
 questions. 4 
 
 § 873. (Special Knowledge; Administrative Action ot 
 Judge); Necessity of Relevancy. — It follows from what has 
 been said that evidence of special knowledge is not only supple- 
 mentary to common, but that it is, in a sense, secondary to it. 
 Under these circumstances, the ordinary rule of administration 
 obtains that the secondary evidence will be admitted only (1) 
 when an adequate forensic necessity has been shown for using it 
 and, (2) that it be affirmatively shown by the proponent or as- 
 sumed by the court that the secondary evidence is relevant, i. e., 
 is from a person of adequate knowledge and without controlling 
 motive to misrepresent. 
 
 § 874. (Special Knowledge; Administrative Action ot 
 Judge) ; Adequate Knowledge. — Among the elements of relevancy 
 those which are subjective are of special importance in this con- 
 nection and, as between the two elements of subjective relevancy, 
 adequate knoAvledge is of higher consequence. The testimony of 
 a skilled witness may be valuable to the jury if he be suitably* 
 equipped by professional knowledge and experience although 
 
 4. Infra, §§ 2451 et seq. The prin- mony is rejected it amounts to a 
 ciple being entirely settled that com- holding that the subject-matter is 
 mon knowledge is to be primarily re- sufficiently within the common knowl- 
 lied upon as the major premise for edge of the jury to enable them to 
 judicial inferences so far as it extends, deal with it in a satisfactory manner, 
 to the exclusion of " expert knowl- Per contra, admitting expert knowl- 
 edge," so called, a ruling or finding edge is in reality a ruling or finding 
 as to the admissibility of the judg- that the common knowledge of the 
 ments of skilled witnesses is, in ef- jury is inadequate to deal with the 
 feet, deciding as to what constitutes matter disclosed in the evidence, 
 common knowledge. If expert testi- 
 
1045 Personal Observation Not Essential. § 874 
 
 biased in favor of the party calling him, while, however dis- 
 interested he may be, his evidence will be of little value should he 
 know nothing about the technical subject on which he proposes 
 to testify. It is therefore an important part of the administrative 
 action of the court in this connection that only such technical 
 testimony should be allowed to go to the jury as is reasonably cal- 
 culated to aid their deliberations. The skilled witness may, as a 
 matter of course, testify to the same facts as would an ordinary 
 witness — the " man on the street." But he may go further, into 
 fields where an ordinary witness cannot follow him and it is in 
 these that his qualifications become of especial importance. In 
 other words, the skilled observer may testify as to any relevant 
 fact but should it be one of special knowledge 1 i. e., one connected 
 with a particular profession, trade or calling, the court will re- 
 quire that the witness should qualify as possessing the knowledge 
 appropriate to a member of it. 2 Such a fact may either have 
 been one observed by him 3 or generally known in the calling in 
 which his experience lies. An individual fact of common tech- 
 nical knowledge may have fallen but rarely under his own obser- 
 vation; he may not have chanced actually to observe it at all. 
 That makes no difference. 4 Thus the symptoms of poisoning 5 or 
 other bodily disease, 6 the effect of particular drugs 7 on the human 
 system, may be stated, as facts, by a medical witness who has 
 had no occasion to observe them. In a similar way the method 
 of conducting some mechanical operation 8 or the way in which 
 
 1. Supra, § 870. The requirement of actual ex- 
 
 2. Osborne v. Troup, 60 Conn. 485, perience has, however, been made. 
 23 Atl. 157 (1891) ; Baxter v. Chi- Graney v. St. Louis, etc., R. Co., 157 
 cago, etc., R. Co., 104 Wis. 307, 80 Mo. 666, 57 S. W. 276, 50 L. R. A. 
 N. W. 644 (1899). 153 (1900). 
 
 3. Infra, §§ 1947 et seq. 5. Mitchell v. State, 58 Ala. 417 
 
 4. Boswell V. State, 114 Ga. 40, 39 (1877); Siebert v. People, 143 111. 
 S. E. 897 (1901); Helfenstein v. 571, 32 N. E. 431 (1892). 
 
 Medart, 136 Mo. 595, 36 S. W. 863, 6. State v. Wood, 53 N. H. 484 
 
 37 S. W. 829, 38 S. W. 294 (1896); (1873) (abortion). 
 
 State v. Wilcox, 132 N. C. 1120, 44 7. Germania L. Ins. Co. v. Ross- 
 
 S. E. 625 (1903) ; Fordyce v. Moore, Lewin, 24 Colo. 43, 51 Pac. 488, 65 
 
 (Tex. Civ. App. 1893) 22 S. W. 235. Am. St. Rep. 215 (1897) (cyanide of 
 
 Where a witness has never personally potash) ; Isenhour v. State, 157 Ind. 
 
 done an act of which he has learned 517, 62 N. E. 40, 87 Am. St. Rep. 
 
 the theory, but thinks he could do it 228 (1901) (formaldehyde). 
 
 if called upon he is not necessarily to 8. Childs v. O'Leary, 174 Mass. 
 
 be excluded. Childs v. O'Leary, 174 111, 54 N. E. 490 (1899) (blasting). 
 
 Mass. Ill, 54 N. E. 490 (1899). See, however, to the contrary, Brad- 
 
§ 875 Knowledge; Special. 1046 
 
 an industrial device performs its work 9 may be stated to the court 
 by a millwright or engineer who has never happened to see the 
 particular combination. 
 
 § 875. Technical or Scientific Facts The development of the 
 
 modern law of evidence requires that knowledge, in many and 
 varied directions, should be brought to the jury to supplement 
 their common knowledge. The complexity of business or social 
 life and the rapidly expanding field of knowledge leave common 
 knowledge but a sorry tool with which to shape the reasoned con- 
 clusions of the jury. The deficiency is obvious. The best method 
 of supplying it is not so clear. Apart from an essential modifi- 
 cation of the jury system and its replacement by a more scholarly 
 and teachable tribunal, the remedies adopted in main are three. 
 1. A direct extension of the scope of common knowledge through 
 investigations conducted by the presiding judge as the executive 
 officer of the court. 1 2. Where the jury may be so informed con- 
 cerning matters outside their judicial knowledge as to be able 
 to co-ordinate them into a reasonable judgment, suitably skilled 
 witnesses will be permitted to state appropriate facts to them. 
 They are then left to exercise their function of judging without 
 further assistance. 3. Where the knowledge required for drawing 
 a reasonable inference from the facts covers matters which are too 
 numerous to be readily imparted to the jury from the witness 
 stand or requires for its adequate appreciation certain specially 
 developed qualities of mind or habits of looking at things only 
 obtained by specialized training, the facts assumed to exist in the 
 jury's mind are placed before the skilled witness in the form of a 
 hypothetical question and he is permitted to state the judgment 
 which his learning, skill and training enable him to form ; — the 
 jury, in turn, being at liberty to follow the mental operations of 
 the skilled witness, precisely, within limits of reason, as they see 
 fit. The first of these methods of supplementing the common 
 knowledge of the jury has been considered elsewhere. The third 
 will be considered later, under the head of " expert " testimony ; 
 — the term " expert " being reserved for application to the skilled 
 
 ford Glycerine Co. r. Kizer, 113 Fed. 9. Hall v. Mnrdock, 114 Mich. 233, 
 
 ;894, 51 C. C. A. 524 (1902) (explo- 72 N. W. 150 (1897) (elevator), 
 sion of nitroglycerine). 1. Supra, § 852. 
 
1047 Knowledge and Infebence Contrasted. § 876 
 
 witness when examined by the use of hypothetical questions. 2 The 
 second method forms the subject of the present chapter. 
 
 § 876. (Technical or Scientific Facts); Administrative Con- 
 siderations. — The incessant operation of slight differences of fact 
 produces, in addition to lack of value as precedents, the effect of 
 great apparent conflict of decision among cases sustaining the 
 same general principle of administration. This contrariety of 
 ruling will be, perhaps, less inexplicable, if certain general con- 
 siderations affecting the practical administration of the principal 
 be borne in mind. Among these are; (1) The entire state of the 
 case in all particulars must have been considered by the presiding 
 judge in determining how necessary the evidence of the skilled 
 witness actually was to the proponent, and, consequently, how his 
 administrative function should be exercised. (2) The same con- 
 siderations may very well appear to different judges as possessing 
 different relative importance. (3) In proportion as the subject- 
 matter becomes vital to the issue, the judge's impulse to exclude 
 special knowledge in which an element of inference may lurk is 
 intensified. (4) It is not sufficient that the inquiry relate, more 
 or less directly, to a matter which is largely, or, indeed, almost 
 exclusively, known only to persons who have had a special experi- 
 ence. Certain things may be commonly known about very recon- 
 dite or technical subjects. (5) The judge may properly consider 
 whether the special knowledge is not of such a nature that the 
 jury could conveniently be instructed in the matter sufficiently 
 for all essential purposes of the trial. If the presiding judge, in 
 discharge of his administrative function, 1 is persuaded that the 
 subject-matter is one on which the jury may be adequately in- 
 structed during the course of the trial he may require that the 
 jury exercise their own judgment 2 upon facts supplied by skilled 
 witnesses. (6) The court may reasonably admit evidence as to 
 
 2. Wichita v. Coggshall, 3 Kan. Massachusetts. — ■ Higgins v. Dewey, 
 
 App. 540, 43 Pae. 842 (1896) ; Titus 107 Mass. 494, 9 Am. Eep. 63 (1871). 
 
 v. Gage, 70 Vt. 13, 39 Atl. 246 Missouri. — Benjamin v. Metropoli- 
 
 (1896). tan St. R. Co., 50 Mo. App. 602 
 
 1. Middlebury Bank v. Rutland, 33 (1892). 
 
 Vt. 414 (1860). Nebraska. — Read v. Valley Land, 
 
 2. Illinois. — Batehelor 1). Union etc., Co., 66 Neb. 423, 92 N. W. 622 
 Stock Yard, etc., Co., 88 111. App. 395 (1902). 
 
 (1899). New Hampshire. — Nourie v. Theo- 
 
 lowa. — Muldowney v. Illinois Cent. bald, 68 N. H. 564, 41 Atl. 182 
 R. Co., 36 Iowa 462 (1873). (1896). 
 
§ 877 Knowledge; Special. 1048 
 
 the special knowledge of the skilled witness under circumstances 
 where it would decline to permit the same witness to apply this 
 knowledge to the evidence either in the form of a conclusion 3 or 
 that of a judgment* That the special knowledge of an expert 
 should be received in the form of his judgment regarding definite 
 propositions of fact it is necessary that the precise subject of in- 
 quiry be outside the realm of common knowledge. 5 If the fact 
 as to which inquiry is made be within the jury's field of knowl- 
 edge the judgment of the expert is excluded, though as to the great 
 number of correlated facts, knowledge is confined to technically 
 trained persons. 
 
 § 877. (Technical or Scientific Facts); Scope The range 
 
 of facts relating to any calling which the witness skilled or ex- 
 perienced in that vocation may state is limited only by the bounds 
 of human knowledge and facts of which the human brain is 
 capable of forming a concept. Obviously, it is not limited to any 
 particular profession. 1 The entire list of human activities physi- 
 cal, business and social are embraced within this range. Any fact 
 not one of particular knowledge which the witness knows and the 
 jury presumably do not, and which the court, in the exercise of 
 its administrative powers, feels would be helpful to the tribunal, 
 may be received, 2 provided that the fact is relevant 3 and that the 
 witness limit himself to giving the fact within his knowledge and 
 
 New York.— Roberta v. New York 543 (1889); People v. Barter, 115 
 
 El. R. Co., 128 N. Y. 455, 28 N. E. N. Y. 475, 22 N. E. 182 (1889) ; 
 
 486, 13 L. R. A. 499 (1891). Fairchild v. Bascomb, 35 Vt. 398 
 
 Vermont. — Brown v. Doubleday, 61 (1862). 
 
 Vt. 523, 17 Atl. 135 (1889). 1. McFadden v. Murdock, 15 Wkly. 
 
 West Virginia. — Sebrell v\ Bar- Rep. 1079 ( 1867 ) . 
 
 rows, 36 W. Va. 212, 14 S. E. 996 2. Emerson v. Lowell Gaslight Co., 
 
 (1892). 6 Allen (Mass.) 146, 83 Am. Dec. 621 
 
 United States. — Patten V. U. S., 15 (1863); Folsom v. Concord, etc., R. 
 
 Ct. CI. 288 (1879). Co., 68 N. H. 454, 38 Atl. 209 (1896); 
 
 3. Infra, §§ 2291 et seq., 2325 et Lake Erie, etc., R. Co. i\ Mulcahy, 16 
 seq. Ohio Cir. Ct. 204, 9 Ohio Cir. Dec. 82 
 
 4. Infra, §§ 2371 et seq. (1898) ; Gulf, etc., R. Co. v. Duvall, 
 
 5. The subject-matter as to which 12 Tex. Civ. App. 348, 35 S., W. 699 
 inquiry is made must so far partake (1896). 
 
 of the nature of a science as to re- 3. Teall «. Barton, 40 Barb. (N. Y.) 
 
 quire a course of previous habit or 137 (1863); Wynn v. Central Park, 
 
 study in oTder to the attainment of a etc., R. Co., 14 N. Y. Suppl. 172 
 
 knowledge of it. Wight Fire-proofing (1891). 
 Co. v. Poczekai, 130 111. 139, 22 N. E. 
 
1049 " State of the Aet " May Be Given. § 878 
 
 does not undertake to state the bearing of the fact upon the truth 
 of a proposition in issue. 4 
 
 No Moral Requirement. — No requirement that the trade or 
 calling to which the fact relates should be beneficial to society 
 or even moral in itself has been imposed. The gambler may show 
 the jury how a novice can be cheated by tricks at cards 6 or how 
 to play a gambling game. 6 
 
 Witnesses not " Experts." — No reason is perceived for speak- 
 ing of such witnesses as to matters of special knowledge as " ex- 
 perts" 7 though the use of the term is frequent. 8 So customary 
 a use is, indeed, made natural by' the fact that only from among 
 those possessed of technical facts relating to a particular business, 
 etc., can the " expert," as a rule, be selected. Any such witness, 
 moreover, upon an ordinary subpoena, may be required to give his 
 judgment as an expert. 9 Conversely, those competent to testify 
 as experts may fairly be expected to have in mind the facts com- 
 monly known to those versed in that specialized pursuit. 10 Fre- 
 quently such facts form part of the major premise of his judg- 
 ment when testifying hypothetically. 11 
 
 § 878. (Technical or Scientific Facts); Properties of Matter. 
 
 — While the more familiar properties of matter are commonly 
 known, the more obscure may be stated to the tribunal by any one 
 adequately versed in an art in which such properties are known 1 
 or who otherwise, for any reason knows the fact. 2 
 
 State of the Art. — ■ The " state of the art " at any given time 
 
 4. Lake Erie, etc., R. Co. v. Mul- but may state general facts which are 
 cahy, 16 Ohio Cir. Ct. 204, 9 Ohio the result of scientific knowledge or 
 Cir. Dec. 82 (1898). professional skill." Emerson v. Low- 
 
 5. Hall v. State, 6 Baxt. (Tenn.) ell Gaslight Co., 8 Allen (Mass.) 146, 
 523 (1873). 148, 83 Am. Dee. 621 (1863). 
 
 6. Nuckolls v. Com., 32 Gratt. 11. Anderson v. Illinois Cent. R. 
 (Va.) 884 (1879) ("keno"). Co., 109 Iowa 524, 80 N. W. 561 
 
 7. State v. Melvern, 32 Wash. 7, (1899). 
 
 72 Pac. 489 (1903). 1. Shufeldt V. Searing, 59 111. App. 
 
 8. Shields v. State, 149 Ind. 395,49 341 (1895) (explosion of dust) ; St. 
 N. E. 351 (1897) ; Cottrill v. Myrick, Louis Gaslight Co. v. Philadelphia 
 12 Me. 222 (1835). American P. Ins. Co., 33 Mo. App. 
 
 9. Larimer County v. Lee, 3 Colo. 348 (1889) (gas). 
 
 App. 177, 32 Pac. 841 (1893). 2. Standard Oil Co. v. Tierney, 96 
 
 10. Emerson v. Lowell Gaslight Co., Ky. 89, 27 S. W. 983, 16 Ky. L. Rep. 
 6 Allen (Mass.) 146, 148, 83 Am. 327 (1894) (properties of illuminat- 
 Dec. 621 (1863). "One who is an ing oil). 
 
 expert may not only give opinions, 
 
§ 879 Knowledge; Special. 1050 
 
 in his trade or calling, 3 and the facts which naturally flow from 
 it, as, for example, whether a certain device has novelty, 4 may 
 be stated by the specially experienced witness. Nor is such a 
 statement deemed objectionable by reason of the fact that it covers 
 the precise proposition in issue. 5 This is apt to be of special 
 prominence in patent causes. 6 
 
 § 879. (Technical or Scientific Facts); Illustrative Instances. 
 — It thus appears that common and special knowledge are, in 
 theory at least, mutually exclusive and supplementary. Admit- 
 ting, over objection, evidence pf special knowledge is, in effect, 
 a ruling that common knowledge is insufficient ; — and vice versa. 
 To avoid restating the procedural rules as to common knowledge 
 in terms of special, it will be sufficient to refer merely to certain 
 illustrative instances among the innumerable number of cases 
 which, however variant in their individual facts, still unite to 
 sustain this uncontested principle of the administrative necessity 
 for introducing evidence of special knowledge where the common 
 knowledge of the jury is inadequate to enable them to act ration- 
 ally upon the evidence before them. 1 It is naturally to be ex- 
 pected, moreover, that great confusion in the law must result in 
 treating as precedents what are, in reality, mere administrativve 
 rulings. While the principle is settled beyond question that 
 where common knowledge ends it may be reinforced by the 
 special knowledge of experienced men, precisely where, in any 
 particular case, the line between common knowledge, what 
 everyone in the community knows, and special knowledge, which 
 a profession or the like knows is obviously hard to draw. Judges 
 of equal learning and intelligence may rationally differ on the 
 subject, as abundantly appears later in this chapter. To treat 
 such questions as those of judicial rather than of common knowl- 
 edge, seems better designed to encumber reports, digests, and text 
 books with legally inert material than to advance the cause of 
 jurisprudence. 
 
 3. Winans v. New York, etc., R. 6. Burton v. Burton Stock-Car Co., 
 Co., 21 How. (U. S.) 88, 100, 16 171 Mass. 437, 50 N. E. 1029 (1898). 
 L. ed. 68 (1858). 1. Van Wycklen v. Brooklyn, 118 
 
 4. Haley v. Flaccus, 193 Pa. St. N. Y. 424, 429, 24 N. E. 179 (1890) ; 
 521, 44 Atl. 566 (1899). Graham r. Pennsylvania Co., 139 Pa. 
 
 5. Tillotson v. Ramsay, 51 Vt. 309 St. 149, 158, 21 Atl. 151, 12 L. R. A. 
 (1878). 293 (1891). 
 
1051 Ciphers, Trade Marks and Designations. § 880 
 
 § 880. (Technical or Scientific Facts); Business Affairs. — 
 While many of the more familiar facts relating to business matters 
 are of sufficient notoriety to be covered by common knowledge, a 
 multitude of them are constantly presenting themselves as to 
 which the evidence of an experienced witness is received and 
 still others, of a more technical nature, in proof of which such 
 evidence is required. The competent witness must have more 
 than a general experience though actual training rather than 
 compliance with statutory regulation is the test of competency. 1 
 The training and experience must be sufficiently specific to enable 
 the witness to answer with adequate knowledge, the question asked. 
 For example, a dealer in genuine precious stones is not, of neces- 
 sity, competent to state the uses of artificial ones. 2 Any com- 
 petent witness may give the general methods of carrying on his 
 business, 3 whether conducted on a wholesale 4 or on a retail 5 scale. 
 
 Clerical Assistance. — The specific duties of clerks and other 
 assistants 6 through whose agency a particular business is carried 
 on, naturally fall into the same category. 
 
 Marks and Designations. — In any mercantile business, the 
 commodities handled, are, as a rule, graded into classes according 
 to certain standards. These classes are, for convenience for pur- 
 poses of sale, reference, etc., designated in a particular manner, 
 often by ciphers, marks and the like, intended only for use in the 
 particular establishment itself. What these tests or standards are 
 in case of any given commodity, 7 when any given article is deemed 
 to be covered by a particular trade name or classification, 8 or is 
 to be deemed "merchantable" 9 or unmerchantable, and what is 
 the meaning of ciphers and other private marks 10 can only be 
 
 1. Downing v. State, 66 Ga. 110 (1882); McFadden v. Murdock, 15 
 (1880). See supra, §§ 809-847, infra, Wkly. Rep. 1079 (1867) (grocer). 
 
 §§ 1963, 2383. 6. Pepper v. Planters Nat. Bank, 5 
 
 2. Lorsch v. U. S., 119 Fed. 476 Ky. L. Eep. 85 (1883) (cashier). 
 (1902). 7. Downing v. State, 66 Ga. 110 
 
 3. Atwater V. Clancy, 107 Mass. (1880) (kerosene). 
 
 369 (1871) (inspecting goods in 8. Pollen v. Le Roy, 10 Bosw. 
 
 case); MacLaren v. Cochran, 44 (TST. Y.) 38 (1802); Nordlinger v. 
 
 Minn. 255, 46 N. W. 408 (1890) U. S., 115 Fed. 828 (1902). 
 
 (what affects credit; protest of 9. Wagar Lumber Co. v. Sullivan 
 
 note) ; Commercial Bank v. Union Logging Co., 120 Ala. 558, 24 So. 949 
 
 Bank, 19 Barb. (N. Y.) 391 (1853) (1898) ( lumber ); Austin v. Hartwig, 
 
 (negotiating commercial paper). 49 N. Y. Super. Ct. 256 (1883) 
 
 4. Crane v. Fry, 126 Fed. 278, 61 (sauerkraut). 
 
 C. C. A. 260 (1903) (logging). 10. Foley v. Abbott, 66 Ga. 115 
 
 5. Sexton v. Lamb, 27 Kan. 426 (1880). 
 
881 
 
 Knowledge ; Special. 
 
 1052 
 
 stated by one familiar with the details of the business. In gen- 
 eral, however, any relevant fact connected with any trade or busi- 
 ness not commonly known in the community, and so part of com- 
 mon knowledge, may be stated by a sufficiently experienced 
 witness. 
 
 Profit and Loss. — Among the innumerable matters which fall 
 under so broad a rule are the elements of profit or of loss, which 
 attend the customary operation of any business or gainful occu- 
 pation. Thus, what loss to perishable articles 11 is caused by ex- 
 posure, variations in heat or cold, 12 and how large a percentage 
 of the entire bulk this loss is; 13 what allowance must be made to 
 cover loss in bulk by weighing it out in smaller parcels, 14 are ques- 
 tions which require a special experience to answer with a pro- 
 bative effect. 
 
 § 881. (Technical or Scientific Facts; Business Affairs); 
 
 Custom. — The existence of any custom or usage in business not 
 a matter of general knowledge 1 obtaining in any building, 2 mer- 
 
 11. St. Louis Southwestern R. Co. 
 v. Elgin Condensed Milk Co., 175 111. 
 557, 51 N. E. 911, 67 Am. St. Rep. 
 238 [affirming 74 111. App. 619] 
 (1898) (condensed milk) ; Wilson v. 
 F. C. Linde Co., 62 N. Y. Suppl. 69, 
 47 N. Y. App. Div. 327 (1900) 
 (apples). 
 
 12. The requisites for a suitable 
 place for storing any given commodity 
 may reasonably be assumed to be 
 known to the dealers in it. Rust v. 
 Eckler, 41 N. Y. 488 (1869). 
 
 13. Sexton i*. Lamb, 27 Kan. 426 
 (1882) (handling ice). 
 
 14. McFadden v. Murdock, 15 Wkly. 
 Rep. 1079 (1867). 
 
 1. Georgia. — Horan v. Strachan, 86 
 Ga. 408, 12 S. E. 678, 22 Am. St. 
 Rep. 471 (1890). 
 
 Illinois. — Wilson v. Bauman, 80 
 111. 493 (1875). 
 
 Iowa. — >Thayer v. Smoky Hollow 
 Coal Co., 121 Iowa 121, 96 N. W. 718 
 (1903). 
 
 Louisiana. — Suarez v. Duralde, 1 
 La. 260 (1830). 
 
 Massachusetts. — Gorham v. Gross, 
 125 Mass. 232, 28 Am. Rep. 234 
 (1878). 
 
 New York. — Hart v. Brooklyn, 52 
 N. Y. Suppl. 113, 31 App. Div. 517 
 (1898). 
 
 Ohio. — State v. Ampt, 6 Ohio Dec. 
 (Reprint) 699, 7 Am. L. Rec. 469 
 (1879). 
 
 Rhode Island. — Evans v. Commer- 
 cial Mut. Ins. Co., 6 R. I. 47 (1859). 
 
 Tennessee. — Fry v. New York 
 Provident Sav. L. Assur. Soc., (Ch. 
 App. 1896) 38 S. W. 116. 
 
 Texas. — Galveston, etc., R. Co. v. 
 Collins, 31 Tex. Civ. App. 70, 71 S. W. 
 560 (1902). 
 
 Vermont. — King v. Woodbridge, 34 
 Vt. 565 (1861). 
 
 England. — Adams v. Peters, 2 C. 
 & K. 723, 61 E. C. L. 723 (1849). 
 
 2. Gorham v. Gross, 125 Mass. 232, 
 28 Am. Rep. 234 (1878) (flues in 
 party walls). 
 
1053 
 
 Knowledge as to Technical Pheases. 
 
 882 
 
 cantile 3 or other trade 4 or calling 5 may be shown by any one 
 whom the court deems competent; 6 — provided that the time at 
 which the custom is shown to have existed is so related to that 
 made important by the evidence, that it may fairly and reasonably 
 be assumed to be relevant to the facts or propositions in issue. 7 
 The custom may with equal admissibility be domestic or obtain 
 in some foreign state 8 or country. 9 It is not essential that the 
 witness be specially skilled in the business affected by the custom 
 or usage, 10 that he should be able to speak with absolute certainty 
 in the matter, 11 or that personal knowledge should be the entire 
 basis of his statement. He is entitled to rely upon the customs 
 by the aid of which he conducts his business as among the grounds 
 upon which his evidence proceeds. 12 But he may also rely in part 
 upon information furnished him by others. 13 
 
 § 882. (Technical or Scientific Facts; Business Affairs); 
 
 Technical Terms. — In any case where the meaning of a trade 
 term or phrase used in a business or calling is a relevant fact, 1 one 
 
 3. Page v. Cole, 120 Mass. 37 
 (1876) (selling milk routes by the 
 can) ; Atwater v. Clancy, 107 Mass. 
 369 (1871) (tobacco sold by sam- 
 ple). 
 
 4. Luce v. Dorchester Mut. F. Ins. 
 Co., 105 Mass. 297, 7 Am. Rep. 522 
 (1870) (insurance). 
 
 5. Worcester v. Northborough, 140 
 Mass. 397, 5 ST. E. 270 (1886). 
 
 6. Price v. White, 9 Ala. 563 
 (1846) ; Hamilton v. Nickerson, 95 
 Mass. 351 (1866) ; Haslam v. Adams 
 Express Co., 6 Bosw. (N. Y.) 235 
 
 (1860); Edwards r, Davidson, (Tex. 
 Civ. App. 1904) 79 S. W. 48. 
 
 7. Hale v. Gibbs, 43 Iowa 380 
 (1876). 
 
 The statement must be one of fact. 
 — A mere inference as to the exist- 
 ence of the customs is not sufficient. 
 Mills V. Hallock, 2 Edw. (N. Y.) 652 
 (1836); Austin v. Williams, 2 Ohio 
 61 (1825). This is paiticularly clear 
 whore the fact inferred is within the 
 special province of the jury. The 
 witness will not be permitted to state 
 in what manner the existence or 
 notoriety of a custom affects the 
 
 terms of a contract. Haskins v. War- 
 ren, 115 Mass. 514 (1874); Ford v. 
 St. Louis, etc., R. Co., 63 Mo. App. 
 133 (1895). 
 
 8. Taylor v. Swett, 3 La. 33, 22 
 Am. Dec. 156 (1831). 
 
 9. Mostyn v. Fabrigas, 1 Cowp. 161 
 (1774). 
 
 10. Wilson v. Bauman, 80 111. 493 
 (1875). 
 
 11. Hamilton v. Nickerson, 13 Allen 
 (Mass.) 351 (1866). 
 
 12. Hamilton v. Nickerson, 13 Allen 
 (Mass.) 351 (1866). 
 
 13. King v. Woodbridge, 34 Vt. 565 
 (1861). 
 
 1. Healy v. Brandon, 66 Hun (N. 
 Y.) 515, 21 N. Y. Suppl. 390 (1892). 
 
 The statement of the witness must 
 also be relevant to prove the fact. — 
 Upon the question of the existence 
 of a trade term at a particular time' 
 or place, its existence must be shown 
 as either at that special time and 
 place or at some other, so related 
 to them as to tend to show it. Ger- 
 mania F. Ins. Co. v. Francis, 52 
 Miss. 457, 24 Am. Rep. 674 (1876). 
 
882 
 
 Knowledge; Special. 
 
 1054 
 
 found by the court 2 to be sufficiently qualified by experience 3 to 
 do so with probative effect may state whether a given word or 
 phrase has acquired a technical meaning in connection with that 
 business, and, if so, what it is.* While the primary meaning of 
 
 2. The court's action will not, as a 
 
 rule, be disturbed on appeal. Hygeia 
 Distilled Water Co. v. Hygeia Ice Co., 
 70 Conn. 516, 40 Atl. 534 (1898). 
 
 3. Webb v. Meats, 45 Pa. St. 222 
 (1863) ; Evans v. Commercial Mut. 
 Ins. Co., 6 E. I. 47 (1859); Butte, 
 etc., Consol. Min. Co. v. Montana Ore 
 Purchasing Co., 121 Fed. 524, 58 C. 
 C. A. 634 (1903). 
 
 Experience in the business rather 
 than formal inclusion in it is the 
 test. In seeking, for example, to 
 testify as to the meaning of terms 
 used in the wholesale grocery busi- 
 ness a retail grocer of large trans- 
 actions may be better qualified as a 
 witness than a wholesale grocer doing 
 a smaller business. Nordlinger v. U. 
 S., 115 Fed. 828 (1902). 
 
 Witnesses of this class are fre- 
 quently spoken of as " experts." — 
 Wilder v. De Cou, 26 Minn. 10, 1 
 N. W. 48 (1879); Winans v. New 
 York, etc., B. Co., 21 How. (U. S.) 
 88, 100, 16 L. ed. 68 (1858) ; Di 
 Sora r. Phillipps, 10 H. L. Cas. 624, 
 33 L. J. Ch. 129, 2 New Eep. 553, 
 11 Eng. Eeprint 1168 (1863). There 
 seems however, little advantage in 
 such a use of the term. To apply the 
 designation of " expert " to any per- 
 son who chances to know a fact, 
 which men in general do not know, 
 however simple the fact may be, and 
 however clearly the element of rea- 
 soning may be excluded, appears to 
 deprive the term " expert " of any 
 distinctive meaning. This would be 
 a result greatly to be regretted be- 
 cause, in connection with statements 
 of judgment upon assumed facts, the 
 phrase has a valuable use, which 
 should not be disturbed. Infra, 
 §§ 2371 et seq. 
 
 4. California. — Myers v. Tirbals, 
 
 72 Cal. 278, 13 Pac. 695 (1887) 
 (marble cutters). 
 
 Georgia. — Featherston r. Bounsa- 
 ville, 73 Ga, 617 (1884) (cured 
 hams). 
 
 Illinois. — Elgin City v. Joslyn, 136 
 111. 525, 26 N. E. 1090 (1891) 
 ("mason work"). 
 
 Indiana. — Niagara F. Ins. Co. v. 
 Greene, 77 Ind. 590 (1881) (reason- 
 able time). 
 
 Iowa. — Iowa State Sav. Bank v. 
 Black, 91 Iowa 490, 59 N. W. 283 
 (1894). 
 
 Louisiana. — Barber Asphalt Pav. 
 Co. V. Howcott, 109 La. 692, 33 So. 
 734 (1903) ("running foot"). 
 
 Massachusetts. — Whitney v. Board- 
 man, 118 Mass. 242 (1875) ("with 
 all faults"). 
 
 Michigan. — Skelton v. Fenton Elec- 
 tric Light, etc., Co., 100 Mich. 87, 
 58 N. W. 609 (1894) ("smoke 
 stack"). 
 
 Minnesota. — Cargill r. Thompson, 
 57 Minn. 534, 59 N. W. 638 (1894). 
 
 Missouri. — Heyworth r. Miller 
 Grain, etc., Co., 174 Mo. 171, 73 S. 
 W. 498 (1902). 
 
 Nebraska. — Paxton v. State, 59 Neb. 
 460, 31 N. W. 3S3, 80 Am. St. Eep. 
 689 (1899). 
 
 New Jersey. — Wallace v. Leber, 65 
 N. J. L. 195, 47 Atl. 430 (1900) 
 (sugar trade). 
 
 Neio York. — Nelson r. Sun Mut. 
 Ins. Co., 71 N. Y. 453 [affirming 40 
 N. Y. Super. Ct. 417] (1877) ("port 
 risk"). 
 
 Oregon. — Williams v. Poppleton, 3 
 Or. 139 (1869). 
 
 Pennsylvania. — Carey r. Bright, 58 
 Pa. St. 70 (1868) (colliery). 
 
 Tennessee. — Fry r. Provident Sav. 
 L. Assur. Soc, (Ch. App. 1896) 38 
 S. W. 116 (participating policy). 
 
1055 
 
 Strength and Durability of Materials. 
 
 § 883 
 
 words in the vernacular is a matter of common knowledge 5 and 
 cannot be given in evidence as a fact of special knowledge, 6 the 
 derived or secondary meaning established in a trade or calling 
 may well be a fact to be stated by experienced witnesses, however 
 familiar and unambiguous the word or phrase may be in its 
 primary meaning. 7 
 
 § 883. (Technical or Scientific Facts); Carpentering and 
 Other Building. — Carpenters and others skilled in the building 
 trades who have had experience in connection with the particular 
 subject under inquiry or are otherwise sufficiently informed re- 
 garding it, 1 may state how houses, buildings 2 or other erections 3 
 are or should be constructed or repaired and how minor opera- 
 tions concerning them are properly performed. 4 .Such a witness 
 may testify as to the durability of timber of various kinds, 5 its 
 strength 6 and consequent adaptability to special uses as part of a 
 house, for the stringers 7 or other parts of a bridge or a similar 
 structure. 8 The ability of usual building material to resist certain 
 strains, 9 the effect on them of changes in temperature 10 or of 
 
 Texas. — Kelly V- Robb, 58 Tex. 377 
 (18S3) ("saw timber"). 
 
 Wisconsin. — Johnson v. Northwest- 
 ern Nat. Ins. Co., 39 Wis. 87 (1875) 
 ("loading off shore"). 
 
 United States. — Winans v. New 
 York, etc., R. Co., 21 How. 88, 16 
 L. ed. 68 (1858). 
 
 5. Supra, § 762. 
 
 6. Goodwin v. State, 96 Ind. 550 
 (1884) ("monomania"). 
 
 7. Whitney v. Boardman, 118 Mass. 
 842 (1875) ; Erhardt V. Ballin, 55 
 Fed. 968, 5 C. C. A. 363 (1893) (un- 
 hemmed handkerchiefs ) . 
 
 1. In re Thompson, 12 N. Y. Suppl. 
 182 (1890). See supra, § 816, infra, 
 §§ 1958, 2382. 
 
 2. Linch v. Paris Lumber, etc., Ele- 
 vator Co., 80 Tex. 23, 15 S. W. 208 
 (1891). 
 
 3. Caven v. Bodwell Granite Co., 97 
 Me. 381, 54 Atl. 851 (1903) (coal 
 stage). 
 
 4. Rockland First Cong. Church v. 
 Holyoke Mut. F. Ins. Co., 158 Mass. 
 475, 33 N. E. 572, 35 Am. St. Rep. 
 508, 19 L. R. A. 587 (1893) (remov- 
 ing paint). 
 
 Where the matter is one of com- 
 mon knowledge the jury will require 
 no assistance from the witness. 
 Cramer v. Slade, 73 N. Y. Suppl. 125, 
 66 App. Div. 59 (1901). 
 
 5. Morgan v. Fremont County, 92 
 Iowa 644, 61 N. W. 231 (1894) ; Mc- 
 Connell v. Osage City, 80 Iowa 293, 
 45 N. W. 550, 8 L. R. A. 778 (1890) ; 
 Ferguson v. Davis County, 57 Iowa 
 601, 10 N. W. 906 (1881) (white 
 oak) ; Kuhn v. Delaware, etc., R. Co., 
 92 Hun (N. Y.) 74, 36 N. Y. Suppl. 
 339 (1895) (hemlock) 
 
 6. Callan v. Bull, 113 Cal. 593, 45 
 Pac. 1017 (1896). 
 
 7. Blank v. Livonia Tp., 79 Mich. 
 1, 44 N. W. 157 (1889); Bush v. 
 Delaware, etc., R. Co., 166 N. Y. 210, 
 59 N. E. 838 (1901). 
 
 8. Kuhn v. Delaware, etc., R. Co., 
 92 Hun (N. Y.) 74, 36 N. Y. Suppl. 
 339 (1895) (scaffolding). 
 
 9. Brady v. Norcross, 174 Mass. 
 442, 54 N. E. 874 (1899). 
 
 10. Dixon v. Wachenheimer, 9 Ohio 
 Cir. Ct. 401, 6 Ohio Cir. Dec. 380 
 (1895). 
 
§§ 884, 885 Knowledge; Special. 1056 
 
 weather conditions or from decay 11 or the other processes of nature 
 are distinctly within the province of such a witness. 
 
 The effect of certain forces such as fire upon the materials used 
 in building 12 may be stated by a competent expert. What forms 
 of construction would be covered by a given designation, in a 
 building contract or elsewhere, may be a matter of technical 
 knowledge which a suitably experienced witness may state. 13 
 What are the customary duties at a given time and place of 
 subordinate workers in building trades 14 may be announced, as a 
 fact, by a competent witness. 
 
 § 884. (Technical or Scientific Facts); Chemistry. — One 
 
 suitably qualified 1 may testify to the facts of chemistry. He may 
 even invade the field of physiology 2 as where he is asked to state 
 the size of the blood corpuscles in man as related to that of those 
 in other animals. 3 The facts of chemistry may relate to the ma- 
 terial substances of which that science treats in their solid, liquid 
 or gaseous 4 forms or as to the usual effects of chemical substances 
 when united as when acid is applied to ink. 5 
 
 § 885. (Technical or Scientific Facts); Ecclesiastical Matters. 
 — A bishop, as to the ecclesiastical affairs of his diocese and com- 
 munion, 1 or other competent person may testify as to facts of an 
 ecclesiastical nature ; — as the organization of a parish and its 
 
 11. Morgan V. Fremont County, 92 2. Birmingham Nat. Bank v. Brad- 
 Iowa 644, 61 N. W. 231 (1894). ley, 116 Ala. 142, 23 So. 53 (1896) ; 
 
 12. N. & M. Friedman Co. v. Atlas People v. Dole, 122 Cal. 486, 55 Pac. 
 Assur. Co., 133 Mich. 213, 94 N. W. 581, 68 Am. St. Rep. 50 (1898); 
 757 (1903). State v. Knight, 43 Me. 11 (1857); 
 
 13. Mead v. Northwestern Ins. Co., St. Louis Gaslight Co. !'. Philadel- 
 7 N. Y. 530 (1852) (brick houses). phia American F. Ins. Co., 33 Mo. 
 
 14. Western Stone Co. v. Muscial, App. 348 (1889). 
 
 196 111. 382, 63 N. E. 664, 89 Am. 3. State v. Knight, 43 Me. 11, 27 
 
 St. Eep. 325 (1902) (master's fore- (1857). 
 
 man). 4. Citizens' Gas Lt. Co. v. O'Brien, 
 
 1. Citizens' Gaslight, etc., Co. v. 15 111. App. 400 (1884). (top of gas 
 
 O'Brien, 15 111. App. 400 (1884); works). 
 
 Otey v. Hoyt, 47 N. C. 70 (1854). 5. Birmingham Nat. Bank V. Brad- 
 While one duly licensed may be as- ley, 116 Ala. 142, 23 So. 53 (1896) ; 
 
 sumed to have the knowledge usual People v. Dole, 122 Cal. 486, 55 Pac. 
 
 to those possessing such a certificate, 581, 68 Am. St. Rep. 50 (1898); 
 
 it is the knowledge rather than the Otey v. Hoyt, 47 N. C. 70 (1854) 
 
 certificate which constitutes the quali- (acid applied to ink). 
 
 flcation. Dane v. State, 36 Tex. Cr. 1. Bird v. St. Mark's Church, 62 
 
 84, 35 S. W. 661 (1896). See infra, Iowa 567, 11 N. W. 747 (1883); 
 
 § 1964. Sussex Peerage Case, 11 CI. & F. 85, 
 
1057 Facts of Hydraulic Engineeeing. f 
 
 admission into a diocese, 2 or as to a system of church government. 
 The ecclesiastical law in regard to marriage 3 may be proved hy a 
 church official within whose special knowledge the rules lie. • 
 Under the English chancery practice, matters of ecclesiastical law 
 may also be referred to civilians 4 whose opinions may guide the 
 court. In general, persons devoting themselves to ecclesiastical 
 concerns may state such facts as come within the scope of their 
 experience. Thus, a clergyman may give the marriage laws of 
 any jurisdiction in which he has exercised the powers of his office. 5 
 
 § 886. (Technical or Scientific Facts); Engineering Ques- 
 tions. — Those who are qualified to follow the profession of an 
 engineer may properly state the facts known to those in that 
 calling. 
 
 Civil. — The civil engineer, for example, may properly state 
 what the terms employed in his art designate 1 what constitutes 
 good construction in case of bridges 2 or other structures ; how the 
 roadbed of a railroad should be graded, 3 or in what manner to 
 compute the cubic contents of a certain form of construction. 4 
 
 Electric. — The electrical engineer may give facts familiar to 
 those called upon to deal with this mysterious form of energy; — 
 as, for example, what combination of circumstances will result in 
 the receipt of an electric shock, 5 or what is the proper method of 
 stringing overhead wires across a highway, 6 or elsewhere. 7 
 
 Hydraulic. — One skilled in the hydraulic branch of engineer- 
 ing may state the facts with which this branch of the engineering 
 
 8 Jur. 793, 8 Eng. Reprint 1034 2. Hart v. Hudson River Bridge Co., 
 
 (1844) (Roman Catholic). 84 N. Y. 56 (1881). 
 
 2. Bird v. St. Mark's Church, 62 3. Scott v. Astoria R. Co., 43 Or. 
 Iowa 567, 17 N. W. 747 (1883). 26, 72 Pac. 594, 99 Am. St. Rep. 710, 
 
 3. Sussex Peerage Case, 11 CI. & 62 L. R. A. 543 (1903). 
 
 F. 85, 8 Jur. 793, 8 Eng. Reprint 4. Moelering v. Smith, 7 Ind. App. 
 
 1034 (1844) (coadjutor to bishop 451, 34 N. E. 675 (1893) (wall), 
 
 apostolic). 5. Ludwig v. Metropolitan St. R. 
 
 4. Sayre v. Cramp, 2 Wkly. Rep. Co., 75 N. Y. Suppl. 667, 71 App. 
 438 (1854) ; Hurst v. Beach, 5 Madd. Div. 210 (1902). 
 
 351, 21 Rev. Rep. 304 (1819). 6. Houston, etc., R. Co. v. Hopson, 
 
 5. People v. McQuaid, 85 Mich. (Tex. Civ. App. 1902) 67 S. W. 458. 
 123, 48 N. W. 161 (1891). 7. Excelsior Electric Co. v. Sweet, 
 
 1. Union Pac. R. Co. v. Clopper, 57 N. J. L. 224, 30 Atl. 553 (1894). 
 131 U. S. appendix cxcii, 26 L. ed. 
 243 (1881) (bridge and abutments). 
 See infra, §§ 1967, 2384. 
 
 Vol. I. 67 
 
§§ 887, 888 Knowledge; Special. 1058 
 
 art is concerned ; — as the course of formation etc., ascertained to 
 be peculiar to alluvial streams. 8 
 
 Mining. — The mining engineer may testify how boring 9 should 
 be done, and other facts of special knowledge related to his 
 calling. 
 
 § 887. (Technical or Scientific Facts); Farming and Stock- 
 Raising; Fanning. — One acquainted with agricultural matters 
 may state relevant facts generally known, in any given locality, 
 among members of this calling. He may state the right time 1 
 and approved method 2 for conducting farming operations. How 
 fire should be used in clearing land, 3 and what is its usual effect 
 on different soils or kinds of vegetation, 4 what is the average 
 yield of a particular crop 5 and as to any other definite probability 
 in the business of agriculture, 6 may be stated by any witness 
 who has knowledge on the subject. He may testify as to what 
 is a proper fence 7 from the farmer's point of view. 
 
 § 888. (Technical or Scientific Facts; Farming and Stock- 
 Raising); Stock-Raising. — The farmer, as a cattle raiser, and 
 other persons of suitable knowledge 1 may state facts, not within 
 the common knowledge of the jury 2 which are generally known 
 to those who are following that business 3 in any particular locality. 
 
 8. Ohio, etc., R. Co. v. Nuetzel, 143 38 Or. 294, 61 Pac. 837, 65 Pac. 520 
 111. 46, 32 N. E. 529 [reversing 43 111. (1900). 
 
 App. 108] (1892). 6. Folsom v. Concord, etc., R. Co., 
 
 9. Clark V. Babcock, 23 Mich. 164 68 N. H. 454, 38 All. 209 (1896). 
 (1871) (salt wells). 7. Louisville, etc., R. Co. v. Spain, 
 
 1. Farmers', etc., Nat. Bank v. 61 Ind. 460 (1878). 
 
 Woodell, 38 Or. 294, 61 Pac. 837, 65 1. St. Louis, etc., R. Co. v. Edwards, 
 
 Pac. 520 (1900). Supra, § 811, infra, 26 Kan. 72 (1881); Lockridge v. 
 
 §§ 1971, 2387. Fesler, 37 S. W. 65, 18 Ky. L. Rep. 
 
 2. Thresher V. Gregory, (Cal. 1895) 469 (1896) ; supra, % 814, infra, 
 42 Pac. 421. §§ 1975, 2389. 
 
 3. Krippner v. Biebl, 28 Minn. 139, 2. Tyler r. State, 11 Tex. App. 388 
 9 N. W. 671 (1881) ; Wells c. East- (1882) (time required to gather cat- 
 man, 61 N. H. 507 (1881) ; Ferguson tie). 
 
 v. Hubbell, 26 Hun (N. Y.) 250 3. Dunham v. Rix, 86 Iowa 300, 
 
 (1882). 53 N. W. 252 (1892) ; Folsom 8. Con- 
 
 4. Pennsylvania Co. v. Hunsley, 23 cord, etc., R. Co., 68 N. H. 454, 38 
 Ind. App. 37, 54 N. E. 1071 (1899) Atl. 209 (1896); Ft. Worth, etc., R. 
 (muck); Swanson v. Keokuk, etc., R. Co. v. Greathouse, 82 Tex. 104, 17 
 Co., 116 Iowa 304, 89 N. W. 1088 S. W. 834 (1891); New York, etc., 
 (1902) (hedge); Bradley v. Iowa R. Co. V. Estill, 147 U.S. 591, 612, 
 Cent. R. Co., Ill Iowa 562, 82 N. W. 13 S. Ct. 444, 37 L. ed. 292 (1893) ; 
 996 (1900) (meadow). Missouri Pac. R. Co. v. Hall, 66 Fed. 
 
 5. Farmers', etc., Bank v. Woodell, 868, 14 C. C. A. 153 (1895). 
 
1059 Who May Testify in Insurance Matters. § 889 
 
 Such facts may relate to the breeding of cattle and the difficulties 
 attendant upon it, 4 or as to the pedigree of an animal, 5 the dis- 
 eases of animals, and what constitutes unsoundness. 6 In like 
 manner a witness possessing the required experience may testify 
 as to how animals would be affected in weight, 7 health, or other 
 particulars, 8 by proper or improper 9 treatment, or other occur- 
 rence connected with the business. 10 The seasons, methods and 
 other facts relating to the butchering of animals 11 may be stated 
 by any qualified witness. Stockraisers share with other persons 
 familiar with the subject, competency to testify concerning the 
 habits, 13 physical 13 or mental, of stock and such matters as the 
 proper handling 14 of horses and other domestic animals. 
 
 § 889. (Technical or Scientific Facts); Insurance Matters 
 
 That the witness offered should be regarded as competent to state 
 facts of a technical nature relating to the business of insurance 
 in some one or more of its various branches proof must be made 
 to the court that the witness is so qualified by experience as to 
 make his statement of assistance to the tribunal. 1 The statement 
 of persons not so qualified is properly rejected as irrelevant. 2 
 In other words, no person who, in relation to insurance matters 
 
 4. Fitzgerald v. Evans, 49 Minn. Hall, 66 Fed. 868, 14 C. C. A. 153 
 541, 52 N. W. 143 (1892) (persistence (1895) (bad handling while in tran- 
 
 of parent's defects); New York, etc., sit). 
 
 R. Co. v. Estill, 147 U, S. 591, 13 S. 10. Cooke v. Kansas City, etc., R. 
 
 Ct. 444, 37 L. ed. 293 (1893) (causes Co., 57 Mo. App. 471 (1894) (stam- 
 
 of abortion). pede). 
 
 5. Fleming v. McClaflin, 1 Ind. App. 11. Taylor v. State, (Tex. Cr. App. 
 537, 27 N. E. 875 (1891). 1897) 42 S. W. 285. 
 
 6. Moore v. Haviland, 61 Vt. 58, 12. Folsom v. Concord, etc., R. Co., 
 17 Atl. 725 (188S). 68 ST. H. 454, 38 Atl. 209 (1896) 
 
 7. Ft. Worth, etc., R. Co. v. Great- (taking fright at moving trains), 
 house, 82 Tex. 104, 17 S. W. 834 ' 13. Dunham v. Rix, 86 Iowa 300, 
 (1891) ; Missouri Pac. R. Co. v. Hall, 53 N. W. 252 (1892) (stallion's te3- 
 66 Fed. 868, 14 C. C. A. 153 (1895). tides hang low in summer). 
 
 8. Cooke v. Kansas City, etc., Ry. 14. Lockridge v. Fesler, 37 S. W. 
 Co., 57 Mo. App. 471 (1894) (ap- 65, 18 Ky. L. Rep. 469 (1896) (halter 
 pearance and value). and hitch). 
 
 9. Proctor v. Irvin, 22 Mont. 547, 1. Pepper v. Planters' Nat. Bank, 
 57 Pac. 183 (1899) (excessive driving 5 Ky. L. Rep. 85 (1883), See supra, 
 in calving season) ; Ft. Worth, etc., §§ 818, 819, infra, <j§ 1976, 2391. 
 
 R. Co. v. Greathouse, 82 Tex. 104, 17 2. Lee v. Agricultural Ins. Co., 79 
 
 S. W. 834 (1891) (delay in feeding); Iowa 379, 44 N. W. 683 (1890); 
 
 Southern Pac. Co. v. Arnett, 111 Fed. Brooklyn First Baptist Church v. 
 
 849, 50 C. C. A. 17 (1901) (delay Brooklyn F. Ins. Co., 28 N. Y. 153 
 
 on passage) ; Missouri Pac. R. Co. v. (1863). 
 
§§ 890, 891 Knowledge; Special. 1060 
 
 is a mere layman will be allowed to testify as to a fact known 
 only to those possessing a certain degree of familiarity with the 
 business. 3 
 
 § 890. (Technical or Scientific Facts; Insurance Matters); 
 
 Ere — When compared with the business of insuring life, that of 
 insuring property from loss by fire presents comparatively few 
 facts of technical knowledge, so far as relates either to the physi- 
 cal or the moral hazard. Many relevant facts in such a connec- 
 tion are matters of common knowledge. As is the case regarding 
 mortality tables in the business of life insurance, 1 certain facts 
 connected with fire insurance are near the line which a presiding 
 judge must draw between special and common knowledge. Among 
 these, is the fact that leaving an insured building unoccupied 
 increases the danger of destruction by fire. This may be proved 
 as a technical fact 2 by persons acquainted with the business 3 or, 
 in other courts, it may be claimed as part of common knowledge, 
 as a matter of experience. 4 In other connections in the business 
 of fire insurance, skilled witnesses may state facts within their 
 knowledge affecting the risk ; — as, for example, proximity to a 
 railroad. 6 The classification of the various forms of policy, 6 and 
 the incidents attaching to each class, are treated as technical mat- 
 ters i. e., as subjects of special knowledge. 
 
 i 
 
 § 891. (Technical or Scientific Facts; Insurance Matters); 
 
 life. — Thus, for example, special experience is required to testify 
 
 as to facts of life insurance. 1 Only a technically skilled witness 
 
 will be permitted to state in what manner and to what extent the 
 
 8. Perrette V. Kansas City, 162 Mo. 163 111. 256, 45 N. E. 255, 35 L. 
 
 238, 62 S. W. 448 (1901). R. A. 595 (1896). 
 
 1. Supra, §§ 732, 859c. See also 4. Southern Mut. Ins. Co. v. Hud- 
 supra, § 818, infra, § 2393. son, 115 Ga. 638, 42 S. E. 60 (1902) ; 
 
 2. Traders' Ins. Co. e. Catlin, 163 Kirby v. Phoenix Ins. Co., 9 Lea 
 Til. 256, 45 N. E. 255, 35 L. E. A. (Tenn.) 142 (1882). 
 
 595 (1896); Cornish v. Farm Build- 5. Harrington v. St. Paul, etc., R. 
 
 ings F. Ins. Co., 74 N. Y. 295 [affirm- Co., 17 Minn. 215 (1871). 
 
 ing 10 Hun 466] (1878). See also 6. Brooklyn First Baptist Ch. v. 
 
 Pepper v. Planters' Nat. Bank, 5 Ky. Brooklyn F. Ins. Co., 28 N. Y. 153 
 
 L. Rep. 85 (1883). (1863) (permanent). 
 
 1 3. What is much the same thing 1. Shover v. Myrick, 4 Ind. App. 7, 
 
 ■the fact may be established, circum- 30 N. E. 207 (1891) ; Fry v. New 
 
 stantially, by the action of those con- York Provident Sav. L. Assur. Soc, 
 
 versant with the subject in raising the (Tenn. Ch. App. 1896) 38 S. W. 116. 
 
 premium. Traders' Ins. Co. v. Catlin, See supra, § 819, infra, § 2396. 
 
1061 Foreign Law Pboved as a Fact. §§ 892-894 
 
 expectancy is affected by the existence of certain habits of life ; — 
 for example, that of drinking alcoholic liquors. 2 
 
 § 892. (Technical or Scientific Facts; Insurance Matters; 
 Life); Mortality Tables Certain facts are, however, so com- 
 monly known or recognized sources of authentic information so 
 readily accessible, as not properly to fall within the field of techni- 
 cal knowledge. Such a fact is expectancy of life. It may be 
 treated as a matter of common knowledge 1 and the judge may use 
 or permit the jury to employ standard mortality tables for the 
 purpose of ascertaining relevant facts 2 from their examination. 
 
 The fact is, however, close to the line between common and 
 special knowledge ; — which, as has been said, 3 is frequently hard 
 to draw. The fact of expectancy of life may be regarded not only 
 as a matter of common knowledge, but it may be treated, justly 
 enough, as one of a technical nature and made the subject of the 
 testimony of one properly equipped by experience to testify with 
 regard to it. 4 Such a witness, in connection with his testimony 
 may refer to and incorporate in his evidence data furnished by 
 the American Mortality Tables 5 or other tabulations regarded as 
 authoritative by those engaged in the business. 
 
 § 893. (Technical or Scientific Facts; Insurance Matters); 
 
 Marine. — Facts of a technical nature are more frequently met in 
 marine than in either fire or life insurance. The experienced wit- 
 ness is frequently the only person within whose knowledge such 
 facts lie. He is, therefore, at liberty to state them. 1 
 
 § 894. (Technical or Scientific Facts); Interstate or Foreign 
 Law. — The existence of written or unwritten law in a foreign 
 country 1 or sister state of the American Union 2 is a fact and, in 
 
 2. Atchison, etc., Ry. Co. v. Snede- 5. Shover v. Myrick, 4 Ind. App. 7, 
 
 ger, 5 Kan. App. 700, 49 Pac. 103 30 N. E. 207 (1891). 
 
 (1897) ; Perrette v. Kansas City, 162 1. Leitch v. Atlantic Mut. Ins. Co., 
 
 Mo. 238, 62 S. W. 448 (1901). 66 N. Y. 100 (1876) ; Hawes v. New 
 
 1. Supra, §§ 732, 859c. England Mut. Mar. Ins. Co., 11 Fed. 
 
 2. Supra, S 54. Cas. No. 6,241, 2 Curt. 229 (1855). 
 
 3. Supra, § 879. See infra, § 2397. 
 
 4. Chicago, etc., R. Co. v. Neff, 25 1. Connecticut. — Dyer v. Smith, 12 
 Ind. App. 107, 56 N. E. 927 (1900) ; Conn. 384 (1837). 
 
 Rowley v. London, etc., R. Co., L. R. Iowa. — Crafts v. Clark, 38 Iowa 
 
 8 Exch. 221, 42 L. J. Exch. 153, 29 237 (1874) (Cuba). 
 
 L. T. Rep. (N. S.) 180, 21 Wkly. Rep. New Hampshire.— Hall v. Costello, 
 869 (1873). 
 
§ 894 
 
 Knowledge; Special. 
 
 1062 
 
 the absence of statutory regulation, is to be proved, as other facts 
 are proved, by the statement of one who knows it. In any event, 
 the answer of the witness must, in order to be relevant, cover 
 specifically the question raised, 3 and, where the evidence is in 
 conflict, it has been held, that the court must examine text-books 
 and other authorities and decide the point for itself. 4 
 
 The written law of a foreign country 5 or sister state 6 stands in 
 the same position. Anyone who, in the opinion of the court, knows 
 what the foreign law is, may state it ; — identifying, if conven- 
 ient to the judge, the volume in which the written law is con- 
 tained, and pointing out, if desired, the written law itself. The 
 general way in which this is done is indicated by a decision of 
 
 48 N. H. 176, 2 Am. Rep. 207 (1868) 
 (Canada). 
 
 New York. — Matter of Roberts, 8 
 Paige 446 (1840) (France). 
 
 North Carolina. — Temple v. Pasquo- 
 tank County, 111 N. C. 36, 15 S. E. 
 886 (1892) (Cuba). 
 
 Texas. — Sierra Madre Constr. Co. 
 V. Brick, (Civ. App. 1900) 55 S. W. 
 521 (Mexico). 
 
 United States. — Ennis v. Smith, 
 14 How. 400, 14 L. ed. 472 (1852) 
 (France). 
 
 England. — De Bodes' Case, 8 Q. B. 
 308, 55 E. C. L. 208 (1845) (France). 
 
 Canada. — Rice r. Gunn, 4 Ont. 579 
 (1884). 
 
 2. Alabama. — Walker v. Forbes, 31 
 Ala. 9 (1857) (Pennsylvania). 
 
 Arkansas. — Union Cent. L. Ins. Co. 
 V. Caldwell, 68 Ark. 505, 58 S. W. 
 355 (1900) (Ohio). 
 
 Georgia. — Chattanooga, etc., R. Co. 
 V. Jackson, 86 Ga. 676, 13 S. E. 109 
 (1890). 
 
 Illinois. — Milwaukee, etc., R. Co. v. 
 Smith, 74 111. 197 (1874). 
 
 Iowa. — Greasons v. Davis, 9 Iowa 
 219 (1859). 
 
 Kansas. — Palmer r. Hudson River 
 State Hospital, 10 Kan. App. 98, 61 
 Pac. 506 (1900). 
 
 Kentucky.— Tyler v. Trabue, 8 B. 
 Mon. 306 (1848). 
 
 Louisiana. — Taylor v. Swett, 3 La. 
 33, 22 Am. Dec. 156 (1831). 
 
 Maryland. — 'Jackson v. Jackson, 82 
 Md. 17, 33 Atl. 317, 34 L. R. A. 773 
 (1895). 
 
 Massachusetts. — Mowry v. Chase, 
 100 Mass. 79 (1868) (Rhode Island). 
 
 Nebraska. — Barber v. Hildebrand, 
 42 Neb. 400, 60 N. W. 594 (1894). 
 
 New Hampshire. — Kennard v. Ken- 
 nard, 63 N. H. 303 (1884). 
 
 New Jersey. — Title Guarantee, etc., 
 Co. v. Trenton Potteries Co., 56 N. J. 
 Eq. 441, 38 Atl. 422 (1897). 
 
 New York. — Genet v. Delaware, etc., 
 Canal Co., 13 Misc. 409, 35 N. Y. 
 Suppl. 147 (1895). 
 
 Pennsylvania. — Dougherty v. Snyder, 
 15 Serg. & R. 84, 16 Am. Dec. 520 
 (1826). 
 • Rhode Island. — Barrows v. Downs, 
 
 9 R. I. 446, 11 Am. Rep. 283 (1870) 
 (New York). 
 
 Texas. — .State v. De Leon, 64 Tex. 
 553 (1885). 
 
 3. Clardy r. Wilson, 24 Tex. Civ. 
 App. 196, 58 S. W. 52 (1900) 
 
 4. Rice v. Gunn, 4 Ont. 579 (1884). 
 
 5. Short f. Kingsmill, 7 U. C. Q. B. 
 350 (1850). 
 
 6. Love r. McElroy, 106 ill. App. 
 294 (1902); Peopled. McQuaid, 85 
 Mich. 123, 48 N. W. 161 (1891); 
 Brady r. Palmer, 19 Ohio Cir. Ct. 687, 
 
 10 Ohio Cir. Dec. 27 (1899). 
 
1063 Okal Testimony as to Written Law. § 895 
 
 the supreme court of Michigan. Passing on an objection to the 
 testimony of a Pennsylvania clergyman as to the written law of 
 that state relating to the celebration of marriages the court say ; — 
 " It is claimed that the witness was not shown to be an expert, 
 and therefore not competent. The question of his competency was 
 one for the court, and not for the jury. It was within the knowl- 
 edge of the trial court that Brightly's Digest is not a fugitive pub- 
 lication, but that it has been published for a quarter of a century 
 as a compilation of the statutes of the state of Pennsylvania; that 
 it occupies a place in every bar library of our own State, and in 
 many of our private libraries ; that its existence must be a matter 
 of as general knowledge in that state as the existence of Howell's 
 compilation is here. The information called for from the witness 
 comes within the range of what is denominated " expert testi- 
 mony," if at all, only because of the place where the testimony 
 was to be given. In Pennsylvania the information called for was 
 within the range of ordinary observation and intelligence, and 
 the witness was a resident of that state. The inquiry involved not 
 what was the law of that state upon a particular subject, but 
 simply in what form the statutes of that state were published, and 
 whether the books presented were received and recognized as au- 
 thority. The witness was a minister, empowered by statute to 
 perform tbe marriage ceremony, and required as such to observe 
 certain prescribed formulas. He would naturally consult statutory 
 provisions, and testified that he did habitually consult the statutes 
 of that state. A cardinal has been held competent to prove the 
 Roman matrimonial law. Here a minister, authorized by statute 
 to perform the marriage ceremony, is called simply to identify the 
 book in which the law is published, and to show the common ac- 
 ceptance of the publication as authority. The testimony was com- 
 petent, and there was no error in the admission of the digest, nor 
 was there error in the admission of the reports for the purpose of 
 showing what construction the courts of that state had put upon 
 the statute." 7 
 
 § 895. (Technical or Scientific Facts; Interstate or For- 
 eign Law); Oral Testimony as to Written law A conflict of 
 
 views exist as to whether the oral evidence of a qualified wit- 
 ness is still competent in jurisdictions which prescribe that the 
 written law of a sister state may be proved by official printed 
 
 7. People v. McQuaid, 85 Mich. 123-125 (1891). 
 
§ 896 Knowledge; Special. 1064 
 
 copies of its laws and decisions. In the view of certain courts,; 
 the witness' oral statement may still be received. 1 Other courts 
 have adopted a different administrative principle and hold that 
 the means of proof provided by the statute constitute the " best 
 evidence " i. e., the original or primary grade of evidence and 
 must be produced or a sufficient reason given for its absence. 2 
 Where the printed book or written document is received affirma- 
 tive proof of its authentic nature must be offered 3 as called for 
 by the laws of the forum. 4 
 
 A witness properly qualified may testify, as a fact, concerning 
 the result 5 and legal validity 6 of acts done in accordance with a 
 particular construction of the foreign written law. 
 
 A rule of practice in the foreign country 7 or American state 8 
 may be established equally well with a rule of substantive law. 
 It need not be proved by the use of reported cases. 9 
 
 § 896. (Technical or Scientific Facts; Interstate or For- 
 eign Law) ; Interpretation. — The interpretation given to the law 
 of the foreign country, 1 state, 2 or territory, by its tribunals is an 
 integral and essential part of the law itself and should be stated 
 by the witness. 
 
 1. Brady v. Palmer, 19 Ohio Cir. Nat. R. Co. v. Slater, 115 Fed. 593, 53 
 Ct. 687, 10 Ohio Cir. Dec. 27 (1899). C. C. A. 239 (1902) ; Concha v. Mur- 
 
 2. Johnson v. Hesser, 61 Neb. 631, rieta, 40 Ch. D. 543, 60 L. T. Rep. 
 85 N. W. 894 (1901). (N. S.) 798, (1889) (Peru). 
 
 3. Mexican Nat. R. Co. v. Ware, 2. Alabama. — Walker v. Forbes, 31 
 (Tex. Civ. App. 1900) 60 S. W. 343. Ala. 9 (1857) (Louisiana). 
 
 4. Mexican Nat. R. Co. v. Ware, Connecticut .— Dyer v. Smith, 12 
 (Tex. Civ. App. 1900) 60 S. W. 343. Conn. 384 (1837) (Rhode Island). 
 
 5. Badische Anilin, etc., Fabrik v. Iowa. — Crafts v. Clark, 38 Iowa 
 Klipstein, 125 Fed. 543 (1903) (in- 237 (1874) (Pennsylvania), 
 corporation). Kentucky. — Barker v. Brown, 33 
 
 6. Baltimore Consol. Real Estate, S. W. 833, 17 Ky. L. Rep. 1172 
 etc., Co. v. Cashow, 41 Md. 59 (1874). (1896). 
 
 7. Patterson v. Kennedy, 122 Mich. ~New Hampshire. — Jenne V. Harris- 
 343, 81 N. W. 91 (1899) (Canada) ; ville, 63 N. H. 405 (1885). 
 
 U. S. v. Gardiner, 25 Fed. Cas. No. New Jersey. — Title Guarantee, etc., 
 
 15,186a, 2 Hayw. & H. 89 (1853). Co. v. Trenton Potteries Co., 56 N. J. 
 
 8. Barkman v. Hopkins, 11 Ark. Eq. 441, 38 Atl. 422 (1897) (New 
 157 (1850) ; Crafts v. Clark, 38 Iowa York). 
 
 237 (1874); Mowry v.- Chase, 100 Ohio. — Smith v. Bartram, 11 Ohio 
 
 Mass. 79 (1868). St. 690 (1860) (Pennsylvania). 
 
 9. Patterson v. Kennedy, 122 Mich. Pennsylvania. — Bollinger v. Gal- 
 343, 81 N. W. 91 (1899). lagher, 163 Pa. St. 245, 29 Atl. 751, 
 
 1. Barrows v. Downs, 9 R. I. 446, 43 Am. St. Rep. 791 (1894) (Mary- 
 11 Am. Rep. 283 (1870); Mexican land). 
 
1065 Necessary Qualification- of Witness. §§ 897, 898 
 
 Opinion Excluded. — The mere opinion which the witness says, 
 the attorneys of the foreign jurisdiction feel should be the con- 
 struction given by the court of the foreign jurisdiction is not 
 sufficient to admit the evidence of the witness on that point. 3 
 Special skill is required where the document is in a foreign lan- 
 guage or is in the form of a translation from it.* 
 
 § 897. (Technical or Scientific Facts; Interstate or For- 
 eign Law) ; Skilled Witness ; English Rule. — It must be remem- 
 bered, however, that the actual state of the foreign law may be 
 the resultant of a large number of legal facts of which the writ- 
 ten law is but a single one. 1 It is accordingly the English rule, 
 well grounded on administrative principles, that the proper one 
 to state the law — • though partly or in whole in written form — is 
 a skilled witness adequately familiar with it. It is significant 
 that this rule of practice was reached by overruling a number of 
 decisions holding, in accordance with a current American view, 
 that a written law could be proved by an authenticated copy of it. 2 
 
 § 898. (Technical or Scientific Facts; Interstate or For- 
 eign Law; Skilled Witness); Qualifications; English Rule. — 
 
 Such a witness is no more of an " expert " than one who knows 
 facts of any other class. His evidence is admitted because the 
 fact to which he testifies is one of special knowledge; — i. e., is 
 not within the general or common knowledge of the jury. 1 Per- 
 sons admitted to testify as skilled witnesses as to foreign law are, 
 however, frequently spoken of as " experts." 2 So far as this 
 practice is anything more than a habitual confusion of terms, it 
 rests upon the fact that the judge examines into the qualifications 
 of the witness ; — though this course is merely a result of the 
 obvious consideration that, in order to expedite trials and prevent 
 loss of time in the hearing of surmises, guesses or conjectures 
 from witnesses who have not the subjective .qualifications neces- 
 sary to enable them to know that as to which they are proposing 
 to testify, the judge must either be able to assume or become con- 
 
 3. Hennessey V. Farrelly, 13 Daly 38, 16 E. C. L. 425, 3 Stark. 178, 
 (N. Y.) 468 (1886). 3 E. C. L. 643, 25 Rev. Rep. 779 
 
 4. Mexican Nat. R. Co. v. Slater, (1822). 
 
 115 Fed. 593, 53 C. C. A. 239 (1902). 1. Supra, §§ 691 et seq. 
 
 1. De Bode's Case, 8 Q. B. 208, 55 2. Jackson v. Jackson, 82 Md. 17, 
 
 E. C. L. 208 (1845). 33 Atl. 317, 34 L. R. A. 773 (1895). 
 
 8. Lacon v. Higgins, D. & R. N. P. 
 
§ 899 Knowledge; Special. 1066 
 
 vinced by evidence, that the witness has adequate knowledge to 
 give probative weight to his statement. The English rule requires 
 that, in order to testify as to the unwritten law of a foreign 
 country, the witness should have practiced the law of that country. 
 It is not sufficient that he is, in a general way, a learned man, 
 that he is connected with the legal profession, claims to know the 
 foreign law, 3 or that he has studied, at a foreign university 4 or 
 elsewhere 5 in a country other than that whose laws are in ques- 
 tion, the law as to which he is proposing to testify. Nor is it, 
 in itself, an adequate qualification that the witness has been 
 obliged to act upon his knowledge of the foreign law, as on trials 
 before the privy council 6 or otherwise had occasion to verify the 
 accuracy of his knowledge in regard to it. 
 
 Practical experience of the law in the country over which it is 
 operative is the test of qualification for skilled witnesses as to 
 foreign law which English administration very sensibly pre- 
 scribes, as the result of managing a commercial empire of wide 
 extent. If this element is present in satisfactory measure, it is 
 not necessary that the witness should be an attorney of the country 
 in question. Legal officials not professionally trained, as an at- 
 torney general who is not a lawyer; 7 diplomatic representatives 
 of the government of the forum living in the foreign country; 8 
 or even, on an appropriate subject, merchants, 9 and other private 
 citizens doing business in the foreign country will be admitted 
 to testify as skilled witnesses. 
 
 § 899. (Technical or Scientific Facts; Interstate or For- 
 eign Law; Skilled Witness; Qualifications) ; American Rule. — 
 The standard of administrative requirement prevailing in many 
 
 3. McKenzie v. Gordon, 1 Nova 7. Pieton's Case, 30 How. St. Tr. 
 Scotia Dee. 153 (1867). 226, 806 (1804). 
 
 4. Bristow v. Sequeville, 5 Exch. 8. In re Dost Aly Khan, 6 P. D. 6, 
 275, 14 Jur. 674, 19 L.. J. Exch. 289 49 L. J. P. & Adm. 78, 29 Wkly. 
 (1850) ; In re Bonelli, 1 P. D. 69, 45 Hep. 80 (1880) (ambassador); La- 
 
 L. J. P. & Adm. 42, 34 L. T. Rep. con v. Higgins, D. & R. N. P. 38, 
 
 (N. S.) 32, 84 Wkly. Rep. 255 (1875). 16 E. C. L. 425, 3 Stark. 178, 3 E. 
 
 5. In re Bonelli, 1 P. D. 69, 45 C. L. 643, 25 Rev. 779 (1822) (vice- 
 L. J. P. & Adm. 42, 34 L. T. Rep. consul). 
 
 (N. S.) 32, 24 Wkly. Rep. 255 9. Vander Donckt r. Thellusson, 8 
 
 (1875) ; Cartwright v. Cartwright, 26 C. B. 812, 19 L. J. C. P. 12, 65 
 
 Wkly. Rep. 684 (1878). E. C. L. 812 (1849) (presentation of 
 
 6. Reg. v. Savage, 13 Cox C. C. 178 rates). 
 (1875). 
 
1067 American Eule as to Qualification. § 899 
 
 jurisdictions of the American Union regarding the qualifications 
 for testifying as to foreign law is much lower than that prevail- 
 ing in England. 
 
 Attorneys, Counsel, etc. — The practicing attorney of the for- 
 eign country or sister state 1 or one who has so practiced 2 for a 
 reasonable time, is deemed competent to testify as a skilled wit- 
 ness on the subject. Attorneys 3 practicing in the sister state or 
 foreign country, 4 and other persons deemed by the judge to be 
 sufficiently qualified 5 to do so may state the existence and effect 
 of an unwritten law in their respective jurisdictions, all other 
 witnesses being rejected. 6 
 
 Non-professional. — It is not, however, necessary that the wit- 
 ness should be a lawyer. 7 All that is required is what the pre- 
 siding judge regards as a sufficiently intelligent and thorough 
 acquaintance with the foreign law; 8 — the connection through 
 which the knowledge may have been acquired being regarded as 
 a matter of comparative indifference. It is, therefore, looked at 
 as adequate qualification should the witness be an attorney of the 
 forum who has studied the foreign law in the preparation of a 
 case, 9 acted as a magistrate under it 10 or advised clients regarding 
 its provisions. 11 The proposed witness will also be deemed com- 
 
 1. Baltimore Consol. Real Estate, 5. " In proof of the laws of a foreign 
 etc., Co. v. Cashow, 41 Md. 59 ( 1874) ; country, the testimony of any person, 
 (law of New York) ; Sierra Madre whether a professed lawyer or not, 
 Constr. Co. V. Brick, (Tex. Civ. App. who appears to the court to be well 
 1900) 55 S. W. 521. informed on the point, is competent." 
 
 2. Union Cent. L. Ins. Co. v. Cald- Hall v. Costello, 48 N. H. 176, 179, 
 •well, 68 Ark. 505, 58 S. W. 355 2 Am. Rep. 207 (1868). 
 
 (1900) (law of Ohio). 6. Phelps v. Town, 14 Mich. 374 
 
 3. Baltimore Consol. Real Estate, (1866) (banker); City Sav. Bank v. 
 etc., Co. v. Cashow, 41 Md. 59 (1874) Kensington Land Co., (Tenn. Ch. 
 Hall v. Costello, 48 N. H. 176, 2 App. 1896) 37 S. W. 1037. 
 
 Am. Rep. 207 (1868); Bristow v. 7. Hall v. Costello, 48 N. H. 176, 
 
 Sequeville, 5 Exch. 275, 14 Jur. 674, 2 Am. Rep. 207 (1868). 
 
 19 L. J. Exch. 289 (1850) ; Dalrymple 8. State v. Behrman, 114 N. C. 797, 
 
 V. Dalrymple, 2 Hagg. Cons. 54 19 S. E. 220, 25 L. R. A. 449 (1894). 
 
 (1811). 9. Temple v. Pasquotank County, 
 
 4. Concha V. Murrieta, 40 Ch. D. ill N. C. 36, 15 S. E. 886 (1892) 
 543, 60 L. T. Rep. (N. S.) 798 (1889); (law of Maryland). 
 
 In re Dost Aly Khan, 6 P. D. 6, 49 10. Pickard v. Bailey. 26 N. H. 152 
 
 L. J. P. & Adm. 78, 29 Wkly. Rep. (1852). 
 
 80 (1880) ; In re Pearn, 1 P. D. 70, 11. Dauphin v. U. S., 6 Ct. CI. 221 
 
 45 L. J. P. & Adm. 31, 33 L. T. Rep. (1870) (adviser to French legation). 
 
 (N. S.) 705, 24 Wkly. Rep. 143 
 
 (1875). 
 
§ 900 Knowledge; Special. 1068 
 
 petent to testify where, for any other reason, he has heen called 
 upon to make a special study as to the law concerning which he 
 proposes to speak ; 12 — as, for example, by being graduated from 
 a foreign university 13 or other institution of learning in which 
 the study of the law in question is required, or from having in- 
 tended to follow the practice of that law as a profession. 14 But 
 studying the foreign law, in order to amount to a qualification, 
 must possess to the witness a pointed and definite interest, of 
 intimate personal concern. Mere reading on similar topics, with 
 no specific connection to the branch of foreign law under investi- 
 gation does not suffice. Beading the code of Justinian, for ex- 
 ample, does not, in itself, qualify a witness to speak as to a special 
 provision of the Mexican law. 15 Still less will the duty to enforce 
 these foreign laws in a subordinate and routine capacity as, for 
 example, in serving as a policeman, 16 be deemed a sufficient quali- 
 fication for testifying as a skilled witness with regard to the pro- 
 visions of a foreign law. 
 
 The witness may refresh his memory and correct or confirm 
 his impression as to the foreign law by a resort to treatises 17 or 
 documents, 18 deemed authoritative in the foreign jurisdiction. 
 But the testimony of the witness, rather than facts furnished by 
 his written aids is that which is to be taken as the conclusion of 
 the witness. 19 
 
 § 900. (Technical or Scientific Facts; Interstate or For- 
 eign Law); Function of the Judge. — The fact that the question 
 is one of law naturally places it, in many points of administra- 
 tion, within the hands of the presiding judge, familiar with the 
 decisions of questions of domestic law. His finding is not abso- 
 lutely controlled by the testimony of the witness ; — even when 
 uncontradicted. Thus, the most unequivocal testimony of a 
 skilled witness as to the construction given to the foreign law, 
 
 12. Barber r. Mexico International 17. Sussex Peerage Case, 11 CI. & 
 Co., 73 Conn. 587, 48 Atl. 758 (1901). F. 85, 8 Jur. 793, 8 Eng. Reprint 
 
 13. Dauphin V. U. S., 6 Ct. CI. 231 1034 (1844). 
 
 (1870) (University of Paris). 18. Sussex Peerage Case, 11 CI. & 
 
 14. Dauphin V: U. S., 6 Ct. CI. 221 F. 85, 8 Jur. 793, 8 Eng. Reprint 
 (1870) (French law). 1034 (1844). 
 
 15. Banco De Sonora i>. Bankers' 19. Nelson v. Bridport, 8 Beav. 527, 
 Mut. Casualty Co., (Iowa 1903) 95 10 Jur. 871 (1845). 
 
 N. W. 232. 
 
 16. People v. Lamhert, 5 Mich. 349, 
 72 Am. Dec. 49 (1858). 
 
1069 Duties of Nautical Officers Stated. § 901 
 
 cannot control the court's understanding of the meaning of the 
 written law and the plain decisions of the foreign court. 1 In 
 other words, the presiding judge may examine for himself the 
 documents which the skilled witness refers to as a correct state- 
 ment of the foreign law, "not as evidence per se but as part 
 of the testimony of the witness." 2 That is, the court of the 
 forum is not relieved of the duty of construing the written docu- 
 ment as would be imposed in case of any other legal writing even 
 though the work of translation has been performed by a witness 
 familiar with the foreign language. 3 The written document bear- 
 ing on the foreign law is read to the court ; it cannot be read to 
 the jury. 4 A witness will not be permitted to testify to the con- 
 struction given a statute, if its meaning is regarded by the pre- 
 siding judge as being perfectly plain, and there has been no official 
 judicial decision. 6 
 
 § 901. (Technical or Scientific Facts); Maritime Affairs 
 
 The sea has also its technical side. Men of nautical experience 
 or training may state the special facts known to those who " fol- 
 low the sea." Principal among these are the influences of the 
 natural forces of winds and waves 1 upon vessels' 2 or, to put the 
 same idea in different words, what a vessel will do under given 
 conditions 3 may be proved in this way. In like manner an ex- 
 perienced witness may state the duties of the captain, 4 officers 6 
 
 1. China, etc., Bank v. Morse, 168 ified as experts to prove the practical 
 N. Y. 458, 61 N. E. 774, 85 Am. St. effect of cross seas and heavy swells, 
 Eep. 676, 56 L. R. A. 139 (1901). shifting winds and sudden squalls." 
 
 2. Concha v. Murrieta, 40 Ch. D. Eastern Transp. Line v. Hope, 95 U.S. 
 453, 60 L. T. Rep. N. S. 798 (1889). 297, 299, 24 L. ed. 477 (1877). See 
 
 3. Stearine, etc., Co. v. Heintzmann, infra, §§ 1983, 2400. 
 
 17 C. B. N. S. 56, 10 Jur. N. S. 881, 2. Western Ins. Co. v. Tobin, 32 
 
 11 L. T. Rep. N. S. 272, 112 E. C. L. Ohio St. 77 (1877) (certain type of 
 
 56 (1864); Di Sora v. Phillipps, 10 vessel will leak). 
 
 H. L. Cas. 624, 33 L. J. Ch. 129, 2 3. Price v. Hartshorn, 44 N. Y. 94, 
 
 New Rep. 553, 11 Eng. Reprint 1168 4 Am. Rep. 645 (1870) ; Walsh v. 
 
 (1863). Washington Mar. Ins. Co., 32 N. Y. 
 
 4. Darby v. Ouseley, 1 H. & N. 1, 2 427 (1865); Western Ins. Co. v. 
 Jur. N. S. 497, 25 L. J. Exch. 227, 4 Tobin, 32 Ohio St. 77 (1877) ; Folkes 
 Wkly. Rep. 463 (1856). v. Chadd, 3 Dougl. 157, 26 E. C. L. 
 
 5. Molson's Bank v. Boardman, 47 111 (1782). 
 
 Hun (N. Y.) 135 (1888). 4. Sills v. Brown, 9 C. & P. 601, 38 
 
 1. "We entertain no doubt that E. C. L. 351 (1840). 
 
 those who are accustomed to the re- 5. Malton v. Nesbit, 1 C. & P. 70, 
 
 sponsibility of command, and whose 12 E. C. L. 51 (1824). 
 lives are spent on the ocean, are qual- 
 
§ 902 Knowledge; Special. 1070 
 
 and crew of a vessel under a given set of circumstances and the 
 general usages of navigation 6 are important matters of nautical 
 knowledge. Other practical matters of maritime concern as how 
 far a light can be seen from a vessel 7 what acts are practically 
 possible 8 and how such acts as can be done are properly done, 9 
 stand in the same position. Viewing navigation as a transporta- 
 tion business rather than as presenting questions of seamanship 
 or the ways and usages of the ocean, a suitably qualified witness 
 may state how different classes of merchandise are graded, as 
 " inflammable " 10 or how a cargo should be stowed. 11 
 
 § 902. (Technical and Scientific Facts); Mechanic Arts. 1 
 — Manufacturing and the mechanic arts present a favorite field 
 for the employment of evidence regarding technical facts, which, 
 when relevant may be stated by those qualified either through ex- 
 perience 2 or technical training 3 to do so. The knowledge of the 
 witness must be affirmatively shown or reasonably assumed to be 
 as specific as is the fact which the testimony covers. Mere gen- 
 eral knowledge and experience in a particular branch of manu- 
 facturing is not sufficient unless it may be assumed to qualify the 
 witness as to the precise question which is asked him.* For a still 
 stronger reason, absence of even this general experience disquali- 
 fies the witness. 5 
 
 6. The Alaska, 33 Fed. 107 (1887). 3. Bradley v. District of Columbia, 
 
 7. Case v. Perew, 46 Hun (N. Y.) 20 App. Cas. (D. C.) 169 (1908). 
 57, 10 N. Y. St. 811 (1887) ; Fenwick Familiarity with a physical effect 
 v. Bell, 1C.4K. 312, 47 E. C. L. 312 of natural laws will not, of itself, 
 
 (1844). qualify the person to speak as to the 
 
 8. Louisville Ins. Co. v. Monarch, operation of these laws. A fireman, 
 99 Ky. 578, 36 S. W. 563, 18 Ky. L. for instance, is not qualified to state 
 Rep. 444 (1896) ( striking an obstacle the natural process by which a fire 
 without knowing the fact). creates its own current of air. State 
 
 9. Walker I'. Protection Ins. Co., 29 v. Watson, 65 Me. 74 (1876). Nor 
 Me. 317 (1849) ( abandon vessel ) . is a millwright competent to testify 
 
 10. A. J. Tower Co. v. Southern as to the cause of anchor ice in a 
 Pac. Co., 184 Mass. 472, 69 N. E. 348 particular stream. Woods v. Allen, 18 
 (1904) (oilcloth). N. H. 28 (1845). 
 
 11. Price v. Powell, 3 N. Y. 322 4. Fraim v. National F. Ins. Co., 
 (1850). 170 Pa. St. 151, 32 Atl. 613, 50 Am. 
 
 1. Supra, §§ "765, 820, infra, St. Rep. 753 (1895) (gasoline in 
 §§ 1988, 2404. silver plating). 
 
 2. Dyas v. Southern Pac. Co., 140 5. Merchants Wharf-Boat Assoc, v. 
 Cal. 296, 73 Pac. 972 (1903) (engi- Wood, (Miss. 1887) 3 So. 248. A 
 neer) ; Pullman's Palace-Car Co. v. carpenter and builder is not neces- 
 Harkins, 55 Fed. 932, 5 C. C. A. 326 sarily qualified to testify as to the 
 (1893) (machinist). strength of or the strain upon a wire 
 
1071 
 
 Conduct of Mechanical Operations. 
 
 903, 904 
 
 § 903. (Technical or Scientific Facts; Mechanic Arts); 
 
 Dangers. — The physical dangers 1 and disease producing quality 2 
 of manufacturing in any particular line, under what conditions 
 these may be avoided, and the business rendered safe 3 or as to 
 how far the injurious effect of an industry may be modified in 
 the case of any individual by his own personal equation ; 4 — these, 
 and similar facts may become relevant, and, when stated by per- 
 sons of sufficient technical knowledge, admissible. The dangers 
 to be guarded against in the use of particular appliances 5 or inci- 
 dent to the use of modern machinery 6 are, in the same way, mat- 
 ters of special knowledge. 
 
 § 904. (Technical or Scientific Facts; Mechanic Arts); 
 
 Proper Management of Business. — The proper way in which a 
 given manufacturing operation as making ice tongs 1 or firing 
 
 1. California. — Dyas v. Southern 
 Pac. Co., 140 Cal. 296, 73 Pae. 972 
 (1903) (use of derricks). 
 
 Massachusetts. — Leslie v. Granite 
 R. Co., 172 Mass. 468, 52 N. E. -543 
 (1899) (derricks' for stone). 
 
 Minnesota. — Nutzmann v. Germania 
 L. Ins. Co., 78 Minn. 504, 81 N. W. 
 518 (1900) (hydraulic elevator); 
 Neubauer v. Northern Pac. R. Co., 60 
 Minn. 130, 61 N. W. 912 (1895) (ice 
 tongs). 
 
 New York.— Scheider v. American 
 Bridge Co., 78 N. Y. App. Div. 163, 
 79 N. Y. Suppl. 634 (1903) (guying 
 derricks). 
 
 Utah. — Fritz v. Western Union 
 Tel. Co., 25 Utah 263, 71 Pac. 209 
 (1902) (telephone wires) ; Palmquist 
 v. Mine, etc., Supply Co., 25 Utah 
 257, 70 Pac. 994 (1902) (loading 
 boilers). 
 
 Virginia. — Parlett v. Dunn, 102 
 Va. 459, 46 S. E. 467 (1904) (erect- 
 ing hoisting gear) ; Richmond Loco- 
 motive Works v. Ford, 94 Va. 627, 27 
 S. E. 509 (1897) (moving heavy 
 articles ) . 
 
 Conjecture rejected. — Statements 
 which partake of the nature of con- 
 jectures, as whether an experienced 
 operator would deem a certain pre- 
 caution necessary. [Dallas Electric 
 Co. v. Mitchell, (Tex. Civ. App. 1903) 
 
 rope. Caven v. Bodwell Granite Co., 
 97 Me. 381, 54 Atl. 851 (1903). 
 
 1. Judson v. Giant Powder Co., 107 
 Cal. 549, 40 Pac. 1020, 48 Am. St. Rep. 
 146, 29 L. R. A. 718 (1895) (powder 
 mill) ; Planters' Mut. Ins. Co. v. 
 Rowland, 66 Md. 236, 7 Atl. 257 
 
 (1886) (roller mills); Bearden v. 
 State, 44 Tex. Cr. 578, 73 S. W. 17 
 
 (1903). 
 
 2. Fox v. Peninsular White Lead, 
 etc., Works, 92 Mich. 243, 52 N. W. 
 623 (1892) (manufacture of paris 
 green). 
 
 3. Judson v. Giant Powder Co., 107 
 Cal. 549, 40 Pac. 1020, 48 Am. St. 
 Rep. 146, 29 L. R. A. 718 (1895) 
 (powder manufacturing) ; Richardson 
 v. Douglas, 100 Iowa 239, 69 N. W. 
 530 (1896) (sparks from threshing 
 machine) ; Sawyer v. J. M. Arnold 
 Shoe Co., 90 Me. 369, 38 Atl. 333 
 (1897) (elevator) ; Baltimore, etc., 
 Road v. Leonlfardt, 66 Md. 70, 5 Atl. 
 346 (1886). 
 
 4. Birmingham Furnace, etc., Co. v. 
 Gross, 97 Ala. 220, 12 So. 36 (1893) 
 (" stand more gas ") . 
 
 5. Charter Gas-Engine Co. v. Kel- 
 lam, 79 N. Y. App. Div. 231, 79 N. Y. 
 Suppl. 1019 (1903) (gasoline engine). 
 
 6. Pullman's Palace-Car Co. v. Har- 
 kins, 55 Fed. 932, 5 C. C. A. 326 
 (1893) (rapidly revolving shafting). 
 
§ 905 
 
 Knowledge ; Special. 
 
 1072 
 
 tiles 2 should be conducted is an appropriate subject for testimony 
 of this class. But the mere fact that the witness 3 or some other 
 person 4 has been in the habit of doing a mechanical operation in 
 a particular way may well be rejected as irrelevant It gives 
 rise to no legitimate inference as to what the proper and reason- 
 able way is. What would be an improper way of doing such work s 
 is, by a parity of reasoning, equally to be received in evidence. 
 The method and effect in detail 6 of operating a particular ma- 
 chine, may be stated by those sufficiently acquainted with it. 
 How far a defect in a mechanical device 7 can be discovered by 
 ordinary observation or inspection seems to present a question of 
 this simple order. 
 
 § 905. (Technical or Scientific Facts; Mechanic Arts); 
 
 Strength of Mechanical Appliances. — Strength of mechanical 
 appliances, 1 or of stagings 2 and other combinations of materials 
 for mechanical purposes, 3 or the metals or other substances of 
 which they are composed for resisting tensile 4 or other 5 strains 6 
 
 76 S. W. 935] may be rejected. An 
 additional reason is furnished when 
 the statement invades the appropriate 
 function of the jury. Dallas Electric 
 Co. v. Mitchell, (Tex. Civ. App. 
 1903) 76 S. W. 935 (electric fore- 
 man's duty). 
 
 2. Wiggins v. Wallace, 19 Barb. 
 (5T. Y.) 338 (1855). 
 
 3. Parlett V. Dunn, 103 Va. 459, 46 
 S. E. 467 (1904). 
 
 4. Richmond Locomotive Works v. 
 Ford, 94 Va. 627, 27 S. E. 509 (1897). 
 
 5. Wiggins v. Wallace, 19 Barb. 
 (N. Y.) 338 (1855). 
 
 6. Weber Wagon Co. v. Kehl, 139 
 111. 644, 29 N. E. 714 (1892) (makes 
 hard floor slippery). 
 
 7. Silveira v. Iversen, 128 Cal. 187, 
 60 Pac. 687 (1900) (rope); Inter- 
 national, etc., R. Co. v. Collins, (Tex. 
 Civ. App. 1903) 75 S. W. 814 (brake- 
 staff) . 
 
 1. Louisville, etc., R. Co. v. Berkey, 
 136 Ind. 181, 35 N. E. 3 (1893) 
 (coupling pin) ; Lau v. Fletcher, 104 
 Mich. 295, 62 N. W. 357 (1895) 
 (saw). 
 
 2. Prendible v. Connecticut River 
 
 Mfg. Co., 160 Mass. 131, 35 N. E. 675 
 (1893). 
 
 3. Stanwick r. Butler-Ryan Co., 93 
 Wis. 430, 67 N. W. 723 (1896) 
 ( stringer ) . 
 
 4. Kentucky. — Claxton v. Lexing- 
 ton, etc., R. Co., 13 Bush (Ky.) 636 
 (1878) (iron hook). 
 
 Maine. — ■ Caven v. Bodwell Granite 
 Co., 97 Me. 381, 54 Atl. 851 (1903) 
 (wire-rope). 
 
 Massachusetts. — Murphy r>. Mars- 
 ton Coal Co., 183 Mass. 385, 67 N. E. 
 342 (1903). 
 
 New Hampshire. — Little 1>. Head, 
 etc., Co., 69 N. H. 494, 43 Atl. 619 
 (1898) (iron hook). 
 
 New York. — Favo i\ Remington 
 Arms Co., 73 N. Y. Suppl. 788, 67 
 App. Div. 414 (1901) "(gun metal). 
 
 5. The strength of the metal in a 
 gun can be stated only by one who is 
 familiar with the subject. Favo r. 
 Remington Arms Co., 73 N. Y. Suppl. 
 788, 67 App. Div. 414 (1901). 
 
 6. Boettger r. Scherpe, etc., Iron 
 Co., 124 Mo. 87, 27 S. W. 466 (1894) 
 ( timber ) . 
 
 The amount of a given strain may 
 
1073 Technical Facts as to Use op Fieeaems. § 906 
 
 may be stated as a fact of special knowledge by any witness 
 deemed competent by the court. What strain is sufficient to over- 
 come the resisting power of a given mechanical appliance or com- 
 bination of materials is equally a proper subject for the evidence 
 of a skilled witness. Where, however, the phenomena attending 
 a practical experiment in the law of strains have been made the 
 subject of observation by a skilled witness, as, for example, what 
 caused the collapse of a house or other given structure, 7 the state- 
 ment is not so much one of fact as of inference. 8 Some question 
 may often arise as to whether the statement of the specially- 
 trained witness is properly one of fact, or, on the contrary, is 
 reached by a more elaborate line of reasoning. Much, in each 
 individual case, will be found to depend upon how necessary the 
 inference may be, i. e., how instinctive would be the reaction of 
 the mind upon presentation of the facts to a competent and ex- 
 perienced person. 9 
 
 § 906. (Technical or Scientific Facts; Mechanic Arts); 
 
 Use of Firearms. — Persons experienced in the use of firearms 
 may give, as of their personal knowledge, facts familiar to them 
 concerning the mechanical effects attending the discharge of such 
 weapons. 1 The witness may state as to how widely the projectiles 
 
 be stated. Caven v. Bodwell Granite etc., Co., 151 Ind. 642, 50 N. E. 877, 
 
 Co., 97 Me. 381, 54 Atl. 851 (1903). 52 N. E. 399 (1898) (elevator). 
 
 7. Tremblay v. Mapes-Reeve Constr. Iowa. — Stomne i>. Hanford Produce 
 Co., 169 Mass. 284, 47 N. E. 1010 Co., 108 Iowa 137, 78 N. W. 841 
 (1897) ; Quigley v. H. W. Johns Mfg. (1899) (elevator). 
 
 Co., 26 N. Y. App. Div. 434, 50 N. Y. Massachusetts. — Lang v. Terry, 163 
 
 Suppl. 98 (1898). Mass. 138, 39 N. E. 802 (1895) (der- 
 
 8. Infra, § 1802. rick). 
 
 9. In general, a conclusion regard- New Jersey. — Excelsior Electric 
 ing the adequacy of any mechanical Co. v. Sweet, 57 N. J. L. 224, 30 Atl. 
 device or appliance for the purpose 553 (1894) (pulley for electric 
 for which it was intended, in connec- lights). 
 
 lion with any close, doubtful or New York. — Charter Gas-Engine 
 
 equivocal situation, i. e., where the Co. v. Kellam, 79 N. Y. Suppl. 1019, 
 
 cases "close to the line" can seldom 79 App. Div. 231 (1903). 
 
 bo stated as facts of special knowledge Texas. — Austin Rapid Transit R. 
 
 but only in terms of inference. On Co. v. Groethe, (Civ. App. 1895) 31 
 
 the other hand, extreme cases where S. W. 197 (elevating cars). 
 
 there can be but one answer, may 1. Long v. Travellers' Ins. Co., 113 
 
 properly be stated as facts. Iowa 259, 85 N. W. 24 (1901) (effect 
 
 Colorado. — McGonigle v. Kane, 20 of gas generation by discharge of a 
 
 Colo. 292, 38 Pac. 367 (1894) (ele- gun). See also Dugan v. Com., 102 
 
 vator). Ky. 241, 43 S. W. 418, 19 Ky. L. Rep. 
 
 Indiana. — Sievers v. Peters Box, 1273 (1897). 
 
 Vol. I. 68 
 
§§ 907, 908 Knowledge; Special. 1074 
 
 from a given make of fire arm will scatter at certain distances ; 2 
 how far a pistol 3 or other firearms 4 will powder burn, or facts of 
 a similar nature. 
 
 § 907. (Technical or Scientific Facts; Mechanic Arts); 
 
 Value of Materials. — Prominent among the almost innumerable 
 technical facts relating to the mechanic arts which may properly 
 be a subject of special knowledge to be stated by skilled witnesses 
 are those relating to the value, in various connections, of the ma- 
 terials used. For example, the weight or comparative lightness 1 
 of metals or other material employed for a mechanical object, the 
 relative strength of different materials 2 or how this strength is 
 affected by a particular flaw, imperfection 3 or impaired condition, 4 
 may be stated as matters of special knowledge. 
 
 § 908. (Technical or Scientific Facts); Mining. 1 — The art 
 
 of mining presents a number of facts not covered by the scope of 
 common knowledge though in communities where mining forms 
 a large part of the industrial life, general knowledge may well 
 be more extensive, in this respect, than in others not so situated. 
 Miners of experience, mining engineers and others familiar with 
 the business of mining may testify as to the facts regarding the 
 state of human knowledge in connection with the art. 2 As to 
 what dangers are recognized, and whether any, 3 and, if so, what 
 satisfactory preventative exists, are, in equal degree, matters of 
 special knowledge. 
 
 Construction. — The details of mine construction present a 
 number of such facts. The methods by which mines are timbered 4 
 
 2. Bearden v. State, 44 'Tex. Cr. 3. Boettger v. Scherpe, etc., Iron 
 578, 73 S. W. 17 (1903) (muzzle Co., 124 Mo. 87, 27 S. W. 466 (1894) 
 loading shot gun) ; State v. Melvern, (knot). 
 
 32 Wash. 7, 72 Pac. 489 (1903) (shot 4. Slack v. Harris, 200 111. 96, 65 
 
 gun), N. E. 669 [affirming 101 111. App. 
 
 3. Head v. State, 40 Tex. Cr. 265, 527] (1902) (holts loosened). 
 
 50 S. W. 352 (1899). 1- See supra, §§ 795, 822, infra, 
 
 4. Long v. Travellers' Ins. Co., 113 §§ 2032, 2430. 
 
 Iowa 259, 85 N. W. 24 (1901). 2. Grant 1?. Varney, 21 Colo. 329, 
 
 1. People V. Goldsworthy, 130 Cal. 40 Pac. 771 (1895). 
 
 600, 62 Pac. 1074 (1900) (aluminum). 3. Acme Coal Co. 1>. Kusnir, 71 111. 
 
 2. McFaul v. Madera Flume, etc., App. 446 (1897) (no preventative 
 Co., 134 Cal. 313, 66 Pac. 308 (1901) against falling stones). 
 
 (wrought and cast iron) ; Caven v. 4. Monahan v. Kansas City Clay, 
 
 Bodwell Granite Co., 97 Me. 381, 54 etc., Co., 58 Mo. App. 68 (1894). 
 Atl. 851 (1903) (wood and iron). 
 
1075 Facts of Natural History. § 909 
 
 or roofed 5 or in what way the shafts and workings 6 are arranged 
 may well be the subject of testimony by experienced miners or 
 other competent witnesses. 
 
 Operation. — An equally large number of technical facts re- 
 late to the method of operating mines of different classes, 7 the 
 work of various mining machines, tools or appliances, any facts 
 as to the details of their employment, 8 or of the dangers, if any, 
 attending their use, are also within the province of a specially 
 skilled witness. Such a witness may state the particular duties 
 of persons in designated positions connected with the mine. 9 He 
 may testify, if he knows, the expense at which the various opera- 
 tions of any particular kind of mining are conducted, and what 
 mine workings, in view of this expense, are profitable. 10 
 
 § 909. (Technical or Scientific Facts); Natural History. — 
 One who has made an adequate study of the subject or has en- 
 joyed and utilized special and extended opportunities for observa- 
 tion, 1 may state to a tribunal relevant facts of special knowledge 
 relating to the characteristics or habits of men or animals. Thus, 
 a witness familiar with the facts of ethnology, or the different 
 races of men may detail the respective physical characteristics of 
 the white and negro races. 2 In the same way a naturalist or 
 other persons acquainted with the habits of fish, their ability to 
 ascend rivers or streams presenting particular obstacles 3 and what 
 conditions are favorable to their growth 4 may state them. In 
 like manner the habitat 5 and life history of animals may be 
 given ; — not only by a scientifically trained naturalist but by 
 any observer sufficiently acquainted with the facts. 
 
 5. Grant v. Varney, 21 Colo. 329, 29 Ind. App. 1, 61 N. E. 236, 94 Am. 
 40 Pae. 771 (1805). St. Rep. 259 (1901). 
 
 6. McNamara v. Logan, 100 Ala. 10. Wilson v. Harnette, (Colo. Sup. 
 187, 14 So.' 175 (1893) (safe dis- 1904) 75 Pac. 395. 
 
 tance between wall and ear). 1. Cottrill v. Myrick, 12 Me. 222 
 
 7. Ohio, etc., Torpedo Co. v. Fisli- (1835). 
 
 l.'urn, 61 Ohio St. 608, 56 N. E. 457, 2. Daniel v. Guy, 19 Ark. 121 
 
 76 Am. St. Rep. 437 (1899) (blast- (1857). 
 
 ing) ; Beaman v. Martha Washington 3. Smith v. People, 46 111. App. 130 
 
 Min. Co., 23 Utah 139, 63 Pac. 631 (1891); Cottrill v. Myrick, 12 Me. 
 
 (1900) ("skip" out of an incline 223 (1835). 
 
 shaft). 4. Lewis v. Hartford Dredging Co., 
 
 8. Diamond Block Coal Co. v. Ed- 68 Conn. 221, 35 Atl. 1127 (1896) 
 monson, 14 Ind. App. 594, 73 N. E. (seeding oysters). 
 
 342 (1895) (within what distance a 5. State v. Mcintosh, 109 Iowa 209, 
 
 dropping cage can be caught). 80 N. W. 349 (1899) (wolf). 
 
 8. Eureka Block Coal Co. v. Wells, 
 
§§ 910-912 Knowledge; Special. 1076 
 
 § 910. (Technical or Scientific Facts); Professional Facts; 
 
 Law. 1 — Legal practitioners and other persons duly qualified by 
 experience 2 may state facts of a technical nature usually known 
 to members of the legal profession. 3 Among these, is the price 
 commonly charged by attorneys or counsellors at law for desig- 
 nated services. 4 The fact stated may be one of domestic practice 
 or relate to a system of jurisprudence foreign to the forum. 5 
 
 § 911. (Technical or Scientific Facts; Professional Facts); 
 
 Medicine. 3 — Few lines of professional activity are more prolific 
 in facts of special knowledge likely to become important in ju- 
 dicial proceedings than that of medicine. A medical practitioner, 2 
 or other person 3 shown to the satisfaction of the court to have 
 adequate knowledge concerning the matter which he proposes to 
 state, 4 may testify as to facts known to the science or art of 
 medicine. 
 
 Familiar Medical Facts. — Facts entirely familiar to the aver- 
 age member of the community — as, for example, the liability 
 of horses to die suddenly 5 — do not become medical facts because 
 they concern a medical subject. They are still part of common. 
 knowledge. 6 
 
 § 912. (Technical or Scientific Facts; Professional Facts; 
 Medicine); Effect of Drugs, Poisons, etc. — The physician knows 
 not only the symptoms of disease but the operation of the drugs 1 
 
 1. See supra, § 824. 4. A physician without special ex- 
 
 3. Thompson v. Boyle, 85 Pa. St. perience on the subject is not neces- 
 477 (1877); Vilas v. Downer, 21 Vt. sarily qualified to speak as to the 
 419 (1849) ; Stanton v. Embrey, 93 effects upon the human system of in- 
 U. S. 548, 23 L. ed. 983 (1876). haling illuminating gas. Emerson v. 
 
 4. Thompson v. Boyle, 85 Pa. St. Lowell Gaslight Co., 6 Allen (Mass.) 
 477 (1877) ; Vilas v. Downer, 21 Vt. 146, 83 Am. Dec. 621 (1863). 
 
 419 ( 1849 ) ; Stanton V. Embrey, 93 5. McPherrin v. Jennings, 66 Iowa. 
 
 U. S. 548, 23 L. ed. 983 (1876). 622, 24 N. W. 242 (1885). 
 
 5. Columbia v. Cauca Co., 106 Fed. 6. The court is justified in requir- 
 es? (1901). For proof of interstate ing production of a specialist as a 
 or foreign law, see supra, §§ 894 witness if the subject is one where 
 et seq. such a witness would alone be able 
 
 1. See supra, §§ 766, 825, infra, to aid the jury. Emerson V. Lowell 
 §§ 1991, 2413. Gaslight Co., 6 Allen (Mass.) 146, 
 
 2. Thompson V. Bertrand, 23 Ark. 83 Am. Dec. 621 (1863). 
 
 730 (1861) j Hook v. Stovall, 26 Ga. 1. Indiana. — Isenhour v. State, 157 
 
 704 (1859); Siebert v. People, 143 Ind. 517, 62 N. E. 40, 87 Am. St. 
 
 111. 571, 32 N. E. 431 (1892). Rep 228 (1901) (formaldehyde). 
 
 3. State v. Moxley, 102 Mo. 374, 14 New Hampshire. — Rochester v. 
 S. W. 969, 15 S. W. 556 (1890). Chester, 3 N. H. 349 (1826). 
 
1077 Special Knowledge of Medical Witnesses. § 913 
 
 and medicines used to correct unfavorable conditions. In like 
 manner he knows the effect of poisons 2 upon men or animals. 3 
 But the operation of particular drugs upon the moral nature of 
 the person using them ; — as, for example, the relation between 
 the use of morphine and a lack of veracity, 4 is, if a fact at all, not 
 one of medical science. 8 
 
 § 913. (Technical or Scientific Facts; Professional Facts; 
 Medicine); Qualifications of Witnesses — The presiding judge will 
 receive as a witness to facts of special knowledge relating to the 
 medical profession any person who has been proved to his satisfac- 
 tion or whom he can reasonably assume to know the fact as to 
 which he proposes to testify with such fullness and accuracy as to 
 make his evidence helpful to the jury. As in other matters pre- 
 senting administrative questions regarding the adequacy of the 
 knowledge of a witness, the qualification required is only such as 
 is commensurate with the testimony which is offered. Were the 
 question asked a medical practitioner one which involved a wide 
 experience and mature judgment the court might well insist upon 
 receiving testimony of a professional witness who might be 
 assumed to possess these qualities. But certain professional facts, 
 obtainable in their entirety by reading may be equally well 
 known, or even better remembered, by a young doctor just grad- 
 uated from the medical school than by an older and more ex- 
 perienced practitioner. The presiding justice, in exercising his 
 administrative power, may reasonably, in dealing with elementary 
 
 Pennsylvania. — Mertz v. Detweiler, Kansas. — State v. Cook, 17 Kan. 
 
 8 Watts & S. 376 (1845). 392 (1877). 
 
 Washington. — State v. Robinson, Michigan. — Brown v. Marshall, 47 
 
 12 Wash. 491, 41 Pae. 884 (1895) Mich. 576, 11 N. W. 392, 41 Am. 
 
 (morphine). Rep. 728 (1882). 
 
 West Virginia. — ■ State v. Perry, 41 Missouri. — State v. Meyers, 99 Mo. 
 
 W. Va. 641, 24 S. E. 634 (1896) 107, 121, 12 S. W. 516 (1889). 
 
 (chloroform). New York.— Stephens v. People, 4 
 
 Wisconsin. — Gates v. Fliescher, 67 Park. Cr. 396 (1859) (arsenic). 
 
 Wis. 504, 30 N. W. 674 (1886). South Carolina.— State v. Green, 48 
 
 2. Colorado. — Germania L. Ins. Co. S. C. 136, 26 S. E. 234 (1896). 
 
 v. Ross-Lewin, 24 Colo. 43, 51 Pac. 3. State v. Sheets, 89~ N. C. 543 
 
 488, 65 Am. St. Rep. 215 (1897) (1883); Coyle v. Baum, 3 Okl. 695, 
 
 (cyanide of potassium). 41 Pac. 389 (1895). 
 
 Illinois. — Siebert v. People, 143 4. State v. Robinson, 12 Wash. 491, 
 
 111. 571, 32 N. E. 431 (1892) (ar- 41 Pac. 884 (1895). 
 
 senic) ; Shorb v. Webber, 89 111. App. 5. People v. Royal, 53 Cal. 62 
 
 474 (1900) (alcohol). (1878) (indecent familiarities). 
 
§ 914 Knowledge; Special. 1078 
 
 facts of special knowledge, allow any witness to testify provided 
 lie feels that he probably knows the fact in question. 
 
 Under such a rule, medical students may well be adjudged 
 competent to testify as to the simple facts of medicine which may 
 be learned from study alone; 3 and chemists, 2 toxicologists 3 and 
 others learned in subjects whose facts run into medical relations 
 are undoubtedly competent. But nurses, 4 undertakers 5 and other 
 nonscientific and nonprofessional witnesses, will, as a rule, not be 
 received merely by virtue of their occupation, though, in such 
 case, as in that of any other witness, proof of special and ade- 
 quate knowledge and experience, quoad the fact to be elicited 
 will render them competent witnesses. ISTo such assumption of 
 knowledge will be made by the court in favor of a nonprofessional 
 witness as is frequently done in case of a regularly graduated 
 physician of a certain length of practice. The difference, how- 
 ever, is merely a matter of the burden of evidence. 6 With the 
 nonprofessional witness, the burden, in the first instance, is upon 
 the party who offers him; in case of the regular practitioner the 
 burden is upon the party who objects to the admission of his evi- 
 dence. The same facts, by whomever produced to the court, are 
 decisive of the question. 
 
 § 914. (Technical or Scientific Facts; Professional Facts; 
 Medicine); State of Medical Knowledge — The witness may state 
 the meaning of medical terms, what is professionally known re- 
 garding a given subject. 1 He may testify as to how far a given 
 professional subject is fully covered by medical knowledge; 2 
 whether any bodily or mental 3 disease corresponding to certain 
 detailed symptoms is known to medical science and, if so, what 
 it is. Though the fact perhaps partakes somewhat of the nature 
 
 1. Tullis V. Kidd, 12 Ala. 648 5. Com. v. Farrell, 187 Pa. St. 408, 
 (1847); Murphy v. Murphy, 65 S. 41 Atl. 382 (1898) (assistant). 
 
 W. 165, 23 Ky. L. Rep. 1460 (1901) 6. Infra, i§ 967 efc seq. 
 
 (effect of alcoholism on the human 1. State v. Knight, 43 Me. 11 
 
 will). (1857) (blood stains); Johnson v. 
 
 2. Citizens' Gaslight, etc., Co. 17. Winston, (Neb. 1903) 94 N. W. 607. 
 O'Brien, 19 111. App. 231 (1885) 2. State v. Miller, 9 Houst. (Del.) 
 (effects of coal gas on human 564, 32 Atl. 137 (1892) (human 
 system) . blood) ; State V. White, 76 Mo. 96 
 
 3. State t\ Cook, 17 Kan. 392 (1882) (undergoing child birth while 
 (1877). standing). 
 
 4. Osborne v. Troup, 60 Conn. 485, 3. People v. Osmond, 138 N. Y. 80, 
 23 Atl. 157 (1891). 33 N. E. 739 (1893). 
 
KV79 
 
 Symptoms of Disease oe Injury. 
 
 § 915 
 
 of a conclusion, a competent witness may state the tendency and 
 trend of medical opinion on a given topic. 4 
 
 § 915. (Technical or Scientific Facts; Professional Facts; 
 Medicine); Symptoms of Bodily or Mental Disease, Injuries, etc. — 
 
 The nature 1 and customary symptoms or effects 2 of any physical 
 disease^ 3 change of condition, 4 form of injury 5 or other operative 
 
 4. Powers v. Mitchell, 77 Me. 361 
 (1885). 
 
 1. State v. Meyers, 99 Mo. 107, 121, 
 12 S. W. 516 (1889). 
 
 2. Lake Erie, etc., R. Co. v. Wills, 
 39 111. App. 649 (1890) (pain) ; 
 State v. Meyers, 99 Mo. 107, 121, 
 12 S. W. 516 (1889). 
 
 Conversely, the witness may testify 
 as to what certain medical phenom- 
 ena indicate as to disease; its cause, 
 etc., assuming the inference is a 
 necessary and unreasoned one. Louis- 
 ville, etc., R. Co. v. Falvey, 104 Ind. 
 409, 3 N. E. 389, 4 N. E. 908 (1885) ; 
 Kelly v. Erie Tel., etc., Co., 34 Minn. 
 321, 25 N. W. 706 (1885); Dilleber 
 v. Home L. Ins. Co., 87 N. Y. 79 
 (1881); State v. Wilcox, 132 N. C. 
 1120, 44 S. E. 625 (1903) (no water 
 in stomach). 
 
 3. Kentucky. — Murphy v. Murphy, 
 65 S. W. 165, 23 Ky. L. Rep. 1460 
 (1901) (alcoholism). 
 
 Maryland. — Baltimore, etc., Co. v. 
 Cassell, 66 Md. 419, 7 Atl. 805, 59 
 Am. Rep. 175 (1887). 
 
 Minnesota. — Johnson v. Northern 
 Pac. R. Co., 47 Minn. 430, 50 N. W. 
 473 (1891). 
 
 New York. — Cole v. Fall Brook 
 Coal Co., 159 N. Y. 59, 53 N. E. 
 670 (1899); Smith v. Emery, 42 N. 
 Y. Suppl. 258, 11 App Div. 10 (1896) 
 (smallpox). 
 
 "West Virginia. — Bowen v. Hunting- 
 ton, 35 W. Va. 682, 14 S. E. 217 
 (1891) (syphilis). 
 
 Canada. — Napier v. Ferguson, 18 
 N. Brunsw. 415 (1878). 
 
 4. State v. Moxley, 102 Mo. 374, 
 14 S. W. 969, 15 S. W. 556 (1890) 
 (death) ; Washburn v. National Ace. 
 
 Soc, 10 N. Y. Suppl. 366 (1890) 
 (instantaneous death) ; Lord v. 
 Beard, 79 N. C. 5 (1878) (old age). 
 The conditions attending gestation 
 may he stated as medical facts. Peo- 
 ple v. Johnson, 70 111. App. 634 
 
 (1896) ; Alsop v. Bowtrell, Cro. Jac. 
 541 (1619); Buller v. Crips, 6 Mod. 
 29 (1703). 
 
 5. California. — Healy v. Visalia, 
 etc., R. Co., 101 Cal. 585, 36 Pac. 
 125 (1894) (blow). 
 
 Illinois. — Supreme Tent K. of M. 
 of W. V. Stensland, 206 111. 124, 68 
 N. E. 1098, 99 Am. St. Rep. 137 
 (1903) (strangulation) ; Morton v. 
 Zwierzykowski, 192 111. 328, 61 N. E. 
 413 (1901). 
 
 Iowa. — Sanders v. O'Callaghan, 111 
 Iowa 574, 82 N. W. 969 (1900) (dog 
 bite) ; State v. Vincent, 24 Iowa 570, 
 95 Am. Dec. 753 (1868). 
 
 Kentucky. — Muldraughs Hill, etc., 
 Turnpike Co. v. Maupin, 1 Ky. L. 
 Rep. 404 (1870) (rupture). 
 
 New Hampshire. — State v. Green- 
 leaf, 71 N. H. 606, 54 Atl. 38 (1902) 
 (fall). 
 
 New York. — Young v. Johnson, 123 
 N. Y. 226, 25 N. E. 363 (1890) 
 (impregnation by an act of rape). 
 
 North Carolina. — State v. Morgan, 
 95 N. C. 641 (1886) (death leaving 
 no marks on body). 
 
 Pennsylvania. — Coyle v. Com., 104 
 Pa. St. 117 (1883) (self abuse). 
 
 Wisconsin. — Crites v. New Rich- 
 mond, 98 Wis. 55, 73 N. W. 322 
 
 (1897) (sprain). 
 
 Canada. — .Napier v. Ferguson, 18 
 N. Brunsw. 415 (1878). See also 
 Murray v. Salt Lake City R. Co., 16 
 Utah 356, 52 Pac. 596 (1898). 
 
§ 916 Knowledge; Special. 1080 
 
 force affecting the body or mind 6 are facts of medical knowledge. 
 It is equally open to the practitioner to state the ordinary physi- 
 cal indicia of insanity or other pathological condition of mind 7 
 and may even go so far as to state whether a particular act, 8 idea 9 
 or any physical or mental manifestation 10 is indicative of insanity, 
 in some of its types, 11 or other mental state or condition. 
 
 § 916. (Technical or Scientific Facts; Professional Facts; 
 Medicine); Treatment; Possibilities and Probabilities The 
 
 treatment established to be used under certain medical conditions 
 and the effects attendant upon its use 1 are facts within the special 
 knowledge of the medical practitioner. 
 
 Possibilities. — What possibilities as to diagnosis, 2 alleviation or 
 cure and even what possibilities are recognized among competent 
 physicians under given circumstances, are classed as facts of 
 special medical knowledge ; — always provided that these possi- 
 bilities are definitely established and generally accepted rather 
 than based upon a process of reasoning and constitute little more 
 than conjecture. There is not, under these conditions, valid ob- 
 jection to asking a medical witness whether, for example, a given 
 cause could produce a certain physical or mental effect. 3 
 
 The effect of gun shot wounds can- that a certain characteristic is rather 
 not be stated by one not skilled along a vice than evidence of mental unsound- 
 medical lines. State v. Justus, 11 ness. U. S. i-. Guiteau, 1 Mackey 
 Or. 178, 8 Pac. 337, 50 Am. Rep. 470 (D. C.) 498, 47 Am. Rep. 247 (1882). 
 (1883). 11. Williams v. State, (Fla. 1903) 
 
 6. State v. Reddick, 7 Kan. 143 34 So. 279 (delusional). 
 
 (18'71) ; Clark v. Com., 63 S. W. 740, 1. State v. Meyers, 99 Mo. 107, 121, 
 
 23 Ky. L. Rep. 1029 (1901) (abor- 12 S. W. 516 (1889); Bonart V. Lee, 
 
 tion; shock to a single as compared (Tex. Civ. App. 1898) 46 S. W. 906 
 
 •with a married woman); State v. (" medical treatment ") . 
 
 Maier, 36 W. Va. 757, 15 S. E. 991 2. Hartung v. People, 4 Park. Cr. 
 
 (1892) (love, jealousy, etc.). See (N. Y.) 319 (1859) (cause of in- 
 
 also Murphy v. Murphy, 65 S. W. flammation discovered on post mortem 
 
 165, 23 Ky. L. Rep. 1460 (1901). examination); Baldi v. Metropolitan 
 
 7. State v. Reddick, 7 Kan. 143 Ins. Co., 18 Pa. Super. Ct. 599 (1902). 
 (1871) ; State v. Meyers, 99 Mo. 107, 3. Florida. — Baker v. State, 30 
 121, 13 S. W. 516 (1889). Fla. 41, 11 So. 492 (1892). 
 
 8. Williams V. State, (Fla. 1903) Illinois. — Wabash Western R. Co. 
 34 So. 279; State v. Reddick, 7 Kan. v. Friedman, 41 111. App. 270 (1891). 
 143 (1871); State v. Meyers, 99 Mo. Massachusetts. — 'Flaherty v. Pow- 
 107, 121, 12 S. W. 516 (1889). ers, 167 Mass. 61, 44 N. E. 1074 
 
 9. People V. Goldsworthy, 130 Cal. (1896). 
 
 600, 62 Pac. 1074 (1900) (portable Missouri. — Seckinger v. Philibert, 
 
 aluminum boiler). etc., Mfg. Co., 129 Mo. 590, 31 S. 
 
 10. An alienist may properly say W. 957 (1895). 
 
1081 
 
 Facts of Surgery Mat Be Stated. 
 
 917 
 
 Probabilities. — Much the same observation applies to the mat- 
 ter of medical probability. If a definite probability is recognized 
 as a part of medical knowledge, something beyond mere guess 
 work or conjecture, the witness may state it; — otherwise, he 
 will not be permitted to do so. Whether a person suffering from 
 a given disease or injury will probably recover 4 and, if so, after 
 what interval; 5 whether, on the other hand, the results are apt 
 to be permanent, or followed 7 or attended by other bodily or 
 mental troubles, are, in many instances, perfectly fair questions 
 regarding facts of special knowledge. 
 
 § 917. (Technical or Scientific Facts; Professional Facts); 
 
 Surgery. — A surgeon shown to be properly qualified to do so 1 
 may state the technical or special facts relating to his branch of 
 the medical profession. 2 If knowledge is shown to be adequate 
 as to the subject of inquiry, it need not be required that the wit- 
 ness should have handled cases of exceptional difficulty. 3 The 
 physical effects of a given injury, 4 the proper treatment of it, .and 
 other surgical facts of a like nature, may be stated by him. A 
 
 New York. — Cole v. Fall Brook 
 Coal Co., 87 Hun (N. Y.) 584, 34 
 N. Y. Suppl. 572 (1895). 
 
 Wisconsin. — Block v. Milwaukee 
 St. R. Co., 89 Wis. 371, 61 N. W. 
 1101, 46 Am. St. Rep. 849, 27 L. R. 
 A. 365 (1895). But see also Wabash 
 Western R. Co. v. Friedman, 41 111. 
 App. 270 [reversed on other points in 
 146 111. 583, 30 N. E. 353, 34 N. E. 
 1111] (1891). 
 
 4. Jackson v. Boone, 93 Ga. 662, 
 20 S. E. 46 (1894) ; Morton v. Zwier- 
 zykowski, 192 111. 328, 61 N. E. 413 
 (1901) (uniting bones) ; Cole v. Lake 
 Shore, etc., R. Co., 95 Mich. 77, 54 
 N. W. 638 (1893). 
 
 5. Morton v. Zwierzykowski, 192 111. 
 328, 61 N. E. 413 (1901); Western 
 Union Tel. Co. V. Church, 3 Neb. 
 (Unoff.) 22, 90 N. W. 878, 57 L. R. 
 A. 905 (1902) (parturition) ; Collins 
 v. Janesville, 111 Wis. 348, 87 N. W. 
 241, 1087 (1901) (chronic inflam- 
 mation). 
 
 6. Illinois. — Girard Coal Co. v. 
 Wiggins, 52 111. App. 69 (1893). 
 
 Iowa. — Sanders v. O'Callaghan, 111 
 Iowa 574, 82 N. W. 969 (1900). 
 
 New York. — Maher v. New York 
 Cent., etc., R. Co., 46 N. Y. Suppl. 
 847, 20 App. Div. 161 (1897). 
 
 Oklahoma. — Coyle v. Baum, 3 Okl. 
 693, 41 Pac. 389 (1895). 
 
 United States. — Reed v. Pennsyl- 
 vania R. Co., 56 Fed. 184 (1893). 
 
 7. Jacksonville Southeastern R. Co. 
 V. Southworth, 32 111. App. 307 (1889) 
 (spinal disease); Lago v. Walsh, 98 
 Wis. 348, 74 N. W. 212 (1898). 
 
 1. Johnson v. Winston, (Neb. 1903) 
 94 N. W. 607; Crites v. New Rich- 
 mond, 98 Wis. 55, 73 N. W. 322 
 (1897) ; Kelly v. U. S., 27 Fed. 616 
 (1885). Infra, § 2017. 
 
 2. In states which permit it, the 
 evidence of technical facts may be 
 elicited on cross examination. Rowell 
 V. Lowell, 11 Gray (Mass.) 420 
 (1858). 
 
 3. Kelly v. U. S„ 27 Fed. 616 
 (1885). 
 
 4. Powers v. Mitchell, 77 Me. 361 
 (1885) (concussion of the spine). 
 
§ 918 
 
 Knowledge; Special. 
 
 1082 
 
 surgeon may acceptably testify as to the method in which a par- 
 ticular surgical. operation is conducted; what ligaments 5 or tissues 
 are severed in connection with it or as to what parts of the body 
 may fairly be designated as vital. 6 
 
 § 918. (Technical or Scientific Facts; Professional Facts); 
 
 Veterinary Surgery. — A competent veterinary surgeon 1 or any 
 person whom the court finds to be sufficiently qualified by 
 experience 3 regarding the diseases of animals as to be able 
 to made a relevant, i. e., probative statement regarding the 
 subject involved in the inquiry, may give facts relating 
 to veterinary science. Personal and practical experience is 
 the satisfactory qualification as a witness. Nothing quite 
 takes its place. Reading on the subject, 3 listening to the evi- 
 dence of experienced witnesses* or observing the methods of 
 treating disease employed by those learned on a given veterinary 
 subject, 6 even editing a journal devoted to the interests of stock 
 raising, 6 are not necessarily adequate qualifications for a witness. 
 He may testify as to the effects of a given disease 7 or injury 8 upon 
 animals and may depose as to the operation of drugs or poisons 9 
 upon the system. 
 
 5. Johnson l>. Winston, (Neb. 1903) 
 94 N. W. 607. 
 
 6. Sebastian v. State, 41 Tex. Cr. 
 848, 53 S. W. 875 (1899). 
 
 1. Grayson v. Lynch, 163 U. S. 468, 
 16 S. Ct. 1064, 41 L. ed. 230 (1896). 
 
 2. Pearson V, Zehr, 138 111. 48, 29 
 N. E. 854, 32 Am. St. Rep. 113 
 (1891); Johnson v. Moffett, 19 Mo. 
 App. 159 (1885); Nations v. Love, 
 (Tex. Civ. App. 1894) 26 S. W. 232. 
 
 A physician, though he has never 
 acted as a veterinary surgeon regard- 
 ing it may state the symptons of a 
 given disease. State v. Sheets, 89 
 N. C. 543 (1883). Qualifications may 
 be prescribed by statute. McCann v. 
 Ullman, 109 Wis. 574, 85 N. W. 493 
 (1901). 
 
 Cross examination may bring out 
 such facts. — In jurisdictions which 
 permit a party to prove his own case 
 upon cross examination of his op- 
 ponent's witnesses, it is error to re- 
 ject a question calculated to bring 
 into evidence a relevant fact of this 
 
 nature from a competent witness. See 
 Witnesses. Titus v. Gage, 70 Vt. 
 13, 39 Atl. 246 (1896). 
 
 3. Missouri Pac. R. Co. v. Finley, 
 38 Kan. 550, 16 Pac. 951 (1888); 
 Rouse v. Youard, 1 Kan. App. 270, 
 41 Pac. 426 (1895). 
 
 4. Missouri Pac. R. Co. v. Finley, 
 38 Kan. 550, 16 Pac. 951 (1888). 
 
 5. Eouse v. Youard, 1 Kan. App. 
 270, 41 Pac. 426 (1895). 
 
 6. Dole v. Johnson, 50 N. H. 452 
 (1870). 
 
 7. Pearson v. Zehr, 138 111. 48, 29 
 N. E. 854, 32 Am. St. Rep. 113 
 
 (1891); Johnson v. Moffett, 19 Mo. 
 App. 159 (1885) ; Nations V. Love, 
 
 (Tex. Civ. App. 1894) 26 S. W. 232; 
 Grayson v. Lynch, 163 U. S. 468, 10 
 S. Ct. 1064, 41 L. ed. 230 (1896) 
 
 (" Texas fever"). 
 
 8. State v. Sheets, 89 N. C. 543 
 (1883). 
 
 9. State v. Sheets, 89 N. C. 543 
 (1883). 
 
1083 Duties of Railkoad Employees. §§ 919, 920 
 
 § 919. (Technical or Scientific Facts); Railroad Facts. 1 — 
 The great prominence of the railroad in the social and industrial 
 life of the modern community and in the practical work of the 
 courts not only make a number of facts relating to such a carrier 
 matters of common or judicial knowledge 2 but constantly call for 
 proof of cognate facts more or less technical in their nature, as to 
 which special knowledge is required. Facts of the latter class may 
 be furnished by those who are found by the court to have had ade- 
 quate technical training or practical experience in regard to the 
 fact in question. 3 A person not in the railroad business may state 
 a fact relating to railroad matters ; — provided it be shown that 
 he knows it, 4 and not merely that he has had sufficient opportuni- 
 ties for observation to enable bim to ascertain it. 5 The experience 
 must be commensurato with the question; consequently, in view 
 of the highly specialized character of the modern railroad organi- 
 zation, the witness must, as a rule, except in case of very general 
 matters, be connected with the particular department to which the 
 inquiry relates ; — though it is by no means necessary that the 
 qualifying experience should have been acquired on the railroad 
 concerning which a query is made. 8 
 
 § 920. (Technical or Scientific Facts; Railroad Facts); 
 
 Duties of Officers or Employees. — Any experienced railroad man 
 may state the ordinary established duties of the officials or con- 
 ductors, engineers, 1 brakemen 2 or other employees 3 with whose 
 work he is familiar. 
 
 1. Supra, §§ 796, 826, infra, 2035 15 Ky. L. Eep. 815 (1894); Detroit, 
 e t seq., 2435 et seq. etc., R. Co. V. Van Steinburg, 17 Mich. 
 
 2. Supra, §§ 691 et seq., 826. 99 (1868) (mail clerk) ; Robertson v. 
 Skilled witnesses are not required Wabash, etc., R. Co., 84 Mo. 119 
 
 to state such facts. — For example, (1884). 
 
 the community knows how a cattle 5. Manhattan, etc., R. Co. v. Stew- 
 
 puard should be constructed. New art, 30 Kan. 226, 3 Pac. 151 (1883); 
 
 York, etc., R. Co. v. Zumbaugh, 12 Mammerberg v. Metropolitan St. R. 
 
 Ind. App. 272, 39 N. E. 1058 (1894) ; Co., 62 Mo. App. 563 (1895). 
 
 Swartout v. New York Cent., etc., R. 6. Conway v. Fitzgerald, 70 Vt. 
 
 Co., 7 Hun (N. Y.) 571 (1876). 103, 39 Atl. 634 (1897). 
 
 3. Qualifications must be affirma- 1. Galveston, etc., R. Co. v. Brown, 
 tivcly shown. Unless this is done, (Tex. Civ. App. 1900) 59 S. W. 930. 
 the witness may be rejected. Born v. 2. Alabama. — Culver v. Alabama 
 Philadelphia, etc., R. Co., 198 Pa. St. Midland R. Co., 108 Ala. 330, 18 So. 
 4 09, 48 Atl. 263 (1901). 827 (1895) (proper position). 
 
 4. Missouri Pac. R. Co. v. Mackey, Iowa. — Quinlan v. Chicago, etc., R. 
 33 Kan. 298, 6 Pac. 291 (1885); Co., 113 Iowa 89, 84 N. W. 960 
 Chesapeake, etc., R. Co. v. Stephens, (1901). 
 
§ 921 
 
 Knowledge; Special. 
 
 1084 
 
 § 921. (Technical or Scientific Facts; Railroad Facts); 
 
 Operation. — A large number of experienced persons are, as a rule, 
 qualified to speak as to facts of operation. Such a witness is com- 
 petent to testify as to how acts in the line of duty such as stopping 
 trains, 1 coupling cars 2 and the like 3 are customarily 4 and suitably 5 
 performed. In the same way, the witness may properly state what 
 consequences usually attend a particular combination of circum- 
 stances; 6 whether any particular act is safe 7 or dangerous 8 and 
 
 Ohio. — Cincinnati, etc., R. Co. v. 
 Smith, 22 Ohio St. 227, 10 Am. Rep. 
 T29 (1871). 
 
 South Carolina. — Price v. Richmond 
 etc., R. Co., 38 S. C. 199, 17 S. E. 
 732 (1892). 
 
 Texas. — Missouri, etc., R. Co. v. 
 Baker, (Civ. App. 1900) 58 S. W. 
 964. 
 
 3. Alabama. — Schlaff v. Louisville, 
 etc., R. Co., 100 Ala. 377, 14 So. 
 105 (1893). 
 
 Illinois. — Louisville, etc., R. Co. v. 
 Illinois Cent. R. Co., 174 111. 448, 51 
 N. E. 824 (1898) (signals and switch- 
 men). 
 
 Kansas. — Missouri Pac. R. Co. v. 
 Mackey, 33 Kan. 298, 6 Pac. 291 
 (1885) (fireman). 
 
 Nebraska. — Missouri Pac. R. Co. 
 v. Pox, 60 Neb. 531, 83 N. W. 744 
 (1900). 
 
 South Carolina. — Price v. Rich- 
 mond, etc., R. Co., 38 S. C. 199, 17 
 S. E. 732 (1892). 
 
 1. Birmingham, etc., Ry. Co. v. 
 Harris, 98 Ala. 326, 13 So. 377 
 (1893). 
 
 2. Kerns v. Chicago, etc., R. Co., 
 94 Iowa 121, 62 N. W. 692 (1895) 
 (pilot bar) ; Price V. Richmond, etc., 
 R. Co., 38 S. C. 199, 17 S. E. 732 
 (1892) (make up train); Mexican 
 R. Co. v. King, 14 Tex. Civ. App. 
 290, 37 S. W. 34 (1896). 
 
 3. Walker v. Lake Shore, etc., R. 
 Co., 104 Mich. 606, 62 N. W. 1032 
 (1895) (using lantern) ; Louisville, 
 etc., R. Co. v. Reagan, 96 Tenn. 128, 
 33 S. W. 105 (1895) (uncoupling). 
 
 4. Miller v. Illinois Cent. R. Co., 
 89 Iowa 567, 57 N. W. 418 (1894). 
 
 5. Alabama. — Birmingham Mineral 
 R. Co. v. Harris, 98 Ala. 326, 13 So. 
 377 (1893). 
 
 Iowa. — Kerns v. Chicago, etc., R. 
 Co., 94 Iowa 121, 62 N. W. 693 
 (1895). 
 
 Michigan. — Walker v. Lake Shore, 
 etc., R. Co., 104 Mich. 606, 62 N. W. 
 1032 (1895). 
 
 Pennsylvania. — Lewis v. Seif ert, 
 116 Pa. St. 628, 11 Atl. 514, 2 Am. 
 St. Rep. 631 (1887). 
 
 South Carolina. — Price V. Rich- 
 mond, etc., R. Co., 38 S. C. 199, 17 
 S. E. 732 (1892). 
 
 Tennessee. — Louisville, etc., R. Co. 
 l'. Reagan, 96 Tenn. 128, 33 S. W. 
 1050 (1895). 
 
 Texas. — Houston, etc., R. Co. v. 
 Cowser, 57 Tex. 293 (1882). 
 
 Utah. — Wright v. Southern Pac. 
 Co., 15 Utah 421, 49 Pac. 309 (1897). 
 
 6. Louisville, etc., R Co. v. Binion, 
 107 Ala. 645, 18 So. 75 (1894) (stuck 
 brake ) . 
 
 7. Alabama. — Mobile, etc., R. Co. 
 17. George, 94 Ala. 199, 10 So. 145 
 (1891). 
 
 Indiana. — New York, etc., R. Co. v. 
 Grand Rapids, etc., R. Co., 116 Ind. 
 60, 18 N. E. 182 (1888). 
 
 Kentucky. — Louisville, etc., R. Co. 
 -V. Scott, 108 Ky. 392, 56 S. W. 674, 
 22 Ky. L. Rep. 30, 50 L. R. A. 381 
 (1900). 
 
 New York. — Flanagan v. New 
 York, etc., R. Co., 83 Hun 522, 32 
 N. Y. Suppl. 84 (1895). 
 
 Texas. — Galveston, etc., R. Co. ». 
 Ford, 22 Tex. Civ. App. 131, 54 S. 
 W. 37 (1899). 
 
 8. Schlaff v. Louisville, etc., R. Co., 
 
1085 Facts op Freight Transportation. §§ 922, 923 
 
 which of two methods of performing the same railroad operation, 
 is the safer way of doing it. 9 What physical qualifications are re- 
 quired in order to perform the duties of a given position 1 * is 
 equally a matter of special knowledge. 
 
 § 922. (Technical or Scientific Facts; Railroad Facts; 
 Operation) ; Freight Transportation. — Those whose experience has 
 been with freight transportation 1 may give the regular and special 
 freight rates, 2 the capacity of foreign cars 3 and other facts relating 
 to his branch of the business. 
 
 Shipping Goods.— An experienced witness may, in the same 
 way, declare what are the terms or customary methods of ship- 
 ment of merchandise by rail and within what class, as that of 
 " C. 0. D." * the facts of a given shipment place it. He will be 
 permitted to give his opinion as to what constitutes a proper 
 covering for merchandise 5 and what are the duties of the carrier 
 under a given set of circumstances ; — as where stock in transit 
 is suffering from heat. 8 Such a witness may further declare 
 under what circumstances it would be proper to do a specific thing 
 — e. g., put up partitions for cattle. 7 
 
 § 923. (Technical or Scientific Facts; Railroad Facts; 
 Operation) ; Minor Facts. — The multitudinous details of running 
 a passenger or other train 1 may any of them become of importance 
 and received by the court when detailed by a witness of sufficient 
 special knowledge. 
 
 100 Ala. 377, 14 So. 105 (1893); 4. Davidson V. State, (Tex. Cr. App. 
 
 Mobile, etc., R. Co. v. George, 94 1903) 73 S. W. 808. 
 
 Ala. 199, 10 So. 145 (1891) ; Louis- 5. Schwinger V. Raymond, 105 N. 
 
 ville, etc., R. Co. v. Frawley, 110 Ind. Y. 648, 11 N. E. 952 (1887). 
 
 18, 9 N. E. 594 (1886). 6. Lindsley v. Chicago, etc., R. Co., 
 
 0. Schlaff v. Louisville, etc., R. Co., 36 Minn. 539, 33 N. W. Y, 1 Am. St. 
 100 Ala. 377, 14 So. 105 (1893); Rep. 693 (1887). 
 
 Mobile, etc., R. Co. v. George, 94 Ala. 7. Louisville, etc., R. Co. v. Land- 
 
 199, 10 So. 145 (1891). crs, 135 Ala. 504, 33 So. 482 (1902). 
 
 10. Richmond, etc., R. Co. v. Green- 1. Prosser v. Montara Cent. R. Co., 
 
 wood, 99 Ala. 501, 14 So. 495 (1892) 17 Mont. 372, 43 Pac. 81, 30 L. R. A. 
 
 (one armed brakeman). 814 (1895) ; Galveston, etc., R. Co. v. 
 
 1. Price v. Richmond, etc., R. Co., Robinett, (Tex. Civ. App. 1899) 54 
 
 38 S. C. 199, 17 S. E. 732 (1892). S. W. 263 (train orders) ; Smith v. 
 
 2. Vicksburg, etc., R. Co. v. Stock- Canada Pac. R. Co., 34 Nova Scotia 
 in*, (Miss. 1892) 13 So. 469. 22 (1901) (train motion). 
 
 3. Conway v. Fitzgerald, 70 Vt. 103, 
 
 39 Atl. 634 (1897) (lumber). 
 
j§ 924, 925 
 
 Knowledge; Special. 
 
 1086 
 
 § 924. (Technical or Scientific Facts; Railroad Facts; 
 Operation) ; Passenger Transportation. — Engineers, 1 firemen, con- 
 ductors, brakemen or other persons engaged in the operation of 
 trains may state their special knowledge relating to passenger 
 transportation, — as the effect upon the comfort of the passengers 
 of certain acts, 2 methods of running a train, or other incidents of 
 travel. 3 
 
 § 925. (Technical or Scientific Facts; Railroad Facts; 
 Operation) ; Possibilities and Probabilities. — A definite and deter- 
 mined possibility is not so much a matter of estimate or conjecture 
 as of fact. A competent witness 1 may state railroads facts of this 
 nature ; — as within what distance it is possible to stop a train 
 going with a given momentum; 2 how far a certain object can be 
 seen 3 or whether other given railroad acts can be done. So of doing 
 many other acts, 4 or whether certain events could have occurred. 6 
 These may be questions purely of fact; — most readily proved in 
 
 3. Chicago, etc., R. Co. 17. Kreig, 
 22 Ind. App. 393, 53 N. E. 1033 (1899) 
 (spark). 
 
 4. Iowa. — Whitsett v. Chicago, etc., 
 R. Co., 67 Iowa 150, 25 N. W. 104 
 (1885). 
 
 Minnesota. — Kolsti v. Minneapolis, 
 etc., R. Co., 32 Minn. 133, 19 N. W. 
 655 (1884). 
 
 New York. — Frace v. New York, 
 etc., R. Co., 68 Hun 325, 22 N. Y. 
 Suppl. 958 (1893). 
 
 Ohio. — • Bellefontaine, etc., R. Co. 
 %. Bailey, 11 Ohio St. 333 (1860) 
 (prevent accident), 
 
 Vermont. — Conway v. Fitzgerald, 70 
 Vt. 103, 39 Atl. 634 (1897). 
 
 United States. — Union Pac. R. Co. 
 v. Novak, 61 Fed. 573, 9 C. C. A. 629 
 (1894). 
 
 5. Davidson v. St. Paul, etc., R. Co., 
 34 Minn. 51, 24 N. W. 324 (1885) 
 (throw sparks) ; Jamieson v. New 
 York, etc., R. Co., 162 N. Y. 630, 57 
 N. E. 1113 (1900) (spark arrester 
 door open) ; Frace v. New York etc,, 
 R. Co., 68 Hun (N. Y.) 325, 12 N. 
 Y. Suppl. 958 (1893) (throw large 
 sparks). 
 
 1. Union Pac. R. Co. v. Novak, 61 
 Fed. 573, 9 C. C. A. 629 (1894). 
 
 2. Louisville, etc., R. Co. v. Banks, 
 132 Ala. 471, 31 So. 573 (1901); 
 Louisville, etc., R. Co. v. Binion, 107 
 Ala. 645, 18 So. 75 (1894). 
 
 3. Louisville, etc., R. Co. v. Mother- 
 shed, 97 Ala. 261, 12 So. 714 (1893) 
 (running over misplaced switch). 
 
 1. It is not sufficient to he in the 
 railroad business. A section man, as 
 such, would be incompetent. Igo v. 
 Chicago, etc., R. Co., 38 Mo. App. 
 377 (1889). 
 
 2. Alabama. — Alabama Great South- 
 ern R. Co. v. Linn, 103 Ala. 134, 15 
 So. 503 (1893). 
 
 Iowa. — Grimmell v. Chicago, etc., 
 R. Co., 73 Iowa 93, 34 N. W. 758 
 (1887). 
 
 Michigan. — Detroit, etc., R. Co. v. 
 Van Steinburg, 17 Mich. 99 (1868). 
 
 Missouri. — Eckert V. St. Louis, etc., 
 R. Co., 13.MO. App. 352 (1883). 
 
 New York. — Mott v. Hudson River 
 R. Co., 8 Bosw. 345 (1861). 
 
 North Carolina. — Cox v. Norfolk, 
 etc., R. Co., 126 N. C. 103, 35 S. E. 
 237 (1900). 
 
 United States. — Union Pac. R. Co. 
 c. Novak, 61 Fed. 573, 9 C. C. A. 629 
 (1894). 
 
1087 KoADBED AND EaILEOAD EQUIPMENT. § 92 6 
 
 this way, unless the question is one covered by the common knowl- 
 edge of the jury. 6 In many, if not most instances, however, the 
 element of reasoning enters in larger measure, and the witness is 
 asked to state his conclusion if he has seen the constituting phe- 
 nomena and his judgment if he has not. 
 
 Probabilities. — A definite probability as to railroad matters, 
 e. g., whether a man struck by a locomotive while standing or walk- 
 ing upon a railroad track would probably be thrown aside or run 
 over, 7 may also be a question of fact to be covered by the evidence 
 of specially skilled witnesses. 
 
 § 926. (Technical or Scientific Facts; Railroad Facts); 
 
 Roadbed and Equipment. — Accordingly, one familiar with the road- 
 bed department 1 may state how a highway crossing is planked 2 
 and other facts 3 concerning his special field. 
 
 Equipment. — One experienced in the equipment department or 
 who is familiar with the mechanical devices commonly employed 
 may testify as to facts concerning the apparatus used in drawing 4 
 or stopping 5 trains ; the general function and operation of specific 
 railroad appliances; 6 the relative value of different devices for at- 
 taining the same mechanical results 7 and similar facts, e. g., 
 regarding the rolling stock. 8 
 
 6. Bailey v. Rome, etc., R. Co., 55 107 Ala. 645, 18 So. 75 (1894) 
 Hun (N. Y.) 509, 8 N. Y. Suppl. 780 (brake) ; Price v. Richmond, etc., R. 
 (1890) (displace a brake-rod without Co., 38 S. C. 199, 17 S. E. 732 (1892). 
 removing the pin ) . 6. McDonald v. Michigan Cent. R. 
 
 7. Gulf, etc., R. Co. v. Matthews, Co., 108 Mich. 7, 65 N. W. 597 (1895) 
 88 Tex. Civ. App. 92, 66 S. W. 588, (push bar) ; Carley v. New York, etc., 
 67 S. W. 788 (1902). R. Co., 1 N. Y. Suppl. 63 (1888) 
 
 1. Kerns v. Chicago, etc., R. Co., (spark arrester). 
 
 94 Iowa 121, 62 N. W. 692 (1895) ; 7. Galveston, etc., R. Co. v. Hughes, 
 
 Walker v. Lake Shore, etc., R. Co., 22 Tex. Civ. App. 134, 54 S. W. 264 
 
 104 Mich. 606, 62 N. W. 1032 (1895) (1899) (switches), 
 
 (roadmaster) . 8. Nebraska. — Missouri Pac. R. Co. 
 
 2. Kelly v. Southern Minnesota R. V. Fox, 60 Neb. 531, 83 N. W. 744 
 Co., 28 Minn. 98, 9 N. W. 588 (1881). (1900). 
 
 3. State v. Toledo R., etc., Co., 24 New York. — Peck v. New York 
 Ohio Cir. Ct. 321 (1903) (sidetrack); Cent., etc., R. Co., 165 N. Y. 347, 
 Ft. Worth, etc., R. Co. v. Wilson, 3 59 N. E. 206 (1901). 
 
 Tex. Civ. App. 583, 24 S. W. 686 Ohio.— Pittsburg, etc., R. Co. v. 
 
 (1893) (good construction). Sheppard, 56 Ohio St. 68, 46 N. E. 
 
 4. Baltimore, etc., R. Co. v. Elliott, 61, 60 Am. St. Rep. 732 (1897). 
 
 9 App. Cas. (D. C.) 341 (1896) Texas.— Missouri, etc., R. Co. v. 
 
 (draw head) ; McDonald v. Michigan St. Clair, 21 Tex. Civ. App. 345, 51 
 
 Cent. R. Co., 108 Mich. 7, 65 N. W. S. W. 666 (1899). 
 
 597 (3895) (cross-bar). Wisconsin. — Paulson v. State, 118 
 
 5. Louisville, etc., R. Co. v. Binion, Wis. 89, 94 N. W. 771 (1903). 
 
§ 927 
 
 Knowledge; Special. 
 
 1088 
 
 § 927. (Technical or Scientific Facts); Street Kailway 
 Matters. 1 — Facts relating to the construction, equipment and oper- 
 ation of street railways which are of special rather than common 
 knowledge ; — e. g., the value of certain mechanical appliances for 
 railway purposes, 2 are numerous. Any witness shown to possess an 
 adequate familiarity with the subject-matter of the inquiry gained 
 from observation 3 and the intelligent possession of the requisite 
 data with which to utilize it 4 may testify from his special 
 knowledge; any other witness will be rejected. 3 The requirement 
 that the knowledge must be shown to be commensurate with the 
 information to be imparted is a persistent one, and applies also in 
 this connection. 6 Where the experiences are similar 7 or analogous 8 
 training on a steam railroad may qualify a witness to testify re- 
 garding street railway matters and vice versa. The higher 
 officials of the street railway company may give to the court facts 
 relating to the general management. 9 On the other hand, specific 
 facts concerning the details of operating cars may be stated by the 
 conductors, 10 motormen 11 or drivers 12 within whose immediate 
 province these details are and who, by consequence, are familiar 
 with them. 
 
 Co., 1 Marv. (Del.) 199, 40 Atl. 945 
 (1893) (using sand). 
 
 8. Atlanta R., etc., Co. v. Monk, 
 118 Ga. 449, 45 S. E. 494 (1903) 
 ( speed as affected by curves ) . 
 
 9. Laufer V. Bridgeport Traction 
 Co., 68 Conn. 475, 37 Atl. 379, 37 
 L. R. A. 533 (1897) (president). 
 
 10. Watson v. Minneapolis St. R. 
 Co., 53 Minn. 551, 55 N. W. 742 
 ( 1893 ) ; Mammerberg v. Metropolitan 
 St. R. Co., 62 Mo. App. 563 (1895). 
 See also Blonde] v. St. Paul City R. 
 Co., 66 Minn. 284, 68 N. W. 1079 
 (1896). 
 
 11. Tholen v. Brooklyn City R. 
 Co., 10 Misc. (N. Y.) 283, 30 N. Y. 
 Suppl. 1081 (1894); Traver v. Spok- 
 ane St. R. Co., 25 Wash. 225, 65 Pac. 
 284 (1901). 
 
 12. Chicago City R. Co. v. Mc- 
 Laughlin, 146 111. 353, 34 N. E. 796 
 (1893) ; Czezewzka v. Benton-Belle- 
 fontaine R. Co., 181 Mo. 201, 25 S. 
 W. 911 (1894). 
 
 1. Supra, §§ 835 et seq., infra, 
 §§ 2041, 2447. 
 
 2. North Kankakee St. Ry. Co. v. 
 Blatchford, 81 111. App. 609 (1898) 
 (use of fenders) ; Ashtabula Rapid 
 Transit Co. v. Dagenbach, 11 Ohio 
 Cir. Dec. 307 (1900) (life guards). 
 
 3. Chicago City R. Co. v. McLaugh- 
 lin, 146 111. 353, 34 N. E. 796 (1893). 
 
 4. Geist r. Detroit City R. Co., 91 
 Mich. 446, 51 N. W. 1112 (1892); 
 Hoffman ». Metropolitan St. R. Co., 
 51 Mo. App. 273 (1892). 
 
 5. North Kankakee St. R. Co. v. 
 Blatchford, 81 111. App. 609 (1898) ; 
 Barry f. Second Ave. R. Co., 1 Misc. 
 (N. Y.) 502, 20 N. Y. Suppl. 871 
 (1892). If the court should receive 
 the statement of an inexperienced wit- 
 ness it would not support a verdict. 
 Mulligan v. Third Ave R. Co., 70 N. 
 Y. Suppl. 530, 61 App. Div. 214 
 (1901). 
 
 6. Traver v. Spokane St. R. Co., 25 
 Wash. 225, 65 Pac. 284 (1901). 
 
 7. Maxwell v. Wilmington City R. 
 
1089 
 
 Possibilities o~x Steeet Railways. §§ 928, 929 
 
 § 928. (Technical or Scientific Facts; Street Railway Mat' 
 ters) ; Duties of Officers or Employees. — Such employees may tes- 
 tify as to the proper station 1 and other duties of those engaged in 
 this line of work. 
 
 § 929. (Technical or Scientific Facts; Street Railway Mat- 
 ters); Operation; Possibilities. — Definite possibilities established 
 in the operation of street railways; — as, for example, within 
 what distance it would be possible to stop a car of a given weight 
 going at a certain speed, 1 or as to the practical possibility of 
 doing other acts in connection with the conduct of the business 2 
 are matters of special knowledge which may be stated by a wit- 
 ness skilled in such matters. 
 
 1. Czezewzka v. Benton-Bellefon- 
 taine R. Co., 121 Mo. 201, 25 S. W. 
 911 (1894). 
 
 1. California. — • Howland r. Oakland 
 Consol. St. R. Co., 110 Cal. 513, 42 
 Pac. 983 (1895). 
 
 Delaware. — Maxwell v. Wilmington 
 City R. Co., 1 Marv. 199, 40 Atl. 945 
 (1893). 
 
 Illinois. — Chicago City R. v. Mc- 
 Laughlin, 146 111. 353, 34 N. E. 796 
 (1893). 
 
 Minnesota. — Watson v. Minneapolis 
 St. R. Co., 53 Minn. 551, 55 N. W. 
 742 (1893). 
 
 Missouri. — Mammerberg v. Metro- 
 politan St. R. Co., 62 Mo. App. 563 
 (1895). 
 
 Yol. I. 69 
 
 New York. — O'Neill v. Dry Dock, 
 etc., R. Co., 59 N. Y. Super. Ct. 123, 
 15 N. Y. Suppl. 84 [affirmed in 129 
 N. Y. 125, 29 N. E. 84, 26 Am. St. 
 Rep. 512] (1891). 
 
 Washington. — Traver v. Spokane St. 
 R. Co., 25 Wash. 225, 65 Pac. 284 
 (1901). 
 
 2. Chicago City R. Co. v. McLaugh- 
 lin, 146 111. 353, 34 N. E. 796 (1893); 
 Geist v. Detroit City R. Co., 91 Mich. 
 446, 51 N. W. 1112 (1892); Watson 
 v. Minneapolis St. R. Co., 53 Minn. 
 551, 55 N. W. 742 (1893) ; Mammer- 
 berg v. Metropolitan St. R. Co., 62 
 Mo. App. 563 (1895).